STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JANET BING, )

)

Petitioner, )

)

vs. )

) DEPARTMENT OF JUVENILE JUSTICE, )

)

Respondent. )

Case No. 01-3492

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge,

Jeff B. Clark, held a formal administrative hearing in this case on October 5, 2001, in Orlando, Florida.

APPEARANCES

For Petitioner: No Appearance

For Respondent: Richard D. Davison, Esquire

Department of Juvenile Justice 2737 Centerview Drive

Tallahassee, Florida 32399-3100 STATEMENT OF THE ISSUES

Whether Petitioner was overpaid for the pay period ending July 5, 2001, warrant date July 13, 2001, for 40 hours, equaling

$378.74.

PRELIMINARY STATEMENT

By letter dated August 15, 2001, Respondent, Department of Juvenile Justice, advised Petitioner, Janet A. Bing, of a

$378.74 salary overpayment for the pay period ending July 5, 2001. On August 24, 2001, Petitioner requested a formal administrative hearing. On August 30, 2001, the case was forwarded to Division of Administrative Hearings. On

September 24, 2001, a final hearing was scheduled for October 5, 2001, in Orlando, Florida.

At the commencement of the hearing, Respondent's counsel, Richard D. Davison, advised the undersigned that counsel's office had received a telephone call from Petitioner indicating that she was "in the hospital and could not attend the hearing." There is no indication that Petitioner attempted to contact the undersigned or the Division of Administrative Hearings, nor was any request for continuance received.

At the hearing, Respondent presented the testimony of Vivian Chambliss, Personnel Services Specialist, employed by Respondent. Respondent offered seven exhibits, Respondent's Exhibits 1-7, which were received in evidence. Petitioner failed to appear. No transcript of the proceedings was ordered. Respondent filed a Proposed Recommended Order.

FINDINGS OF FACT

1. Petitioner was employed by Respondent, an agency of the State of Florida, as a Senior Juvenile Detention Officer during the pay period of June 22, 2001 through July 5, 2001.

2. Prior to June 22, 2001, Petitioner exhausted her accrued sick leave.

3. During the referenced pay period, Petitioner claimed

   
   

   40 hours of sick leave relying on leave that a fellow employee, Marc Gulley, attempted to donate to her.

4. On June 24, 2001, Marc Gulley submitted an Interagency Sick Leave Transfer Request to Donate form to Respondent.

5. On June 27, 2001, Petitioner submitted a Sick Leave Transfer Request to Use form to Respondent.

6. Petitioner was paid, by salary warrant on July 13, 2001, for 40 hours of credited sick leave for the pay period of June 22, 2001 through July 5, 2001.

7. On August 13, 2001, Respondent notified Marc Gulley that his request to donate sick leave to Petitioner was denied because he did not possess the requisite amount remaining of sick leave.

8. On August 15, 2001, Respondent notified Petitioner of the salary overpayment of $378.74 and requested repayment.

9. Respondent presented a salary refund calculation showing the amount Petitioner was paid, the amount she should

   have been paid when the sick leave transfer was denied, and the amount of the refund she owed to Respondent.

10. Petitioner owed Respondent $378.74 as a result of an overpayment which occurred due to the improper crediting of

    40 hours of sick leave transferred from another employee, Marc Gulley.

11. Petitioner left the employ of Respondent on August 27, 2001; on August 24, 2001, Respondent appropriately withheld

    $378.74 from a warrant issued to Petitioner.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings. Section 120.57, Florida Statutes.

13. The burden of proof is on the party asserting the affirmative of an issue before an administrative tribunal. Florida Department of Transportation v. J. W. C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

14. Rule 60K-5.030(3)(a)1, Florida Administrative Code, allows an agency to establish a formal plan for employees to donate personal sick leave credits to another employee within the same agency; the agency personnel officer is responsible for the administration of this plan.

15. Rule 60K-5.030(3)(c)(1), Florida Administrative Code, limits the transfer of sick leave credits to employees who will

    have a minimum of 80 hours of sick leave remaining in their account after their voluntary transfer.

16. Respondent appropriately denied the donation of sick leave to Petitioner by Marc Gulley because Mr. Gulley would not have the required 80 hours of accrued sick leave remaining after the donation.

17. Respondent demonstrated by a preponderance of the evidence that Petitioner had been overpaid by $378.74 as a result of 40 hours of Mr. Gulley's sick leave purportedly transferred to her

18. Respondent appropriately withheld $378.74 from the warrant issued Petitioner on August 24, 2001.

RECOMMENDATION

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

Recommended that the determination of Respondent, Department of Juvenile Justice, that Petitioner, Janet Bing, was overpaid in the amount of $378.74 be upheld, that withholding

$378.74 from Petitioner's pay was appropriate, that Petitioner's claim be denied, and the file be closed.

DONE AND ENTERED this 26th day of October, 2001, in Tallahassee, Leon County, Florida.

___ JEFF B. CLARK

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 26th day of October, 2001.

COPIES FURNISHED:

Janet Bing

719 Waxwing Court

Kissimmee, Florida 34759

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

Tallahassee, Florida 32399-3100

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: 01-003492

Orders for Case No: 01-003492