STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
PETER T. CAMPBELL, III )
)
Petitioner, )
)
vs. ) CASE NO. 90-4529
) DEPARTMENT OF INSURANCE AND ) TREASURER )
)
Respondent. )
)
SUPPLEMENTAL RECOMMENDED ORDER
On December 18, 1990, the undersigned issued a Recommended Order in the above-styled case, a copy of which is attached as Appendix A. Respondent subsequently issued a final order based on the Recommended Order.
By letter dated April 8, 1991, a copy of which is attached as Appendix B, Respondent remanded the case to the undersigned for the sole purpose of "resolving the retroactivity issue." The issue, which the Recommended Order failed to address, is whether the supplemental firefighters' compensation to which Petitioner has been determined to be entitled should be paid from the date of the entry of the final order or from the date of the application for the supplemental compensation, even though the application was denied.
The Division of Administrative Hearings accepts the remand for the limited purpose expressed in Respondent's letter of April 8, 1991. No additional hearing is necessary because the Recommended Order contains all the facts necessary for a complete resolution of the retroactivity question. The Recommended Order is incorporated herein with the following additional conclusions of law.
ADDITIONAL CONCLUSIONS OF LAW
Petitioner's entitlement to supplemental compensation is based on the facts in existence as of September 20, 1989. At that time, he furnished the Bureau of Fire Standards and Training with complete transcripts from Brevard Community College and Valencia Community College that satisfied the academic requirements for supplemental compensation.
Section 633.382(2)(b), Florida Statutes, provides that, subject to the right to a formal hearing that Petitioner has already exercised, "the decision of the [Division of State Fire Marshall of the Department of Insurance] with regard to a determination of eligibility shall be final." Section 633.382(4)(d), Florida Statutes, adds: "Salary incentive payments to firefighters shall commence in the first full calendar month following the initial date of certification of eligibility by the Division of State Fire Marshall."
Section 633.382(4)(d) outlines the procedure by which funds are appropriated from the Insurance Commissioner's Regulatory Trust Fund to the Firefighters' Supplemental Compensation Trust Fund. Section 633.382(4)(d) also describes the funding formula, which is recalculated annually, by which the trust funds are distributed to counties, municipalities, and special fire service taxing districts. Although subsequent adjustments appear possible through the postaudit process described in Section 633.382(4)(a), the funding scheme is quite detailed
The formal hearing that resulted in the determination that Petitioner was entitled to supplemental compensation was de novo in nature. A de novo hearing presents the unsuccessful applicant with a fresh opportunity to persuade the agency to grant the relief sought. A de novo hearing emphasizes the free- form nature of the intended agency action (here, of denial) that precedes the final order following the formal hearing. Thus, where administrative rules expressly acknowledge the de novo nature of the hearing, an applicant may be entitled to produce at the hearing supporting documentation that he failed to provide with his application. Wistedt v. Department of Health and Rehabilitative Services, 551 So. 2d 1236 (Fla 1st DCA 1989).
As a result of the de novo hearing in this case, Respondent has revised its prior interpretation of the statutes and rules governing applications for supplemental compensation. The final order in this case represents a departure from past agency practice rather than merely a correct application of preexisting agency practice.
In various instances involving employment, retirement, or supplemental income benefits, legislation explicitly or implicitly indicates that the determination of qualification is or is not to be retroactive to the date of the application. There is no uniform approach to the retroactivity of entitlement to previously denied benefits.
The retroactivity question is apparently discretionary in what is perhaps the closest analogy to the present case, which is the special risk category within the state retirement system. Section 121.0515(3)(a), Florida Statutes, provides that persons denied certification as special risk members by the Division of Retirement of the Department of Administration may appeal the decision to the State Retirement Commission. Under Section 121.23(2)(a), Florida Statutes, the State Retirement Commission "may order any action that it deems appropriate," which presumably includes retroactive certification.
The factor militating in favor of a conclusion of retroactivity is that Petitioner's application, without modification, presented sufficient grounds to entitle him to supplemental compensation on September 20, 1989.
On the other hand, a review of the case law and other statutes concerning entitlement to employment, retirement, and supplemental income benefits discloses no uniformity in resolution of the retroactivity issue.
The statutes in question establish a detailed scheme for funding supplemental compensation and, on their face, acknowledge the need for identifying persons qualifying for supplemental compensation at a point that allows Respondent to ensure that the program is sufficiently funded to ensure its financial viability. Additionally, the de novo hearing in this case provided Respondent an opportunity to revise its interpretation of the eligibility requirements, not merely correct a technical error in the application of such requirements in Petitioner's case.
