STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

REBECCA K. ZELNAR )

)

Petitioner, )

vs. ) CASE NO. 93-4264

)

DIAMOND LITTY, as Public ) Defender for Nineteenth Circuit, )

)

Respondent. )

) BRENDA T. WILBON, )

)

Petitioner, )

vs. ) CASE NO. 93-4265

)

DIAMOND LITTY, as Public ) Defender for Nineteenth Circuit, )

)

Respondent. )

) ALICE JOHNSON, )

)

Petitioner, )

vs. ) CASE NO. 93-4266

)

DIAMOND LITTY, as Public ) Defender for Nineteenth Circuit, )

)

Respondent. )

)

RECOMMENDED ORDER OF DISMISSAL

Pursuant to notice, the Division of Administrative Hearings, by its designated Hearing Officer, Joyous D. Parrish, held a formal hearing in the above-styled case on May 24, 1994, in Fort Pierce, Florida.

APPEARANCES

For Petitioners: Thomas Garland

1595 Southeast Port St. Lucie Boulevard Port St. Lucie, Florida 34952

For Respondent: J.C. Miller

Assistant Attorney General Department of Legal Affairs 4000 Hollywood Boulevard

Hollywood, Florida 32302

STATEMENT OF THE ISSUES

The central issue in each of these cases is whether Petitioners received an inappropriate overpayment in connection with sick or maternity leave; and, if so, in what amount.

PRELIMINARY STATEMENT

These cases began as a result of an operational performance audit conducted by the Office of the Auditor General for the period July 1, 1991 through January 4, 1993. The audit focused on the Office of the Public Defender, Nineteenth Judicial Circuit, and more specifically centered on personnel matters within that office. The audit noted several problems relating to the past operation of the office (while under the leadership of the former Public Defender), alleged overpayments of salary and sick leave, and made several recommendations to the current Public Defender; among them:

(37) The current Public Defender should review the above findings, as well as

any documentation submitted by the former Public Defender in response to the above recommendations, and make appropriate revisions to the current employees' leave balances. For those payments to former employees described in the above findings, the current Public Defender, in consultation with the Justice Administrative Commission, should, if deemed appropriate, seek the assistance

of the Florida Department of Banking and Finance and the Executive Office of the Governor, Office of Planning and Budgeting, in recovering these moneys or obtaining approved budgetary authority necessary to meet any appropriation deficits caused by the leave payments cited in our audit findings.

* * *

(44) The current Public Defender should review the above findings, as well as any documentation submitted by the former Public Defender in response to the above recommendations, and, in consultation with the Justice Administrative Commission, make appropriate revisions to the current employees' leave balances.

* * *

(48) We appreciate the difficulties the current Public Defender will face in making decisions which may result in retroactive adjustments to current and former employees' salaries, terminal leave payments, and leave balances. However, we firmly believe that the current Public Defender is the appropriate public officer with statutory authority to initiate such actions.

* * * (emphasis in text)

Upon receipt of the recommendations, Diamond Litty, the current Public Defender, requested assistance from the Justice Administrative Commission for direction as to what action should be taken. At that time, the employees who were effected by the audit findings were notified of the alleged overpayments. Those employees, Petitioners herein, were advised of the amounts to be repaid, were given an opportunity to work out a repayment schedule with the Comptroller, and were further advised of their right to dispute the findings by requesting an administrative hearing. Each Petitioner then timely requested an administrative review of the issues.

The Justice Administrative Commission forwarded the matter to the Division of Administrative Hearings for formal proceedings on August 2, 1993. The case was originally scheduled for hearing on October 27, 1993, but was continued on several occasions. On October 18, 1993, an order was entered setting the burden of proof so that the parties were clear as to the issues of the case. The burden to establish the amounts allegedly due and from whom was placed on the Respondent.

