10-001444 Florida A And M University Board Of Trustees vs. Colin Anderson Status: Closed Recommended Order on Tuesday, March 8, 2011.

Summary: Petitioner proved that it mistakenly made salary overpayments to Respondent after his term of employment was completed, and that Respondent was not entitled to keep the money.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA A AND M UNIVERSITY )

BOARD OF TRUSTEES , )

)

Petitioner, )

)

vs. )

)

COLIN ANDERSON , ) Case No. 10 - 1444

)

Respondent. )

)

RECOMMENDED ORDE R

Pursuant to notice, a hearing was con ducted in this case on

June 23, 2010 , in Tallahassee , Florida , before Lawrence P.

Stevenson, a duly - designated Administrative Law Judge of the

Divi sion of Administrative Hearings .

APPEARANCES

For Petitioner: Li nzie F. Bogan , Esquire

Florida A & M University

Office of the General Counsel

300 Lee Hall

Tallahassee, Florida 32307

For Respondent: Colin Anderson , pro se

10714 Abercorn Extension,

Apartment 6A

Savannah, Georgia 31419

STATEMENT OF THE ISSUE

At issue in this proceeding is whether Petitioner overpaid

Respondent in the amount of $14,190.41 for the pay periods

between July 10, 2009 , and October 15, 2009, and, if so, whether

Respondent should be required to reimburse Petitioner for those

overpayments .

PRELIMINARY STATEMENT

In a letter dated January 6, 2010, Petitioner Florida

A and M University ("FAMU"), through the associate director of

payroll for its Office of Human Resources, Jacqueline Lester,

stated as follows to Respondent Colin Anderson:

As a result of an internal payroll audit,

this letter is to inform you that an

administrative error w as made resulting in

an overpayment to you by an amount of

$14,190.41. The overpayment occurred on the

check(s) dated 07/31/09, 08/14/09, 08/28/09,

9/11/09, 09/25/09, 10/09/09, and 10/23/09.

Pursuant to Board of Trustees Policy Number

2005 - 19 and guideli nes of the Department of

Financial Services, Bureau of State

Payrolls, the University is required to

recover salary overpayments from employees

(present and former) that have been

overpaid . We are requesting, therefore,

that you repay the overpayment amou nt of

$14,190.41.

The letter went on to explain the acceptable methods of

repayment, and to give Respondent notice of his right to file a

petition for a formal administrative hearing to contest FAMU's

preliminary decision. On January 25, 2010, Respondent timely

filed a written request for a formal administrative hearing

pursuant to s ection 120.57(1), Florida Statutes.

On March 17, 2010 , the case was referred to the Division of

Administrative Hearings . The case was noticed for hearing on

June 23 , 2010 , and conducted as scheduled.

At hearing, FAMU presented the testimony of Respondent,

Colin Anderson, and of Jacqueline Lester . FAMU's Exhibits 1

through 5 and 7 through 22 were admitted into evidence.

Respondent testified on his own behalf. Respondent 's Exhibits A

through D were admitted into evidence.

A transcript of the hearing was filed at the Division of

Administrative Hearings on July 13, 2010 . On July 26, 2010,

FAMU filed a motion for a 30 - day extension of the time to file a

proposed recommende d order, which motion was granted by order

dated July 27, 2010. Respondent timely filed a P roposed

R ecommended O rder on August 20, 2010. FAMU timely filed a

P roposed R ecommended O rder on August 25, 2010.

FINDINGS OF FACT

1. On October 16, 2008, Respo ndent signed an employment

contract with FAMU to act as the coordinator of statistical

research for the "Teachers for a New Era" ("TNE") initiative, a

project funded at FAMU and other universities by a grant from

the Carnegie Corporation of New York. Dr. Gwendolyn Trotter is

the director of the Carnegie - funded portion of the TNE

initiative at FAMU .

2. The contract signed by Respondent was an

"Administrative and Professional (A&P) Employment Contract."

The contract stated as follows, in relevant part:

Thi s employment contract between Florida A&M

University (FAMU) Board of Trustees and the

below - named employee is subject to the

Constitution and Laws of the State of

Florida as constitutionally permissible, and

the regulations, policies, and procedures of

the Board of Governors and Florida A&M

University Board of Trustees (BOT), as now

existing or hereafter promulgated...

An employee's contract may be non - renewed

and/or the employee may be separated from

employment as set forth in University

Regulation 10.106 , regardless of the above

appointment dates.

Employment will cease on the date indicated,

and no further notice of cessation of

employment is required for the following

categories of employees: (1) employees

holding visiting appointments; (2) those

appoin ted for less than one academic year;

or (3) those who are paid from contracts,

grants, auxiliaries, or local funds.

3. The appointment dates set forth in Respondent's

employment contract were October 10, 2008 , through June 30,

2009.

