STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT L. HAZLETT, SR., )

)

Petitioner, )

)

vs. ) CASE NO. 89-3838

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on September 21, 1990, in Orlando, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Robert L. Hazlett, Sr., pro se

Post Office Box 1415

Green Cove Springs, Florida

For Respondent: Charles G. Gardner, Esquire

Senior Attorney

Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32399-0458 STATEMENT OF THE ISSUES

Whether Petitioner is required to refund the State of Florida the sum of

$204.26 in salary overpayment in fiscal year 1988 and 1989.

PRELIMINARY STATEMENT

Acting on behalf of the Department of Administration, the Respondent by letter, dated May 17, 1989, demanded repayment of certain monies it claims was overpaid to Petitioner in 1988. Petitioner demanded a formal hearing, and the matter was referred to the Division of Administrative Hearings on July 13, 1989. This matter was originally set for hearing on October 18, 1989 in Jacksonville, Florida. Venue in this matter was transferred to Orlando at the request of the parties. In addition,several continuances were granted at the request of the parties, partially due to the extended disability of Petitioner. This matter was transferred to the undersigned Hearing Officer on September 17 and the formal hearing was conducted on September 21, 1990.

At the hearing, Petitioner testified himself and offered no exhibits.

Respondent offered the testimony of David S. Ferguson, Personnel Officer for the Department of Transportation and six exhibits were admitted in evidence. The

transcript of the hearing was not provided and neither party filed proposed findings of fact or conclusions of law.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. Petitioner, Robert L. Hazlett, Jr., has been a career service employee of the State of Florida for more than twenty years and is employed by the Department of Transportation (DOT) in the Division of Tolls. In 1988, Petitioner was classified as a Regional Toll Manager with the Pay Grade 20.

   
   

2. In the spring of 1988, DOT requested that the Department of Administration (DOA) adjust the pay grade for Regional Toll Managers from Pay Grade 20 to Pay Grade 23. This adjustment was granted on May 3, 1988. The instructions which accompanied this adjustment specified that no employee whose position was allocated to the class of Regional Toll Manager on the effective date of the pay grade change was to receive an increase in base rate of pay.

   
   

3. Said adjustment in pay was not communicated to the DOT personnel office for several months and on June 17, 1988, based on the assumption that DOA had not approved the pay adjustment for Regional Toll Managers, DOT reclassified the position of Regional Toll Manager to the class of Operations and Management Consultant I, Pay Grade 21.

   
   

4. Effective June 17, 1988, Petitioner's job classification was changed from Regional Toll Manager, pay grade 20, to Operations and Management Consultant I, Pay Grade 21. As a result, his biweekly salary changed from

   $965.06 to $1,093.42.

   
   

5. On September 7, 1988, the Secretary of Administration advised that the Department of Transportation's action on June 17, 1988 reclassifying Petitioner's job classification actually resulted in a demotion from pay grade

   23 to pay grade 21, but with an increase in his base rate of pay. This action was in violation of Section 22A-2.004(3)(d), Florida Administrative Code.

   
   

6. In the letter, the Secretary of the Department of Administration directed the Respondent to take corrective action by reducing the Petitioner's salary to the amount he was receiving prior to the Respondent's June 17 pay action and recalculate all proper subsequent changes to his base rate of pay.

   
   

7. On October 18, 1988, Respondent reversed the promotional actions, implemented the pay grade adjustments as approved by the Department of Administration, recalculated the Petitioner's July 1 pay increase, and notified Petitioner of the corrective action taken.

   
   

8. In addition, Respondent's Personnel Officer filed a request with the Department of Administration, on November 9, 1988, for a special pay increase for Petitioner, and others, because the reclassification of Petitioner's position was processed as a promotion, not a demotion.

   
   

9. This request was denied on December 29, 1988.

   
   

10. Petitioner, through no fault of his own, has been overpaid for the period of June 17, 1988 through October 13, 1988 the total sum of $204.26. This sum must be repaid to the treasury of the State of Florida.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to subsection 120.57(1), Florida Statutes.

