14-003895 Mary Jane Williams vs. Department Of Health Status: Closed Recommended Order on Friday, November 14, 2014.

Summary: Petitioner failed to show that she did not owe the Department a salary overpayment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARY JANE WILLIAMS ,

Petitioner,

vs. Case No. 14 - 3895

DEPARTMENT OF HEALTH ,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a formal hearing wa s held in this case

on September 29, 2014 , by video teleconference, with the parties

appearing in Gainesville, Florida, before June C. McKinney, a

duly - designated administrative law judge of the Division of

Administrative Hearings , w ho presided in Tallahas see, Florida .

APPEARANCES

For Petitioner: Mary Jane Williams , pro se

1922 Northwest 113 th Drive

Gainesville, Florida 32606

For Respondent: Mark Henderson , Esquire

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner was overpaid

in the amount of $1 ,022.45 and should be required to repay that

amount to the Department of H e alth.

PRELIMINARY STATEMENT

In a certified letter dated July 3, 2014 , Florida

Department of Health (ÐRespondentÑ or Ð Department Ñ) notified

Mary Jane Williams (ÐPetitionerÑ or Ð Williams Ñ), a former

Department employee , that she owed $1,022.45 because she h ad

received salary overpayments. By letter dated August 8, 2014,

Petitioner challenged the DepartmentÓs proposed action in an

amended petition and requested an administrative hearing. T he

matter was transfe rred by the Respondent on August 19, 2014 , to

t he Division of Administrative Hearings for assignment of an

administrative law judge.

The hearing was held on September 29, 2014. At the

hearing, Petitioner testified on her own behalf and called no

witnesses. Petitioner did not present any exhibits.

Res pondent presented the testimony of two witnesses: Katie

Williams and Penny Zoda. RespondentÓs Exhibits numbered 1

through 7 , and 9 were received into evidence .

The proceedings were not transcribed. The parties were

given 10 days from the date of the h earing to file proposed

recommended orders. Both parties timely filed Proposed

Recommended Orders, which have been considered in the

preparation of this Recommended Order.

FINDING S OF FACT

1. Petitioner was a career - service employee of Respondent

and w as initially employed with the Department from October 14,

2005 , until January 20, 2007.

2. In February 2007 Petitioner received a cash payout for

her annual leave balance of 3.25 hours in the amount of $67.18.

3. In January 2007 when Petitioner termina ted her

employment with the Department , the stateÓs timekeeping system,

PeopleÓs First, was not set up to automatically zero out leave

balances for employees. The DepartmentÓs human resource office

was responsible to manually adjust the leave balance to z ero

each time an employee left employment with the Department .

4. The Department Ós human resource office failed to zero

out PetitionerÓs leave when she left.

5. On March 6, 2009, Petitioner became re - employed with

the Department at a remote high school as a nurse . The PeopleÓs

First system credited Petitioner leave balances she was not

entitled to upon re - employment with the Department because her

previous leave balances had not been adjusted to zero.

6. Upon PetitionerÓs re - employment, the People Ó s F irst

system reflected incorrect leave balances in the amount of 3.25

hours accrued annual leave, and 107.75 hours of accrued sick

leave.

7. Petitioner noticed a leave balance when she returned to

work for the Department and asked her supervisor about the

hours. PetitionerÓs supervisor provided her with incorrect

information, which was, because she return ed to the State within

five years Petitioner was able to keep the time she had

accumulated.

8. Petitioner followed up with the DepartmentÓs personnel

of ficer, Karen Cayson (ÐCaysonÑ), to see if the policy was true

and Cayson confirmed that it was correct .

9. During PetitionerÓs last two pay periods prior to her

second separation from employment with the Department,

Petitioner took leave and used the un earned leave amount

PeopleÓs First indicated she had. Petitioner was paid salary

for 34.50 hours of leave for the May 30, 2014, warrant date and

37.50 hours of leave for the June 13, 2014 , warrant date.

10. When Petitioner took the 34.50 and 37.50 hours of

leave, it should have been leave without pay had the

DepartmentÓs Human Resource section properly accounted for her

leave to ensure it was at a zero balance when she left the

Department in 2007 .