4. The contract sta ted that Respondent would be paid at an

"annual salary rate" of $55,000. The contract further stated

that the amount to be paid to Respondent during his appointment

period would be $39,615.00, and that Respondent's bi - weekly

salary would be $2,107.27.

5. Respondent was an employee "paid from . . . grants" for

purposes of the cessation of employment paragraph of the

employment contract, as set forth in the third inset paragraph

of Finding of Fact 2, supra .

6. Under the heading "Appointment Status," the em ployment

contract stated, "Regular."

7 . FAMU Regulation 10.106 provides, in relevant part:

(1) The President or President's designee

may choose not to renew the employment of

Administrative and Professional (A&P)

employees, including the Executive Servic e.

The notice of non - reappointment or intention

not to r eappoint an A&P employee shall be in

writing. On or before March 1st of each

contract year, the President or President's

designee shall notify any employee who will

be non - reappointed.

* * *

(b ) A&P employees who are appointed to

established positions with an appointment

status modifier or type, other than Regular

(for example, Acting, Temporary or Visiting)

are not entitled to a notice of non -

reappointment.

(c) A&P employees who are issued a n

employment contract with a clause providing

that employment will cease on the date

indicated and further notice is not

required, are not entitled to the notice of

non - reappointment referenced in this

regulation. 1 /

8. FAMU Regulation 3.019, relating to delinquent accounts,

provides in relevant part that FAMU "shall use due diligence and

make every effort in the collection of all accounts owed to the

University by employees, students, vendors and other parties."

9. FAMU Board of Trustees Policy 2005 - 1 9 provides that

FAMU will seek reimbursement for salary overpayments.

10. Respondent testified that when he was hired for the

coordinator of statistical research position, Drotter told

him that the TNE project would last for two years, but that his

in itial employment period would be for one year with a second

year contingent upon his initial performance. This testimony

was plausible, credible, and not contradicted by any testimony

or documentary evidence presented by FAMU.

11. The written A&P emplo yment contract signed by

Respondent was not for one year, but for the period from

October 10, 2008 through June 30, 2009. Respondent testified

that the provost's administrative assistant explained that no

contract could extend beyond the end of the curren t fiscal year

on June 30, 2009, and that he would be issued a second contract

to cover the period from July 1, 2009 , through October 9, 2009.

12. Respondent was never given a second written contract

extending beyond June 30, 2009, nor was he ever given wr itten

confirmation of the terms that he said were communicated orally

to him by Drotter.

13. FAMU's associate director of payroll, Jacqueline

Lester, testified at the hearing and essentially confirmed

Respondent's testimony that the university does no t issue

contracts that extend beyond the current fiscal year.

Ms. Lester stated that if an A&P employee such as Respondent is

to work beyond the end of the current fiscal year, he will be

issued a new contract that covers the carryover portion of his

enga gement. Ms. Lester further testified that if a new contract

is not issued, then the employee is expected to stop work at the

end of the current fiscal year.

14. Respondent testified that he and Drotter found

themselves at odds over research protocols , and that this

disagreement completely fouled their professional relationship.

Respondent stated that Drotter thereafter s et out to

humiliate and intimidate him, and to isolate him professionally

from the other members of the TNE initiative.

15 . As the end of the fiscal year approached in June 2009,

Respondent noticed that his fellow employees were receiving new

contracts for the upcoming fiscal year. On June 29, 2009,

Respondent sent an e - mail to Drotter inquiring as to the

status of his contr act.

16 . Drotter responded on the same date with an e - mail

informing Respondent that TNE would "take on an extremely

targeted direction for the coming year." The e - mail went on to

state the following:

I am in the process of working through

contracts starting July 1, 2009. Your

contract does end on June 30, 2009. Your

2008 - 2009 contracted pay was based on a

12 - month pay scale. However, your contract

started in September 2008 , and ends June 30,

2009.

I am working with Mr. Herbert Bailey in

Academic Affairs to conclude contracts

ending on June 30, 2009.

17 . Drotter's e - mail twice state d that Respondent's

contract would end on June 30, 2009, but also state d that she

wa s "working through" contracts that would start on July 1,

2009 , leaving open , in Respondent's mind , the possibility that

his was one of the new contracts still being processed .

Dr. Trotter did not unequivocally state that Respondent's

services would no longer be required on the TNE initiative after

June 30, 2009.

18 . On the mornin g of July 6, 2009, Respondent sent the

following e - mail to Drotter:

I am following up on the email I sent you

regarding my contract. I received a reply

from you stating that you were working on

contracts ending June 30, 2009.

I continue to come to wo rk under the

12 - month contractual agreement since

October 10, 2008. I am therefore requesting

definitive information about the status of

my contract.

