05-002580 Lashawnda Williams vs. Department Of Health Status: Closed Recommended Order on Wednesday, June 7, 2006.

Summary: Notwithstanding the fact that Petitioner has received a windfall at Respondent`s expense, Respondent should dismiss this case and initiate a legal proceeding in a court of competent jurisdiction to recover from Petitioner the amounts in dispute.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LASHAWNDA WILLIAMS, )

)

Petitioner, )

)

vs. ) Case No. 05 - 2580

)

DEPARTMENT OF HEALTH, )

)

Respondent. )

)

SECOND RECOMMENDED ORDER

This case came before Administrative Law Judge John G.

Van Laningham for final hearing by video teleconference on

September 30 , 2005, at sites in Tallahassee and Miami, Florida.

APPEARANCES

For Petitioner: Lashawnda Williams, pro se

6100 Southwest 68th Str eet

South Miami, Florida 33143

For Respondent: Stephen W. Foxwell, Esquire

Department of Health

4052 Bald Cypress Way, Bin A02

Talla hassee, Florida 32399 - 1703

STATEMENT OF THE ISSUE

The dispute in this case arises out of Respondent's attempt

to collect alleged salary overpayments from Petitioner, a former

state employee who allegedly continued to be paid wages after

resigning her position with Respondent.

PRELIMINARY STATEMENT

By letter dated Ma y 24 , 2005, Respondent Department of

Health ("Department") notified Petitioner Lashawnda Williams

("Williams") of its contention that , after resigning from her

position of employment with the Department, Williams had

continued to receive salary payments fr om the Department as if

she were still working there, in consequence of an

administrative mistake on the Department's part. The Department

demanded that Williams repay $8,345.09 —— the alleged "total net

amount of the [alleged] overpayment." The Department informed

Williams that she could request an administrative hearing if she

contested the Department's decision to collect from her the

amount indicated.

Williams timely requested a formal hearing, and on

Ju ly 1 5 , 2005, the Department referred the matter t o the

Division of Administrative Hearings ("DOAH"), where an

Administrative Law Judge ("ALJ") was assigned to conduct a

formal hearing.

The hearing took place on September 30 , 2005, as sched uled,

with both parties present . The Department called two witne sses:

Nereida Pena and Emily Kirkland. It also pro ffered seven

Respondent's Exhibits, numbered 3, and 5 - 10, which were received

in evidence. Williams testified on h er own behalf and offered

Petitioner's Exhibit 2, which w as admitted in to evidence.

Th e final hearing was recorded but not , initially,

transcribed. i Proposed Recommended Orders were due on

October 31, 2005. The Department f iled one but Williams did

not . The Department's Proposed Recommended Order w as

considered.

On November 4, 2005, th e undersigned issued a Recommended

Order in which he urged the Department to enter a final order

dismissing this administrative proceeding for lack of subject

matter jurisdiction. The Department rejected the undersigned's

recommendation and, on December 2 1, 2005, attempted to remand

the case to DOAH . By order dated January 3, 2006, the

undersigned declined the remand.

The Department sought judicial review in the appellate

court. The appeal resulted in the issuance, on May 22, 2006, of

a mandate direct ing the undersigned to issue another recommended

order. On May 24, 2006, the Department filed a Notice of

Remand, together with the evidentiary record.

Unless otherwise indicated, citations to the Florida

Statutes refer to the 2005 Florida Statutes.

FINDI NGS OF FACT

1. From September 2003 until she resigned her position

effective October 4, 2004, Williams worked for the Department as

a Human Services Counselor II.

2. Following her separation, the Department continued for

four months to pay Williams her full salary as if she were still

working for the Department. Thus, on 10 separate occasions,

starting on October 15, 2004, and ending on February 18, 2005,

the Department caused funds to be transferred electronically

into Williams' bank account.

3. Excep t for a portion of the first payment on

October 15, 2004, which included some salary that Williams had

earned before the effective date of her resignation, these

payments were made in error. When the Department finally

discovered its mistake in February 2005, it stopped making

direct deposits of salary into Williams' account.

4. In the aggregate, the Department paid Williams a gross

salary of $11,185.10 during the post - separation period. Of this

amount, Williams had earned $782.96 in gross salary for se rvices

rendered up to and including October 4, 2004 .

5. Of course, Williams did not actually receive gross

salary amounts because the Department , as employers do, deducted

income and payroll taxes, among other things, from Williams'

wages. The total net amount that Williams actually received in

consequence of the 10 post - separation payments was $8,331.85, of

which she had earned $515.05. Thus, the total net amount of

unearned salary that Williams received from the Department after

the termination of her employment was $7,816.80.

6. The Department has demanded that Williams return the

aggregate net amount of unearned salary that was paid to her in

error after the effective date of her resignation . The

Department further demands that Williams reimburse th e

Department an additional $537.29 for withholding taxes that the

Department , in fact, paid to the Internal Revenue Service

against Williams' tax liability on the gross unearned salary

that she was paid in 20 04. ii The total amount that the

Department seek s to recover from Williams is, therefore,

$8,354.09.

