STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JENNIFER CARTER NICHOLSON, )

)

Petitioner, )

)

vs. )

) DEPARTMENT OF JUVENILE JUSTICE, )

)

Respondent. )

Case No. 03-2453

)

RECOMMENDED ORDER

A hearing was held pursuant to notice on September 30, 2003, by Stephen F. Dean, assigned Administrative Law Judge of the Division of Administrative Hearings in Tallahassee, Florida.

APPEARANCES

For Petitioner: Jennifer Carter Nicholson, pro se

304 D Indian Trial

Burnsville, North Carolina 28714

For Respondent: Richard D. Davison, Esquire

Department of Juvenile Justice 2737 Centerview Drive, Suite 312

Tallahassee, Florida 32399-3100 STATEMENT OF THE ISSUES

Whether Respondent was overpaid for 27.5 hours in the amount of $271.70, originally credited as administrative leave?

PRELIMINARY STATEMENT

The Department of Juvenile Justice (DJJ) gave notice by letter that it sought the repayment of $271.70 for 27.5 hours of

time erroneously credited to Petitioner as administrative leave. The letter advised Petitioner of her right to a formal hearing, which she requested. The DJJ referred the case to Division of Administrative Hearings (DOAH), and the case was noticed for hearing on September 30, 2003. Prior to hearing, arrangements were made for Petitioner to participate by telephone conference call.

At hearing Petitioner testified and stipulated to the exhibits introduced by Respondent. Respondent called Vivian Chamblis to testify and introduced Exhibits one through five. In addition, at the request of the Administrative Law Judge the DJJ filed Petitioner's leave record as a late-filed exhibit.

Both parties filed proposed findings of fact which were read in preparation of this Recommended Order. All citations are to Florida Statutes (2002) unless otherwise indicated.

FINDINGS OF FACT

1. The DJJ is an agency with a centralized personnel office in Tallahassee, Florida. All the records of its personnel are kept and maintained in Tallahassee, Florida.

2. Petitioner, Jennifer Carter Nicholson, was employed in the category of an Other Personnel Services (OPS) employee by DJJ from May 8, 2002 until September 12, 2002, at the Marion Juvenile Detention Center as a Juvenile Detention Officer.

   As an OPS employee, Petitioner did not earn sick or annual leave credit.

3. Petitioner was employed by DJJ as a Career Service employee from September 13, 2002 until October 6, 2002, at the Alachua Juvenile Detention Center. As a Career Service employee, Petitioner earned three hours' credit of annual leave and three hours' credit of sick leave during her employment from September 13, 2002 until October 6, 2002.

4. Petitioner did not work from September 23, 2002 until the effective date of her resignation on October 6, 2002, because of complications from asthma, which was why she tendered her resignation.

5. During the last week of her last pay period, Petitioner worked 12.5 hours.

6. A time sheet appears to have been submitted in her behalf by a person or persons unknown claiming 27.5 hours of sick leave.

7. The payroll clerk apparently determined that Petitioner was not entitled to 27.5 hours of sick leave, and erroneously credited Petitioner with 27.5 hours of administrative leave. Upon that basis, Petitioner was paid for a full week's work. This amounted to $855.87, or 80 hours at a rate of $10.70 per hour. However, the records indicate, and Petitioner does not

   deny, that she did not work 27.5 hours during the second week of the period.

8. Thereafter, an audit of her account revealed that Petitioner was not entitled to administrative leave, and this action was initiated within the statute of limitations to seek re-payment of $271.70.

9. During the period in question, Petitioner's attendance and leave record reflects that Petitioner earned three hours of annual leave and three hours of sick leave. See Respondent's Exhibit 6.1/ This leave was not credited against the 27.5 hours.

10. Therefore, crediting Petitioner with the six hours of leave she had earned, the time actually taken in the status of leave without pay should have been 21.5 hours. At Petitioner's rate of pay, this would have been an over-payment of $230.05, minus the $22.51 originally deducted for miscellaneous deductions, or $217.44.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

12. Section 17.05, Florida Statutes, and Rule 3A-31.309(a) and (d), Florida Administrative Code, provide that an agency and an employee share equal responsibility for detecting and reporting salary over-payments.

13. The DJJ overpaid Petitioner. Petitioner did not work

    
    

    27.5 hours for which she was paid. She was credited with six hours of annual and sick leave which she did not use and which was not credited against the 27.5 hours she took off.

14. According to the testimony received at hearing, any leave which Petitioner had accrued should have been credited against her time off before it was treated as leave without pay. While it is recognized that Petitioner did not work the entire pay period, her records reflect she was credited with three hours of sick leave and three hours of annual leave. Further testimony revealed that sick leave would be credited first against the time off, then annual leave, and then leave without pay. This was not done. Had it been done, it would have reduced the leave without pay to 21.5 hours, and reduced the amount owed at Petitioner's rate of pay to $230.05, less $22.51 for miscellaneous deductions.

15. While the Agency's actions are clearly within its authority, the amount the Agency seeks to collect does not comport with its own provisions of crediting sick and annual leave before placing the employee on leave without pay.

16. The Agency is warranted in seeking repayment of

$217.44 from Petitioner.

RECOMMENDATION

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

RECOMMENDED:

That the Department of Juvenile Justice enter a final order directing the repayment of $217.44 from Petitioner.

DONE AND ENTERED this 6th day of November, 2003, in Tallahassee, Leon County, Florida.

S

STEPHEN F. DEAN

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 6th day of November, 2003.

ENDNOTE

1/ Although Petitioner did not work the entire period, her records reflect that this amount of leave time was credited to her account. If credited, it should have been deducted from the time she was off.

COPIES FURNISHED:

Jennifer Carter Nicholson

304 D Indian Trial

Burnsville, North Carolina 28714

Richard D. Davison, Esquire Department of Juvenile Justice 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: 03-002453

Orders for Case No: 03-002453