STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAVERNE L. JOHNSON,

Petitioner,

vs.

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Respondent.

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) Case No. 01-2248

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RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case before Diane Cleavinger, a duly-designated Administrative Law Judge of the Division of Administrative Hearings, on August 28, 2001, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Leslie Scott Jean-Bart, Esquire

Law Offices of Craig Gibb

1200 Riverplace Boulevard, Suite 820

Jacksonville, Florida 32207

For Respondent: Robin Whipple-Hunter, Esquire

Department of Children and Family Services

Post Office Box 2417 Jacksonville, Florida 32211

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 $1,671.29 and should be required to repay that amount to the Department.

PRELIMINARY STATEMENT

By letter dated March 13, 2001, the Department notified Petitioner that he had been overpaid for the supplemental payroll dated February 22, 2000, and would be required to repay the Department the amount of $1,671.29. By letter dated

March 31, 2001, Petitioner challenged the Department's proposed action and requested an administrative hearing. The Department transmitted the case to the Division of Administrative Hearings for assignment of an Administrative Law Judge to conduct a formal administrative hearing pursuant to Section 120.57, Florida Statutes.

At the hearing, Petitioner testified on her own behalf and offered two exhibits into evidence. Respondent presented the testimony of two witnesses and offered 10 exhibits into evidence.

After the hearing, Respondent filed a Proposed Recommended Order on September 24, 2001. Petitioner did not file a proposed recommended order.

FINDINGS OF FACT

1. Petitioner is a career-service employee of Respondent and was initially employed on September 18, 1992.

2. In a letter dated March 13, 2001, Petitioner was informed that a salary overpayment occurred on the supplemental payroll of February 22, 2000. Two warrants were inadvertently issued on that day for $847.57 and $823.72 totaling $1,671.29. The overpayment resulted because the Department made a series of administrative errors. The reason for the overpayment was communicated to Petitioner.

3. Petitioner's pay was remitted to her bank account electronically. She received a written explanation of her pay each time she was paid. However, Petitioner was not monitoring her bank account closely and did not realize she had been overpaid.

4. Currently, Petitioner's rate of pay is $963.36 bi-weekly.

5. Ms. Henderson prepared a certified letter dated February 28, 2001, notifying Petitioner of the overpayments. The letter stated that Petitioner had received $1,671.29 in gross overpayments for the supplemental payroll dated February 22, 2000. The letter was not picked up by Petitioner and was, therefore, returned to the Department. Subsequently,

   Ms. Henderson prepared a letter dated March 13, 2001, notifying Petitioner of the overpayment. The letter indicated the overpayment would be deducted from her next two pay checks.

   Petitioner received the second letter.

6. By letter dated March 15, 2001, Petitioner objected to the payroll deductions since the amount of the deductions would leave her with a little more than $100. The amount left to Petitioner would be below minimum wage.

7. A meeting was arranged between Petitioner, Allean Lovett, Human Resources Manager, and Linda Ricke, Personnel Services Specialist, with the Department to discuss, inter alia, a schedule for repayment.

8. The meeting took place on April 9, 2001, however, was not concluded and was to be continued, by mutual agreement, to April 13, 2001. Petitioner informed Mrs. Lovett on April 12, 2001, that she did not want to continue with their scheduled meeting and would prefer to have the matter determined through the administrative hearing process.

9. At the hearing, Petitioner did not dispute the amount of the gross overpayment. Petitioner testified that she would be able to repay the money at a rate of $25 to $50 per pay period. She could not afford any greater amount due to her living and medical expenses. The repayment schedule of $50 per pay period is reasonable.

   CONCLUSIONS OF LAW

   
   

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

11. The party seeking to prove the affirmative of an issue has the burden of proof. Florida Department of Transportation

    v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); and Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977). Therefore, the burden of proof is on Petitioner.

12. The party seeking to prove this type of case must do so by a preponderance of the evidence. Section 120.57(1)(j), Florida Statutes.

13. Rule 60L-8.003, Florida Administrative Code, defines overpayment as follows:

    1. Overpayment -- Compensation which is greater than the maximum that was authorized for payment in conformity with the provisions of the Personnel Rules and Regulations of the Career Service System, 60L-8, F.A.C., Sections 216.251 and 110.205(2), Florida Statutes, or specific legislative or Department of Management Services approval.

       
       

14. 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.

       
       

15. 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.

    
    

16. The quoted rules thus provide that the agency should make arrangements with the employee to reclaim the amount of the overpayment.

17. Rule 3A-31.102, Florida Administrative Code, provides that:

    Chapter 3A-31 applies directly to all State payroll and indirectly to all State employees receiving wages.

    
    

18. Rule 3A-31.108, Florida Administrative Code, provides, in pertinent part, that:

    Payroll Preparation Manual.

    The Bureau of State Payrolls maintains a Payroll Preparation Manual for the use by State agencies. This manual contains general information, schedules, tables and codes used in the payroll system, and instructions for preparing and submitting payroll and employee data in accordance with these rules.

19. Volume V, Section 2 of the State of Florida, Department of Banking and Finance, Bureau of State Payrolls, Payroll Manual - General, at Page 3 of 29 that:

    1. SALARY OVERPAYMENT DISCOVERED AFTER THE WARRANT HAS BEEN CASHED AND THE INDIVIDUAL IS STILL A STATE EMPLOYEE - NOTIFY EMPLOYEE OF THE ERROR ON THE WARRANT AND CORRECT AS FOLLOWS:

       
       

       1. If full repayment is to be made at one time by the employee, then:

          1. The full repayment of the overpayment may be reclaimed by a one time deduction from the employees next warrant, . . .

          2. The net amount of the overpayment may be reclaimed via money order, cashier's check or, at the discretion of the agency, personal check from the employee.

       2. If partial payments are to be made over time by the employee, the following should be adhered to:

          1. If the overpayment is from a single payroll warrant, it must be repaid in a single payment.

          2. If the overpayment(s) are such that a full repayment is not possible, a repayment schedule may be used.

    Repayment schedules MUST provide for recovering the overpayments in no less than the number of pay cycles that the original overpayment was made, providing the employees gross wages minus the repayment amount do not fall below minimum wage in accordance with the Fair Labor Standards Act. The agency is to deposit the full repayment in the appropriate Departmental account. (emphasis added)

    
    

20. Importantly, the overpayment was not Petitioner's fault. Additionally, the repayment method desired by Respondent would leave Petitioner with less than the minimum wage.

Therefore, Respondent can agree to a repayment schedule on terms other than those specified in the State Payroll Manual. The

$50.00 per pay period schedule suggested by Petitioner would result in the repayment of the full amount of $1,671.29 and is reasonable given Petitioner's financial circumstances.

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 25th day of October, 2001, in Tallahassee, Leon County, Florida.

DIANE CLEAVINGER

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 25th day of October, 2001.

COPIES FURNISHED:

Leslie Scott Jean-Bart, Esquire Farah and Farah, P.A.

1845 University Boulevard, North Jacksonville, Florida 32211

Craig A. Gibbs, Esquire Law Office of Craig Gibbs 1200 Riverplace Boulevard

Suite 810

Jacksonville, Florida 32207

Robin Whipple-Hunter, Esquire Department of Children and

Family Services Post Office Box 2417

Jacksonville, Florida 32211

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: 01-002248

Orders for Case No: 01-002248