13-002958 Bruce M. Deterding vs. Department Of Health Status: Closed Recommended Order on Thursday, December 5, 2013.

Summary: Petitioner received twice the appropriate amount of leave as a Select Exempt Service employee and must reimburse the agency the amount overpaid.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRUCE M. DETERDING ,

Petitioner ,

vs. Case No. 13 - 2958

DEPARTMENT OF HEALTH ,

Respondent .

/

RECOMMENDED ORDER

A final hearing was held in this matter before Robert S.

Cohen, Administrative Law Judge with the Division of

Administrative Hearings, on October 10, 2013 , in Tallahassee ,

Florida.

APPEARANCES

For Petitioner: Bruce Milton Deterding , pro se

4841 Old Bainbridge Road

Tallahassee, Florida 32303

For Respondent: Mark John Henderson, Esquire

Department of Health

2585 Merchants Row , Room 110J

Tallahassee, Florida 32399

STATEMENT OF THE ISS UE S

The issue s are whether Petitioner received a salary

overpayment from Respondent for leave usage to which he was not

entitled, as set forth in correspondence dated April 26, 2013 ;

and, if so, whether Respondent is entitled to a repayment for the

salary overpayment made to Petitioner.

PRELIMINARY STATEMENT

On or about May 1, 2013, Petitioner received notice of the

decision of the D epartment of H ealth (Department) to require

Petitioner to compensate the Department for the agency ' s error in

calculating Pet itioner ' s annual leave for the purpose of

preparing a Settlement Agreement. Respondent contended in its

notice that Petitioner had been " overpaid " by approximately

140 hours in the amount of $2,980.04.

Petitioner timely filed a request for a formal

admi nistrative hearing to contest the findings of the Department

that Petitioner received an overpayment and must remit the amount

due to Respondent. On August 9, 2013, the matter was referred to

the Division of Administrative Hearings (DOAH). Based on the

r esponse of the parties to an August 12, 2013 , Initial Order , t he

final hearing was scheduled for October 10, 2013, in Tallahassee,

Florida.

At the hearing, Petitioner testified on his own behalf and

offered two exhibits , which were admitted into evidence.

Respondent presented the testimony of three witnesses and offered

seven exhibits , all of which were admitted into evidence.

A t ranscript of the final hearing was not ordered by the

parties . Petitioner and Respondent filed their proposed findings

of fa ct and conclusions of law on October 21, 2013 .

References to statutes are to Florida Statutes (20 12 ) unless

otherwise noted.

FINDING S OF FACT

1. Petitioner, Bruce Deterding, was an employee of the

Department of Health , having served as an executive di rector of a

medical practice board, making him a S elect E xempt Service (SES)

employee .

2. Petitioner entered into a settlement agreement with the

Department on December 19, 2012. The agreement required

Petitioner to resign his position with the Departm ent effective

February 28, 2013, and included the following conditions:

a) Petitioner ' s last day in the office would be December 1 8 ,

2012, one day preceding the signed settlement agreement; and

b) Petitioner was required to utilize 384 hours of accrued an nual

leave beginning on December 19, 2012 , and ending on February 27,

2013.

3. Petitioner did not participate in the preparation of the

settlement agreement, but agreed to its terms by his signature.

The agreement was signed by the Division of M edical Qu ality

Assurance Director Lucy C. Gee on behalf of the Department.

4. From December 1 9 , 2012, through February 28, 2013,

Petitioner performed as obligated under the agreement. The

Department paid Petitioner for the 384 hours of leave as required

by the ag reement. Petitioner relied on the Department ' s

representations that he would be able to purchase his former

military service time from the State Retirement System and retire

with 30 years of state service on the resignation date set forth

in the agreement .

5. Petitioner demonstrated through a screen shot of his

personnel records in the " PeopleFirst " system that he had an

available balance of 428 hours of annual leave at the time he

entered into the settlement agreement with the Department.

6. The Depar tment ' s employee verified through PeopleFirst

that sufficient hours of leave were available prior to presenting

the settlement agreement offering to pay 384 hours of leave to

Petitioner.

7. The Department notified Petitioner by a letter dated

April 26, 20 13, that he had received salary overpayments.

Specifically, the letter stated that two payments in the amounts

of $1,262.48 and $1,717.56, dated February 22, 2013, and March 8,

2013, respectively, had been erroneously made to him .

8. Petitioner, as a n SE S employee, received 176 hours of

annual leave on his leave accrual anniversary date of July 1 each

year. In 2010, Petitioner received an annual leave accrual of

176 hours on June 18, 2010, and a second annual leave accrual on

July 1, 2010.

