STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEE K. SCHALTENBRAND, )

)

Petitioner, )

)

vs. ) CASE NO. 84-3104

) DEPARTMENT OF INSURANCE AND ) TREASURER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, duly designated Hearing Officer of the Division of Administrative Hearings, on January 25, 1985, in Miami, Florida.

APPEARANCES

For Petitioner: Raymond Badini, Esquire

6401 Southwest 87th Avenue, Suite 102

Miami, Florida 33166

For Respondent: Dennis Silverman, Esquire

Department of Insurance and Treasurer 413-B Larson Building

Tallahassee, Florida 32301 STATEMENT OF THE ISSUES

By letter dated July 10, 1984 the Respondent, the Department of Insurance and Treasurer, informed the Petitioner, Lee K. Schaltenbrand, that he was not qualified to receive supplemental compensation under Section 633.382(3)(b), Florida Statutes (1984 Supp.). By letter dated July 31, 1984, the Petitioner, through his attorney, requested a formal administrative hearing to challenge the Respondent's action.

By letter dated August 28, 1984, the matter was referred to the Division of Administrative Hearings. The case was initially assigned to E.J. Davis. It was subsequently transferred to the undersigned.

At the final hearing, Petitioner presented the testimony of Fredrick C. Stark, Bureau Chief, Bureau of Fire Standards and training, Richard J. Bennett, Division Chief in charge of training, Metropolitan Dade County Fire Department, Greg Probst, Director of the Dade County Program for the School of Adult and Continuing Education, Barry College and the Petitioner. Petitioner introduced 4 exhibits; all were received into evidence.

The Respondent presented the testimony of Fredrick C. Stark and introduced

9 exhibits which were all received into evidence. The Respondent also submitted

proposed findings of fact pursuant to Section 120.57(1)(b)4, Florida Statutes (1984 Supp.). A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings of fact have been rejected as subordinate, cumulative, immaterial or unnecessary.

The parties have filed a Prehearing Stipulation in which certain facts were admitted. Those facts are identified in the Findings of Fact section of this Recommended Order.

ISSUE

The issue to be decided is whether the Petitioner is entitled to receive supplemental compensation under Section 633.382(3)(b), Florida Statutes (1984 Supp.), for receiving a bachelor degree from Barry College?

FINDINGS OF FACT

1. The Petitioner is a fire lieutenant with the Metropolitan Dade County Fire Department (hereinafter referred to as the "Fire Department") (See Prehearing stipulation). The Petitioner is a company officer whose duties, according to the rules and regulations of the Fire Department, include communications between his crew and the rest of the Fire Department, personnel matters and training activities. As a fire lieutenant, the Petitioner is responsible for the supervision of approximately 6 personnel. The skills necessary in the Petitioner's position include the ability to supervise people and human relations. On occasion, the Petitioner is required to fill the position of lieutenant commander, the next highest position above the Petitioner's regular position. As a lieutenant commander, the Petitioner would be in charge of one station or four stations with a minimum of 16 personnel up to a maximum of 31 or 32 personnel to supervise.

   
   

2. Based upon the testimony of Richard J. Bennett, the course of study followed by the Petitioner at Barry College is related to his present position with the Fire Department.

   
   

3. The Petitioner received an Associate Degree from Miami-Dade Community College (hereinafter referred to as "Miami-Dade") for which he currently is receiving supplemental compensation under Section 633.382(3)(a), Florida Statutes (1984 Supp.). The Petitioner received credit for a total of 64 semester hours at Miami-Dade.

   
   

4. On March 17, 1984, the Petitioner received a Bachelor of Science degree from Barry College (See Prehearing Stipulation) Petitioner's major was "professional and liberal studies" (See Prehearing Stipulation). Barry College is a 4-year accredited college.

   
   

5. In earning his degree from Barry College, Petitioner was given credit for 30 semester hours for courses taken at Barry College, 60 semester hours for "Professional Experience," 14 semester hours taken at Eastern Kentucky University and 50 of the 64 semester hours taken at Miami-Dade. Petitioner therefore earned 154 total semester hours toward his degree at Barry College.

   
   

6. The 60 semester hours awarded for "Professional Experience" were attributable to workshops, seminars and other training activities other than at Barry College, including courses taken at Miami-Dade which were not directly accepted by Barry College, community activities and professional licenses. Greg

   Probst, the Director of the Dade County Program for the School of Adult and Continuing Education of Barry College testified that it was not possible to allocate the 60 hours awarded for Professional Experience to any of the particular items considered by Barry College in awarding those hours.

   
   

7. The courses taken by the Petitioner at Eastern Kentucky University and Miami-Dade for which Barry College gave the Petitioner credit toward his degree are listed on Respondent's Exhibit 5, Barry College Tentative Evaluation of Transfer Credit. The courses taken by the Petitioner at Barry College are listed on Respondent's Exhibit 4.

