Judges: LINDA M. RIGOT
Agency: Department of Environmental Protection
Latest Update: Oct. 23, 1987
Summary: Respondent erroneously terminated petitioner's firefighter supplemental compensation benefits on date he became disabled not when employment terminated
87-2117STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CHRISTOPHER A. KINGSLEY, )
)
Petitioner, )
)
vs. ) CASE NO. 87-2117
) DEPARTMENT OF INSURANCE AND ) TREASURER; OFFICE OF STATE ) FIRE MARSHAL, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on July 2, 1987, in Clearwater, Florida.
Petitioner was represented by Fredric S. Zinober, Esquire, Clearwater, Florida; and Respondent was represented by Lisa S. Santucci, Esquire, Tallahassee, Florida.
Respondent received notification from the City of Clearwater Fire Department that Petitioner had become medically disabled, and Respondent therefore terminated payments to Petitioner under the Firefighters' Supplemental Compensation Program. The parties stipulated that the only issue for determination herein is whether the State Fire Marshal used the correct date in determining Petitioner's removal from the Firefighters' Supplemental Compensation Program.
Petitioner testified on his own behalf and presented the testimony of Michael Laursen by way of deposition. Frederick C. Stark testified on behalf of the Respondent. Additionally, Petitioner's Exhibits numbered 1 and 2 and Respondent's Exhibit numbered 1 were admitted in evidence. Respondent's Motion for Official Recognition of Chapter 633, Florida Statutes, and Chapter 4A-37, Florida Administrative Code, was granted.
Both parties submitted posthearing proposed findings of fact in the form of proposed recommended orders. All of Petitioner's and Respondent's proposed findings of fact have been adopted in this Recommended Order except for Respondent's proposed finding numbered 3 which is immaterial to the issue under consideration herein.
FINDINGS OF FACT
On February 15, 1977, Petitioner was employed by the City of Clearwater as a full-time firefighter. He became certified as a firefighter on April 21, 1977, and was issued certificate number 5374.
After receiving an associate's degree from St. Petersburg Junior College, Petitioner became eligible to receive firefighters' supplemental compensation benefits on July 1, 1981. After receiving a bachelor's degree from Eckerd College, Petitioner became eligible to receive additional firefighters' supplemental compensation benefits on May 1, 1984. Until July 2, 1986, Petitioner received his supplemental compensation benefits according to the appropriate level.
On July 2, 1986, a hearing was held before the City of Clearwater Pension Advisory Committee as to whether Petitioner was entitled to a job- connected disability pension for injuries that he received in firefighting related activity. Following a finding by the Clearwater Pension Advisory Committee that Petitioner was entitled to the disability, the City of Clearwater forwarded to Respondent a Notice of Ineligibility for Supplemental Compensation Benefits, reflecting an ineligibility date for Petitioner of July 2, 1986.
Based upon the Notice of Ineligibility, as well as the fact that Petitioner had received a disability that could not be corrected to the satisfaction of the Respondent, Respondent voided Petitioner's certification as a firefighter and terminated his supplemental compensation benefits as of July 2, 1986.
Petitioner elected a retirement plan option offered by the City of Clearwater under which he extended his termination of employment date by the amount of time due him for vacation, holiday pay, and one-half of his accrued sick leave.
By utilizing the vacation and sick leave time to which he was entitled, Petitioner extended his termination of employment date to October 8, 1987.
Between July 2, 1986 and October 8, 1987 Petitioner occupied the status of an employee on vacation or on sick leave, i.e., he was on leave with pay. He received a paycheck at the same time that other employees of the City of Clearwater received theirs, and his paycheck carried the same deductions that other employees would have in their checks.
It is uncontroverted that although Petitioner received his disability on July 2, 1986, Petitioner has received compensation from the City of Clearwater on an uninterrupted basis encompassing the period from July 2, 1986 through October 8, 1987 for duties that he performed as a full-time firefighter for the City of Clearwater Fire Departments his employing agency.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes.
