STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal proceeding and hearing before P. Michael Ruff, duly-designated Administrative Law Judge of the Division of Administrative Hearings in Marianna, Florida. The hearing was conducted on September 17, 2009, and the appearances were as follows:

APPEARANCES

For Petitioner: James L. Lowery, pro se

3875 Old Cottondale Road Marianna, Florida 32448

For Respondent: Kimberly Sisko Ward, Esquire

Assistant General Counsel

Florida Department of Juvenile Justice 2737 Centerview Drive, Suite 3200

Tallahassee, Florida 32399-3100 STATEMENT OF THE ISSUE

The issue to be resolved concerns whether the Petitioner received, and should be compelled to repay, an alleged salary overpayment of $1,306.09.

PRELIMINARY STATEMENT

This cause arose on May 29, 2009, when the Department sent the Petitioner a notice that it had determined that he had been overpaid for pay periods ending November 27, 2008, December 25, 2008, and January 22, 2009. This was as a result of an audit of his leave, upon separation from state service. The Department (Respondent) directed the Petitioner, by that notice, to remit the overpayment, in the total amount of $1,306.09. The Petitioner elected to contest that decision and timely exercised his right to a formal proceeding and hearing.

The hearing request was forwarded to the Division of Administrative Hearings on June 2, 2009, and the Initial Order was issued on June 23, 2009. Thereafter, the Judge issued a Notice of Hearing, scheduling the hearing for September 17, 2009.

The cause came on for hearing, as noticed. The Judge granted Respondent’s request for “judicial notice” of Section 110.1165, Florida Statutes. The Respondent called one witness, Vivian Chambliss, Payroll Manager for the Department of Juvenile Justice. The Respondent had Exhibits R-1 through R-7 admitted into evidence. The exhibits consisted of various payroll records, leave records and related calculations. The Petitioner testified on his own behalf, but offered no exhibits.

Upon conclusion of the proceeding, the Respondent elected to transcribe the testimony, the transcript was filed with the Division on October 1, 2009, and the parties were given the opportunity to submit Proposed Recommended Orders. Those pleadings have been considered in the rendition of this Recommended Order.

FINDINGS OF FACT

1. James L. Lowery, the Petitioner, was employed by the Respondent Department, at all times pertinent. The Department employees are paid bi-weekly, with pay warrants being issued eight days after the end of a pay period. This is based on employee timesheets submitted to the Peoples’ First leave and payroll system.

2. The payroll system will issue an employee a paycheck for the full pay period hours, if his or her timesheet is not timely submitted or if no timesheet is submitted (until a correction and re-calculation is done). That is the default posture. An employee is only paid less or a different amount than his regular salary if a timesheet is timely submitted and reflects less than a full-time number of hours of work or leave-

   time.

   
   

3. Upon an employee’s separation from employment, an audit

   
   

   is conducted of his leave and attendance, to ensure that his final pay is correct. During the audit, the Department reviews

   the employee’s timesheets to determine what leave codes were used. It generates a cumulative pay report to ensure that the employee was paid correctly for each pay period. Upon conclusion of the audit, the Department sends the employee payment for any leave to which he is entitled, or, if it is determined that he was overpaid, the employee is notified of the hours and amount of the overpayment and repayment is demanded.

4. Mr. Lowery was injured and therefore, had to be absent from work on workers’ compensation leave, starting in May of 2008, for approximately six weeks. He recovered from that injury, but did not return to work because his medication regimen for another condition interfered with his work schedule.

5. Mr. Lowery thereupon began to use his accrued sick and annual leave. He exhausted his sick and annual leave by

   August 2008. He thereupon began using sick leave that he believed had been donated to him from the sick leave pool.

6. Although he believed he was using sick leave pool leave, he actually had received donated sick leave for the period August 8, 2008 through October 30, 2008. The total amount of leave donated to him was 470 hours. Sick leave donations are not a pre-determined amount, but rather the amount an employee can receive depends strictly on how much leave is actually donated to that individual by other employees.

7. Mr. Lowry used all the leave which had been donated to him as of November 14, 2008. Therefore, for the November 14 through November 27, 2008, pay period he had no leave left to his credit, but did not return to work. His timesheets for that pay period show that he was on “Authorized Leave Without Pay.”

8. When the pay warrants were issued for that pay period, the system did not recognize that the Petitioner was on “Authorized Leave Without Pay” and on December 5, 2008, he was paid for 80 hours, in a gross amount of $1,162.00. Since he only had 4.75 hours of sick leave available for that pay period, he was, thus, overpaid for 75.25 hours.

9. Between November 28, 2008, and December 25, 2008, the Petitioner did not work and had no annual, sick or other type of leave to his credit. Nonetheless, a pay warrant was issued to him on January 2, 2009, for payment for 30.75 hours. He was, thus, overpaid for that number of hours.

10. The Petitioner’s timesheet for the period January 9 through January 22, 2009, shows that his hours were coded or entered as follows: 1.50 hours of annual leave, 1.00 hour of sick leave and 77.50 hours of unauthorized leave without pay.

