STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EUGENE BREEZE, )

)

Petitioner, )

)

vs. ) CASE NO. 96-1332

) DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly-designated Administrative Law Judge of the Division of Administrative Hearings, on September 13, 1996, in Panama City, Florida.

APPEARANCES

For Petitioner: No appearance

For Respondent: Melease Jackson, Esquire

Department of Environmental Protection 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000 STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding concern whether the Respondent, Department of Environmental Protection's (DEP) employee, Petitioner, Eugene Breeze, received a salary overpayment and whether that employee must refund the money to DEP under the provision of Rule 3A-31.309, Florida Administrative Code.

PRELIMINARY STATEMENT

This cause arose upon the issuance by DEP of a check to the Petitioner in the amount of $1,627.23 for gross wages. The check was issued on November 30, 1995. On December 13, 1995, in accordance with Rule 60L-8.006, Florida Administrative Code, DEP notified the Petitioner, by letter, that he had been overpaid for November, 1995 and requested that he refund the overpayment. The Petitioner filed a request for formal administrative proceeding concerning DEP's action on December 22, 1995. On March 8, 1996, the matter was referred to the Division of Administrative Hearings and was ultimately assigned to the undersigned for conduct of a formal administrative proceeding.

The cause came on for hearing as noticed. After waiting a substantial period of time, approximately 40 minutes, the Petitioner failed to appear at the formal hearing and throughout the course of the formal hearing, never did appear. Consequently, no witnesses or evidence were offered on the Petitioner's

behalf. DEP, having the burden of proof in this matter, was directed to proceed to present its case-in-chief, which it did. DEP presented the testimony of four witnesses and offered 14 exhibits, which were all admitted into evidence. The witnesses were Jack Olwick, Ann Messer, Marie Casey, and Kathleen Smith. Jack Olwick is the Assistant Manager at Choctaw Geo Park for the Florida Division of Recreation and Parks, a division of the Respondent agency. He was the supervisor for the Petitioner, who was employed as a park ranger. Ann Messer is employed with DEP's Bureau of Human Resource Services as a Senior Personnel Manager. Marie Casey is also employed with that Bureau as a Personnel Technician III, and Kathleen Smith is employed with DEP's Bureau of Finance and Accounting as a Payroll Supervisor.

Upon conclusion of the hearing, a transcript was ordered; and a period of time was set for the submission of Proposed Recommended Orders. Thereafter, the transcript was filed; and a Proposed Recommended Order was submitted by the DEP's counsel on October 4, 1996. No such submission by the Petitioner was made up through the deadline of October 7, 1996 or thereafter to date.

FINDINGS OF FACT

1. The employee herein, the Petitioner, is employed by DEP as a park ranger. DEP is an agency of the State of Florida.

   
   

2. The Petitioner failed to report for work after June 10, 1995. He apparently had some health problem or complaint and was on sick leave for a time. October of 1995 was the first month that he was on leave without pay. He was on leave without pay when he was terminated, which occurred on November 27, 1995.

   
   

3. The Petitioner was not receiving workers compensation benefits between his last day of work on June 10, 1995 and the termination date of November 27, 1995. His monthly rate of pay was $1,627.23. He was paid $1,627.62 in gross wages for 176 hours on November 30, 1995. He received $1,319.18 in net wages for November of 1995.

   
   

4. The Petitioner was entitled to $71.74 in wages for 10.75 hours for November of 1995. DEP calculated the amount of overpayment by offsetting the wages issued to him in November of 1995 by the amount he was actually entitled to receive for that month for the 10.75 hours.

   
   

5. Thereafter, on December 12, 1995, DEP notified the Petitioner, by certified mail, return receipt requested, that he had been overpaid $1,247.44 in net wages for November of 1995. That return receipt reflected that the Petitioner received that letter on December 15, 1995.

   
   

6. The Petitioner failed to refund the money to DEP during the 1995 tax year and as yet, has still not refunded the money. Because the money was not refunded during the 1995 tax year, the Petitioner also owes DEP an additional

   $163.87, which was withheld for taxes on the payment or overpayment in question. Thus, DEP overpaid the Petitioner a total of $1,411.31 in wages for November of 1995.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Section 120.57(1), Florida Statutes. See, New v. Department of Banking and Finance, Division of Accounting

   and Auditing, 554 So.2d 1203 (Fla. 1st DCA 1989), and Department of Corrections

   v. Career Service Commission, 429 So.2d 1244 (Fla. 1st DCA 1983).

   
   

8. Rule 3A-31.309, Florida Administrative Code, provides that a salary overpayment occurs when "a state public officer or employee is paid an amount greater than that which is authorized and a refund is due and payable to the State of Florida."

   
   

9. The evidence in this case establishes that in November of 1995, the Petitioner was paid $1,411.31 more than he was entitled to, in view of the fact that no refund was made during 1995 to DEP, which resulted in the additional liability for the taxes withheld, referenced in the above Findings of Fact.

   
   

10. When an overpayment is discovered after an employee has been terminated from his state employment position, Rule 60L-8.005, Florida Administrative Code, requires the state agency to notify the former employee by certified mail, return receipt requested, of the error and the necessity to refund the money. The evidence in this case established that the Petitioner was properly notified of the erroneous payment. No evidence was presented to refute the showing by DEP that the money in the above amount was paid to the employee, the Petitioner, nor has any evidence been presented to show that any refund of that salary overpayment, or any portion thereof, has been made. Accordingly, it is concluded that the Petitioner owes DEP a refund in the amount of $1,411.31 for the salary overpayment received on November 30, 1995.

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 the Respondent, Department of Environmental Protection, enter a Final Order finding that the employee, the Petitioner, Eugene Breeze, owes $1,411.31 for a salary overpayment received by him in November of 1995.

DONE AND ENTERED this 1st day of November, 1996, in Tallahassee, Florida.

P. MICHAEL RUFF Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 4th day of November, 1996.

COPIES FURNISHED:

Mr. Eugene Breeze 1110 Florida Avenue

Lynn Haven, Florida 32444

Melease Jackson, Esquire

Department of Environmental Protection 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Virginia B. Wetherell, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Perry Odom, General Counsel

Department of Environmental Protection 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

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: 96-001332

Orders for Case No: 96-001332