09-005433 Lillian Anderson vs. Department Of Juvenile Justice Status: Closed Recommended Order on Friday, February 19, 2010.

Summary: Department employee paid for leave taken but not available. Recommend that employee repay $66.65 in salary overpayment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LILLIAN ANDERSON, )

)

Petitioner, )

)

vs. ) Case No. 09-5433

)

DEPARTMENT OF JUVENILE JUSTICE, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on December 15, 2009, by video teleconference, with the parties

appearing in Fort Lauderdale, Florida, before Patricia M. Hart,

a duly-designated Administrative Law Judge of the Division of

Administrative Hearings, who presided in Tallahassee, Florida.

APPEARANCES

For Petitioner: Lillian Anderson, pro se

3617 Carambola Circle North

Coconut, Florida 33066

For Respondent: Kimberly Sisko Ward, Esquire

Department of Juvenile Justice

2737 Centerview Drive

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

Whether the Petitioner received a salary overpayment from

the Respondent for leave usage to which she was not entitled, as

set forth in amended correspondence dated October 2, 2009, and,

if so, the amount of any overpayment.

PRELIMINARY STATEMENT

In amended correspondence dated October 2, 2009, the

Department of Juvenile Justice ("Department") notified

Lillian C. Anderson that it had overpaid her salary for the pay

period ending February 19, 2009, by 8 hours, or $76.18. The

Department attributed the overpayment to Ms. Anderson's use of

leave to which she was not entitled. According to the letter,

Ms. Anderson owed the Department $66.65, the balance of the

overpayment after one hour's annual leave was credited to her.

Ms. Anderson timely requested a formal administrative hearing,

and the Department transmitted the matter to the Division of

Administrative Hearings for the assignment of an administrative

law judge. Pursuant to notice, the final hearing was held on

December 15, 2009.

At the hearing, the Department presented the testimony of

Chiquita Mordica and Vivian Chambliss, and Respondent's

Exhibits 1 through 13 were offered and received into evidence.

Ms. Anderson testified in her own behalf and presented the

testimony of Vershawn Berry; Petitioner's Exhibit 1 was offered

and received into evidence.

No transcript of the proceedings was filed. Ms. Anderson

timely submitted her Statement of Position, and the Department

timely submitted proposed findings of fact and conclusions of

law. Both submittals have been considered in the preparation of

this Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing and on the entire record of this proceeding, the

following findings of fact are made:

1. Ms. Anderson was employed by the Department as a full-

time Career Service employee until her separation on August 11,

2009. She had one year and four months' service with the State

of Florida.

2. As an employee of the Department, Ms. Anderson was paid

biweekly. Based on her years of service, Ms. Anderson accrued

four hours of annual leave and four hours of sick leave each

biweekly pay period.

3. Ms. Anderson used the People First System to complete

her timesheets, request approval of leave, and review her leave

balances.

4. At issue is the amount of annual and sick leave used by

Ms. Anderson during the pay period beginning February 6, 2009

and ending February 19, 2009. Ms. Anderson entered her time in

the computerized People First timesheet as follows:

February 6, 2009 8 hours' worked

February 9, 2009 8 hours' sick leave

February 10, 2009 8 hours' sick leave

February 11, 2009 3.25 hours' sick leave

4.75 hours' annual leave

February 12, 2009 8 hours' personal holiday

February 13, 2009 8 hours' annual leave

February 16, 2009 7.25 hours' annual leave

February 17, 2009 8 hours' worked

February 18, 2009 8.75 hours' worked

February 19, 2009 4 hours' sick leave

4 hours' annual leave

5. The Pay Period Overview in the People First System for

the pertinent time period reflected the following:

Beginning balance 2/06/09: 0 hours' annual leave

0 hours' sick leave

0 hours' personal holiday

Accrual 2/19/09: 4 hours' annual leave

4 hours' sick leave

0 hours' personal holiday

Used N/A : (24.00) hours' annual leave

(23.25) hours' sick leave

0 hours' personal holiday

Ending Balance 2/19/09: 0 hours' annual leave

0 hours' sick leave

0 hours' personal holiday

6. The Department's Policies and Procedures for Attendance

and Leave provides in pertinent part:

III. Standards and Procedures

* * *

D. Annual Leave

Method of Earning Annual Leave

* * *

Bureau of Personnel

1. Annual leave earned during any period

shall be credited to the employee on the

last day of that pay period or, in the case

of separation, on the last day the employee

is on the payroll.

* * *

Use of Earned Annual Leave

Employee

1. Use of annual leave shall not be

authorized prior to the time it is earned

and credited and shall only be used with the

prior approval of the proper authority.

