STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CORRECTIONS,

vs.

Petitioner,

Case No. 19-5637

SIERRA MCQUEEN-ELLIS,

Respondent.

/

RECOMMENDED ORDER

Pursuant to notice, Administrative Law Judge Yolonda Y. Green of the Division of Administrative Hearings (“DOAH”), conducted a final hearing in this case on December 4, 2019, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Raymond DeLeon Powers, Esquire

Department of Corrections

501 South Calhoun Street Tallahassee, Florida 32399

For Respondent: No Appearance

STATEMENT OF THE ISSUE

Whether Respondent received a salary overpayment from Petitioner.

PRELIMINARY STATEMENT

By certified letter dated July 10, 2019, Petitioner, Department of Corrections (“Petitioner” or “Department”),

notified Respondent, Sierra McQueen-Ellis (“Respondent” or “Ms. McQueen-Ellis”), that an overpayment was issued after her separation from the Department. The Department requested full payment of the overpaid amount by June 21, 2019. Petitioner

disputed the Department’s proposed action and requested a formal administrative hearing.1/ On October 21, 2019, Respondent referred this case to DOAH for assignment of an administrative law judge, and the case was assigned to the undersigned.

The undersigned scheduled this matter for final hearing on December 4, 2019. Pursuant to notice, the hearing commenced as scheduled. At approximately 9:35 a.m., the undersigned noted that Respondent had not arrived at the hearing site. Shortly after commencing the hearing, the undersigned took a recess to permit Respondent additional time to appear. The hearing reconvened at 9:50 a.m., but Respondent had not appeared. The undersigned noted that the Notice of Hearing was served by U.S. Mail to Respondent’s address of record, and there was no returned mail received by DOAH. The hearing then proceeded without an appearance by Respondent.

Petitioner presented the testimony of Rena Gilliam, human resource manager with the Department. Respondent’s Exhibits 1 through 7 were admitted into evidence. Given Respondent’s absence, there were no witnesses or evidence presented on her behalf.

Respondent recorded the proceedings using a recording device and, thus, there was no official transcript of the hearing requested. Petitioner timely filed a post-hearing submittal entitled Petitioner’s Post Hearing Brief, which has been considered in preparation of this Recommended Order.

Respondent did not file a post-hearing submittal.

Except as otherwise indicated, citations to the Florida Statutes refer to the 2018 version, which was in effect at the time the alleged overpayment was made.

FINDINGS OF FACT

Based on the testimony and evidence presented at the final hearing, the following findings of fact are made.

1. At all times material to this matter, Respondent was a career service employee of Petitioner until her separation on November 2, 2018.

2. On November 21, 2018, Petitioner issued a pay warrant to Respondent for the pay period of November 2, 2018, through November 15, 2018, in the amount of $981.29. Since Respondent was separated from the Department, the pay warrant issued resulted in Respondent being overpaid $981.29.

3. Upon discovering the error, Petitioner issued a letter notifying Respondent of the overpayment. Petitioner later conducted an audit and determined that Respondent’s leave balance and uniform allowance payment should be deducted from

   
   

   the overpayment amount, which resulted in a remaining total of

   
   

   $349.90.

   
   

4. On July 10, 2019, Petitioner sent Respondent an amended letter requesting the remaining overpayment balance in the amount of $349.90.

   CONCLUSIONS OF LAW

   
   

5. The Division has jurisdiction over the subject matter and the parties to this action pursuant to sections 120.569 and 120.57(1), Florida Statutes (2019).

6. A state employee who disputes that 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’n, 429 So. 2d 1244, 1246 (Fla. 1st DCA 1983). As the party seeking recovery of salary overpayments, Petitioner has the burden of proving by a preponderance of the evidence that Respondent received a salary overpayment. Fla. Dep't. of Transp. v. J.W.C. Co., Inc.,

   396 So. 2d 778, 788 (Fla. 1st DCA 1981).

   
   

7. “Each agency shall keep an 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.”

   § 110.219(4), Fla. Stat.

   
   

8. To determine the process for overpayment made in error by an agency, section 110.1165, Florida Statutes, provides:

   
   

   1. An agency of the executive branch, including the State University System, shall establish procedures for the receipt, consideration, and disposition of a claim regarding pay or benefits brought by an employee when that employee is damaged as a result of being provided with erroneous written information by the employing agency regarding his or her pay or benefits, and the employee detrimentally relies upon such written information. In order to qualify for the relief provided by this section, the employee’s reliance on the representation must have been reasonable and based only upon the written representations made by those persons authorized by the agency head to make such representations. Furthermore, the erroneous calculation and payment of an employee’s salary, wages, or benefits is not among the written representations which will trigger relief under this section.

      
      

   2. An agency of the executive branch, including the State University System, is authorized to take such action as may be appropriate to provide a remedy for an employee concerning his or her claim regarding detrimental reliance on erroneous written information provided by the employing agency relating to pay and benefits, provided such remedy is within the purview of the agency’s authority.

      
      

9. Here, the evidence demonstrates that Respondent was overpaid $349.90, after deductions, due to a clerical error.

10. Respondent did not appear and, thus, there was no evidence offered to demonstrate that she is entitled to keep the payment Petitioner overpaid her.

    
    

11. Based on the foregoing, Petitioner proved that Respondent must repay the Department $349.90, the amount she was overpaid.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Corrections enter a Final Order requiring Sierra McQueen-Ellis to repay Petitioner

$349.90.

DONE AND ENTERED this 20th day of December, 2019, in Tallahassee, Leon County, Florida.

S

YOLONDA Y. GREEN

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee 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 20th day of December, 2019.

ENDNOTE

1/ The Department initially served Ms. McQueen-Ellis with the salary overpayment letter on June 7, 2019. However,

Ms. McQueen-Ellis verbally requested a hearing instead of submitting a written request. Thereafter, the Department discovered that the overpayment amount was incorrect. On

July 10, 2019, the Department issued an amended letter, to which Respondent did not respond. Petitioner did not raise

Respondent’s failure to respond to the amended letter as an issue at the final hearing.

COPIES FURNISHED:

Raymond DeLeon Powers, Esquire Department of Corrections

501 South Calhoun Street Tallahassee, Florida 32399 (eServed)

Sierra McQueen-Ellis

240 Makayla Lane Quincy, Florida 32352

Mark S. Inch, Secretary Department of Corrections

501 South Calhoun Street Tallahassee, Florida 32399-2500

Kenneth S. Steely, General Counsel Department of Corrections

501 South Calhoun Street Tallahassee, Florida 32399-2500 (eServed)

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: 19-005637

Orders for Case No: 19-005637