STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STEPHEN C. METZLER, )

)

Petitioner, )

)

vs. ) Case No. 99-4875

)

DEPARTMENT OF HEALTH, )

)

Respondent. )

)

RECOMMENDED ORDER

A video hearing was held pursuant to notice, on May 10, 2000, by Stephen F. Dean, assigned Administrative Law Judge of the Division of Administrative Hearings, between the locations of Pensacola and Tallahassee, Florida.

APPEARANCES

For Petitioner: Stephen C. Metzler, pro se

4048 Charles Circle

Pace, Florida 32571

For Respondent: Rodney M. Johnson, Esquire

Department of Health

1295 West Fairfield Drive Pensacola, Florida 32501

STATEMENT OF THE ISSUE

The issue to be resolved is whether Petitioner received more than one increase in pay in any twelve-month period for the category of added duties and responsibilities, Rule 60K-2.006, Florida Administrative Code.

PRELIMINARY STATEMENT

This case arose when Respondent advised Petitioner of its demand to repay $1,010.80, alleged to have overpaid to Petitioner by Respondent because of a limitation on the number of raises an employee could have in a consecutive twelve-month period. Petitioner requested a formal hearing, and the matter was forwarded to the Division of Administrative Hearings.

A video hearing was held pursuant to notice. Petitioner testified in his own behalf and called Robert Merritt and Robert DuBose to testify. Respondent called Barbara L. McCullough to testify. The parties stipulated to the introduction of a composite exhibit consisting of the personnel records of Petitioner relating to the pay raises.

A transcript was not filed, but the parties filed Proposed Findings of Fact which were read and considered.

FINDINGS OF FACT

1. Stephen C. Metzler is an Environmental Specialist II in a leadworker position with the Department.

2. Stephen C. Metzler received an Increase to Base Rate of Pay for added duties in the amount of $69.39, on April 7, 1998. Thereafter, Robert Merritt was promoted and there was no one to supervise the employees that he had previously supervised. He asked Petitioner to continue to perform the duties he had been

   performing, and assume the supervisory duties that Merritt had previously performed. Merritt advised Petitioner that he would be given additional compensation for performing these duties.

   Petitioner assumed and performed these added supervisory duties, and Merritt administratively initiated the pay increase.

3. Subsequently, the paperwork was prepared by one of Respondent's clerical personnel, reviewed by the personnel officer, and signed by Petitioner's superiors. Petitioner did not see this paperwork at any time prior to its submission and had no part in its preparation.

4. Both of Petitioner's supervisors who had signed and approved the pay-raise testified. They were aware that Petitioner was performing supervisory, leadworker duties and it was their intent to increase his compensation for performing those duties.

5. Metzler received an increase to his base rate of pay for added duties in the amount of $75.86, on October 2, 1998.

6. The Escambia County Health Department was not aware of the rule of prohibiting more than one pay increase in twelve consecutive months for the same category.

7. The Department of Management Services audited the payroll of the Department of Health and found several deficiencies including overpayment to Metzler.

8. The Personnel Action Request Form dated April 7, 1999, indicated that the pay increase being approved was to Petitioner's base rate of pay for the performance of added duties. Under the section of the form relating to "Salary," there is no selection under "Salary Additive."

9. The Personnel Action Request Form dated October 2, 1999, indicated that the pay increase being approved was to Petitioner's base rate of pay for the performance of added duties. However, under the section of the form relating to "Salary," salary additive, the block "leadworker" was checked.

10. It was testimony of the personnel officer that, had they known of the Rule restricting two pay increases within twelve consecutive months, they would have checked the block under increase in base rate of pay, Internal Pay Relationships. That, together with the selection of "Leadworker" under "Salary Additive," would have been administratively correct.

11. Both payroll request forms authorize the increase of pay by placing an "X" in the box "added duties."

12. Personnel Action Request one authorized a raise on April 7, 1999, and Personnel Action Request two authorized a raise on October 2, 1999, which is within twelve months of the first raise.

13. McCulough calculated the $1,010.80 overpayment by determining the increases paid prior to the expiration of the twelve-month period of the preceding raise for the same category, added duties and responsibilities.

14. McCullough calculated the amount of overpayment and drafted a letter for the Director of the Health Department's signature. McCullough drafted the letter seeking reimbursement of the $1,010.80, because of the audit exception and the demand of the Department of Management Services to correct the administrative error that had been made.

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case pursuant to Sections 120.569 and 120.57(1), Florida Statutes, and Chapter 27-106, Florida Administrative Code.

16. Section 20.43(2) states in part "The Secretary [of the Department of Health] is appointed by the Governor subject to confirmation of the Senate." Thus, the Department of Health is an Executive Agency.

17. Section 110.105(1), Florida Statutes, the Department of Management Services:

    It is the purpose of this chapter to establish a system of personnel management. This system shall provide means to . . . and maintain an effective and responsible

    workforce and shall include policies and procedures for employee hiring and advancement, training and career development, position classification, salary administration, benefits, . . . and other related activities. (Emphasis added.)

    
    

18. Rule 60L-8.004(2), Florida Administrative Code, stated:

    1. When an employee receives an overpayment, the exact amount of the overpayment shall be reclaimed from the employee . . . .