* * *

E. Sick Leave

Method of Earning Sick Leave

* * *

Employee

* * *

4. Sick leave earned during any pay period

shall be credited to the employee on the

last day of that pay period, or in the case

of separation, on the last day the employee

is on the payroll.

* * *

Use of Earned Sick Leave

Employee

1. Use of sick leave shall not be

authorized prior to the time it is earned

and credited to the employee and shall only

be used with the approval of the proper

authority.

7. The Department keeps an official record of an

employee's leave balances and accruals for each pay period, and

it conducts audits of an employee's leave upon separation. The

Department performed an audit of Ms. Anderson's leave and

created an Employee Leave Record setting out annual and sick

leave earned and used by Ms. Anderson up to her date of

separation in August 2009.

8. The audit revealed that Ms. Anderson had 20 hours of

annual leave and 19.25 of sick leave available as of January 6,

2009, and that she accrued 4 hours of annual leave and 4 hours

of sick leave on February 19, 2009, which could be used

beginning February 20, 2009.

9. As shown on the People's First timesheet prepared by

Ms. Anderson and set out above, Ms. Anderson used 24 hours of

annual leave and 23.25 hours of sick leave during the pay period

beginning February 6, 2009, and ending February 19, 2009.

Ms. Anderson, therefore, used four hours of annual leave and

four hours of sick leave to which she was not entitled during

the pay period extending from February 6, 2009, to February 19,

2009, and she was paid for these hours in the salary warrant

issued February 27, 2009.

10. In calculating the amount of the salary overpayment to

Ms. Anderson, the Department made allowance for the one hour's

annual leave balance Ms. Anderson had when she separated from

the Department. The Department, therefore, calculated the

salary overpayment based on seven non-compensable hours, and the

balance owed by Ms. Anderson to the Department for the salary

overpayment is $66.65.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes (2009).

12. The Department seeks to recover a salary overpayment

from Ms. Anderson. Because this is not a penal or disciplinary

matter, the Department has the burden of proving by a

preponderance of the evidence that Ms. Anderson received a

salary overpayment. See § 120.57(1)(j), Fla. Stat. ("Findings

of fact shall be based upon a preponderance of the evidence,

except in penal or licensure disciplinary proceedings or except

as otherwise provided by statute . . . ."); Florida Department

of Transportation v. J.W.C. Co., Inc. , 396 So.2d 778, 788 (Fla.

1st DCA 1981)("In accordance with the general rule, applicable

in court proceedings, 'the burden of proof, apart from statute,

is on the party asserting the affirmative of an issue before an

administrative tribunal.' Balino v. Department of Health and

Rehabilitative Services , 348 So.2d 349 (Fla. 1st DCA 1977).").

13. Section 110.219, Florida Statutes (2008), which

addresses attendance and leave for state employees, provides in

pertinent part:

4) 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. The ultimate

responsibility for the accuracy and proper

maintenance of all attendance and leave

records shall be with the agency head.

(5) Rules shall be adopted by the

department [of Management Services] in

cooperation and consultation with the

agencies to implement the provisions of this

section; however, such rules must be

approved by the Administration Commission

prior to their adoption. Such rules must

provide for, but need not be limited to:

* * *

(e) Annual leave provisions.

(f) Sick leave provisions.

14. In accordance with the statutory directive in

Section 110.219(5), the Department of Management Services

adopted Florida Administrative Code Rule 60L-34.004, General

Requirements for Leave Earning, Approval, and Use, which

provides in pertinent part:

(5) The use of paid leave shall not be

authorized and taken before the time it is

earned.

(6) For career service employees, leave

shall be credited to the employee at the

close of business on the last day of the pay

period, or, in the case of separation, on

the last day the employee is on the payroll.

For senior management service and selected

exempt service employees, leave shall be

credited upon the first appointment to

either of the pay plans and upon the annual

anniversary date of that first appointment.

(Emphasis added.)

15. Based on the findings of fact herein, the Department

has proven by a preponderance of the evidence that Ms. Anderson

was paid for four hours of annual leave and four hours of sick

leave which she was not entitled to use during the February 6,

2009 to February 19, 2009, pay period.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Juvenile Justice

enter a final order requiring Lillian Anderson to remit to the

Department of Juvenile Justice the amount of $66.65.

DONE AND ENTERED this 19th day of February, 2010, in

Tallahassee, Leon County, Florida.

___________________________________

PATRICIA M. HART

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of February, 2010.

COPIES FURNISHED:

Kimberly Sisko Ward, Esquire

Department of Juvenile Justice

2737 Centerview Drive

Tallahassee, Florida 32399

Lillian Anderson

3617 Carambola Circle North

Coconut, Florida 33066

Frank Peterman, Jr., Secretary

Department of Juvenile Justice

Knight Building

2737 Centerview Drive

Tallahassee, Florida 32399-3100

Jennifer Parker, 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.