03-004286 Rosanna Boyd vs. Department Of Children And Family Services Status: Closed Recommended Order on Friday, March 5, 2004.

Summary: Petitioner, a career service employee of Respondent, was overpaid $1,165.76 for sick and annual leave, and for time after her employment had been terminated. Recommend that Petitioner repay Respondent.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROSANNA BOYD, )

)

Petitioner, )

)

vs. ) Case No. 03 - 4286

)

DEPARTMENT OF CHILDREN AND )

FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for formal hearing before Robert S.

Cohen, Administrative Law Judge with the Division of

Administrative Hearing, on February 16, 2004, in Jacksonville,

Florida.

APPEARANCES

For Petitioner: Rosanna Boyd, pro se

Apartment 162

34 00 Townsend Boulevard

Jacksonville, Florida 32277

For Respondent: Robin Whipple - Hunter, Esquire

Department of Children and Family Services

Post Office Box 2417

Jacksonville, Florida 32231 - 0083

STATEMENT OF THE ISSUE

The issu e is whether the Petitioner, a former employee of

the Respondent, was overpaid in the amount of $1,165.76, and

should be required to repay that amount to the Respondent.

PRELIMINARY STATEMENT

By certified letter dated August 26, 2003, the Respondent

atte mpted to notify the Petitioner that she had been overpaid by

the Respondent in the amount of $1,266.19. The Respondent sent

a second certified letter entitled “Second/Final Notice of

Salary Overpayment” to the Petitioner on October 14, 2003,

demanding pay ment in the amount of $1,266.19. The Petitioner

challenged the Respondent’s demand for payment by an undated

letter received by the Respondent on October 31, 2003, and

requested a formal administrative hearing. The Respondent

transmitted the case to the Division of Administrative Hearings

on November 14, 2003. The hearing was held as scheduled on

February 16, 2004.

At the hearing, the Respondent provided the Petitioner with

an Amended Second Final Notice that advised the Petitioner that,

after further re view, the Respondent had determined that the

Petitioner actually owed the Respondent $1,165.76, rather than

the $1,266.19 previously believed by the Respondent to be owed

by the Petitioner.

The Petitioner was not represented by legal counsel and

testified on her own behalf. The Respondent called one witness,

Ms. Ernestine Moody - Robinson, the Human Resources Manager for

Respondent, and offered 12 exhibits, all of which were admitted

into evidence. The Respondent requested and was granted

official recognit ion of specific portions of the Florida

Statutes.

A transcript was not ordered. After the hearing, the

Petitioner did not submit a proposed recommended order. The

Respondent filed Proposed Findings of Fact and Conclusions of

Law on March 2, 2004.

Re ferences to statutes are to Florida Statutes (2003)

unless otherwise noted.

FINDINGS OF FACT

1. The Petitioner was a career service employee of the

Respondent and was initially employed on November 17, 1997.

2. The Petitioner’s employment with the Re spondent was

terminated on June 30, 2003, due to layoffs created by the

outsourcing of the Family Services Unit of the Respondent.

3. The Petitioner’s annual rate of pay at the time of her

termination was $19,797.44, paid bi - weekly.

4. By letters dated August 26, 2003, October 14, 2003, and

February 16, 2004, the Petitioner was informed that six separate

salary overpayments had occurred.

5. The Petitioner actually worked 56 hours during the pay

period of June 20, 2003 through July 3, 2003, but was

inadv ertently paid for 80 hours of work. The Petitioner was

inadvertently paid for working the days of July 1, 2, and 3,

2003, although her employment had been terminated effective

June 30, 2003. The overpayment was for 24 hours, amounting to

$183.79, based upon the Petitioner’s annual rate of pay.

6. The Petitioner was no longer employed by the Respondent

during the pay period of July 4, 2003 through July 17, 2003, but

was inadvertently paid for 80 hours of work. The overpayment

amounted to $601.70, based upon the Petitioner’s annual rate of

pay.

7. Following termination of employment, the Respondent’s

Human Resources Department conducted an audit of the terminated

employee’s leave. An audit was performed by the Respondent

concerning the Petitioner’s leav e.

8. In the course and scope of the Respondent performing

the audit of the Petitioner’s leave, the Respondent discovered

that the Petitioner had been overpaid for four pay periods in

2003.

9. Once an employee of the Respondent no longer has sick

leave r emaining, annual leave is used to cover any shortages in

sick leave.

10. Once an employee of the Respondent no longer has

either sick leave or annual leave remaining, the employee cannot

be paid for additional time taken as leave. The additional time

bec omes “leave without pay.”

11. The Petitioner was overpaid in four separate pay

periods when she had insufficient sick or annual leave as

follows:

1/31/03 - 2/13/03: 16.50 hours

4/11/03 - 4/24/03: 22.75 hours

4/25/03 - 5/08/03: 4.25 hours

5/23/03 - 6/05/03: 4.75 hours

The sum of the hours of overpayment is 48.25, which translates

to the amount of $380.27 in overpayment to the Petitioner for

the referenced pay periods.

12. The total amount of the Respondent’s overpayment to

the Petitioner, based upon the salary p ayments for July 1, 2,

and 3, 2003, July 4 through 17, 2003, and the four pay periods

in which the Petitioner was overpaid when her sick and annual

leave had run out is $183.79 plus $601.70 plus $380.27, which

totals $1,165.76.

