STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS I LEANA TOLEDO , Petitioner, vs. Case No. 13 3708 AGENCY FOR PERSONS WITH DISABILITIES, Respondent. / N ORMA PEDRAZA , Petitioner, vs. Case No. 13 3709 AGENCY FOR PERSONS WIT H DISABILITIES, Respondent. / L IL GUERRERO , Petitioner, vs. Case No. 13 3710 AGENCY FOR PERSONS WITH DISABILITIES, Respondent. / RECOMMENDED ORDER The s e c ase s came before Administrative Law Judge Darren A. Schwartz for final hearing by video teleconference on October 21, 2013, at sites in Tallahassee and Miami, Florida. APPEARANCES For Petitioner s : Ileana Toledo, pro se 371 Northwest 59th Avenue Miami, Florida 33126 3734 Norma I. Pedraza, pro se 20727 Southwest 105 th Avenue Miami, Florida 33189 3658 Lil Guerrero, pro se 12316 Southwest Tenth Lane Miami, Florida 33184 2445 For Respondent: Hilda A. Fluriach, Esquire William Crowe, Esquire Suite S 811 Agency for Pe rsons with Disabilities 401 Northwest Second Avenue Miami, Florida 33128 STATEMENT OF THE ISSUE Whether Petitioners received salary overpayments from the Agenc y for Persons with Disabilities. PRELIMINARY STATEMENT By let ter dated August 14, 2013, Respondent , Agency for Persons with Disabilities (ÐRespondentÑ), advised Petitioner Ileana Toledo that due to an administrative coding error, a salary overpayment totaling $464.63 was made during a period of PetitionerÓs employme nt with Respondent. By letter dated August 14, 2013, Respondent advised Petitioner Norma Pedraza that due to an administrative coding error, a salary overpayment totaling $ 624.14 was made during a period of PetitionerÓs employment with Respondent . By le tter dated August 14, 2013, Respondent advised Petitioner Lil Guerrero that due to an administrative coding error, a salary overpayment totaling $426.65 was made during a period of PetitionerÓs employment with Respondent. Respondent requested repayment of the above amounts from Petitioners, and Petitioners were advised of their right to dispute the overpayment s and request a hearing. Petitioners requested a hearing, and o n September 25, 2013, the matters were forwarded to the Division of Administrative He arings. Case No. 13 3709 was initially assigned to Administrative Law Judge Mary Li Creasy. Case No. 13 3710 was initially assigned to Administrative Law Judge Robert E. Meale. In their responses to the i nitial o rder s , Petitioners requested that these c ases be consolidated for further handling. On October 1, 2013 , the undersigned entered an O rder consolidating these matters. The hearing was set for October 21, 2013, by video teleconference, with sites in Tallahassee and Miami, Florida. At hearing, Peti tioners testified on their own behalf , and offered four e xhibits into evidence . None of PetitionersÓ proposed exhibits were provided to the undersigned prior to the hearing as required by the Notice of Hearing. PetitionersÓ exhibits were not sent to and received by RespondentÓs counsel until Friday, October 18, 2013, via email. Nevertheless, PetitionersÓ Exhibits 1 and 2, each of which consisted of two pages of handwritten notes authored by RespondentÓs employees , were admitted into evidence without obj ection. PetitionersÓ Exhibit 3, which consisted of an email dated April 30, 2013, from Maria Springer to Carolyn Hunter and Niurka Romero , was admitted into evidence without objection . PetitionersÓ Exhibit 4, which consisted of an email d ated May 29, 201 3, from Maria Springer to Carolyn Hunter and other employees of Respondent , was admitted into evidence without objection . However, an additional email contained within Exhibit 4 was not admitted . 1/ The undersigned granted RespondentÓs request for officia l recognition of Florida Administrative Code R ule 60L 34 and c hapter 110, Florida Statutes (201 3 ). Respondent presented the testimony of Dale Sullivan, Maria Springer, Niurka Romero, and Carolyn Hunter , and offered Exhibits 1 3, all of which were admitted into evidence without objection . The Transcript of the final hearing was filed electronically on November 7, 2013. The parties timely filed proposed recommended orders, which were given consideration in the preparation of this Recommended Order. FINDING S OF FACT 1. At all times material hereto, Petitioners Ileana Toledo, Norma Pedraza, and Lil Guerrero have been career service employees of Respondent . 2. The Department of Management Services (ÐDMSÑ) has a classification and pay system that is used by Respondent, and DMS is responsible for designating employment positions within Respondent. A position is either included for overtime pay or excluded from overtime pay. At issue is whether Petitioners erroneously received monetary compensation fo r overtime hours worked after their position was reclassified from an included career service position to an excluded career service position. 