11. Although he had no annual, sick or other leave available to him, a pay warrant was issued to him on January 30, 2009, for the 2.50 hours. He was, thus, overpaid for that amount of hours.

12. The Petitioner did not question the amounts he was paid on December 5, 2008, January 2, 2009, or January 30, 2009, because he believed he was drawing sick leave credit from the sick leave pool and that his timesheets were being taken care of by a supervisor, Otis Ray, in the Tallahassee office. After January 30, 2009, he received no more pay warrants.

13. Upon the Petitioner’s separation from employment, the Respondent conducted the leave audit referenced above, as delineated in the Department of Financial Services’ Payroll Preparation Manual. It was thus determined that the Petitioner had been overpaid for a total of 108.50 hours for the above- referenced pay periods, due to the fact that he had used leave to which he was not entitled and because his timesheet was not timely submitted.

14. In accordance with the Payroll Preparation Manual (in evidence as Respondent’s Exhibit 7), the amount of salary overpaid, and to be repaid, was calculated as follows: $1,013.56 for the warrant issued on December 5, 2008, $267.71 for the warrant issued on January 2, 2009, and $24.82 for the warrant issued on January 30, 2009.

15. When an agency has determined that a salary overpayment has occurred, it is required to follow procedures set forth in the above-referenced manual, to seek repayment. The Respondent followed those procedures in making the

    calculations relevant in this case. On May 29, 2009, the Respondent notified Petitioner of its position that he owed repayment of $1306.09, the total amount of the three erroneously paid warrants.

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. §§ 120.569 and 120.57, Fla. Stat. (2009).

17. The evidence supportive of the above findings shows that the Petitioner had exhausted all accrued annual leave, as well as all but 4.75 hours of donated sick leave, by

    November 13, 2008. Thus, when his timesheet was not timely submitted, for the period November 14-27, 2008, the Petitioner was paid “by exception” for 80 hours, even though he was only entitled to 4.75 hours.

18. From November 28, 2008, until the date he separated from employment, he did not work for the Respondent and had no leave available that would entitle him to be paid for this time period. Nonetheless, although he did not receive paychecks on the paydays of December 19, 2008, or January 16, 2009, he did receive paychecks for payment for the above-found amounts of hours on January 2, 2009, and January 30, 2009, in the above- found dollar amounts.

19. The Respondent followed the required audit procedures referenced in the findings of fact and established that the Petitioner has been over-compensated and received the above- determined amounts to which he was not entitled, a total of

    $1,306.09.

    
    

20. Section 110.1165, Florida Statutes (2008), permits agencies to consider employee claims concerning pay or benefits where an employee has detrimentally relied on a written representation of an agency head or designee. Subsection 110.1165(1), Florida Statutes (2008), provides that agencies can only consider those claims that are reasonable and based on an agency’s written representations. This same section, however, specifically excludes the erroneous calculation of salary or benefits. Thus, an agency cannot waive or forgive overpayments when they are the result of errors, and employees who receive erroneous salary payments are not entitled to relief under this statute.

21. The Petitioner believed he was receiving paychecks because he had received sick leave donations from the sick leave pool. He believed that the pay warrants he received on

    December 5, 2008, January 2, 2009, and January 30, 2009, were the result of his donated sick leave. He contends that he was not at fault in receiving these warrants, and should not be required to repay them.

22. His argument is unconvincing for two reasons. First, between December 5, 2008 and January 30, 2009, there were five paydays. However, he received pay warrants on only three of those paydays. The last two checks were only for a fraction of his regular pay. If he truly believed that he was receiving donated sick leave, he would have expected to be paid for all available paydays or hours. When he received the partial checks on two paydays, and no check at all on two of the subject paydays, he knew or should have known that he had exhausted all sick leave and thereupon, should have sought assistance or an explanation for the situation.

23. Second, the Petitioner offered no evidence of any written representations from the Respondent or its employees to show that he was reasonably relying to his detriment, that the payments were appropriate. Rather, the Respondent established that the payments were salary overpayments due to his being paid “by exception” or given credit for leave he did not have. Because the payments resulted from erroneous calculations of pay hours, the Petitioner is not entitled to repayment forgiveness under Section 110.1165, Florida Statutes.

24. In summary, for the foregoing reasons, the Respondent has established that the subject overpayment has been correctly determined and that the amount has been calculated in accordance with statutorily mandated procedures. The Petitioner has

presented no evidence that the Respondent’s actions were erroneous or failed to comport with the essential requirements of law.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is

RECOMMENDED that a Final Order be entered by the Department of Juvenile Justice requiring the Petitioner to repay erroneously paid salary in the amount of $1,306.09, pursuant to a reasonable installment arrangement to be agreed upon by the parties.

DONE AND ENTERED this 24th day of November, 2009, in Tallahassee, Leon County, Florida.

S

P. MICHAEL RUFF Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 2009.

COPIES FURNISHED:

Kimberly Sisko Ward, Esquire Department of Juvenile Justice 2737 Centerview Drive

Tallahassee, Florida 32399

James L. Lowery, Jr. 3875 Old Cottondale Road

Marianna, Florida 32448-492

Frank Peterman, Jr., 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

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: 09-003441

Orders for Case No: 09-003441