The matters set forth in the preceding paragraph emphasize the importance of allowing Respondent to exercise its discretion in addressing the retroactivity question. Respondent is best situated to determine the impact of giving retroactive effect to its new interpretation of the qualifying provisions discussed above. In particular, Respondent is uniquely well- suited to make the policy determination as to the impact of retroactivity, in the case of Petitioner and possibly other firefighters similarly situated, on the financial soundness of the Firefighters' Supplemental Compensation Trust Fund.
Based on the foregoing, Petitioner is not entitled to require Respondent to award the supplemental compensation retroactive to the date that the application was complete. However, applicable law does not preclude Respondent from exercising its discretion to provide retroactive supplemental compensation to Petitioner.
Based on the foregoing, it is hereby
RECOMMENDED that the Department of Insurance, Division of State Fire Marshall, issue an amended final order determining that Petitioner is eligible to receive supplemental compensation of $50 monthly commencing no later than the first full calendar month following the date of the initial final order entered in this case.
RECOMMENDED this 11th day of April, 1991, in Tallahassee, Florida.
ROBERT E. MEALE
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 1991.
COPIES FURNISHED:
Hon. Tom Gallagher
State Treasurer and Insurance Commissioner The Capitol, Plaza Level
Tallahassee, FL 32399-0300
Bill O'Neil, General Counsel Department of Insurance
The Capitol, Plaza Level Tallahassee, FL 32399-0300
Attorney Lisa S. Santucci Division of Legal Services
412 Larson Building Tallahassee, FL 32399-0300
Peter T. Campbell, III
445 Clarewood Boulevard Titusville, FL 32796
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
APPENDIX "A" STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
PETER T. CAMPBELL, III, )
)
Petitioner, )
)
vs. ) CASE NO. 90-4529
)
DEPARTMENT OF INSURANCE )
AND TREASURER, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, final hearing in the above-styled case was held in Titusville, Florida, on October 10, 1990, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
The parties were represented at the hearing as follows: For Petitioner: Peter T. Campbell, III, pro se
For Respondent: Attorney Lisa S. Santucci
Division of Legal Services
412 Larson Building Tallahassee, Florida 32399-0300
STATEMENT OF THE ISSUES
The issue in this case is whether Petitioner is entitled to receive supplemental compensation under the Firefighters Supplemental Compensation Program.
PRELIMINARY STATEMENT
By letter dated June 21, 1990, the Bureau of Fire Standards and Training, Division of the State Fire Marshall, Department of Insurance informed Petitioner that he was not entitled to additional compensation as a firefighter under the
Firefighters Supplemental Compensation Program because he did not possess a major study concentration area.
By letter dated July 8, 1990, Petitioner requested a formal administrative hearing.
At the hearing, Petitioner called two witnesses and Respondent did not call any witnesses. Petitioner offered into evidence five exhibits and Respondent offered into evidence two exhibits. All exhibits were admitted.
A transcript of the hearing was filed on November 15, 1990. Each party filed a proposed recommended order. All proposed findings are adopted or adopted in substance except Petitioner's proposed findings 1, 3, 5-6, and 10-14, which are rejected as unnecessary.
FINDINGS OF FACT
At all material times, Petitioner has been employed as a firefighter with the City of Deland Fire Department.
By submitting course transcripts on September 18 and 20, 1989, Petitioner applied to the Bureau of Fire Standards and Training, Division of the State Fire Marshall, Department of Insurance for additional compensation under the Firefighter Supplemental Compensation Program.
The course transcripts were from Brevard Community College and Valencia Community College. The Brevard transcript showed that, over a four-year period ending September 13, 1989, Petitioner had earned 69 semester credit hours, for which he was awarded an associate in arts degree in August, 1988. (All credit hours reported below are semester credit hours.)
The courses for which Petitioner earned credits at Brevard are as follows (three credit hours for each course unless indicated otherwise in parentheses): general psychology, general chemistry I and II, general chemistry lab I and II (each 1), engineering graphics (4), college algebra, weight training (1), communications I and II, stage band (1), archery (1), fundamentals of speech communication, swimming (1), college trigonometry, first aid and safety (2), organic chemistry I and II, organic chemistry lab I and II (each 1), academic/career planning, U.S. history I and II, oceanography, introduction to physical geology, cardiopulmonary resuscitation (1), tennis (1), survey of American literature, contemporary humanities of the 20th century, and--following the receipt of the degree-- developmental psychology.
