STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OLIVIA O. BAMISHIGBIN, )

)

Petitioner, )

)

vs. ) Case No. 02-3010

) DEPARTMENT OF JUVENILE JUSTICE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on September 30, 2002, by video teleconference, with the parties appearing in Miami, Florida, before Patricia Hart Malono, a duly-designated Administrative Law Judge of the Division of Administrative Hearings, who presided in Tallahassee, Florida.

APPEARANCES

For Petitioner: Olivia O. Bamishgbin, pro se

4466 Northwest 200th Street Carol City, Florida 33055

For Respondent: Richard D. Davison, Esquire

Department of Juvenile Justice Knight Building

2737 Centerview Drive, Suite 312

Tallahassee, Florida 32399-3100 STATEMENT OF THE ISSUE

Whether the Respondent overpaid the Petitioner for

1. hours of annual leave, and, if so, the amount of the overpayment.

   PRELIMINARY STATEMENT

   
   

   In a letter dated May 9, 2002, the Department of Juvenile Justice ("Department") notified Olivia O. Bamishigbin that the Department had overpaid her for 51.5 hours of annual leave and that she was to repay the Department $612.97 within 15 days. In the letter, the Department explained that the number of hours of annual leave calculated in Ms. Bamishigbin's final leave audit did not include pro-ration of her Select Exempt Service annual leave hours. Ms. Bamishigbin timely requested an administrative hearing, and the Department forwarded her request to the Division of Administrative Hearings for assignment of an administrative law judge. Pursuant to notice, the hearing was held on September 30, 2002.

   At the hearing, Ms. Bamishigbin testified in her own behalf, and Petitioner's Exhibits 1 and 2 were offered and received into evidence. The Department presented the testimony of Stephanie Holmes, a Personnel Services Specialist in the Department's Attendance and Leave Section, and Vivian P. Chambliss, a Payroll Supervisor with the Department. Agency Exhibits 1 through 6 were offered and received into evidence.

   The parties stated at the hearing that neither would order a transcript of the proceedings. Ms. Bamishigbin timely submitted her Proposal, and the Department timely submitted its

   proposed Recommended Order, which have been considered in the preparation of this Recommended Order.

   FINDINGS OF FACT

   
   

   Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:

   1. Ms. Bamishigbin was employed by the State of Florida for 17 years. In June 2001, her position classification was changed from Career Service to Select Exempt Service.

   2. Ms. Bamishigbin was terminated from her employment effective January 4, 2002, because of budget cuts.

   3. After her termination, Ms. Bamishigbin was paid for her accrued annual and sick leave balances; accrued annual leave hours are paid in full, but only one-quarter of accrued sick leave hours are paid. Based on the final audit of her annual and sick leave balances, Ms. Bamishigbin was paid a net total of

      $5252.59 for 441 hours of annual leave and 98 (391.5 hours ÷ 4) hours of sick leave by warrant dated February 22, 2002.

   4. Subsequent to this payment, Ms. Bamishigbin's leave records were again audited, and, based on the revised calculations, the Department concluded that she had been paid for more hours of annual leave and for fewer hours of sick leave than she had accrued as of her termination date.

   5. In calculating the revised annual leave and sick leave hours for Ms. Bamishigbin, Department personnel used the leave balances shown for Ms. Bamishigbin in COPES, the official compilation of annual and sick leave for all state employees, as of June 8, 2001, and supplemented this data with a manual audit of Ms. Bamishigbin's timesheets from June 8, 2001, to the date of her termination.

   6. When preparing the revised audit, Department personnel discovered that Ms. Bamishigbin's annual leave hours for

      2001-2002 had not been pro-rated to account for her termination on January 4, 2002: COPES showed 380.5 accrued annual leave hours for Ms. Bamishigbin as of June 8, 2001, together with an additional 4.5 hours of annual leave that she had accrued in June 2001 as a career service employee, before her position was changed to Select Exempt Services. In accordance with the usual procedure for Select Exempt Service employees, Ms. Bamishigbin was credited in June 2001 with 176 hours of annual leave for the 12-month period extending from June 2001 to June 2002, for a total of 561 hours of annual leave.