19 . Telephone discussions and further e - mail exchanges

occurred between Respondent and Drotter o ver the course of

the next two days. Respondent continued to insist that he had a

12 - month contractual agreement, and attributed the

misunderstanding to the fact that FAMU never issued an official

letter of employment that explained the terms under which he had

been hired.

20 . Finally, on the afternoon of July 8, 2009, Drotter

sent the following e - mail to Respondent:

As noted in an earlier e - mail your contract

did end on June 30, 2009. You will be

compensated for the days worked beyond

June 30, 200 9. You should not continue to

work beyond tomorrow.

Thanks for working with Teachers for a New

Era.

21 . July 9, 2009, was the last day that Respondent worked

pursuant to his A&P employment contract.

22 . Respondent was paid by FAMU pursuant to his A&P

employment contract for all days worked through July 9, 2009.

23 . Due to an error on the part of FAMU, Respondent

continued to receive regular bi - weekly gross pay of $2,107.28

from FAMU through the pay period ending October 18, 2009.

24 . At the hearing , Respondent conceded that he received

these payments despite the fact that he had stopped working for

FAMU as the TNE coordinator for statistical research on July 9,

2009. Respondent testified that he believed the university was

paying him for the remain der of his one - year contract.

2 5 . On June 30, 2009, Respondent accepted an Other

Personal Services ("OPS") appointment to work as an adjunct

instructor in the FAMU Department of Economics. The OPS

appointment was to teach one economics class per week.

R espondent was to be paid $25.00 per hour, five hours per week,

for a biweekly gross pay of $250.00. The appointment was for

the sixteen - week fall semester, from August 24, 2009 , through

December 11, 2009, with Respondent receiving total gross pay of

$2,00 0.00 for the period.

2 6 . However, Respondent worked in the OPS position for

only one week before starting a full - time faculty position at

Savannah State University in Georgia on September 11, 2009.

Respondent was correctly paid by FAMU for the one week h e worked

in the OPS position .

2 7 . D ue to an error on the part of FAMU , Respondent

continued to receive regular bi - weekly gross pay of $250.00

through the pay period ending October 18, 2009.

2 8 . In total, Respondent received $14,190.41 in unearned

compens ation from FAMU.

CONCLUSIONS OF LAW

2 9 . The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto pursuant to s ections 120.569 and 120.57(1),

Florida Statutes. 2 /

30 . FAMU has the burde n of providing sufficient evidence

to support its case. The burden of proof in an administrative

proceeding is on the party asserting the affirmative of the

issue unless the burden is otherwise established by statute.

Young v. State, Dep Ó t of Cmty . Aff . , 567 So. 2d 2 (Fla. 3d DCA

1990); Wilson v. Dep Ó t of Admin . , Div . of Ret . , 538 So. 2d 139,

141 - 42 (Fla. 4th DCA 1989) ; Florida Dep Ó t of Transp . v. J.W.C.

Co., Inc. , 396 So. 2d 778 (Fla. 1 st DCA 1981); Balino v. Dep Ót

of HRS , 348 So. 2d 349 (Fla. 1 st DCA 19 77). The standard of

proof in an administrative hearing such as this one is a

"preponderance of the evidence." Dep Ó t of HRS v. Career Service

Commission , 289 So. 2d 412, 414 (Fla. 4th DCA 1974).

31 . Respondent's employment was subject to the regulatio ns

and policies of FAMU, pursuant to s ection 1012.80(1)(b), Florida

Statutes, which provides in pertinent part:

Any person who accepts the privilege

extended by the laws of this state of

employment at any state university shall, by

working at such institut ion, be deemed to

have given his or her consent to the

policies of that institution, the policies

of the Board of Governors, and the laws of

this state....

3 2 . As noted in Findings of Fact 5 and 6 supra ,

Respondent's was an A&P position that was paid fr om grants, and

Respondent's A&P employment contract characterized his

"Appointment Status" as "Regular." These findings have led to

disagreement as to Respondent's proper treatment under FAMU

Regulation 10.106, set forth in full at Finding of Fact 7,

supr a .

3 3 . Respondent contends that as a "Regular" employee, he

was entitled to notice of non - reappointment on or before

March 1, 2009, pursuant to FAMU Regulation 10.106(1)(b), which

states that employees "other than Regular" are not entitled to

such notice.

3 4 . FAMU contends that FAMU Regulation 10.106(1)(b) cannot

be read in isolation, but must be harmonized with FAMU

Regulation 10.106(1)(c) , which applies to all A&P employees

regardless of their appointment status . While conceding

Respondent's "Regular" appointment status, FAMU points out that

Respondent's contract contained a "clause providing that

employment will cease on the date indicated and further notice

is not required," and that Respondent's status as an employee

paid from grants rendered that co ntract provision applicable to

him. Therefore, even as a "Regular" employee, Respondent was

not entitled to notice of non - reappointment under FAMU

Regulation 10.106(1)(c).