3. Prior to March 28, 2013, Petitioners held the position of Human Service s Counselor III , which was designate d by DMS as an included career service position . On March 2 6 , 2013, Respondent proposed to reclassify PetitionersÓ position from Human Service s Counselor III to Human Service Program Analyst , which is designated by DMS as an excluded career service positi on . The proposed reclassifi cation resulted from a reorganization of RespondentÓs regional offices , and an effort by Respondent to standardize its functions , services , and types of positions in its regional offices. 4 . In a letter dated March 26, 201 3, Petitioners were advised by RespondentÓs Human Resources Director , Dale Sullivan , that if they accepted an offer to reclassify their position from Human Services Counselor III to Human Service Program Analyst, their Ð current status and salary will remai n unchanged. Ñ 5 . Notably, the March 26, 2013, letter makes no specific mention of overtime. On March 28, 2013, Petitioners accepted RespondentÓs o ffer of employment to reclassify their position from Human Service s Counselor III to Human Service Progra m Analyst. 6 . Typically, employees of Respondent who are appointed to new positions are placed in probationary status, as opposed to permanent status, and are required to review and execute new position descriptions. However, the reclassification of Pe titionersÓ position by Respondent was not typical. 7. As part of the reclassification of PetitionersÓ position to Human Service Program Analyst , Respondent provided Petitioners with a new p osition d escription . However, P etitioners Ó job duties , salaries, and permanent status remained the same as they had been in their prior position of Human Service s Counselor III. 8 . Petitioners read and acknowledged their receipt of the new position description on March 28, 2013. On the first page of the positio n description, there is a heading titled ÐPosition Attributes Ñ . Under this heading, the term ÐOvertimeÑ is shown, followed by two boxes, ÐYesÑ and ÐNo.Ñ The ÐNoÑ box is marked, indicating that Petitioners are not eligible to work overtime hours . 9. Th e position description further indicates that Petitioners would be c areer s ervice employees. However, the position description does not specifically include the terms i ncluded or excluded . 10 . Prior to the reclassification, Petitioners were paid bi we ekly based on an 80 hour pay period. If they worked more than 80 hours in a pay period, they received additional monetary compensation for their overtime hours . Payment for PetitionersÓ regular and overtime work hours w as based on employee time sheets sub mitted to the People First leave and payroll system. 11 . After the reclassification of their position, Petitioners continued to work overtime in excess of their bi weekly contractual hours, despite the prohibition in the position description. Petitio ners were required to obtain approval by their supervisors before being allowed to work overtime. PetitionersÓ overtime was a pproved by their supervisors after the reclassification despite the prohibition on working overtime hours as indicated in the posi tion description. 1 2 . During the pay period s of March 29 April 11 , 2013 ; April 26 May 9, 2013; and May 10 June 23, 2013, Petitioner Ileana Toledo worked a total of 28 hours of overtime, and received monetary compensation in the amount of $464.63 from Resp ondent for these overtime hours. 1 3 . For the pay periods of March 29 April 11, 2013; April 12 April 25, 2013; April 26 May 9, 2013; and May 10 May 23, 2013, Petitioner Norma Pedraza worked a total of 32.25 hours of overtime, and received monetary compe nsation in the amount of $624.14 from Respondent for these overtime hours. 1 4 . For the pay periods of March 29 April 11, 2013; April 12 April 25, 2013; April 26 May 9, 2013; and May 10 May 23, 2013, Petitioner Lil Guerrero worked a total of 25.50 hours of overtime, and received monetary compensation in the amount of $426.65 from Respondent for these overtime hours. 1 5 . RespondentÓs payment of monetary compensation to Petitioners for the overtime hours worked after the reclassification of their position to Human Service Program Analyst occurred due to an administrative coding error , thereby resulting in the overpayment of monetary compensation to Petitioners by Respondent in the amounts the Respondent seeks to recover from Petitioners . The administrative coding error occurred because of RespondentÓs failure to note the change from included to excluded on the People First system following the reclassification of PetitionersÓ position . The error occurred due to an honest mistake, and resulted in the overpa yments at issue. 1 6 . Petitioners should not have receive d monetary compensation for their overtime hours in the Human Service Program Analyst position b ecause a Human Service Program Analyst position is an excluded career service position. 1 7 . An excluded career service employee must earn and receive regular compensation leave credits for overtime work , but cannot receive monetary compensation for overtime work . On the other hand, included career service employees, such as those persons in PetitionersÓ previous position of Human Services Counselor III, must receive monetary compensation for overtime hours work ed , rather than regular compensatory leave credits . 