7. Williams acknowledges that she received money from the

Department that she has no right to keep, but she refuses to

repay $8,354.09. Williams asserts, instead, that she owes the

Department $5,523.27 . The record does not reveal how she

arrived at this particular figure , which is, at any rate,

$2,293.53 less than the unearned salary Williams actually

received directly from the Department —— and $2,830.82 less than

her total windfall at the Department's expense , when the

indirect benefit of $537.29 in taxes i s taken into account .

CONCLUSIONS OF LAW

8 . By a mandate of the District Court of Appeal of

Florida, First District, entered on May 22, 2006 , the

undersigned was commanded to proceed herein in acco rdance with

the court's opinion in Department of Health v. Williams , 31 Fla.

L. Weekly D 1255 (Fla. 1st DCA May 4, 2006) . Th e Williams

opinion , in its entirety, reads as follows :

As it appears that no appealable order would

issue absent this court's inter vention, the

[Department's] petition [for review of

nonfinal agency action] is granted. See

AHCA v. Mt. Sinai Medical Ctr. of Greater

Miami , 690 So. 2d 689 (Fla. 1st DCA 1997).

This matter is remanded to the

administrative law judge to issue a

recommende d order which sets forth findings

of fact and conclusions of law pursuant to

section 120.57(1)(k).

Pursuant to the foregoing opinion , the undersigned must issue

another recommended order that, at a minimum, contain s

sufficient fact findings for the Depart ment to enter a final,

appealable order consistent with its (the Department's)

preliminary agency action. Th is much the undersigned has done

above.

9 . Neither the appellate court nor the Department ,

however, has identified the substantive administrative law (as

opposed to the procedur al law set forth in the Administrative

Procedure Act) that is urged to govern the Department's claim in

this proceeding. By "substantive administrative law," the

undersigned means the statute or presently effective

administr ative rule that authorizes the Department to adjudicate

disputes such as the one at hand; prescribes the elements that

the Department must prove to recover an alleged salary

overpayment; specifies the defenses, if any, to this sort of

claim; and defines th e administrative remedy.

10 . The undersigned is not independently aware of any

substantive administrative law that would govern the

Department's claim for reimbursement of salary overpayments. In

the absence of such substantive law, the only legal conc lusion

that the undersigned legitimately can make is that there is no

administrative remedy for the wrong (Williams' refusal to return

unearned salary , paid to her in error ) the Department clearly

has suffered. iii

11 . That said, the undersigned is aware of substantive

common law that , in another forum at least , plainly would govern

the Department's claim for reimbursement of salary overpayments.

As the undersigned wrote in his initial Recommended Order,

t he Department's claim against Williams is

indisting uishable in every respect from the

common law cause of action known as "money

had and received." This "quasi - equitable"

remedy at law exists to permit the recovery

of "money erroneously paid [to] or received

by a defendant when to permit the defendant

to keep the money would unjustly deprive the

plaintiff of his ownership of the money."

Sharp v. Bowling , 511 So. 2d 363, 364 - 65

(Fla. 5th DCA 1987). An action for "money

had and received" lies , among many other

situations, when an employer mistakenly

overpa ys an employee. See Watson Clinic,

LLP v. Verzosa , 816 So. 2d 832, 834 (Fla. 2d

DCA 2002)( Doctor whose employer had paid him

double salary was required to disgorge the

windfall because " [o] ne who mistakenly

receives money must return it to its owner

unles s the recipient can assert some legal

or equitable claim to the money.").

Williams v. Department of Health , Case No. 05 - 2580, 2005 Fla.

Div. Adm. Hear. LEXIS 1320, * 4 - * 5 (Oct. 31, 2005) . Yet, though

t he undersigned is intellectually capab le of applying the common

law of unjust enrichment to the facts of this case, he does not

believe that DOAH has jurisdiction to adjudicate quasi - equitable

claims in the absence of substantive law conferring such

jurisdiction.

12. Therefore, it remains the undersigned' s belief that

the Department should pursue judicia l, not administrative,

remedies against Williams.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department dismiss this case and

initiate a legal proceeding in a court of competent jurisdiction

to recover from Williams the amounts in dispute .

DONE AND ENTERED this 7th day of June , 200 6 , in

Tallahassee, Leon County, Florida.

S

___________________________________

JOHN G. VAN LANINGHAM

Administ rative 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 Admini strative Hearings

this 7th day of June , 200 6 .

ENDNOTES

i / On November 30, 2005, after the undersigned had issued his

Recommended Order, a transcript of the final hearing was filed.

ii / Apparently, the Department was able elsewhere to recov er the

taxes it had withheld against Williams' tax liability on the

gross unearned salary that she was paid in 2005; it is not

seeking to recover these taxes from Williams.

iii / Without substantive administrative law to apply, any "legal

conclusion" that t he undersigned might make on the merits of

this case would be, effectively, a moral pronouncement based on

nothing more than the undersigned's perceptions of right and

wrong behavior. However wise such a pronouncement might be,

this is not the kind of dec ision that ALJs should render.

COPIES FURNISHED :

Lashawnda Williams

6100 Southwest 68th Street

South Miami, Florida 33143

Stephen W. Foxwell, Esquire

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Flo rida 32399 - 1703

Timothy M. Cerio, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

NOTI CE 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 t his case.