13. The Petitioner was not at fault for the overpayment.

She did not falsify her leave reports or timesheets, nor was she

accused by the Respondent of having done so.

14. The Petitioner believed that the pay she received for

July 4, 2003 through July 17, 2003, was severance pay si nce she

had been terminated when her position had been eliminated.

15. The Respondent does not issue severance pay to

terminated employees.

16. The Petitioner believes that some of the leave she had

taken during the four pay periods when her sick and ann ual leave

had run out should have been considered administrative leave

which, according to the Respondent, was offered to employees in

the Family Services Unit who were facing termination as an aid

to finding new jobs.

17. Administrative leave was availab le to employees whose

positions were being eliminated to allow them to use the

Internet while at the office to search for jobs, and to leave

the office for interviews or any testing required for re -

employment.

18. The Petitioner failed to document leave t ime, if any,

during the pay periods at issue in this proceeding, that she

took for purposes of job testing or interviews.

19. The Petitioner failed to properly designate

administrative leave on the automated leave system, Time Direct,

for the pay periods at issue in this proceeding, even though, as

a secretary specialist for the Respondent for seven years, her

duties included keeping track of leave for the people in her

work unit.

20. The Respondent offered several of the Petitioner’s

timesheets that refl ect the Petitioner’s having taken

administrative leave on more than 30 occasions from October 2002

through May 2003. These time entries for administrative leave

include time during each of the four pay periods at issue in

this proceeding, January 31, 2003 through February 13, 2003,

April 11, 2003 through April 24, 2003, April 25, 2003 through

May 8, 2003, and May 23, 2003 through June 5, 2003.

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has

jurisdiction over the subject matter of an d the parties to this

proceeding. § 120.57(1), Fla. Stat.

22. Section 17.04, Florida Statutes, grants the Chief

Financial Officer the authority to “examine, audit, adjust and

settle” the accounts of all state employees; to require such

persons to “rend er full accounts thereof”; and to “yield up such

property or funds according to law.”

23. The Department of Management Services, pursuant to

Section 110.2035(6), Florida Statutes, has the duty to

“establish and maintain an equitable pay plan applicable to all

occupations and shall be responsible for the overall review,

coordination, and administration of the pay plan.”

24. “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.

25. The Petitioner, as the moving party in this

proceeding, has the burden of proving its case by a

preponderance of the evidence. § 120.57(1)(j), Fla. Stat.;

Florida Department of Tra nsportation v. J.W.C. Company, Inc. ,

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

26. The Respondent has a duty to ensure that accurate

records are maintained and that each employee is paid equitably

for work performed. The Respondent conducted an audit of the

Pe titioner’s last paycheck, as well as payroll records for

several pay periods while the Petitioner was still employed with

the Department of Children and Family Services. Under the first

audit, the Respondent claimed an overpayment in the amount of

$1,266. 19. Upon a re - audit, the Respondent reduced the

overpayment to $1,165.76. The preponderance of the evidence

shows that the second audit is correct and the Petitioner was

overpaid for non - compensable sick and annual leave, as well as

for time beyond the d ate of the Petitioner’s termination from

employment in the amount of $1,165.76.

27. The Petitioner has wholly failed to offer any

evidence, let alone a preponderance of the evidence to support

her position that she is entitled to keep the funds that were

overpaid or mistakenly paid by the Respondent to her. The

Petitioner presented no evidence to support her claim that the

time for which she was compensated while still employed by the

Respondent should have been classified as administrative leave

and the refore not charged against her sick or annual leave. In

fact, the Respondent presented convincing evidence that the

Petitioner had been paid for a significant amount of

administrative leave during the pay periods in question.

Further, the Petitioner faile d to produce any evidence that she

was entitled to continue to receive pay once her position had

been terminated. She was unable to produce any basis for

receiving severance pay or additional compensation due to her

position having been outsourced by the Respondent.

28. Finally, the Petitioner has produced no evidence to

support her position that she should be exempt from the

requirement that any funds overpaid by the State of Florida

should not be repaid. The Petitioner has produced no such

evidence and no legal basis exists for her claim that she should

be entitled to the money because it was not her fault that she

was mistakenly paid for hours of leave she did not have and for

17 days after her employment had been terminated. Accordingly,

the Petition er’s claim for relief must fail.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law, it

is

RECOMMENDED that the Respondent enter a Final Order

requiring the Petitioner to repay the Respondent $1,165.76.

DONE AND ENTERED this 5th day of March, 2004, in

Tallahassee, Leon County, Florida.

S

ROBERT S. COHEN

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 5th day of March, 2004.

COPIES FURNISHED :

Rosanna Boyd

Apartment 162

3400 Townsend Boulevard

Jacksonville, Florida 32277

Robin Whipple - Hunter, Es quire

Department of Children and

Family Services

Post Office Box 2417

Jacksonville, Florida 32231 - 0083

Paul Flounlacker, Agency Clerk

Department of Children and

Family Services

Building 2, Room 204B

1317 Winewood Boulevard

Tallahassee, Florida 3239 9 - 0700

Josie Tomayo, General Counsel

Department of Children and

Family Services

Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

Jerry Regier, Secretary

Department of Children and

Family Services

Building 1, Room 202

1 317 Winewood Boulevard

Tallahassee, Florida 32399 - 0700

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.