STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT J. RICHMOND, )

)

Petitioner, )

)

vs. ) Case No. 00-4215

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case before Lawrence P. Stevenson, a duly-designated Administrative Law Judge of the Division of Administrative Hearings, on December 15, 2000, via video teleconference at sites in Fort Myers and Tallahassee, Florida.

APPEARANCES

For Petitioner: Robert J. Richmond, pro se

5411 Loyloa Lane Southwest Fort Myers, Florida 33908

For Respondent: Eugenie Rehak, Esquire

Department of Children and Family Services

Post Office Box 60085

Fort Myers, Florida 33906-0085 STATEMENT OF THE ISSUE

At issue in this proceeding is whether Petitioner, an employee of the Department of Children and Family Services (the "Department"), was overpaid in the amount of $826.82 and should be required to repay that amount to the Department.

PRELIMINARY STATEMENT

By letter dated September 11, 2000, the Department notified Petitioner that he had been overpaid for the previous six pay periods and would be required to repay the Department the amount of $1,316.11 (This amount was reduced to $826.82 after the final computation by the Bureau of State Payroll.). By letter dated September 28, 2000, Petitioner challenged the Department's proposed action and requested an administrative hearing. On October 11, 2000, the Department transmitted the case to the Division of Administrative Hearings for assignment of an Administrative Law Judge and conduct of a formal administrative hearing pursuant to Section 120.57, Florida Statutes.

At the hearing, Petitioner testified on his own behalf and presented the testimony of Mary Jane Thompson, an operations and management consultant for the Department. Petitioner's Exhibits

1 and 2 were admitted into evidence. Respondent presented the testimony of Rex Duley, a personnel technician with the Department during the period of time relevant to this case. Respondent's Exhibits 1-3 were admitted into evidence.

No transcript of the hearing was ordered. The parties agreed that their proposed recommended orders would be submitted by December 29, 2000. Respondent filed a Proposed Recommended Order on December 26, 2000. Petitioner filed a Proposed Recommended Order on January 2, 2001, after the stipulated

deadline. Notwithstanding its late filing, Petitioner's Proposed Recommended Order was considered by the undersigned.

FINDINGS OF FACT

Based on the oral and documentary evidence adduced at the final hearing, the following findings of fact are made:

1. On June 5, 1995, Petitioner entered into a settlement agreement with Respondent to resolve certain disciplinary matters not directly relevant to this case. For purposes of this proceeding, the key element of the settlement agreement was that Petitioner would accept a voluntary demotion. The terms of the settlement agreement provided that Petitioner would retain his current salary status for a period not to exceed five years, though it would exceed the maximum for his new pay grade.

2. On June 7, 1995, the Public Employees Relations Commission ("PERC") entered a final order approving the settlement agreement in disposition of Petitioner's complaint. Petitioner did not appeal the final order.

3. Rule 60K-2.004(4)(a), Florida Administrative Code, provides that a demoted state employee's base rate of pay may exceed the maximum of the salary range to which the employee has been demoted for a maximum of five years. Petitioner's base rate of pay was allowed to exceed the maximum of his new pay grade for the full five years. During this period, Petitioner benefited from pay grade increases, received a reclassification of his

   position, and was not promoted. The five-year period ended in June 2000.

4. Respondent's main office in Tallahassee twice per year issues a computer-generated list of employees receiving pay over the maximum of their pay grades. Human resources employees in Respondent's branch offices then examine the list to determine whether these employees' base rate of pay should continue to exceed the maximum.

5. Respondent issued an "Employees Over Maximum" list in September 2000. Rex Duley of the District 8 human resources office examined the approximately 15 listed names of persons working in District 8. Mr. Duley determined that the applicable five-year period for Petitioner's receipt of pay above his grade had expired in June 2000.

6. Mr. Duley prepared a letter, dated September 11, 2000, notifying Petitioner of the overpayments. The letter stated that Petitioner had received $1,316.11 in gross overpayments since June 2000. Respondent subsequently completed the full computation through the Bureau of State Payroll's automated system, and determined that the net overpayment to Petitioner was

   $826.82.

   
   

7. At the hearing, Petitioner did not dispute the amount of the net overpayment. Petitioner testified that he would be able to repay the money at a rate of $25 to $50 per pay period.

8. Instead, Petitioner sought to introduce evidence calling into question the validity of the 1995 settlement agreement. This evidence was deemed irrelevant and was not admitted. The evidence established that Petitioner voluntarily entered the settlement agreement, did not appeal from the PERC final order adopting the settlement agreement, and accepted the benefits of the settlement agreement for a period of five years. The time for contesting that agreement has long passed.

9. Petitioner also questioned Respondent's diligence in discovering the overpayments. Petitioner was well aware of the five-year limitation on the salary arrangement established by the settlement agreement, and was in at least as good a position as Respondent to know that he was being overpaid between June and September 2000. Petitioner accepted the overpayments without questioning them or calling Respondent's attention to them. Petitioner's contention that he is being penalized for Respondent's lax bookkeeping is thus without merit.

   CONCLUSIONS OF LAW

   
   

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

11. Rule 60K-2.004(4), Florida Administrative Code, provides, in relevant part:

    Demotion Appointment-- An employee who is given a demotion appointment in accordance with Chapter 60K-4, FAC, may be demoted with

    or without a reduction in base rate of pay subject to the following provisions:

    
    

    1. An employee's base rate of pay may exceed the maximum of the salary range for the class to which the employee is demoted for a period of five years.

       
       

12. Rule 60L-8.004, Florida Administrative Code, provides, in relevant part:

    1. 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).

       
       

    2. Actions taken by the state to correct underpayments or overpayments provided for in this rule will be limited to a two (2) year period immediately following the date of payment.

    
    

13. 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.

    
    

14. The quoted rules thus provide that the agency should make arrangements with the employee to reclaim the amount of the overpayment, and that this reclamation must be accomplished within a two-year period. The $25 to $50 per pay period schedule

suggested by Petitioner would result in the repayment of the full amount of $826.82 well within the two-year limitation period.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that:

Respondent repay $50 per pay period to the Department of Children and Family Services beginning with the pay period immediately following entry of a final order in this case and continuing each pay period thereafter until the overpayment is repaid.

DONE AND ENTERED this 3rd day of January, 2001, in Tallahassee, Leon County, Florida.

LAWRENCE P. STEVENSON

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 2001.

COPIES FURNISHED:

Eugenie Rehak, Esquire Department of Children and

Family Services Post Office Box 60085

Fort Myers, Florida 33906-0085

Robert J. Richmond

5411 Loyloa Lane Southwest Fort Myers, Florida 33908

Virginia A. Daire, Agency Clerk Department of Children and

Family Services

1317 Winewood Boulevard Building 2, Room 204B

Tallahassee, Florida 32399-0700

Josie Tomayo, General Counsel Department of Children and

Family Services

1317 Winewood Boulevard

Building 2, Room 204

Tallahassee, Florida 32399-0700

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: 00-004215

Orders for Case No: 00-004215