At the hearing, the Petitioners testified in their own behalf and presented the testimony of the following witnesses: John B. Wilbon, Petitioner's husband; Annie Kate Jackson, the former personnel director for the office of the Public Defender; Philip J. Yacucci, Jr., the former Public Defender; and Diamond Litty, the current Public Defender. Petitioners' exhibits numbered 1 and 2 were admitted into evidence. Respondent, Diamond Litty testified and presented the testimony of Mark Harllee, an assistant Public Defender; and Patricia Armold, the current administrative services director for the office. The Respondent's exhibits numbered 1 through 9 and 11 through 13 were admitted. The transcript of the proceedings was filed on June 16, 1994.

FINDINGS OF FACT

1. Diamond Litty is the current Public Defender for the Nineteenth Circuit. She took office on January 5, 1993.

   
   

2. After being elected to the position, but prior to assuming her responsibilities as Public Defender, Ms. Litty requested that an audit be performed so that the financial and budget status of the office could be ascertained by an independent party.

   
   

3. Such audit was performed by the Auditor General's office and disclosed several discrepancies with the personnel records maintained by the office.

   While begun in December, 1992, the audit was not completed until after Ms. Litty took office. As part of the audit, Ms. Litty and her predecessor, Philip Yacucci, were asked to make responses to the audit findings.

   
   

4. Ms. Litty announced at her first staff meeting in January or February of 1993 that the audit had disclosed certain improprieties about which employees would be contacted.

5. Later, in June, 1993, Ms. Litty gave written notice to three employees, Petitioners herein, regarding the allegation of overpayments. More specifically, such notices provided the amounts claimed to be owed by the Petitioners and stated:

   
   

   If you cannot remit the total amount, the Comptroller's Office will be contacting you shortly in reference to a payment schedule. Further, should you wish to dispute these findings, you are entitled to an Administrative hearing, which the Comptroller's Office will discuss with you.

   
   

6. Each of the employees notified requested a formal hearing to contest the allegations of overpayment.

   
   

   As to Case no. 93-4264

   
   

7. Petitioner, Rebecca K. Zelnar, has been employed in the Office of the Public Defender (OPD) for approximately six and one-half years. Ms. Zelnar is a legal secretary in the felony division.

   
   

8. In March, 1992, Ms. Zelnar became aware that she was pregnant and would need to stop working by the end of September of that year.

   
   

9. At all times material to the allegations of this case, Ms. Zelnar was employed in a part-time status. As such, she accrued leave at a proportional rate. As a "three-quarter" employee her leave was calculated at 75 percent of the full-time rate. Additionally, she did not have full-time benefits.

   
   

10. On or about October 23, 1992, Ms. Zelnar was examined by her physician and was directed not to return to work. As she had been having false labor and was taking a medication for same, it was determined she should not return to work.

    
    

11. As a result, Ms. Zelnar did not return to work during the month of October, 1992. Her child was born on November 12, 1992, and was delivered by Caesarian section with serious complications for both the child and mother.

    
    

12. Ms. Zelnar was unable to return to work until January 4, 1993. She submitted leave request slips for the period she was out of the office as it was medically necessary for her to remain at home.

    
    

13. For the time she was out of the office, Ms. Zelnar was paid for sick leave and annual leave, the latter of which is not in dispute.

    
    

14. As to the sick leave for which Ms. Zelnar received payment, several days were "donated" to her by other employees in the office.

    
    

15. The "donation" of sick leave occurred by virtue of an informal sick leave pool whereby the personnel director, acting with the approval of the then Public Defender, Philip Yacucci, allowed employees to give sick leave to other employees. This "donation" allowed employees who had exhausted their sick leave to receive payment for time out of the office.

    
    

16. The sick leave pool utilized by the OPD was not established in accordance with Florida law.

17. Ms. Zelnar did not have sick leave of her own to cover the time period she was out of the office on maternity leave. Had she had leave available to take, her condition (and that of her child) would have warranted use of sick leave.