Both parties have stipulated that the only issue to be determined herein is the date of Petitioner's ineligibility for his supplemental compensation benefits. Petitioner argues that he is entitled to receive supplemental compensation benefits until October 8, 1987, the date of termination of his employment with the City of Clearwater Fire Department. Respondent argues that Petitioner's supplemental compensation benefits ceased on July 2, 1986, the date on which he was determined to be entitled to a job- connected disability pension for injuries received in his firefighting related activity.
Rule 4A-37.078, Florida Administrative Code, governs the cessation of supplemental compensation. That rule provides that a firefighter shall become ineligible to continue receiving supplemental compensation benefits under five circumstances: (1) if promoted to a position requiring the degree for which supplemental compensation is being received; (2) if transferred to a position or reclassified and no longer serving in the capacity of full-time firefighter; (3) if terminated from the employing agency; (4) if on leave of absence without pay; and (5) if suspended without pay. The only circumstance applicable to Petitioner is that set forth in paragraph (3) of the rule, which provides that a firefighter shall become ineligible to continue receiving supplemental compensation benefits if terminated from the employing agency.
As to all five circumstances under which supplemental compensation benefits will be terminated, rule 4A-37.078(6), Florida Administrative Code, provides that the "Effective date of ineligibility shall be that date on which the firefighter ceases to receive compensation from the employing agency for performing the duties of a full-time firefighter." Since October 8, 1987 is the date on which Petitioner ceased receiving compensation from the employing agency for performing the duties of a full-time firefighter, then October 8; 1987 is the effective date of ineligibility. Although Petitioner has not been performing the duties of a full-time firefighter between July 2, 1986 and October 8, 1987, the evidence is uncontroverted that he has been receiving compensation from the employing agency for performing those duties during an earlier time period.
Respondent relies upon Rule 4A-37.076 in support of its argument that Petitioner is no longer entitled to supplemental compensation benefits because he is no longer a full-time certified firefighter. The rule relied upon by Respondent, however, is that which sets forth the requirements for becoming eligible for supplemental compensation benefits and is not the rule which governs when those benefits will be terminated.
Respondent further relies on paragraph (2) of rule 4A- 37.078, Florida Administrative Code, which governs the 5 circumstances under which a firefighter becomes ineligible to continue receiving supplemental compensation benefits. That paragraph provides that benefits will cease if the firefighter is "transferred to a position or reclassified and no longer serving in the capacity of full-time firefighter as defined by section 633.382(1)(a), Florida Statutes." That paragraph lends no substance to Respondent's position for the reason that Petitioner has not been transferred to another position nor has he been reclassified. Petitioner's employment is being terminated as soon as he has "used up" his accumulated vacation time and sick leave time.
Under Respondent's argument, every time a firefighter is placed on sick leave or takes lengthy annual leave, that firefighter's supplemental compensation benefits should cease since that person would not be actively engaging in fire fighting duties while on vacation. Such an argument is both illogical and contrary to the plain meaning of the rules enacted by Respondent. As Respondent's argument that Petitioner could not now become eligible for supplemental compensation benefits is immaterial to the issue involved herein, so is Respondent's argument that Petitioner cannot return to duty and therefore would not be eligible to re-enter the Supplemental Compensation Program.
This proceeding does not involve an application by Petitioner to become eligible to receive benefits, nor does it involve the issue of whether Petitioner was properly de- certified, nor does it involve whether Petitioner is
eligible to re-enter the Supplemental Compensation Benefits Program. As stipulated by the parties, the only issue is the proper date upon which the supplemental compensation benefits which Petitioner was previously eligible to receive should be discontinued. The only circumstance applicable to Petitioner under which those payments can be discontinued is Petitioner's termination from employment by the City of Clearwater Fire Department, an event scheduled to occur on October 8, 1987, the date on which Petitioner ceases to receive compensation from the City of Clearwater Fire Department for performing the duties of a full-time firefighter. The date on which Petitioner last performed those duties is immaterial under the Respondent's rule governing circumstances under which supplemental compensation benefits may cease; rather, the date on which the firefighter ceases to receive compensation for performing those duties is the controlling date.
