STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHELDON S. SCRIVENER, )

)

Petitioner, )

)

vs. )

) DEPARTMENT OF JUVENILE JUSTICE, )

)

Respondent. )

Case No. 01-2688

)

RECOMMENDED ORDER

A formal hearing was held by the Division of Administrative Hearings before Daniel M. Kilbride, Administrative Law Judge, on September 18, 2001, by telephone conference call to Cocoa, Florida.

APPEARANCES

For Petitioner: Sheldon S. Scrivener, pro se

5253 Jamaica Road

Cocoa, Florida 32927-9058

For Respondent: Richard D. Davison, Esquire

Department of Juvenile Justice 2737 Centerview Drive

Tallahassee, Florida 32399-3100 STATEMENT OF THE ISSUE

Whether Petitioner received a salary overpayment for the pay period ending November 9, 2000, for which the State of Florida is entitled to be reimbursed.

PRELIMINARY STATEMENT

Petitioner, Sheldon S. Scrivener, resigned his employment with the State of Florida on November 6, 2000, and subsequently received compensation for his services. By letter, dated

May 16, 2001, Respondent notified Petitioner that a salary overpayment in the claimed amount of $233.53 had been made in his final pay warrant. On May 21, 2001, Petitioner disputed the claim and requested a formal hearing. On June 26, 2001, Respondent revised the amount claimed to $144.57. Petitioner disputed this amount also and the case was referred to the Division of Administrative Hearings (DOAH) for a formal hearing on July 5, 2001. This matter was set for hearing on

September 18, 2001, and, with the consent of the parties, was conducted by telephone conference call between Tallahassee and Cocoa, Florida.

At the hearing, Petitioner testified in his own behalf and offered two exhibits in evidence. Respondent called one witness and offered six exhibits in evidence.

A transcript of the proceedings was made but not transcribed. Petitioner filed a post hearing submittal on September 24, 2001. Respondent has not filed proposed findings of fact or conclusions of law as of the date of this Recommended Order.

FINDINGS OF FACT

1. Petitioner was employed by the State of Florida, Department of Juvenile Justice (Respondent) as a Group Treatment Leader, Class Code 5721, for a four-month period ending on November 6, 2000. This is a career service position.

2. Petitioner resigned from the Respondent on November 6, 2000, due to significant personal problems associated with his marriage. Petitioner's resignation was accepted by his supervisor on the same day. Petitioner was not a permanent career service employee on the date of his resignation.

3. Petitioner received a final payment for work performed for the period October 27, 2000 through November 5, 2000, on approximately November 20, 2001.

4. Petitioner was concerned about the possibility of overpayment and contacted his local personnel office to inquire about it. Petitioner was told by his office personnel officer not to be concerned about it. At that time, Petitioner believed the matter to be resolved and no longer an issue.

5. By letter dated May 16, 2001, Petitioner received correspondence from Respondent alleging that he was overpaid and seeking reimbursement in the amount of $233.53 for 21.0 hours of earned annual leave that was not compensable. The notification was not prompt, but is was made in a timely manner.

6. On May 21, 2001, Petitioner requested a formal hearing before the DOAH.

7. On June 26, 2001, Respondent notified Petitioner that a further audit revealed that he was entitled to be paid for 8.0 hours of special compensation leave. Applying these hours to the overpayment left a balance of 13.0 hours, equaling $144.57 due. While this matter was pending before DOAH, that amount was garnished from Petitioner's wages by the Comptroller, without prior notification.

8. Petitioner had 21.0 hours of earned annual leave while employed by Respondent. Due to excessive working hours and the critical nature of the position with Respondent, Petitioner had very limited opportunities to use his leave during the time he was employed by Respondent. Due to the short time that he was employed by Respondent, Petitioner's earned leave was not transferable to the Department of Heath, his current employer.