       
       

19. Rule 60L-8.004(2), Florida Administrative Code, states:

    1. when an overpayment occurs, the agency head shall take the following action:

       
       

       1. Notify the employee of the error in writing, including an explanation of how the error occurred and a statement of how the employee's salary is being corrected and that the amount of overpayment must be reclaimed.

          
          

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

          
          

       3. Furnish the Office of the Comptroller with the information explaining the error and the arrangements for reclaiming the amount of overpayment.

          
          

       4. Immediately effectuate a payroll change to correct the employee's salary to the correct amount for future pay periods.

          
          

20. Section 110.201, Florida Statutes, states in part:

    
    

    (1)(a) The department, in consultation with agencies that must comply with these rules,

    shall develop uniform personnel rules, guidelines, records, and reports relating to employees and positions in the career service. Agencies must comply with the uniform rules . . . .

    
    

    * * *

    
    

    1. The department shall develop uniform forms and instructions to be used in reporting transactions which involve changes in an employee's salary . . . .

       
       

21. "Agency means any . . . department of the executive branch . . . ." Section 110.203(1), Florida Statutes. Therefore, these Department of Management Services' rules apply to the Florida Department of Health.

22. "The personnel of the county health department shall be employed by the Department of Health. The compensation of such personnel shall be determined under the rules of the Department of Management Services." Section 154.04(2), Florida Statutes.

23. Section 110.209, Florida Statutes, Pay Plan, states:

    
    

    (1) The department shall establish and maintain an equitable pay plan applicable to all classes of positions in the career

    
    

    service and shall be responsible for the overall review, coordination, and administration of the pay plan.

    
    

    * * *

    (2)(d) The department shall review, in a post-audit capacity, any action taken by an agency in administering the provisions of the pay plan.

    
    

    1. The department shall require the agency to take appropriate corrective action if records show that the action taken by the employing agency in administering the provisions of the pay plan does not conform to the rules adopted by the department.

    
    

24. Rule 60K-2.006, Florida Administrative Code, Increases to Base Rate of Pay states:

    (1) If an agency grants an increase to an employee's base rate of pay between the minimum and maximum of the pay range at any given time, it shall be based upon one or more of the following pay adjustment categories. Employees may receive only one increase per category in any twelve-month period. (Emphasis added.)

    
    

    * * *

    
    

    (b) Added Duties and Responsibilities - An increase based upon the addition of duties and responsibilities not warranting reclassification or assuming duties of a vacant or deleted position(s). The added duties and responsibilities shall be documented on the official position description.

    
    

25. The facts in the case reveal that the agency intended to give the employee a pay increase because he had assumed leadworker duties. He was eligible for and could have received a pay increase for performing these duties at the time the pay- raise was implemented. The intent of all the parties was to do this. The error is purely clerical in the preparation of the form. This error was not the fault of Petitioner, who performed

    his duties well, including the additional leadworker duties. The form was prepared selecting the block "Added Duties," instead of the block "Internal Pay Relationships," and under "Salary," the percentage increase should have been put under "additive."

26. Respondent argued that the written narrative indicates that the second pay-raise was for performing additional duties. The narrative says, "We believe that Steve deserves a Special Pay Increase of six percent because of his additional duties as the Leadworker for four (4) positions. . .[.]" It is true he took on added duties, but the duties were as a leadworker; therefore, he falls within the additive salary exception to the added duties exception.

27. The error in this case is purely clerical. The clerk checked the wrong box. The supervisors were not personnel specialists. The personnel expert stated she was unaware of the issue until the audit. The form is less than crystal clear, and is not self-explanatory. It was "logical" to check the block, Increase in Base Rate of Pay. It was "logical" to check under that, "Added Duties." It was "logical" to put the amount of the pay increase above "Increase/Decrease." No evidence was presented regarding special instructions clarifying when and how

    the various sections of the form should be checked. The rule and the form are a trap for the unwary.

28. It was not a subterfuge to pay Petitioner more than the law allows. The intent of his supervisors was to increase his pay for performing leadworker duties. Had the form been completed properly, it would have been perfectly appropriate to have increased Petitioner's pay. It is punitive to penalize the employee who performed his end of the employment contract and who had no part in the clerical error that resulted in the exception. The state got what it bargained for, performance of the leadworker duties. It is counter-productive to penalize an employee who it promoted and who is an exceptional worker. In this case, the correct solution to the audit exception is to permit Respondent to do what it would do today, if it caught the error, correct the paperwork.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is

RECOMMENDED:

That Respondent correct its paperwork and not attempt to collect the monies involved.

DONE AND ENTERED this 26th day of June, 2000, in

Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 2000.

COPIES FURNISHED:

Stephen C. Metzler 4048 Charles Circle

Pace, Florida 32571

Rodney M. Johnson, Esquire Department of Health

1295 West Fairfield Drive Pensacola, Florida 32501

William W. Large, General Counsel Department of Health

4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701

Dr. Robert G. Brooks, Secretary Department of Health

4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701

Angela T. Hall, Agency Clerk Department of Health

4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701

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: 99-004875

Orders for Case No: 99-004875