   
   

8. Two of the courses transferred from Miami-Dade were taken by the Respondent at the Metropolitan Dade County Fire College: General Education Physical Science and Technical Report Writing.

   
   

9. The Petitioner has taken several fire courses at Miami- Dade. No credit was given the Petitioner for these courses toward his bachelor's degree by Barry College, however.

   
   

10. In the July 10, 1984, notification letter to the Petitioner from the Respondent, the Petitioner was told that professional and liberal studies was listed in Section 4A-37.73, Florida Administrative Code (hereinafter referred to as "F.A.C.") as a "major concentration area." The letter indicated that the Petitioner was not qualified to receive the level of supplemental compensation requested, however, because the Petitioner's degree was not related to fire service as required under Section 4A- 37.72, F.A.C.

    
    

11. The July 10, 1984, notification letter was in error, to the extent that it identified the Petitioner's major as a "major concentration area" under Section 4A-37.73, F.A.C. A notation was made on the Petitioner's application letter that the Petitioner's major was not recognized as a "major concentration area." The notification letters routinely used by the Respondent are essentially form letters stored on a memory typewriter. As the notation on the Petitioner's application letter shows, it had been determined that the Petitioner's major was not a "major concentration area." The form notification used to notify the Petitioner should have indicated that his major did not qualify. The wrong form notification was used inadvertently to notify the Petitioner, however.

    
    

12. The determination that the Petitioner's major was not a major concentration area" was based upon the Respondent's interpretation of Section 4A-37.73, F.A.C. In making its determination, no effort was made by the Respondent to determine if the Petitioner's major related to his position with the Fire Department.

    
    

13. In determining whether an applicant has the requisite number of hours of fire related courses required by Section 4A- 37.72, F.A.C., the Respondent has consistently relied upon the Florida Statewide Course Numbering System of the Florida Department of Education. This system is used to equate a course given at an institution to the equivalent course given at another institution. Fire fighting and protection courses are identified under this system with the prefix "FFP." Pursuant to this system, courses given at institutions with a different prefix (for example, the prefix at Miami-Dade is "FIF"), which are fire fighting and protection courses are identified.

14. The Respondent determined that none of the courses credited by Barry College toward the Petitioner's bachelor degree were fire fighting and protection courses under the Statewide Course Numbering System. This is consistent with the Respondent's treatment of other applicants.

    
    

15. The Respondent has, by its own admission, incorrectly awarded supplemental compensation to 23 to 27 persons. These "administrative blunders," as they were referred to by the Respondent, involved individuals who had received degrees with majors clearly identified in Section 4A-37.73, F.A.C., but who did not have a sufficient number of hours of fire related courses to qualify under Section 4A-37.72, F.A.C. On the face of their transcripts, it appeared that they had taken a sufficient number of courses which were fire related.

    Upon further review, however, it was discovered that no credit was given for those courses, toward the applicants' bachelor degrees. For example, the Petitioner's transcript lists all of the courses Petitioner took at Miami-Dade, including several fire related courses. The Petitioner was not given credit by Barry College for those courses, however, toward his bachelor degree. In the Petitioner's case, Barry College was contacted by the Respondent to determine what courses Barry College accepted from Miami- Dade. In the cases of the 23 to

    27 individuals erroneously granted compensation, the university was not contacted until recently. Those errors are to be corrected.

    
    

16. The Respondent has consistently used the Statewide Common Course Numbering System. The Respondent has also consistently treated a major in professional and liberal studies as not qualifying for supplemental compensation. The Respondent has also consistently refused to recognize credit for "Professional Experience" as fire related credits.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction of the parties to, and the subject matter of, this proceeding. Section 120.57(1), Florida Statutes (1984 Supp.).

    
    

18. Section 633.382(3), Florida Statutes (1984 Supp.), provides:

    
    

    Supplemental compensation shall be determined as follows:

    
    

    1. Fifty dollars shall be paid monthly

       to each firefighter who qualifies under the provisions of subparagraph (2)(a)1.

    2. One hundred and ten dollars shall be paid monthly to each firefighter who qualifies under the provisions of subparagraph(2)(a)2.

       
       

19. Section 633.382(2)(a), Florida Statutes (1984 Supp.) provides that a firefighter will qualify for supplemental compensation under the following criteria:

    
    

    1. Any firefighter who receives an associate degree from a college, which degree is readily identifiable and applicable as a fire-related degree, as outlined in policy guidelines of the division, shall he additionally compensated as outlined in

       paragraph (3)(a).

