STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) Case No. 97-0174

)

1. SCOTT STOUTAMIRE, )

   )

   Respondent. )

   )

   
   

   RECOMMENDED ORDER

   
   

   On April 22, 1997, a hearing was held, pursuant to notice, in Tallahassee, Florida, by Stephen F. Dean, assigned Administrative Law Judge of the Division of Administrative Hearings

   APPEARANCES

   
   

   For Petitioner: Charles T. Gardner, Esquire

   Department of Transportation 605 Suwannee Street

   Tallahassee, Florida 32399-0458

   
   

   For Respondent: Olin Scott Stoutamire, pro se

   63 Graham Trail Crawfordville, Florida 32327

   
   

   STATEMENT OF THE ISSUE

   
   

   Whether Olin Scott Stoutamire is required to repay monies paid to Olin Scott Stoutamire as salary, which is alleged by the Department of Transportation (DOT) to be excess salary.

   PRELIMINARY STATEMENT

   
   

   The Department notified Olin Scott Stoutamire that he was getting a 5 percent pay raise for performance of additional

   duties. When Stoutamire received his first check in which the additional pay was included, the increase was actually 12 percent. Stoutamire asked his supervisor about it, and asked the supervisor to check to see if the amount paid was correct.

   Stoutamire specifically mentioned he did not want to be overpaid and then have to repay the money. He was advised by his supervisor that he had checked, and his pay was correct.

   Subsequently, it was determined by DOT personnel that Stoutamire had been overpaid by $80 each pay period due to a clerical mistake. The Department initiated action pursuant to Rule 60L-8, Florida Administrative Code, to recoup the overpayment.

   FINDINGS OF FACT

   
   

   1. Petitioner is an agency of state government.

      
      

   2. The Respondent is a career service employee of the Petitioner, and is employed at a site located away from the Petitioner's District Office in Chipley, Florida.

   3. The Respondent is the Project Manager of the Petitioner's Thomasville Road and Interstate 10 Intersection Improvement Project in Tallahassee, Florida.

   4. The Respondent is paid less than other Petitioner's Construction Project Managers because the Respondent has less tenure.

   5. The Respondent's supervisor told Respondent that he would try to correct what appeared to be a salary inequity.

   6. The Petitioner initiated a raise for Respondent equal to

      
      

      5 percent of the Respondent's base rate of pay.

      
      

   7. The proposed 5 percent salary increase was initiated by his supervisor completing and submitting an "Employee Action" form. The form provides the employee's identification, position, and includes the employee's current base pay rate and the calculated pay rate after the proposed increase becomes effective.

   8. The Respondent's base rate of pay and the resulting calculations as to the proposed resulting pay increase were incorrect on the Employee Action form submitted to the Petitioner's Personnel Office (Personnel) in Chipley, Florida. Personnel detected the supervisor's error, but then committed its own error, resulting in an $80 bi-weekly overpayment.

   9. The Respondent noticed the apparent overpayment and inquired of his supervisor if there had been a mistake. Respondent told his supervisor that he did not want the State to seek reimbursement for a large amount at a later date.

   10. The Respondent's supervisor told Respondent that the payment was correct and to accept it. The Respondent asked him to check and be certain because he did not want to have to repay the money.

   11. A short time later, the Respondent's supervisor told Respondent to accept the total amount of the warrant as being correct. His supervisor mentioned other pay increases for which

       the Respondent was being considered during the same time that the

       
       

       5 percent pay increase was being processed. The Respondent thought that his supervisor had checked with personnel, and that his pay was correct.

   12. The Petitioner did not become aware of the error until an overpayment of $1,200 had accumulated. The Petitioner's Office of Financial Services requested reimbursement in the amount of $771.15 as payment in full within ten days or a payment of $117.00 biweekly pursuant to Sections 110.205(2) and 216.251, Florida Statutes and Chapter 60L-8, Florida Administrative Code. The Respondent's salary was immediately adjusted to show the correct amount.

   13. The Respondent contends he did his best to determine if he was being overpaid and was assured the payment was correct. The Respondent changed his budget and spent the money in reliance upon the assurance that the payment to him was correct.

   14. The Respondent concedes that Petitioner's records reflect an error and an overpayment. However, the Respondent does not believe he should have to repay the money immediately or in amounts greater than he received the overpayment.

       CONCLUSIONS OF LAW

       
       

   15. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this case pursuant to Section 120.57, Florida Statutes.

   16. Rule 60L-8.004(2), Florida Administrative Code,

       provides:

       
       

       When an employee receives an overpayment, the exact amount of the overpayment shall be reclaimed from the employee, or former employee, in the event the employee has terminated from state government, in accordance with the provisions of these rules and the law and rule referred to in Section 60L-8.005(3).

       
       

   17. Rule 60L-8.005(2), Florida Administrative Code, provides the procedures when an overpayment occurs. Subparagraph (2)(b) of Rule 60L-8.005, Florida Administrative Code, provides that the agency head shall take the following action:

       "Make arrangements with the employee to reclaim the amount of overpayment."

       
       

   18. The Respondent has indicated a willingness to repay the amount owed at a rate of $5 per pay period until it is paid off.

   19. While the amount Respondent has offered to pay is minimal, it does reflect his acknowledgment of the debt and his willingness to pay it.

   20. Given the Respondent's efforts to avoid being overpaid and the assurances by responsible individuals that he was not being overpaid, the Petitioner and the State should show forbearance is seeking repayment and accommodate the Respondent if at all possible. As a last resort, the Petitioner would have to refer the case to the Department of Banking and Finance to recover the money.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that:

1. Respondent repay $40 per pay period to the Department beginning on the effective date of the next annual pay raise and continuing each month thereafter until the overpayment is repaid.

2. The Department refer the case to the Department of Banking and Finance if an agreement cannot be reached.

DONE AND ENTERED this 9th day of July, 1997, in Tallahassee, Leon County, Florida.

COPIES FURNISHED:

Ben G. Watts, Secretary Department of Transportation Haydon Burns Building

605 Suwannee Street

STEPHEN F. DEAN

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1997.

Tallahassee, Florida 32399-0450

Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450

Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 34399-0458

Olin Scott Stoutamire

63 Graham Trail Crawfordville, Florida 32327

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 97-000174

Orders for Case No: 97-000174