STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LASHAWNDA WILLIAMS,

Petitioner,

vs.

DEPARTMENT OF HEALTH,

Respondent.

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) Case No. 05-2580

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SECOND RECOMMENDED ORDER

This case came before Administrative Law Judge John G. Van Laningham for final hearing by video teleconference on September 30, 2005, at sites in Tallahassee and Miami, Florida.

APPEARANCES

For Petitioner: Lashawnda Williams, pro se

6100 Southwest 68th Street South Miami, Florida 33143

For Respondent: Stephen W. Foxwell, Esquire

Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703

STATEMENT OF THE ISSUE

The dispute in this case arises out of Respondent's attempt to collect alleged salary overpayments from Petitioner, a former state employee who allegedly continued to be paid wages after resigning her position with Respondent.

PRELIMINARY STATEMENT

By letter dated May 24, 2005, Respondent Department of Health ("Department") notified Petitioner Lashawnda Williams ("Williams") of its contention that, after resigning from her position of employment with the Department, Williams had continued to receive salary payments from the Department as if she were still working there, in consequence of an administrative mistake on the Department's part. The Department demanded that Williams repay $8,345.09——the alleged "total net amount of the [alleged] overpayment." The Department informed Williams that she could request an administrative hearing if she contested the Department's decision to collect from her the amount indicated.

Williams timely requested a formal hearing, and on July 15, 2005, the Department referred the matter to the Division of Administrative Hearings ("DOAH"), where an Administrative Law Judge ("ALJ") was assigned to conduct a formal hearing.

The hearing took place on September 30, 2005, as scheduled, with both parties present. The Department called two witnesses: Nereida Pena and Emily Kirkland. It also proffered seven Respondent's Exhibits, numbered 3, and 5-10, which were received in evidence. Williams testified on her own behalf and offered Petitioner's Exhibit 2, which was admitted into evidence.

The final hearing was recorded but not, initially, transcribed.i Proposed Recommended Orders were due on October 31, 2005. The Department filed one but Williams did not. The Department's Proposed Recommended Order was considered.

On November 4, 2005, the undersigned issued a Recommended Order in which he urged the Department to enter a final order dismissing this administrative proceeding for lack of subject matter jurisdiction. The Department rejected the undersigned's recommendation and, on December 21, 2005, attempted to remand the case to DOAH. By order dated January 3, 2006, the undersigned declined the remand.

The Department sought judicial review in the appellate court. The appeal resulted in the issuance, on May 22, 2006, of a mandate directing the undersigned to issue another recommended order. On May 24, 2006, the Department filed a Notice of Remand, together with the evidentiary record.

Unless otherwise indicated, citations to the Florida Statutes refer to the 2005 Florida Statutes.

FINDINGS OF FACT

1. From September 2003 until she resigned her position effective October 4, 2004, Williams worked for the Department as a Human Services Counselor II.

2. Following her separation, the Department continued for four months to pay Williams her full salary as if she were still working for the Department. Thus, on 10 separate occasions, starting on October 15, 2004, and ending on February 18, 2005, the Department caused funds to be transferred electronically into Williams' bank account.

3. Except for a portion of the first payment on

   
   

   October 15, 2004, which included some salary that Williams had earned before the effective date of her resignation, these payments were made in error. When the Department finally discovered its mistake in February 2005, it stopped making direct deposits of salary into Williams' account.

4. In the aggregate, the Department paid Williams a gross salary of $11,185.10 during the post-separation period. Of this amount, Williams had earned $782.96 in gross salary for services rendered up to and including October 4, 2004.

5. Of course, Williams did not actually receive gross salary amounts because the Department, as employers do, deducted income and payroll taxes, among other things, from Williams' wages. The total net amount that Williams actually received in consequence of the 10 post-separation payments was $8,331.85, of which she had earned $515.05. Thus, the total net amount of unearned salary that Williams received from the Department after the termination of her employment was $7,816.80.

6. The Department has demanded that Williams return the aggregate net amount of unearned salary that was paid to her in error after the effective date of her resignation. The Department further demands that Williams reimburse the Department an additional $537.29 for withholding taxes that the Department, in fact, paid to the Internal Revenue Service against Williams' tax liability on the gross unearned salary that she was paid in 2004.ii The total amount that the Department seeks to recover from Williams is, therefore,

   $8,354.09.

   
   

7. Williams acknowledges that she received money from the Department that she has no right to keep, but she refuses to repay $8,354.09. Williams asserts, instead, that she owes the Department $5,523.27. The record does not reveal how she arrived at this particular figure, which is, at any rate,

   $2,293.53 less than the unearned salary Williams actually received directly from the Department——and $2,830.82 less than her total windfall at the Department's expense, when the indirect benefit of $537.29 in taxes is taken into account.