9. On April 2 6, 2013, Petitioner had a telephone

conversation with Meshelle Bradford, one of the Department ' s

payroll employees , concerning potential salary overpayments.

10. During that conversation, Petitioner acknowledged he

had received the two salary accruals tot aling 352 hours on

June 18 and July 1, 2010. Petitioner testified that he assumed

he was the beneficiary of an " extraordinarily good hire date "

which entitled him to receive leave on his former (from his

previous state employment) and new leave accrual da tes.

11. The Department conducted a payroll and leave audit

after the date of Petitioner ' s resignation and separation from

the agency. The audit revealed that Petitioner had been overpaid

for annual leave hours that he had accrued in 2010 by mistake.

Pe titioner had been paid for annual leave he used in

February 2013, when he had exhausted all of his accrued leave.

12. During the two - week pay period of February 1

through 14, 2013, Petitioner received pay for 58.5 hours of leave

he did not have available , and for the two - week pay period of

February 15 through 28, 2013, Petitioner received pay for 80

hours of leave he did not have available, resulting from the

double accrual of leave in June and July 2010.

13. The Department ' s position is that Petitioner s hould

have been in leave without pay status for the 58.5 and 80 hours

of leave for which he was paid in February 2013.

14. The calculated overpayment for the unavailable leave is

$2,980.04. The Department seeks reimbursement from Petitioner

for that am ount. Petitioner disputes that he owes any amount due

to the fact he entered into a settlement agreement that

delineated the payments to be made by the Department to him as a

condition of his resignation.

15. The Department ' s Agency Attendance and Leave Policy, in

section VI.D.3, states : " I t is the employee ' s responsibility to

maintain an accurate accounting of their leave balances. "

CONCLUSIONS OF LAW

16 . The Division of Administrative Hearings has

jurisdiction over the subject matter of and the partie s to this

proceeding. § § 120.569 and 120.57(1), Fla. Stat.

17. Petitioner has the burden of proving by a preponderance

of the evidence that he is not responsible for the repayment of

funds erroneously paid to him by the Department due to its error

in d etermining the amount of leave due to Petitioner. See Balino

v. Dep ' t of Health & Rehab. S e rvs . , 348 So. 2d 349 (Fla. 1st DCA

1977); McDonald v . Dep ' t of Prof 'l Reg . , 582 So. 2d 660 (Fla. 1st

DCA 1991).

18. Petitioner entered into a settlement agreement with the

Department which required him to utilize 384 hours of accrued

annual leave beginning Wednesday, December 19, 2012, through

Wednesday, February 27, 2013.

19. Section 110.205, Florida Statutes, sets forth those

positions in state government that a re exempt from the Career

Service System. The executive director of a board or commission

established in the Department of Business and Professional

Regulation or Department of Health is specifically exempt.

§ 110.205(2), Fla. Stat. Petitioner is theref ore exempt from the

Career Service System .

20. Section 110.605 provides the authority for setting the

powers and duties, personnel rules, records, and reports for

select exempt personnel in state agencies. Subsection (2) of

that statute provides, in pert inent part:

Each employing agency shall operate within

the uniform personnel rules adopted by the

department pursuant to the provisions of this

part. Each employing agency may adopt rules

as necessary to implement the provisions of

this part, but such rul es shall not prescribe

any personnel policies inconsistent with the

provisions of this part or the rules of the

department.

Subparagraph (1)(c) of that same section requires that:

The employing agency must maintain, on a

current basis, all records and rep orts

required by applicable rules. The department

shall periodically audit employing agency

records to determine compliance with the

provisions of this part and the rules of the

department.

21 . Section 110.1165 provides authorization for procedures

invo lving executive branch personnel errors, as follows:

(2) An agency of the executive branch,

including the State University System, is

authorized to take such action as may be

appropriate to provide a remedy for an

employee concerning his or her claim

rega rding detrimental reliance on erroneous

written information provided by the employing

agency relating to pay and benefits, provided

such remedy is within the purview of the

agency ' s authority. The agency has no

authority whatsoever to modify the state

ret irement system or the state insurance

program. Any monetary remedy afforded by the

agency must fall within the agency ' s

budgetary authority. Any person dissatisfied

with the outcome of this process may file

either a grievance pursuant to t he agency ' s

int ernal grievance process or an appeal to

the Division of Administrative Hearings

pursuant to chapter 120, but not both.

