STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STEVEN KELM, )

)

Petitioner, )

)

vs. ) Case No. 06-1481

)

DEPARTMENT OF JUVENILE )

JUSTICE, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the formal hearing in this proceeding on June 30, 2006, in Sarasota, Florida, for the Division of Administrative Hearings (DOAH).

The ALJ conducted the hearing by telephone conference. Petitioner and the court reporter participated from Sarasota. Respondent's counsel, witnesses, and a notary public to swear the witnesses participated from Tallahassee, Florida. The ALJ participated from a separate location in Tallahassee, Florida.

APPEARANCES

For Petitioner: Steven Kelm, pro se

4589 Las France Avenue North Port, Florida 34286

For Respondent: Mary Linville Atkins, Esquire

Department of Juvenile Justice 2737 Centerview Drive

Tallahassee, Florida 32399-3100

STATEMENT OF THE ISSUE

The issue is whether Respondent is entitled to recover an alleged overpayment of $499.76 in salary previously paid to Petitioner.

PRELIMINARY STATEMENT

By letter dated November 2, 2005, Respondent notified Petitioner of Respondent's intent to collect $770.56 in alleged salary overpayments. Petitioner timely requested a formal hearing.

At the hearing, Respondent stipulated that the amount of alleged overpayment is $499.76 rather than $770.56. Respondent further stipulated that the Department of Juvenile Justice (Department) has the burden of proof even though the style of the case lists the Department as the respondent.

Respondent presented the testimony of one witness and submitted four exhibits for admission into evidence. Petitioner testified and submitted no exhibits for admission into evidence.

The parties did not order a transcript. Respondent filed a proposed recommended order (PRO) on July 10, 2006. Petitioner did not file a PRO.

FINDINGS OF FACT

1. Respondent employs Petitioner as a Juvenile Detention Officer in Sarasota, Florida. On October 1, 2004, Respondent

   issued a warrant to Petitioner for the payroll period from September 10 through 23, 2004.

2. The gross amount of the warrant was $1,132.73. After authorized deductions, including taxes and retirement contributions, the net pay to Petitioner was $773.87.

3. The warrant overpaid Petitioner in the amount of

   
   

   $499.76. The warrant paid Petitioner for 60.5 hours of overtime, but Petitioner actually worked only 27.25 hours of overtime. Respondent overpaid Petitioner for 33.25 hours of overtime.

4. During the payroll period at issue, Respondent paid Petitioner a standard hourly rate of $10.85. The hourly rate for overtime was $16.275, equal to the mathematical product calculated when the standard hourly rate of $10.85 is multiplied by a factor of 1.5.

5. The amount of overpayment for 33.25 hours may be calculated mathematically as $541.14, equal to the product determined when 33.25 of overtime is multiplied by the hourly rate of $16.275. The difference between $541.14 and $499.76 is not explained in Respondent's PRO, and Respondent did not order a transcript of the testimony of Respondent's witness during the hearing. The worksheet exhibits purporting to explain the difference are partially unclear copies of the original worksheets.

6. The difference between $541.14 and $499.76 cannot be explained in this Recommended Order based on the available evidence. However, Respondent stipulates that the net overpayment is $499.76.

7. Respondent explicated the reason for the overpayment as a problem encountered during the period in which Respondent converted its payroll system from the Cooperative Personnel System (COPES) to the People First system. In an effort to avoid delays in payroll payments to employees, Respondent requested managers and supervisors to ensure that their employees submit estimated time sheets in advance of the due date. Compliance with the request required employees to estimate their hours for the payroll periods August 27 through September 9, 2004, and September 10 through 23, 2004.

8. For the latter of the two payroll periods, the supervisor for Petitioner submitted an estimated time sheet for Petitioner. Petitioner did not sign the estimated time sheet because Petitioner was not working on the date the supervisor submitted the estimated time sheet.

9. The estimated time sheet predicted Petitioner would work 33.25 hours of overtime during the payroll period. Petitioner actually worked 27.25 hours of overtime during that period and subsequently submitted a corrected time sheet showing the 27.25 hours of overtime actually worked.

10. Respondent paid Petitioner for 60.5 hours of overtime, including both the estimated and actual overtime worked. Respondent is entitled to reimbursement for the amount of overpayment that Petitioner received.

    CONCLUSIONS OF LAW

    
    

11. DOAH has jurisdiction over the subject matter.

    
    

    §§ 120.569 and 120.57(1), Fla. Stat. (2004). DOAH provided the parties with adequate notice of the formal hearing.

12. Respondent has the burden of proof. Department of Transportation v. J. W. C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981). Respondent satisfied its burden of proof. Respondent showed by a preponderance of evidence that Respondent overpaid Petitioner in the amount of $499.76 and is entitled to repayment from Petitioner.

RECOMMENDATION

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

RECOMMENDED that Respondent enter a final order finding that Respondent overpaid Petitioner in the amount of $499.76 and ordering Petitioner to repay the amount of overpayment.

DONE AND ENTERED this 31st day of July, 2006, in Tallahassee, Leon County, Florida.

S

DANIEL MANRY

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 31st day of July, 2006.

COPIES FURNISHED:

Anthony Schembri, Secretary Department of Juvenile Justice Knight Building

2737 Centerview Drive

Tallahassee, Florida 32399-3100

Jennifer Parker, General Counsel Department of Juvenile Justice Knight Building

2737 Centerview Drive

Tallahassee, Florida 32399-3100

Mary Linville Atkins, Esquire Department of Juvenile Justice 2737 Centerview Drive

Tallahassee, Florida 32399-3100

Steven Kelm

4589 Las France Avenue North Port, Florida 34286

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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 06-001481

Orders for Case No: 06-001481