    2. Any firefighter, regardless of whether or not he earned an associate degree earlier, who receives from an accredited college or university a bachelor's degree, which bachelor's degree curriculum includes a major study concentration area readily identifiable and applicable to fire-related subjects, as outlined in policy guidelines of the division, shall receive compensation as outlined in paragraph (3)(b).

    
    

    The Petitioner is currently receiving supplemental compensation under Sections 633.328(2)(a)1. and (3)(a)1., Florida Statutes (1984 Supp.). In this proceeding, Petitioner contends that he is entitled to supplemental compensation under Sections 633.328(2)(a)2 and (3)(a), Florida Statutes (1984 Supp.).

    
    

20. The Division of State Fire Marshal of the Department of Insurance and Treasurer has established policy guidelines pursuant to Section 633.328(2)(a)2., Florida Statutes (1984 Supp.). Pursuant to Section 4A-37.72, F.A.C., it is provided:

    
    

    1. The term "Bachelor Degree" as used in this rule chapter means a Bachelor of Arts or Bachelor of Science degree conferred by an accredited post-secondary institution provided the major study concentration area is readily identifiable and applicable as fire related.

    2. A firefighter may receive Supplemental Compensation based on possession of a Bachelor Degree regardless of whether or not an Associate Degree was previously earned.

    3. The major study concentration area, at least 18 semester hours or 27 quarter hours, must be readily identifiable and applicable as fire related.

    
    

21. The Petitioner has clearly received a Bachelor of Arts degree from an accredited post-secondary institution. At issue in this proceeding are the questions of: (1) whether Petitioner's major is a "major study concentration area" and, (2) whether Petitioner's major is fire related?

    
    

22. Section 4A-37.73, F.A.C., governs the first question. This rule provides:

    
    

    The term "Major Study Concentration Area" as used in this rule chapter means, as identified on official sealed transcripts, a major in fire science, fire science technology, fire science administration, fire protection engineer, management, human resource management, management science, general business administration, public administration, education, fire science vocational education, paramedic and/or health occupations, or any other degree that is found by the Division to be compatible with functions of the employing agency or the job.

23. The Respondent has argued that the Petitioner's major in professional and liberal studies is not one of the majors specifically enumerated in Section 4A-37.73, F.A.C. The Petitioner has in effect argued that the Respondent failed to consider the last sentence of Section 4A-37.73, F.A.C., which defines a "major study concentration area" as including "any other degree that is found by the Division to be compatible with the functions of the employing agency or the job."

    
    

24. Richard J. Bennett testified that the Petitioner had taken courses which clearly relate to his present position and the responsibilities of that position. The Petitioner also explained how a number of the courses he took relate to his present position. Based upon this testimony and a review of the courses the Petitioner has taken in earning a degree from Barry College, it is clear that Petitioner has taken a number of courses compatible with the function of his job. That is not the test, however. Section 4A-37.73, F.A.C., requires that an applicant's degree must be compatible with the functions of the employing agency or the job. It is the undersigned's opinion that it has not been shown that a degree in professional and liberal studies is compatible with the Petitioner's job.

    
    

25. In earning this degree, the Petitioner was given credit for 60 hours of "professional experience." Those hours were awarded for the Petitioner's training, community activities and professional licenses. Petitioner also earned credits for courses taken at Miami-Dade, Eastern Kentucky University and Barry College. There is no doubt that some of the hours awarded for professional experience and some of the courses taken by Petitioner relate to his job. It is equally true, however, that the credits for professional experience were attributable to activities not related to his job, i.e., the fact that the Petitioner is a tribal chief. It is also true that Petitioner took a large number of courses which have no direct relationship to his job, i.e., philosophy courses, physical education courses, math courses, history courses, etc. Based upon Petitioner's testimony as to the courses he was given credit for which apply to his job, only 35 to 45 hours of a total of 154 earned toward his degree relate to his job. What portion of his credit for professional experience is related to his job cannot be determined. Therefore, even though Petitioner has taken courses which are compatible with his job, it does not appear that his degree is compatible with his job.

    
    

26. Section 4A-37.72(a), F.A.C., also provides that a major study concentration area must be readily identifiable and applicable as fire related in order for an applicant to qualify for supplemental compensation. Pursuant to Section 4A-37.72(c), F.A.C., it must be shown that at least 18 semester hours or

    27 quarter hours of fire related courses were earned in order for a major study concentration area to be considered fire-related. Whether Petitioner meets this requirement is the second question at issue in this proceeding.

    
    

27. What constitutes a fire related course is not defined in the statutes or the Division's rules. Petitioner has testified that courses he has been credited by Barry College with taking at Miami-Dade which are fire related include safety training fire prevention, general education physical science, technical report writing, human relations, elements of supervision, supervision training techniques and personnel management. The Petitioner also testified that the English Composition II course he took at Eastern Kentucky University accepted by Barry College was fire related. Finally, Petitioner testified that

    the courses which he took at Barry College which are fire related include management concepts and applications, advanced management, stress management, labor and human resources, leadership training, public relations and philosophy of success.