    
    

18. Ms. Zelnar was overpaid as sick leave a total of 94.667 hours.

    
    

19. The total amount owed as a result of this overpayment is $951.02.

    
    

    As to Case no. 93-4265

    
    

20. At all times material to this case, Petitioner, Brenda T. Wilbon, was employed as an administrative assistant in the OPD.

    
    

21. At the time of hearing Ms. Wilbon had been employed a little over five years and was responsible for secretarial as well as bookkeeping duties for the office.

    
    

22. In October, 1991, while working as a "three-quarter" employee, Ms. Wilbon was diagnosed with cancer. In late November, 1991, she had surgery but was unable to return to work until January, 1992.

    
    

23. From December, 1991, through most of the following year, Ms. Wilbon underwent chemotherapy and radiation incidental to her treatment for cancer.

    
    

24. Gretchan McMillen, the office manager for the OPD, advised Ms. Wilbon that she could use time from the sick leave pool for her illness.

    
    

25. Because of her work responsibilities, however, Ms. Wilbon continued to work when she was physically able to do so. The chemotherapy treatments made her very ill and she was forced to be absent several days per month.

    
    

26. Ms. Wilbon received sick leave "donated" to her in the same manner as had Ms. Zelnar.

    
    

27. Ms. Wilbon maintains that had she known the leave would have to be repaid, she would not have taken as many days off but would have attempted to work. Notwithstanding this assertion, it is accepted that the treatments rendered the Petitioner, in her words, "deathly sick;" thus it is unlikely she could have performed her duties in such condition.

    
    

28. Had a bona fide sick leave pool been established for the OPD in accordance with Florida law, Petitioner's illness would have allowed her request for sick leave pool leave.

    
    

29. As it stands under this record, however, the total number of sick leave hours for which Ms. Wilbon was overpaid was 299.836.

    
    

30. The total amount owed as a result of this overpayment is $3,832.19.

    
    

    As to Case no. 93-4266

    
    

31. At all times material to this case, Petitioner, Alice Johnson, was employed as a full-time employee with the OPD.

32. As a communications assistant, Ms. Johnson handled the receptionist's duties at the front window, gave information to clients, and answered the switchboard.

    
    

33. During her employment, Ms. Johnson became pregnant and requested maternity on or about June 7, 1991. Her child was delivered without complication on June 25, 1991.

    
    

34. Prior to taking leave, Ms. Johnson was advised that she would be given administrative leave for the time taken for maternity purposes.

    
    

35. Accordingly, Ms. Johnson continued to receive her full salary while she was on leave for approximately eight weeks.

    
    

36. When she returned to work on August 1, 1991, the leave request slips identified as Respondent's composite exhibit 6 were executed.

    
    

37. Administrative leave is not available for maternity or sick leave purposes. Ms. Johnson was allowed to use her annual leave and accrued sick leave for the period she was out.

    
    

38. The total number of administrative leave hours for which Ms. Johnson was overpaid is 187.25.

    
    

39. The total amount owed as a result of this overpayment is $1,774.11.

    
    

40. As personnel director, Annie Kate Jackson, was responsible for the documentation and records for employee sick and annual leave.

    
    

41. Ms. Jackson looked to Ms. McMillen and Mr. Yacucci to establish personnel policies for the office.

    
    

42. Mr. Yacucci approved all leave payments made to the Petitioners.

    
    

43. According to Ms. Jackson, all employees of the OPD assumed Mr. Yacucci had the authority to approve the leave requests in dispute.

    
    

44. Mr. Yacucci approved the memorandum issued on February 6, 1992, which provided, in pertinent part:

    
    

    An employee who wishes to do so may transfer his/her accumulated sick days to another employee who has to take time off due to a prolonged illness. This prolonged illness does not mean the flu or a bad cold, but a major illness requiring a prolonged period of absence from work. We request you limit your transfer to ten (10) days. (Emphasis in text)

    
    

45. Although the donation of time was to be limited to ten days, Mr. Yacucci approved the time donated to Petitioners that exceeded that amount.