   7. In the original leave audit, the entire 176 hours had been included in the calculation of Ms. Bamishigbin's accrued annual leave. However, because she was terminated on January 4, 2002, the 176 hours of annual leave accrued for the 12-month period from June 2001 to June 2002, should have been pro-rated

      for 7 months. Ms. Bamishigbin, therefore, had 102.669 ((176 ÷

      
      

      12) x 7) hours of annual leave that she was entitled to use from June 8, 2001, to January 4, 2002.

   8. Ms. Bamishigbin used 117.25 hours of annual leave between June 8, 2001, and January 4, 2002. Even though Ms. Bamishigbin used an amount in excess of the number of

      pro-rated annual leave hours available to her between June 2001 and January 2002, the Department does not penalize an employee who is terminated for using annual leave hours in excess of the pro-rated amount, so Ms. Bamishigbin was credited with no hours of annual leave accrued between June 2001 and January 2002.

   9. The Department calculated that Ms. Bamishigbin had accrued annual leave hours equal to the 380.5 hours of accrued annual leave she had on June 8, 2001, plus 4.5 hours, for a total of 385 hours. Ms. Bamishigbin was paid for 441 hours of accrued annual leave, so the Department calculated that she had been overpaid for 56 hours of annual leave.

   10. The Department also discovered that Ms. Bamishigbin had been underpaid for her accrued hours of sick leave. She was paid for 391.5 hours of sick leave, but she should have been paid for 410.169 hours of sick leave, a difference of

       18.669 hours. The total underpayment to Ms. Bamishigbin for her accrued sick leave was 4.66 (18.669 ÷ 4) hours.

   11. The Department finally determined that Ms. Bamishigbin had been overpaid by a total of 51.5 hours of accrued leave (56 hours of annual leave - 4.66 hours of sick leave). Based on these figures, Ms. Bamishigbin was overpaid in the amount of

       $612.97.

       
       

   12. Ms. Bamishigbin claims that the 380.5 hours of accrued annual leave shown in COPES for June 8, 2001, was incorrect, and that she had more hours of annual leave than was shown in the system. Ms. Bamishigbin did not, however, provide any evidence to contradict the information regarding the total annual leave hours the Department obtained from COPES, although

       Ms. Bamishigbin testified that COPES incorrectly reported the amount of compensatory leave she had accrued.

       CONCLUSIONS OF LAW

       
       

   13. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2002).

   14. The Department is the party seeking to establish that Ms. Bamishigbin must reimburse the Department the amount of

       $612.97 on account of an overpayment for accrued annual and sick leave, and the Department, therefore, has the burden of proof its claim by a preponderance of the evidence. See Florida Department of Transportation v. J.W.C. Co., Inc., 396 So. 2d

       778, 788 (Fla. 1st DCA 1981)("In accordance with the general rule, applicable in court proceedings, 'the burden of proof, apart from statute, is on the party asserting the affirmative of an issue before an administrative tribunal.' Balino v.

       Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977)."); Section 120.57(1)(j), Florida Statutes (2002)("Findings of fact shall be based upon a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute, and shall be based exclusively on the evidence of record and on matters officially recognized.").

   15. Based on the findings of fact herein, the Department has met its burden of proving by a preponderance of the evidence that, as a result of the Department's error in calculating

Ms. Bamishigbin's accrued sick and annual leave at the time of her termination on January 4, 2002, Ms. Bamishigbin was paid for

51.5 more hours of leave than she had actually accumulated. She must, therefore, repay the Department, in the amount of $612.97.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Juvenile Justice enter a final order finding that Ms. Bamishigbin is liable to repay $612.97 for an overpayment of 51.5 hours of accrued leave.

DONE AND ENTERED this 18th day of November, 2002, in Tallahassee, Leon County, Florida.

PATRICIA HART MALONO

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 18th day of November, 2002.

COPIES FURNISHED:

Olivia O. Bamishigbin 4466 Northwest 200 Street

Carol City, Florida 33055

Richard D. Davison, Esquire Department of Juvenile Justice Knight Building

2737 Centerview Drive, Suite 312

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: 02-003010

Orders for Case No: 02-003010