(3) The time limit to file any action to

recover compensation, including, but not

limited to, salaries, wages, overtime pay,

fringe bene fits, or damages or penalties

relating to errors in such compensation from,

by, or on behalf of a state officer or

employee is 2 years from the date of the

alleged error in payment of such

compensation. The time limit applies in all

disputes over compensa tion for work performed

by state officers or employees, and is not

confined to cases arising under

subsections (1) and (2).

Pursuant to the above - quoted provision, Petitioner chose to

appeal to DOAH the request for reimbursement of the funds

allegedly pai d in error to him by the Department.

22. Section 110.219 defines the general policies for

attendance and leave for state employees:

(3) The granting of any leave of absence,

with or without pay, shall be in writing and

shall be approved by the agency hea d. An

employee who is granted leave of absence with

or without pay shall be an employee of the

state while on such leave and shall be

returned to the same position or a different

position in the same class and same work

location upon termination of the ap proved

leave of absence. The agency head and the

employee may agree in writing to other

conditions and terms under which the leave is

to be granted.

(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.

23. The D epartment and P etitioner, through their voluntary

entry into the settlement agreement, have clearly indicated that

they agree d to " other conditions and terms under which leave is

to be granted " as contemplated by section 110.219(3). Further,

subsection (4) of section 110.219 indicates tha t it is the

" ultimate responsibility " of the employing agency to keep " a

complete and accurate record of all authorized leave " when it is

approved.

24. Petitioner relied on the accuracy of the Department ' s

records concerning his accrued leave when he sign ed the

agreement. The Department is responsible for the accuracy of

those records and the calculations made in drafting the terms of

the settlement agreement. However, Petitioner was admittedly

aware that he had received two full deposits of leave within

30 days of one another and considered himself the fortunate

beneficiary of an " extraordinarily good hire date , " which

entitled him to double leave when he changed jobs within the

state employment system. In fact, Petitioner was the recipient

of a windfal l created by a clerical error, neither of his

wrongdoing nor of the Department ' s.

25. Section 110.1165(1) provides:

An agency of the executive branch, including

the State University System, shall establish

procedures for the receipt, consideration,

and di sposition of a claim regarding pay or

benefits brought by an employee when that

employee is damaged as a result of being

provided with erroneous written information

by the employing agency regarding his or her

pay or benefits, and the employee

detrimentall y relies upon such written

information. In order to qualify for the

relief provided by this section, the

employee ' s reliance on the representation

must have been reasonable and based only upon

the written representations made by those

persons authorized b y the agency head to make

such representations. Furthermore, the

erroneous calculation and payment of an

employee ' s salary, wages, or benefits is not

among the written representations which will

trigger relief under this section.

This statutory provision requires that the " written information

by the employing agency regarding his or her pay or benefits " be

detrimentally relied upon by the employee. Such reliance " must

have been reasonable and based only upon the wr itten

representations made by those pers ons authorized by the agency

head to make such representations. "

26. Although the incorrect leave balance was stated in

Petitioner ' s resignation settlement agreement, no evidence was

presented at hearing that P etitioner relied on the mistaken

balance t o his detriment. Had Petitioner not signed the

settlement agreement resigning from his position, he was going to

be terminated from his employment, not retained. Petitioner

presented no evidence that having to reimburse the salary

overpayments will have a negative impact on any of his retirement

benefits. Further, the evidence does not support Petitioner ' s

claim that he reasonably relied upon the erroneous leave

calculations. He was aware in July 2010 that he had received two

annual leave accruals and c onsidered himself lucky to have done

so.

27. Finally, section 110.1165(1) makes it clear that " t he

erroneous calculation and payment of an employee ' s salary, wages,

or benefits is not among the written representations which will

trigger relief . " A state agency cannot waive or forgive

overpayments that are the result of errors, and employees who

receive erroneous salary payments, even pursuant to a resignation

settlement agreement in lieu of a termination of employment , are

not entitled to relief under th is statute.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a f inal order be entered by the Department

of Health requiring Petitioner to repay the overpayment of salary

in the amount of $2,980.04.

DONE AND ENTERED this 5 th day of December , 2013 , in

Tallahassee, Leon County, Florida.

S

ROBERT S. COHEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Flo rida 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 5 th day of December , 2013 .

COPIES FURNISHED:

Mark John Henderson, Esquire

Department of Health

2585 Merc hants Row , Room 110J

Tallahassee, Florida 32399

Bruce Milton Deterding

4841 Old Bainbridge Road

Tallahassee, Florida 32303

Althea Gaines, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1703

Jennifer A. Ts chetter, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

John H. Armstrong, M.D., F.A.C.S.

State Surgeon General

Department of Health

4052 Bald Cypress Way, Bin A00

Tallahassee, Florida 32399 - 1701

NO TICE 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.