09-003441 James L. Lowery, Jr. vs. Department Of Juvenile Justice Status: Closed Recommended Order on Tuesday, November 24, 2009.

Summary: Petitioner did not prove that Respondent had not overpaid him. Respondent showed the Petitioner had been overpaid because he did not have donated sick leave in sufficient amounts and therefore was absent without approval.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES L. LOWERY, JR., )

)

Petitioner, )

)

vs. ) Case No. 09-3441

)

DEPARTMENT OF JUVENILE JUSTICE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal

proceeding and hearing before P. Michael Ruff, duly-designated

Administrative Law Judge of the Division of Administrative

Hearings in Marianna, Florida. The hearing was conducted on

September 17, 2009, and the appearances were as follows:

APPEARANCES

For Petitioner: James L. Lowery, pro se

3875 Old Cottondale Road

Marianna, Florida 32448

For Respondent: Kimberly Sisko Ward, Esquire

Assistant General Counsel

Florida Department of Juvenile Justice

2737 Centerview Drive, Suite 3200

Tallahassee, Florida 32399-3100

STATEMENT OF THE ISSUE

The issue to be resolved concerns whether the Petitioner received, and should be compelled to repay, an alleged salary overpayment of $1,306.09.

PRELIMINARY STATEMENT

This cause arose on May 29, 2009, when the Department sent

the Petitioner a notice that it had determined that he had been

overpaid for pay periods ending November 27, 2008, December 25,

2008, and January 22, 2009. This was as a result of an audit of

his leave, upon separation from state service. The Department

(Respondent) directed the Petitioner, by that notice, to remit

the overpayment, in the total amount of $1,306.09. The

Petitioner elected to contest that decision and timely exercised

his right to a formal proceeding and hearing.

The hearing request was forwarded to the Division of

Administrative Hearings on June 2, 2009, and the Initial Order

was issued on June 23, 2009. Thereafter, the Judge issued a

Notice of Hearing, scheduling the hearing for September 17,

2009.

The cause came on for hearing, as noticed. The Judge

granted Respondent’s request for “judicial notice” of Section

110.1165, Florida Statutes. The Respondent called one witness,

Vivian Chambliss, Payroll Manager for the Department of Juvenile

Justice. The Respondent had Exhibits R-1 through R-7 admitted

into evidence. The exhibits consisted of various payroll

records, leave records and related calculations. The Petitioner

testified on his own behalf, but offered no exhibits.

Upon conclusion of the proceeding, the Respondent elected

to transcribe the testimony, the transcript was filed with the

Division on October 1, 2009, and the parties were given the

opportunity to submit Proposed Recommended Orders. Those

pleadings have been considered in the rendition of this

Recommended Order.

FINDINGS OF FACT

1. James L. Lowery, the Petitioner, was employed by the

Respondent Department, at all times pertinent. The Department

employees are paid bi-weekly, with pay warrants being issued

eight days after the end of a pay period. This is based on

employee timesheets submitted to the Peoples’ First leave and

payroll system.

2. The payroll system will issue an employee a paycheck

for the full pay period hours, if his or her timesheet is not

timely submitted or if no timesheet is submitted (until a

correction and re-calculation is done). That is the default

posture. An employee is only paid less or a different amount

than his regular salary if a timesheet is timely submitted and

reflects less than a full-time number of hours of work or leave-

time.

3. Upon an employee’s separation from employment, an audit

is conducted of his leave and attendance, to ensure that his

final pay is correct. During the audit, the Department reviews

the employee’s timesheets to determine what leave codes were

used. It generates a cumulative pay report to ensure that the

employee was paid correctly for each pay period. Upon

conclusion of the audit, the Department sends the employee

payment for any leave to which he is entitled, or, if it is

determined that he was overpaid, the employee is notified of the

hours and amount of the overpayment and repayment is demanded.

4. Mr. Lowery was injured and therefore, had to be absent

from work on workers’ compensation leave, starting in May of

2008, for approximately six weeks. He recovered from that

injury, but did not return to work because his medication

regimen for another condition interfered with his work schedule.

5. Mr. Lowery thereupon began to use his accrued sick and

annual leave. He exhausted his sick and annual leave by

August 2008. He thereupon began using sick leave that he

believed had been donated to him from the sick leave pool.

6. Although he believed he was using sick leave pool

leave, he actually had received donated sick leave for the

period August 8, 2008 through October 30, 2008. The total

amount of leave donated to him was 470 hours. Sick leave

donations are not a pre-determined amount, but rather the amount

an employee can receive depends strictly on how much leave is

actually donated to that individual by other employees.

7. Mr. Lowry used all the leave which had been donated to

him as of November 14, 2008. Therefore, for the November 14

through November 27, 2008, pay period he had no leave left to

his credit, but did not return to work. His timesheets for that

pay period show that he was on “Authorized Leave Without Pay.”

8. When the pay warrants were issued for that pay period,

the system did not recognize that the Petitioner was on

“Authorized Leave Without Pay” and on December 5, 2008, he was

paid for 80 hours, in a gross amount of $1,162.00. Since he

only had 4.75 hours of sick leave available for that pay period,

he was, thus, overpaid for 75.25 hours.

9. Between November 28, 2008, and December 25, 2008, the

Petitioner did not work and had no annual, sick or other type of

leave to his credit. Nonetheless, a pay warrant was issued to

him on January 2, 2009, for payment for 30.75 hours. He was,

thus, overpaid for that number of hours.