After earning his associate in arts degree, petitioner took ten credit hours at Valencia Community College during the second session of the 1988-89 school year. The courses and their credit hours are: fundamentals of emergency medical technology (4), fundamentals of emergency medical technology practice (3), and emergency medical technician clinical practicum (3)
By notice dated October 18, 1989, the Bureau of Fire Standards and Training, Division of the State Fire Marshall, Department of Insurance informed Petitioner that the information that he had submitted for entry into the Supplemental Compensation Program was not acceptable. The notice explains that Petitioner "does not have 18 hours fire science within degree transcript." The notice advises at the bottom: "When you have all of the appropriate paperwork properly filled out, please resubmit."
By letter dated November 8, 1989, Frederick C. Stark, Chief of the Bureau of Fire Standards and Training, informed Petitioner that his transcripts failed to disclose a
"major study concentration area" to qualify for supplemental compensation. The letter quotes Rule 4A-37.071(2), Florida Administrative Code:
The major study concentration area, at least
18 semester hours or 27 quarter hours, must be readily identifiable and applicable as fire-related. Those major study concentration areas specifically identified in Rule 4A-37.073 are considered by the Division to be readily identifiable and applicable as fire-related.
The letter advises Petitioner of his right to a hearing.
Following some communications from Petitioner, Mr. Stark wrote another letter to Petitioner dated November 27, 1989. The letter states in its entirety:
After further review of your transcript from Valencia Junior College, may I suggest that you take the necessary courses needed to get an Emergency Medical Technology degree. I feel that this would be the best way to go since you already have courses in this area. If I can be of any further assistance please call me at [number omitted].
Petitioner re-enrolled in Brevard Community College for the second semester starting January 8, 1990. He completed a three-credit hour course in statistics and a two-credit hour course in medical terminology. He also received credit, through a CLEP examination, for four credit hours in general biology.
On June 18, 1990, Petitioner resubmitted the transcript materials showing the additional coursework at Brevard Community College.
By letter dated July 10, 1990, Mr. Stark informed Petitioner that his application for entry into the Firefighters Supplemental Compensation Program had been denied for noncompliance with Section 633.382, Florida Statutes, and Chapter 4A-37, Florida Administrative Code. The letter quotes Rule 4A-37.085(2) as follows: "To be eligible to receive the Supplemental Compensation provided
for by Section 633.382(3), Florida Statutes, the following requirements must be met: Possess an eligible Associate or Bachelors Degree." Prior to advising of a right to a hearing, the letter concludes: "it has been determined that your Degree is not readily identifiable and applicable as fire-related, per Rule 4A- 37.084.
By letter dated July 17, 1990, to the Bureau of Fire Standards and Training, Petitioner requested a formal administrative hearing. The letter states that Petitioner had at least 18 semester hours readily identifiable and applicable as fire-related.
In the July 17 letter, Petitioner asserts that he had called Mr. Stark prior to taking the additional courses and had been told that he needed only six additional semester hours, because he had 12 semester hours in approved courses. The letter claims that Mr. Stark had approved specific courses prior to Petitioner's taking them and had said it was unnecessary to confirm anything in writing. Petitioner complains in the letter that he was only lately told that he could meet the 18 semester-hour requirement only by earning a new associate degree.
To earn an associate in arts or associate in science degree from Brevard Community College, a student must satisfy various requirements, such as completing a "prescribed course of study which includes at least 64 semester hours of credit," according to the college catalog. The associate in arts degree offers no opportunity to declare a major. 1/
The associate in science degree offers various majors. The associate in science technical program offers a major in fire technology that is designed to "qualify fire personnel for career advancement." The coursework described in this program represents strong evidence of the kind of courses that are fire- related.
The coursework for the associate in science degree with a major in fire technology requires, among other things, the following courses and credit hours: two English courses (3 each), one physical science course (3), one chemistry course (3), one algebra course (3), two government courses (3 each), one human relations course (3), and two physical education courses (1 each).