RECOMMENDATION
Based upon the foregoing Findings of Fact and Conclusions of Law, it is,
RECOMMENDED that a Final Order be entered reinstating Petitioner's supplemental compensation benefits from July 2, 1986 through October 8, 1987 and directing that those benefits be paid to Petitioner forthwith.
DONE and RECOMMENDED this 23rd day of October, 1987, at Tallahassee, Florida.
LINDA M. RIGOT, 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 23rd day of October, 1987.
COPIES FURNISHED:
William Gunter State Treasurer and Insurance Commissioner
The Capitol, Plaza Level Tallahassee, Florida 32399-0300
Fredric S. Zinober, Esquire Village Office Park, Suite 107 2475 Enterprise Road
Clearwater, Florida 33575
Lisa S. Santucci, Esquire Department of Insurance 413-B Larson Building
Tallahassee, Florida 32399-0300
=================================================================
AGENCY FINAL ORDER
=================================================================
OFFICE OF THE TREASURER DEPARTMENT OF INSURANCE
CHRISTOPHER A. KINGSLEY,
Petitioner,
vs. Case No. 87-2117
DEPARTMENT OF INSURANCE AND TREASURER, OFFICE OF STATE FIRE MARSHAL,
Respondent.
/
FINAL ORDER
THIS CAUSE came before the Insurance Commissioner State of Florida for consideration and final agency action. On September 8, 1986 the Respondent notified the Petitioner that the Respondent had received termination papers from the City of Clearwater Fire Department, indicating that the Petitioner had been terminated due to medical disability. Respondent further notified Petitioner that because of said medical disability, Petitioner's certification as a Firefighter was void. On April 24, 1987, the Petitioner, through his attorney, requested a formal proceeding in accordance with Section 120.57(1), Florida Statutes to contest the issue of whether the Petitioner's Firefighters' Supplemental Compensation ceased upon Petitioner's date of disability. The parties stipulated that the only issue for determination herein is whether the State Fire Marshal used the correct date in determining Petitioner's removal from the Firefighters' Supplemental Compensation Program.
On July 28, 1987, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, in Clearwater, Florida.
After consideration of the evidence and argument presented at the hearing and after further consideration of Proposed Findings of Fact and Conclusions of Law submitted by both parties, the hearing officer, on October 23, 1987 issued a Recommended Order (attached as Exhibit A) to the Insurance Commissioner in which it was recommended that the Petitioner's Supplemental Compensation benefits be reinstated from July 2, 1986 through October 8, 1987 and directing that those benefits be paid to Petitioner forthwith.
Exceptions to the Recommended Order were filed by Respondent, Petitioner filed a response to Respondent's exceptions. Since there are no provisions in Chapter 4-38 Florida Administrative Code for such response to exceptions, Petitioner's response will be treated as exceptions to the Recommended Order,
Petitioner's exceptions were not timely filed in accordance with Rule 4-38.043 and cannot be considered for the purposes of this Final Order,
RULING ON EXCEPTIONS
Respondent's exception of law number 1 pertaining to the hearing officer's rejection of proposed finding number 3 is rejected. The issue to be resolved in this case is the correct date to be used in determining Petitioner's removal from the Firefighters' Supplemental Compensation Program. The fact that Petitioner is not qualified to re-enter the Firefighters' Supplemental Compensation Program is immaterial to the issue to be decided.
Respondent's exceptions of law numbers 2 and 6 pertaining to Petitioner's reclassification are rejected. The arguments and evidence presented at hearing make clear that the conflict in this case revolves around a determination of the termination date rather than the reclassification of a Firefighter.