10. The Petitioner’s timesheet for the period January 9

through January 22, 2009, shows that his hours were coded or

entered as follows: 1.50 hours of annual leave, 1.00 hour of

sick leave and 77.50 hours of unauthorized leave without pay.

11. Although he had no annual, sick or other leave

available to him, a pay warrant was issued to him on January 30,

2009, for the 2.50 hours. He was, thus, overpaid for that

amount of hours.

12. The Petitioner did not question the amounts he was

paid on December 5, 2008, January 2, 2009, or January 30, 2009,

because he believed he was drawing sick leave credit from the

sick leave pool and that his timesheets were being taken care of

by a supervisor, Otis Ray, in the Tallahassee office. After

January 30, 2009, he received no more pay warrants.

13. Upon the Petitioner’s separation from employment, the

Respondent conducted the leave audit referenced above, as

delineated in the Department of Financial Services’ Payroll

Preparation Manual. It was thus determined that the Petitioner

had been overpaid for a total of 108.50 hours for the above-

referenced pay periods, due to the fact that he had used leave

to which he was not entitled and because his timesheet was not

timely submitted.

14. In accordance with the Payroll Preparation Manual (in

evidence as Respondent’s Exhibit 7), the amount of salary

overpaid, and to be repaid, was calculated as follows: $1,013.56

for the warrant issued on December 5, 2008, $267.71 for the

warrant issued on January 2, 2009, and $24.82 for the warrant

issued on January 30, 2009.

15. 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.

The Respondent followed those procedures in making the

calculations relevant in this case. On May 29, 2009, the

Respondent notified Petitioner of its position that he owed

repayment of $1306.09, the total amount of the three erroneously

paid warrants.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57, Fla. Stat. (2009).

17. The evidence supportive of the above findings shows

that the Petitioner had exhausted all accrued annual leave, as

well as all but 4.75 hours of donated sick leave, by

November 13, 2008. Thus, when his timesheet was not timely

submitted, for the period November 14-27, 2008, the Petitioner

was paid “by exception” for 80 hours, even though he was only

entitled to 4.75 hours.

18. From November 28, 2008, until the date he separated

from employment, he did not work for the Respondent and had no

leave available that would entitle him to be paid for this time

period. Nonetheless, although he did not receive paychecks on

the paydays of December 19, 2008, or January 16, 2009, he did

receive paychecks for payment for the above-found amounts of

hours on January 2, 2009, and January 30, 2009, in the above-

found dollar amounts.

19. The Respondent followed the required audit procedures

referenced in the findings of fact and established that the

Petitioner has been over-compensated and received the above-

determined amounts to which he was not entitled, a total of

$1,306.09.

20. Section 110.1165, Florida Statutes (2008), permits

agencies to consider employee claims concerning pay or benefits

where an employee has detrimentally relied on a written

representation of an agency head or designee. Subsection

110.1165(1), Florida Statutes (2008), provides that agencies can

only consider those claims that are reasonable and based on an

agency’s written representations. This same section, however,

specifically excludes the erroneous calculation of salary or

benefits. Thus, an agency cannot waive or forgive overpayments

when they are the result of errors, and employees who receive

erroneous salary payments are not entitled to relief under this

statute.

21. The Petitioner believed he was receiving paychecks

because he had received sick leave donations from the sick leave

pool. He believed that the pay warrants he received on

December 5, 2008, January 2, 2009, and January 30, 2009, were

the result of his donated sick leave. He contends that he was

not at fault in receiving these warrants, and should not be

required to repay them.

22. His argument is unconvincing for two reasons. First,

between December 5, 2008 and January 30, 2009, there were five

paydays. However, he received pay warrants on only three of

those paydays. The last two checks were only for a fraction of

his regular pay. If he truly believed that he was receiving

donated sick leave, he would have expected to be paid for all

available paydays or hours. When he received the partial checks

on two paydays, and no check at all on two of the subject

paydays, he knew or should have known that he had exhausted all

sick leave and thereupon, should have sought assistance or an

explanation for the situation.

23. Second, the Petitioner offered no evidence of any

written representations from the Respondent or its employees to

show that he was reasonably relying to his detriment, that the

payments were appropriate. Rather, the Respondent established

that the payments were salary overpayments due to his being paid

“by exception” or given credit for leave he did not have.

Because the payments resulted from erroneous calculations of pay

hours, the Petitioner is not entitled to repayment forgiveness

under Section 110.1165, Florida Statutes.

24. In summary, for the foregoing reasons, the Respondent

has established that the subject overpayment has been correctly

determined and that the amount has been calculated in accordance

with statutorily mandated procedures. The Petitioner has

presented no evidence that the Respondent’s actions were

erroneous or failed to comport with the essential requirements

of law.

RECOMMENDATION

Having considered the foregoing Findings of Fact,

Conclusions of Law, the evidence of record and the candor and

demeanor of the witnesses, it is

RECOMMENDED that a Final Order be entered by the Department

of Juvenile Justice requiring the Petitioner to repay

erroneously paid salary in the amount of $1,306.09, pursuant to

a reasonable installment arrangement to be agreed upon by the

parties.

DONE AND ENTERED this 24th day of November, 2009, in

Tallahassee, Leon County, Florida.

S

P. MICHAEL RUFF

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 24th day of November, 2009.

COPIES FURNISHED :

Kimberly Sisko Ward, Esquire

Department of Juvenile Justice

2737 Centerview Drive

Tallahassee, Florida 32399

James L. Lowery, Jr.

3875 Old Cottondale Road

Marianna, Florida 32448-492

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.