15-001122 Anthony Mcfarlane vs. Agency For Persons With Disabilities Status: Closed Recommended Order on Friday, June 5, 2015.

Summary: Petitioner was overpaid in the amount of $978.69 as a result of inadvertently using the code for "Administrative Leave-Other" when attempting to use his accumulated leave prior to retirement. Recommend repayment in full.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANTHONY MCFARLANE,

Petitioner,

vs. Case No. 15 - 1122

AGENCY FOR PERSONS WITH

DISABILITIES,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a fo rmal administrative hearing was

conducted before Administrative Law Judge Mary Li Creasy by video

teleconference at sites in Tallahassee and Lauderdale Lakes,

Florida, on May 13, 2015.

APPEARANCES

For Petitioner: Anthony McFarlane, pro se

7971 Northwest 11th Street

Plantation, Florida 33322

For Respondent: Kurt E. Ahrendt, Esquire

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 3239 9 - 0950

STATEMENT OF THE ISSUE

Whether Petitioner, Anthony McFarlane, was overpaid in the

amount of $978.69 as a result of utilizing more administrative

leave than that to which he was entitled.

PRELIMINARY STATEMENT

Petitioner, Anthony McFarlane, seek s to have Respondent ' s,

Agency for Persons with Disabilities (Agency) , request for

remittance of $978.69 for overpaid Administrative Leave time

withdrawn. As a result of the Agency ' s alleged overpayment to

Petitioner, the Agency initiated action to reques t repayment. On

or about February 6, 2015, the Agency sent a letter to Petitioner

informing him of the overpayment and requesting remittance of

$978.69 within thirty days. Petitioner timely requested an

administrative hearing, and this matter was referre d to the

Division of Administrative Hearings on March 4, 2015.

At the final hearing, the Agency called one witness,

Jennifer Phaneuf, a Human Resources Manager at the Agency, and

offered Respondent ' s Exhibits A through F that were admitted into

evidence. Petitioner testified on his own behalf and did not

produce any additional witnesses or exhibits.

Neither party ordered a transcript of the final hearing. The

parties were permitted to file their proposed recommended orders

(PROs) by May 26, 2015. Respo ndent filed its PRO on May 26, 2015.

Petitioner did not file a PRO. The Respondent ' s PRO has been

taken into consideration in the drafting of this Recommended

Order.

Unless otherwise indicated, all statutory references are to

the versions in effect at t he time of the alleged violations.

FINDINGS OF FACT

1. Petitioner was an employee of the Agency ' s Central Office

during the pay periods of February 14, 2014, to February 27, 2014;

February 28, 2014, to March 13, 2014; and March 14, 2014, to

March 27 , 2014. Although the exact dates of Petitioner ' s

employment by the Agency are unknown, he was also employed by the

Agency and its predecessor entities prior to, and subsequent to,

those dates for a total of approximately eighteen years.

2. Petitione r retired from the Agency on April 4, 2014.

3. Petitioner, prior to his retirement, attempted to use the

surplusage of leave time he had accumulated for which he would not

be compensated upon retiring.

4. The Agency uses the People First syst em for the submittal

of employee time sheets and tracking of individual employees '

accrued paid leave time. The system maintains the amount of

Annual Leave, Sick Leave, and Special Compensation Leave available

to each individual employee. Further, althou gh Sick Leave can be

used at any time, Annual Leave cannot be used until Special

Compensation Leave is depleted.

5. Administrative Leave -- Other is not maintained on an

individual level and employees are not automatically prohibited

from using more Ad ministrative Leave -- Other than that to which

they are entitled nor are they required to deplete their Special

Compensation Leave prior to using Administrative Leave.

Administrative Leave -- Other is made available to employees only in

special circumstances such as an office closure due to a

hurricane, plumbing leak, or air conditioner failure, or an

unscheduled paid holiday authorized by the Governor.

6. During the pay period of February 14, 2014, to

February 27, 2014, Petitioner used sixteen hours of Special

Compensation Leave (Code 0055) and sixteen hours of Sick Leave

(Code 0052).

7. During the pay period of February 28, 2014, to March 13,

2014, Petitioner used seventy - two hours of Administrative Leave --

Other (Code 0056). No special circumstan ces entitling Petitioner

to take Administrative Leave -- Other hours occurred during this pay

period.

8. During the pay period of March 14, 2014, to March 27,

2014, Petitioner used five hours of Special Compensation Leave

(Code 0055) and seventy - five h ours of Annual Leave (Code 0051).

9. In February of 2015, the Office of the Inspector General

published an audit of the Agency ' s human resources practices at

its Central Office. The audit showed that seventy - two hours of

Annual Leave were miscoded as Administrative Leave -- Other,

resulting in a $1,059.84 leave balance overpayment.

10. The Agency then determined that Petitioner was the

individual whose Annual Leave time had been miscoded as

Administrative Leave -- Other and had therefore been over paid

$1,059.84. After adjusting the amount for taxes and benefits

withheld, the Agency concluded that the amount overpaid directly

to Petitioner was $978.69.

11. During the hearing, Petitioner for the first time

realized and admitted that in his att empt to deplete his Special

Compensation Leave before using his Annual Leave, he made an error

in using Code 0056 (Administrative Leave -- Other) when he intended

to use Code 0055 (Special Compensation Leave).

CONCLUSIONS OF LAW

12. The Division of Ad ministrative Hearings has jurisdiction

over the subject matter and the parties hereto pursuant to

sections 120.569 and 120.57(1), Florida Statutes (2014).

13. Petitioner, as the party seeking to prove the

affirmative of an issue, has the burden of pr oof. See Balino v.

Dep ' t of Health & Rehab. Servs. , 348 So. 2d 349 (Fla. 1st DCA

1977).

14. This case does not involve penal or licensure

disciplinary issues and therefore the standard of proof is a

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

15. Section 110.1165(1) provides remedies for executive

branch personnel errors, including overpayment, and reads:

(1) An agency of the executive branch,

including the State University System, shall

establish procedures for the receipt,

co nsideration, 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

em ployee detrimentally 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 p ersons

authorized by 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.

1 6. It is clear in this case that the issue is one regarding

error, wherein Petitioner accidentally miscoded his hours as

Administrative Leave -- Other instead of Annual Leave and wherein

his supervisor erroneously approved the hours without noticing the

err or. However, the above - referenced statute clearly articulates

that error is not grounds for relief unless Petitioner has shown

reasonable reliance on a written representation, which he has not.

Therefore, Petitioner does not qualify for relief under the law

and owes the Agency $978.69.

17. Petitioner testified that the immediate and full

repayment requested by the Agency would be an extreme burden on

his limited, fixed income. The undersigned recommends that

Petitioner be permitted to repay the amo unt owed to the Agency at

a rate of $100.00 per month until the balance is eliminated.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Petitioner repay $100.00 per month to

the Agency until the $9 78.69 balance is repaid in full.

DONE AND ENTERED this 5th day of June , 2015 , in Tallahassee,

Leon County, Florida.

S

MARY LI CREASY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 A palachee 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 5th day of June , 2015 .

COPIES FURNISHED:

Kurt Eric Ahrendt, Esquire

Age ncy for Persons with Disabilities

4030 Esplanade Way , Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

Anthony McFarlane

7971 Northwest 11th Street

Plantation, Florida 33322 - 5158

David De La Paz, Agency Clerk

Agency for Persons with Disabilities

4 030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

Barbara Palmer, Executive Director

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

(eServed)

Richard Ditschler, General Counse l

Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399 - 0950

(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 Recommended Order should be filed with the agency that

will issue the Final Order in this case.