1 8 . Neither Petitioners n or their supervisors were aware at the time that the overpayments were made that Petitioners could not receive monetary compensation for their overtime hours , but must instead receive regular compensatory leave credit s . 19 . At hearing, Petitioners did not dispute the amounts and hours of overtime wor ked as set forth in paragraphs 1 2 1 4 above. 2 0 . In accordance with the Department of Management ServicesÓ Bureau of Payroll Manual, the amount of salary overpaid, and the amount sought to be repaid, was calculated as set forth in paragraphs 12 1 4 above. 2 1 . When an agency has determined that a salary overpayment has occurred, it is required to follow procedures set forth in the above referenced manual, to seek repayment. Respondent followed those procedures in making the calculations relevant in this c ase. CONCLUSIONS OF LAW 2 2 . The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding pursuant to sections 120.569 and 120.57 (1) , Fl orida Statutes . 2 3 . A state employee who disputes tha t he or she has been overpaid in the amount claimed by the employing agency is entitled to a section 120.57 hearing before any final action is taken. Dep't. of Corr. v . Career Serv. Comm . , 429 So. 2d 1244, 1246 (Fla. 1 st DCA 1983). As the party seeking r ecovery of salary overpayments, Respondent has the burden of proving by a preponderance of the evidence that Petitioners received salary overpayments. Florida Dep 't . of Trans p. v. J.W.C. Co., Inc ., 396 So. 2d 778, 788 (Fla. 1 st DCA 1981). 2 4 . DMS has e stablished a classification and compensation program for career service positions . ÐIf an agency requires an excluded career service employee to work hours in excess of the regular work period or an approved extended work period, the employee shall , with agency approval, earn regular compensatory leave credits on an hour for hour basis . . . . Ñ Fla. Admin. Code. R. 60L 34.0043 (emphasis added). 2 5 . The evidence at hearing clearly shows that after the reclassification of their position to Human Service Program Analyst, Petitioners were classified as excluded career service employees, worked overtime , and received monetary compensation for their overtime hours for which they were not entitled. Instead of receiving monetary compensation for their overtim e hours, Petitioners were entitled to receive regular compensatory leave credits on an hour for hour basis pursuant to Florida Administrative Code Rule 60L 3 4.0043. 2 6 . As a result of the monetary compensation paid to Petitioners for their overtime hours following the reclassification of their position to Human Service Program Analyst, Petitioners were overpaid salary. The overpayment occurred as a result of an honest mistake resulting from an administrative coding error. As set forth above, there is no dispute as to the amount of monetary compensation paid to Petitioners for the overtime hours they worked. Nor is there any dispute as to the number of overtime hours worked. RECOMMENDATION Based on the foregoing Findings of Fact and Conclusions o f Law, it is RECOMMENDED that a Final Order be entered by the Agency for Persons with Disabilities determining that : 1) Petitioner Ileana Toledo was erroneously paid salary in the amount of $464.63; 2) Petitioner Norma Pedraza was erroneously paid salary i n the amount of $624.13 ; 3) Petitioner Lil Guerrero was erroneously paid salary in the amount of $426.65; and 4) Petitioners are entitled to be compensated by Respondent through compensatory leave credits for the overtime hours worked as reflected in para graphs 12 14 above. DONE AND ENTERED this 2 5th day of November , 2013 , in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apala chee Parkway Tallahassee, Florida 32399 3060 (850) 488 9675 Fax Filing (850) 921 6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of November , 2013 . ENDNOTE 1/ Pe titionersÓ e xhibits were late file d with the Division of Administrative Hearings on October 22, 2013. COPIES FURNISHED: Juan Ricardo Collins, Esquire Agency for Persons with Disabilities Suite 380 4030 Esplanade Way Tallahassee, Florida 32399 Hilda Fluriach, Esquire Agency for Perso ns with Disabilities Room South 811 401 Northwest Second Avenue Miami, Florida 33128 Illeana Toledo 371 Northwest 59th Avenue Miami, Florida 33126 3734 Norma I. Pedraza 20727 So uth west 105 th Avenue Miami, Florida 33189 3658 Lil G uerrero 12316 Southwest Ten th Lane Miami, Florida 33184 2445 Jamie Morrow, Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399 0950 Richard Ditschler, General Counsel Agency for Persons w ith Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399 0950 Barbara Palmer, Executive Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399 0950 NOTICE OF RIGHT TO SUBMIT EXCEPTIONS A ll 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: 13-003708

Orders for Case No: 13-003708