    
    

28. None of the courses identified by the Petitioner are fire fighting and prevention courses under the Statewide Common Numbering System. More importantly, the Petitioner has confused courses which are related to his job with courses that are fire related. As discussed, supra, the term "major study concentration area" includes a degree compatible with an applicant's job. If an applicant has received such a degree he or she must have also taken the requisite number of fire related courses. These are two separate and distinct requirements. For example, if an applicant has earned a degree in general business administration, one of the majors specifically listed in Section 4A- 37.73, F.A.C., the applicant must also have taken the requisite number of fire related courses; general business administration courses would not be considered in determining if this test was met. To treat general business administration courses or courses related to an applicant's job as fire related would render the requirement that a major study concentration area must be fire related meaningless.

    
    

29. Based upon the foregoing, it is the conclusion of the undersigned that although the Petition has taken a number of courses which are related to his job, those courses are not fire related. The only course which might be considered "readily identifiable and applicable as fire related" is the course entitled a safety training fire prevention" which was taken at Miami-Dade and transferred to Barry College. This course was only a three hour course, however. Additionally, this course was not treated as a fire fighting and prevention course under the Statewide Common Numbering System or by Barry College. At Barry College this course was treated as a physics course.

    
    

30. Based upon the foregoing, the Petitioner has not earned 18 semester hours or 27 quarter hours of fire related courses. Therefore, even if the Petitioner had received a degree in a major study concentration area, the Petitioner would not be entitled to supplemental compensation because any such major study concentration area would not be fire related.

    
    

31. Although not identified as an issue in the Prehearing Stipulation filed by the parties, the Petitioner's attorney argued in his opening statement at the final hearing that the Respondent's application of the law in this case had been arbitrary and capricious. In particular, the Petitioner's attorney stated the following:

    
    

    And the third ground is that it was also arbitrary and capricious. There are other members of the fire department with similar backgrounds, including the Chief of Metro- Dade Fire Department, who is receiving supplemental income and, of course, he was not turned down. We believe it was an arbitrary and political act. You can turn down a lieutenant but not the chief. That will be brought out in the evidence.

    
    

32. Absolutely no evidence was presented at the hearing involving the Chief of the Fire Department or any other person with a background similar to the Petitioner who is receiving supplemental compensation. Nor has the

    Petitioner shown that the Respondent's treatment of him was arbitrary and capricious. An "arbitrary decision" has been defined as a decision that "is not supported by facts or logic, or despotic. "Agrico Chemical Co. v. State, 365 So. 2d 759, 763 (Fla. 1st DCA 1979). The Respondent's decision to deny the Petitioner's application for supplemental compensation is this case was supported by the facts and logic.

    
    

33. A "capricious action" has been defined as an action "which is taken without thought or reason or irrationally." Agrico Chemical Co., supra. Again, the Respondent's actions in this case cannot be said to have been without through or reason.

    
    

34. The facts of this case do show that 23 to 27 people have been improperly awarded supplemental compensation. The Respondent admitted this fact and characterized its decisions with regard to those persons as "administrative blunders." None of those administrative blunders involved persons with a degree in professional and liberal studies. Therefore, it cannot be said that the Petitioner has been singled out and treated differently than other applicants with similar credentials who have been favorably treated by the Respondent. See Florida Medical Center v. Department of Health and Rehabilitative Services, 463 So. 2d 380 (Fla. 1st DCA 1985). All that has been shown is that the Respondent has incorrectly applied the law in the past and that it is now properly applying the law. The fact that the Respondent made "administrative blunders" in the past should not preclude the Respondent from properly denying the Petitioner's application in this case.

RECOMMENDATION

Based upon the foregoing .findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner be denied entry into the Fire Fighters

Supplemental Compensation Program under Section 633.382(2)(a)2. and (3)(b), Florida Statutes (1984 Supp.)

DONE and ENTERED this 14th day of May, 1985, in Tallahassee, Leon County, Florida.

LARRY J. SARTIN

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 14th day of May, 1985.

COPIES FURNISHED:

Dennis Silverman, Esquire Department of Insurance

and Treasurer

413-B Larson Building Tallahassee, Florida 32301

Raymond Badini, Esquire

6401 S.W. 87th Avenue, Suite 102

Miami, Florida 33166

Ruth L. Gokel, Esquire 413-B Larson Building

Tallahassee, Florida 32301

Honorable William Gunter State Treasurer and

Insurance Commissioner The Capitol-Plaza Level Tallahassee, Florida 32301

Docket for Case No: 84-003104

Orders for Case No: 84-003104