11. Petitioner worked for the Department until May 30,

20 14.

12 . After Petitioner left, the Department conducted a

payroll and leave audit. Katie Williams (ÐWilliamsÑ) did an

official attendance audit by pulling all of P etitionerÓs leave

and historical data .

13 . Williams completed the audit and discovered Pe titioner

had been overpaid $509.61 for the warrant date M ay 30, 2014, and

overpaid $566.65 for the warrant date June 13, 2014.

14. The Petitioner did not become aware of the overpayment

until the Department requested repayment by letter.

15. On July 3, 2014, the Department sent Petitioner a

certified letter requesting the overpaid amount of $1,022.45 , in

which the Petitioner timely contested the letter.

16. Petitioner did her best to determine and verify that

she was entitled to the leave money and w as assured the amount

was correct by Department employees . Petitioner took leave

relying upon the assurance that her leave balance credit was

correct.

17. PetitionerÓs sole income is from her monthly $1 , 195 .00

social security check. She does not have th e money to pay the

overpayment.

CONCLUSIONS OF LAW

18 . The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action pursuant to sections 120.569 and 120.57(1), Florida

Statutes (2014 ) .

19 . T he party se eking to prove the affirmative of an issue

has the burden of proof. Fl a . Dep Ó t of Trans p . v. J.W.C. Co. ,

396 So. 2d 778 (Fla. 1 st DCA 1981). Hence, the Petitioner has

the burden of proof in this matter.

20. The party seeking to prove this type of case must do

so by a preponderance of the evidence. § 120.57(1)(j), Fl a .

Stat .

21 . I n this matter, the legislature has set forth the

parameters for overpayment made in error by the Department.

Section 110.1165 provides:

E xecutive branch personnel errors;

li mitation of actions for compensation. Ï

(1) An agency of the executive branch,

including the State University System, shall

establish procedures for the receipt,

consideration, and disposition 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 detrimentally relies upon such

written information. In order to qualify

for the relief provided by this section, the

employeeÓ s reliance on the representation

must have been reasonable and based only

upon the written representations made by

those persons authorized by the agency head

to make such representations. Furthermore,

the erroneous calculation and payment of an

employeeÓ s salary, wages, or benefits is not

among the written representations which will

trigger relief under this section.

22 . It is clear in this case that the Department did not

meet its responsibility to manually zero out PetitionerÓs leave

balance when she l eft the first time and the Department created

the unearned leave balance amount. However , t he above quoted

statute only allows for a claim if the employ ee has been

provided with erroneous written information, upon which the

employee relies . The record in this matter is void of any

evidence to show that Petitioner was provided any Ð written

representationsÑ regarding her leave. Accordingly, Petitioner

fails to qualify for relief under the l aw. Therefore,

Petitioner owes the Department $1,022.45.

23. Peti tioner has indicated that the rate requested for

repayment is too high , given her limited, fixed income . The

undersigned finds that the Petitioner shall repay the amount

owed to the Department at a rate of $10.00 per month until it is

paid off. While the amount is minimal, it would seem that the

Department would show forbearance in seeking repayment and

accommodate the Petitioner if at all possible given RespondentÓs

mistake of not removing the leave balance and PetitionerÓs

efforts to avoid being overpai d .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Petitioner repay $ 10 .00 to the Department

of Health monthly and continue each month thereafter until the

$1,022.45 overpayment amount is repaid.

DONE AND ENTERED this 14 th day of November , 201 4 , in

Tallahassee, Leon County, Florida.

S

JUNE C. MCKINNEY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, F lorida 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 14 th day of November , 2014 .

COPIES FURNISHED :

Mark John Henderson, Esquire

Florida Department of Healt h

4052 Bald Cypress Way , Bin A - 02

Tallahassee, Florida 32399

(eServed)

Mary Jane Williams

1922 Northwest 113th Drive

Gainesville, Florida 32606

(eServed)

Jaime Briggs, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florid a 32399 - 1703

(eServed)

Jennifer A. Tschetter, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

(eServed)

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

(eServed)

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 Recom mended Order should be filed with the agency that

will issue the Final Order in this case.