   CONCLUSIONS OF LAW

   
   

8. By a mandate of the District Court of Appeal of Florida, First District, entered on May 22, 2006, the undersigned was commanded to proceed herein in accordance with the court's opinion in Department of Health v. Williams, 31 Fla.

   L. Weekly D 1255 (Fla. 1st DCA May 4, 2006). The Williams opinion, in its entirety, reads as follows:

   As it appears that no appealable order would issue absent this court's intervention, the [Department's] petition [for review of nonfinal agency action] is granted. See AHCA v. Mt. Sinai Medical Ctr. of Greater Miami, 690 So. 2d 689 (Fla. 1st DCA 1997).

   This matter is remanded to the administrative law judge to issue a recommended order which sets forth findings of fact and conclusions of law pursuant to section 120.57(1)(k).

   
   

   Pursuant to the foregoing opinion, the undersigned must issue another recommended order that, at a minimum, contains sufficient fact findings for the Department to enter a final, appealable order consistent with its (the Department's) preliminary agency action. This much the undersigned has done above.

9. Neither the appellate court nor the Department, however, has identified the substantive administrative law (as opposed to the procedural law set forth in the Administrative Procedure Act) that is urged to govern the Department's claim in this proceeding. By "substantive administrative law," the undersigned means the statute or presently effective administrative rule that authorizes the Department to adjudicate disputes such as the one at hand; prescribes the elements that the Department must prove to recover an alleged salary

   overpayment; specifies the defenses, if any, to this sort of claim; and defines the administrative remedy.

10. The undersigned is not independently aware of any substantive administrative law that would govern the Department's claim for reimbursement of salary overpayments. In the absence of such substantive law, the only legal conclusion that the undersigned legitimately can make is that there is no administrative remedy for the wrong (Williams' refusal to return unearned salary, paid to her in error) the Department clearly has suffered.iii

11. That said, the undersigned is aware of substantive common law that, in another forum at least, plainly would govern the Department's claim for reimbursement of salary overpayments. As the undersigned wrote in his initial Recommended Order,

    the Department's claim against Williams is indistinguishable in every respect from the common law cause of action known as "money had and received." This "quasi-equitable" remedy at law exists to permit the recovery of "money erroneously paid [to] or received by a defendant when to permit the defendant to keep the money would unjustly deprive the plaintiff of his ownership of the money." Sharp v. Bowling, 511 So. 2d 363, 364-65 (Fla. 5th DCA 1987). An action for "money had and received" lies, among many other situations, when an employer mistakenly overpays an employee. See Watson Clinic, LLP v. Verzosa, 816 So. 2d 832, 834 (Fla. 2d DCA 2002)(Doctor whose employer had paid him double salary was required to disgorge the windfall because "[o]ne who mistakenly receives money must return it to its owner

    unless the recipient can assert some legal or equitable claim to the money.").

    
    

    Williams v. Department of Health, Case No. 05-2580, 2005 Fla. Div. Adm. Hear. LEXIS 1320, *4-*5 (Oct. 31, 2005). Yet, though the undersigned is intellectually capable of applying the common law of unjust enrichment to the facts of this case, he does not believe that DOAH has jurisdiction to adjudicate quasi-equitable claims in the absence of substantive law conferring such jurisdiction.

12. Therefore, it remains the undersigned's belief that the Department should pursue judicial, not administrative, remedies against Williams.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department dismiss this case and initiate a legal proceeding in a court of competent jurisdiction to recover from Williams the amounts in dispute.

DONE AND ENTERED this 7th day of June, 2006, in Tallahassee, Leon County, Florida.

S

JOHN G. VAN LANINGHAM

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 7th day of June, 2006.

ENDNOTES

i/ On November 30, 2005, after the undersigned had issued his Recommended Order, a transcript of the final hearing was filed.

ii/ Apparently, the Department was able elsewhere to recover the taxes it had withheld against Williams' tax liability on the gross unearned salary that she was paid in 2005; it is not seeking to recover these taxes from Williams.

iii/ Without substantive administrative law to apply, any "legal conclusion" that the undersigned might make on the merits of this case would be, effectively, a moral pronouncement based on nothing more than the undersigned's perceptions of right and wrong behavior. However wise such a pronouncement might be, this is not the kind of decision that ALJs should render.

COPIES FURNISHED:

Lashawnda Williams

6100 Southwest 68th Street South Miami, Florida 33143

Stephen W. Foxwell, Esquire Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703

Timothy M. Cerio, General Counsel Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701

R. S. Power, Agency Clerk Department of Health

4052 Bald Cypress Way, Bin A02 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: 05-002580

Orders for Case No: 05-002580