    
    

12. The pertinent Rules of the Department of Administration (Florida Administrative Code) which apply to this matter are set forth below:

    
    

    Rule 22A-2.0021 Definitions.

    
    

    1. Demotion-Moving an employee from one class to another class having a lower salary range maximum.

       
       

       Rule 22A-2.004. Determining Salary upon Appointment.

       
       

    2. Demotion Appointment- An employee who is given a demotion appointment in accordance with Chapter 22A-7, F.A.C. and who has attained permanent status in any class may be demoted with or without a reduction in base rate of pay, at the discretion of the agency head, subject to the following provisions:

       (d) An employee who is given a demotion appointment shall not be granted an increase in base rate of pay as a result of being demoted.

       
       

       Rule 22A-2.006. Increases to Base Rate of Pay.

       
       

       1. Upward Salary Range Adjustments.

          1. When the Department has reassigned a class to a salary range having a higher minimum salary, the following rules for granting pay adjustments shall apply, unless a different method of implementation is required by the Department

          2. Each employee's base rate of pay in the class shall be adjusted in a amount equal to the amount by which the minimum salary for the class is adjusted, provided the pay adjustment does not place the employee's base rate of pay above the new maximum of the salary range for the class.

       2. Special Pay Increases.

       If unusual conditions exist which justify pay increases not provided for in this chapter, the Department may approve a special pay increase for any employee. If as a condition of approval of such increase, any provisions of this chapter are affected, special instructions to be followed shall be prescribed by the Department.

13. In the spring of 1988, Respondent sought to grant Petitioner a raise in pay by changing the classification of his position from pay grade 20 to pay grade 23. When the fiscal year was drawing to an end and it appeared that the Department of Administration was not going to approve the change, on June 17 Respondent completed a change in job title and changed the pay grade of Petitioner's position from pay grade 20 to pay grade 21, which it was authorized to do without DOA approval. This resulted in Petitioner receiving a raise in his base rate of pay prior to the end of fiscal year 1988.

    
    

14. Unfortunately, the personnel office of Respondent was unaware that DOA had approved the change in classification of Petitioner's job on May 3, 1988 and specifically instructed Respondent that no employee effected by the change in classification was to receive an increase in base rate of pay. Since Petitioner was changed from pay grade 20 to pay grade 21 on June 17, he received an increase in his base rate of pay. But because his job classification as Regional Toll Manager was actually classified as pay grade 23 on that date, the change in job classification accomplished by the Respondent was in fact a demotion for the Petitioner on that date. Rule 22A-2.0021(2), Florida Administrative Code. An employee who is given a demotion appointment shall not be granted an increase in base rate of pay as a result of being demoted. Rule 22A-2.004(3)(d), Florida Administrative Code. Therefore the pay increase granted by the Respondent was in violation of the rule and resulted in salary overpayments since June 17, 1988. Although, Respondent tried to rectify their precipitous action by seeking special pay increase to offset the overpayment, this request was denied by DOA. Therefore, the Petitioner must reimburse the State for the salary overpayment.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is recommended Petitioner reimburse the State of Florida the sum of $204.26 for overpayment of salary in the fiscal years 1988 and 1989.

RECOMMENDED this 19th day of November, 1990, in Tallahassee, Leon County, Florida.

COPIES FURNISHED:

R. Lou Hazlett, Sr. Post Office Box 1415

Green Cove Springs, FL 32043

DANIEL M. KILBRIDE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 1990.

Charles G. Gardner, Esquire Senior Attorney

Department of Transportation 605 Suwannee Street, M.S. 58

Tallahassee, FL 32399-0458

Ben G. Watts Secretary

Department of Transportation 605 Suwannee Street

Tallahassee, FL 32399-0458

Thornton J. Williams General Counsel

Department of Transportation

562 Haydon Burns building Tallahassee, FL 32399-0458

Docket for Case No: 89-003838

Orders for Case No: 89-003838