3 5 . Adopting Respondent's position would have the effect

of negating both the expr ess language of the contract and the

application of FAMU Regulation 10.106(1)(c). FAMU's position

gives effect to all provisions of the contract and the

regulation, and is therefore the better reading of the documents

in question. FAMU was not required t o give Respondent written

notice of its intention not to reappoint Respondent.

3 6 . As C oordinator of S tatistical R esearch for the TNE

initiative, Respondent was an A&P employee whose position was

funded through grants. The appointment dates set forth on

Respondent's A&P employment contract were October 10, 2008 ,

through June 30, 2009. By its own terms, Respondent's contract

expired on June 30, 2009 , and his employment with FAMU pursuant

to this contract ended on th at date.

3 7 . Respondent contended that he had an oral agreement

with FAMU that his contract was to last for one year, to expire

on October 9, 2009. Respondent therefore contends that he was

entitled to at least a portion of the overpayments made pursuant

to his A&P employment contract.

38 . Re spondent's testimony regarding his discussions with

Drotter and with the provost's administrative a ssistant was

credible. FAMU presented no evidence disputing Respondent's

version of these discussions. FAMU did not indicate that there

was any legal i mpediment to Drotter's orally offering

Respondent a one year employment contract that required separate

written executions on either side of the fiscal ye ars overlapped

by said contract, aside from a general assertion that such an

oral agreement must b e reduced to writing to be effective.

39 . The evidence established that professional

disagreements between Respondent and Drotter blossomed into

personal animosity. This evidence leads to the inference that

Drotter decided to take advantage of th e fiscal year overlap

to terminate Respondent's employment prior to the conclusion of

the agreed - upon one - year period.

40 . However, the evidence also established that

Dr. Trotter expressly stated to Respondent, in writing, that

Respondent's contract ended on June 30, 2009 , and that

Respondent should stop work on July 9, 2009. The clear meaning

of these statements was that FAMU did not intend to pay

Respondent for any days worked after July 9, 2009.

41 . At this point, Respondent had been placed on clear

n otice that his services under the A&P employment contract were

no longer desired by the university. The only written contract

in evidence concluded on June 30, 2009. FAMU was arguably in

bre ach of an oral contract made b etween Respondent and

Dr. Trotter as FAMU's representative , for which Respondent might

have pursued a judicial remedy. However, Respondent was not

entitled to pocket the money that FAMU was mistakenly sending

him. Respondent's testimony that he believed the university was

merely paying o ff the remainder of his one - year contract was not

credible in light of his e - mail exchange with Drotter in

early July 2009.

42 . As to his OPS appointment as an adjunct instructor,

Respondent did not dispute that he worked in this capacity for

only one week before starting his new position at Savannah State

University. Respondent was entitled to be paid for the week of

August 24, 2009, but should not have kept the subsequent

payments he received through the pay period ending October 15,

2009.

43 . Resp ondent may have had a breach of contract claim

against FAMU, but this is not the forum in which to pursue such

a claim. 3/ Vincent J. Fasano, Inc. v. Sch . Bd . of Palm Beach

Cnty . , 436 So. 2d 201, 202 - 203 (Fla. 4th DCA 1983) (breach of

contract is ordinarily a matter for judicial rather than

administrative consideration).

44. The evidence produced at the hearing established that

Respondent received $14,190.41 in salary overpayments from FAMU ,

that FAMU acted in accordance with its regulations and policies,

and that FAMU has the authority and the duty to recoup those

overpayments from Respondent.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered requiring

Respondent to repay $ 14,190.41 to FAMU.

DONE AND ENTERED this 8th day of March , 2011 , in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalac hee 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 8th day of March , 2011 .

ENDNOTES

1 / Fl orida Administrative Code Rule 6C3 - 10.233(2)(b)6 likewise

provides :

Employees who are issued an employment

contract with a clause providing that

employment will cease on the date indicated

and further notice is not req uired, are not

entitled to the n otic e of non - reappointment

referenced in this rule.

2 / Unless otherwise indicated, all references are to the 2009

Florida Statutes.

3/ The statements made in this Recommended Order express no

opinion on the merits of a suit to enforce an oral contract

agai nst FAMU.

COPIES FURNISHED :

Colin Anderson

10714 Abercorn Extension Apartment 6A

Savannah, Georgia 31419

Avery McKnight, Esquire

Florida A & M University

300 Lee Hall, Suite 300

Tallahassee, Florida 32307

Dr. Eric Smith

Commissioner of Education

D epartment of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Lois Tepper, Acting Gen eral Co unsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0 400

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.