    
    

46. Under the rules of the OPD, maternity leave is classified as leave without pay.

47. As the current Public Defender, Ms. Litty was charged by the audit documents with the responsibility of resolving the audit discrepancies.

    
    

    CONCLUSIONS OF LAW

    
    

48. Section 27.53, Florida Statutes, authorizes the public defender of each judicial circuit to employ personnel who are to paid from funds appropriated for that purpose.

    
    

49. Section 27.54, Florida Statutes, requires that all payments for the salary of staff for the public defender be considered as being for a valid public purpose.

    
    

50. Section 110.121, Florida Statutes, sets forth the criteria for establishing a sick leave pool. The statute mandates that the authority to adopt rules allowing a sick leave pool must be in accordance with guidelines established by the Department of Administration. The sick leave pool utilized by the former public defender did not comply with this section.

    
    

51. Section 17.04, Florida Statutes, provides:

    
    

    The Department of Banking and Finance of this state shall examine, audit, adjust and settle the accounts of all the officers of this state, and any other person in anywise intrusted with, or who may have received any property, funds or moneys of this state, or who may be in anywise indebted or accountable to this state for any property, funds or moneys, and require such officer, or persons to render full accounts thereof, and to yield up such property or funds according to law, or pay such moneys into the treasury of this state, or to such officer or agent of the state as may be

    appointed to receive the same, and on failure so to do, to cause to be instituted and prosecuted proceedings, criminal or civil, at law or in equity, against such persons, according to law. (Emphasis added)

    
    

52. Based upon the foregoing section, the Department of Banking and Finance must institute collection proceedings against the employees for the monies owed. The Division of Administrative Hearings does not have jurisdiction in this matter as the public defender does not have jurisdiction to collect monies owed to the state. Additionally, it must be noted that the Justice Administrative Commission, the entity that referred the matter to the Division of Administrative Hearings, does not have subject matter jurisdiction. Even though following the recommendations of the auditor, the public defender does not, under the authority to hire and compensate employees, have the ability to collect funds which were inappropriately paid as salary.

RECOMMENDATION

Based on the foregoing, it is, hereby, RECOMMENDED:

That the foregoing cases be closed for lack of jurisdiction.

DONE AND ENTERED this 22nd day of August, 1994, in Tallahassee, Leon County, Florida.

Joyous D. Parrish 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 22nd day of August, 1994.

Appendix to case nos. 93-4264, 93-4265, and 93-4266

Rulings on the proposed findings of fact submitted by Petitioners:

Petitioners' proposed findings of fact are rejected as untimely filed and as not in a form such that facts can be readily distinguished from argument and either accepted or rejected.

It is, however, concluded that such facts do not, as a matter of law, constitute estoppel were it determined that the undersigned had jurisdiction to render a recommendation on the merits.

Rulings on the proposed findings of fact submitted by Respondent:

Respondent's proposed findings of fact are rejected as not in a form such that facts can be readily distinguished from argument and either accepted or rejected.

COPIES FURNISHED:

Thomas R. Garland

1595 S.E. Port St. Lucie Boulevard Port St. Lucie, Florida34952

Tracy Reeves Executive Director

Justice Administration Commission Post Office Box 1654

117 West College Avenue Tallahassee,Florida32302

Diamond Litty

Office of the Public Defender Nineteenth Judicial Circuit

415 S. 2nd Avenue,Suite 100 Fort Pierce, Florida34950

J.C. Miller

Assistant Attorney General Department of Legal Affairs Suite 505

4000 Hollywood Boulevard Hollywood,Florida33021

William G. Reeves General Counsel

Department of Banking and Finance The Capitol, Plaza Level Tallahassee,Florida32399-0350

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this R

Docket for Case No: 93-004264

Orders for Case No: 93-004264