Respondent's exceptions of law numbers 4 and 8 are granted. An administrative interpretation of an agency's own rule is entitled to great weight. Franklin Ambulance v. Dept. of Health 450 So.2d 580 (Fla. App. 1 Dist. 1984). The Department has interpreted Section 633.382, Florida Statutes and Rule 4A-37.070, et seq., Florida Administrative Code, to mean that the Supplemental Compensation Program is an additional benefit received for presently performing the duties of a Firefighter, not for rewarding past performance. This interpretation comports with the plain meaning of the statute and rules. The purpose of the rules would not be served if, as in the present case, the termination date for the purpose of cessation of Supplemental Compensation could be modified by the mode of payment of accrued sick leave and vacation, holiday pay. The actual date of termination is the same no matter how these benefits are to be paid. As stated in Respondent's exception, the City of Clearwater considered July 2, 1986 to be the date that Petitioner ceased to perform the duties of a full-time Firefighter. The City sent notification to Respondent that this date was Petitioner's termination date. The fact that Petitioner was continually receiving a paycheck for his accrued sick leave and vacation, holiday pay has no bearing on his termination date for the purpose of Supplemental Compensation.
Respondent's exception of law number 7 is denied. The issue of whether Petitioner would be eligible for re-entry into the Supplemental Compensation Program is immaterial to the present case,
FINDINGS OF FACT
The Department hereby adopts and incorporates by reference the Findings of Fact set forth in the Recommended Order, The crucial fact in this case is the date of termination and the date of ineligibility for Supplemental Compensation Benefits, The City of Clearwater has listed the date of termination and ineligibility as July 2, 1986 as noted in Respondent's Composite Exhibit A pages
1 & 2 Section "Supplemental Compensation."
CONCLUSIONS OF LAW
The Department hereby adopts and incorporates the Conclusions of Law of the hearing officer as they relate to the issue to be decided and the law to be applied.
The Department rejects the hearing officer's conclusion that since October 8, 1987 is the date on which Petitioner ceased receiving compensation from the employing agency for performing the duties of a full-time Firefighter, then October 8, 1987 is the effective date of ineligibility.
The compensation which Petitioner received from July 2, 1986 to October 8, 1987 was compensation for accrued sick leave and vacation, holiday pay and by the terms of the City of Clearwater's termination policy a terminated Firefighter may choose from two options as to the mode of payment of these benefits. The Firefighter may receive this compensation in a lump sum on the date of termination or he may continue to receive a paycheck, although he is no longer presently performing any duties for the City, until such time as the total amount of compensation due is fully paid. If the Department was to accept the hearing officer's ruling, continuation of Supplemental Compensation would depend upon which option of Firefighter chooses rather than the true date of termination.
The notice of ineligibility for the Firefighter's Supplemental Compensation Program sent by the City of Clearwater lists the termination date and ineligibility date as July 2, 1986. This date reflects the true date of termination.
Based upon the foregoing it is ADJUDGED:
That Petitioner, CHRISTOPHER A. KINGSLEY's, Firefighter's Supplemental Compensation was properly terminated on July 2, 1986 and Petitioner's request to continue said Supplemental Compensation until October 8, 1987 is DENIED.
Any party to these proceedings adversely affected by this Order is entitled to seek review of this Order Pursuant to Section 120.68, Florida Statutes, and Rule 9.110, Fla.R.App.P. Review proceedings must be instituted by filing a petition or Notice of Appeal with the General Counsel, acting as the agency clerk, at 413-B Larson Building, Tallahassee, Florida 32399-0300, and a copy of the same with the appropriate district court of appeal within thirty (30) days of rendition of the Order.
DONE and ORDERED this 7th day of January, 1987.
BILL GUNTER
Insurance Commissioner and Treasurer
ANN WAINWRIGHT
Assistant Insurance Commissioner and Treasurer
Copies furnished to:
Linda M. Rigot, Hearing Officer Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
Lisa Santucci, Esquire Office of Legal Services 413-B Larson Building
Tallahassee, Florida 32399-0300
Fredric S. Zinobar, Esquire TEW & ZINOBAR
Post Office Box 5124 Clearwater, Florida 34623
Docket for Case No: 87-002117
Orders for Case No: 87-002117
| Issue Date |
Document |
Summary |
|
Jan. 07, 1988 |
Agency Final Order
|
|
|
Oct. 23, 1987 |
Recommended Order
|
Respondent erroneously terminated petitioner's firefighter supplemental compensation benefits on date he became disabled not when employment terminated
|