9. Petitioner seeks to withdraw his original letter of resignation and substitute a new letter, to be effective November 20, 2000. This would allow him to use the annual leave and special compensatory leave to account for the period in question and cancel the garnishment.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction of the persons and the subject matter of this

    proceeding, pursuant to the provisions of Sections 120.569 and 120.57(1), Florida Statutes (Supp. 2000).

11. The Department of Management Services (DMS) has the duty to establish and maintain an equitable pay plan applicable to all classes of positions in the career service. DMS has delegated to the employing agency, in this case Respondent, the authority inter alia to administer salary increase and decrease corrections and temporary special duties pay. Sections 110.209(1),(2)(c)5.,7., and 110.2035(6), Florida Statutes.

12. The general policies in regard to attendance and leave require that the employing agency keep accurate record of all hours of work performed by each employee, as well as a complete and accurate record of all authorized leave which is approved. The ultimate responsibility for the accuracy and proper maintenance of all attendance and leave records is with the employing agency head. Section 110.219(4), Florida Statutes.

13. Respondent also has relied on the provisions of the Department of Banking and Finance Rule 3A-31.309(a)(d), Florida Administrative Code. That rule was repealed in 1996. However, under the provisions of Section 17.04, Florida Statutes, the Department of Banking and Finance has the authority to audit and adjust accounts of state employees, and to require such persons to render full accounts thereof and to yield up such funds according to law.

14. Respondent does have a duty to ensure the accurate pay records are maintained and that each employee is paid equitably for work performed. As such, Respondent conducted an audit of Petitioner's last pay check, and, although it was not done promptly, it was not untimely under the law. Under the first audit, Respondent claimed an overpayment of $233.53 was made. Upon a re-audit in June 2001, the overpayment was reduced to

    $144.57. The preponderance of evidence shows that the second audit is correct and Petitioner was overpaid for non-compensable annual leave in the amount of $144.57. Since Petitioner is now re-employed by the State of Florida, the Comptroller is entitled to seek reimbursement of that amount from Petitioner's pay.

15. However, during the course of this proceeding, Respondent notified the Comptroller of the results of their second audit in August 2001 and authorized the Comptroller to garnish the amount in controversy from Petitioner's pay, and this was done. This action was improper. Pursuant to the provisions of Section 120.569(2)(a), Florida Statutes, Respondent is directed to take no further action with respect to a proceeding under 120.57(1), except as a party litigant, as long as DOAH has jurisdiction over the proceeding under 120.57(1).

16. As a way to resolve this matter and allow Petitioner to keep his salary overpayment, he seeks to withdraw his letter

of resignation of November 6, 2000, and substitute another with a different effective date. This proposal is not authorized since his letter of resignation was accepted by his supervisor on the same date as tender, and once accepted cannot be withdrawn. Indian River County Board of County Commissioners/Finance Office v. Loreto, 513 So. 2d 242 (Fla. 4th DCA 1987); See generally, Yarabothu v. Unemployment Appeals Commission, 721 So. 2d 379 (Fla. 5th DCA 1998); Smith v.

Unemployment Appeals Commission, 698 So. 2d 1344 (Fla. 5th DCA 1997).

RECOMMENDATION

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

RECOMMENDED that the Secretary enter a final order authorizing the garnishment of Petitioner's wages in the amount of $144.57 for salary overpayment for the pay period ending November 9, 2000.

DONE AND ENTERED this 1st day of November, 2001, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

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 1st day of November, 2001.

COPIES FURNISHED:

Richard D. Davison, Esquire Department of Juvenile Justice 2737 Centerview Drive

Tallahassee, Florida 32399-3100

Sheldon S. Scrivener 5253 Jamaica Road

Cocoa, Florida 32927-9058

William G. Bankhead, Secretary Department of Juvenile Justice Knight Building

2737 Centerview Drive

Tallahassee, Florida 32399-3100

Robert N. Sechen, 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: 01-002688

Orders for Case No: 01-002688