Although Petitioner did not take the identical courses required for the associate in science degree with a major in fire technology, he took comparable courses that, in each case, were more difficult than those required for the associate in science degree. The courses that Petitioner took that correspond in subject matter and credit hours to the Brevard requirements for a major in fire technology are: general psychology (3), general chemistry I (3), college algebra (3), communications I (3), fundamentals of speech communication (3), weight training and swimming (2), and U.S. history I and II (6). Other fire-related courses are first aid and safety (2) and cardiopulmonary resuscitation (1). Petitioner thus earned, prior to receiving his associate in
arts degree, 26 hours in courses that are readily identifiable and applicable as fire-related.
Valencia Community College is similar to Brevard Community College in offering no majors within the associate in arts degree. Valencia's associate in science degree with a major in fire science requires the following courses and credit hours: composition (3), U.S. government (3), psychology in business and
industry (3), business math (3), fundamentals of speech (3), technical communication (3), introduction to general chemistry (4), introduction to sociology (3), and humanities (3).
when measured against the requirements of Valencia Community College for a major in fire science, in terms of subject matter and credit hours, Petitioner earned a total of 25 or 28 credit hours in fire-related courses. Adding the first aid and cardiopulmonary resuscitation courses, Petitioner earned, in this comparison to the Valencia requirements, between 28 and 31 credit hours in courses that are clearly fire-related and within a major study concentration area that is fire-related.
Neither an associate nor bachelor degree is required for Petitioner's present job as a firefighter. His job responsibilities include preventing and extinguishing fires, maintaining firefighting equipment, and conducting life support activities. His specific responsibilities include raising and climbing ladders, using chemical extinguishers, performing rescue activities, conducting fire education, performing life-support activities, and attending training courses to learn more about fire prevention and protection.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Sections 120.57(1) and 633.382(2)(b), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)
Section 633.382(3)(a) provides supplemental compensation of $50 monthly for qualifying firefighters. To qualify, a firefighter must occupy a position that does not require an associate degree and comply with the following:
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 [of the State Fire Marshall] . Section 633.382(2) (a).
Rule 4A-37.084(2) defines an "associate degree" as an associate of arts or associate of science degree. Rule 4A-37.084(2) (a) implies that that the degree must be in a major study concentration area that is itself readily identifiable and applicable as fire-related.
Rule 4A-37.084(5) defines a "major study concentration area" that is readily identifiable and applicable as fire-related as a
major in fire science, fire science technology, fire science administration, fire protection engineer, municipal management, public administration, emergency medical technology, paramedic technology, and fire science vocational education. Applicants who possess a degree with a major study concentration area which is not specified above may petition the Division for entry
into the program if they feel that the major is fire-related. The burden of proof shall be on the applicant.
Neither Brevard nor Valencia Community College offers an opportunity to declare a major while pursuing an associate in arts degree. Students in an associate in arts degree program are not prohibited, however, from qualifying for supplemental compensation, as the statutes and rules expressly allow an associate in arts or associate in science degree.
By comparison to the requirements for a major at Brevard and Valencia in fire science or fire technology in the associate in science degree program, Petitioner clearly met the requirements for supplemental compensation. He earned well in excess of 18 semester hours in a major study concentration area that is readily identifiable and applicable as fire-related.
Because Petitioner has his associate in arts degree with a major study concentration area that is fire-related, it is unnecessary to consider whether he could apply any post-degree courses toward the coursework requirements or whether there is any basis for estoppel under the facts of this case.
RECOMMENDATION
Based on the foregoing, it is hereby
RECOMMENDED that the Department of Insurance, Division of the State Fire Marshall, issue a final order determining that Petitioner is eligible to receive supplemental compensation of $50 monthly.
RECOMMENDED this 18th day of December, 1990, in Tallahassee, Florida.
ROBERT E. MEALE
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1990.
ENDNOTES
1/ The associate in arts degree requires the completion of various general education requirements, which involve English, mathematics, natural science, humanities, and physical education.
COPIES FURNISHED:
Hon. Tom Gallagher
State Treasurer and Insurance Commissioner The Capitol, Plaza Level
Tallahassee, FL 32399-0300
Don Dowdell General Counsel
Department of Insurance The Capitol, Plaza Level Tallahassee, FL 32399-0300
Peter T. Campbell, III
445 Clarewood Boulevard Titusville, FL 32796
Attorney Lisa S. Santucci Division of Legal Services
412 Larson Building Tallahassee, FL 32399-0300
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
APPENDIX "B"
OFFICE OF THE TREASURER TOM GALLAGHER DEPARTMENT OF INSURANCE TREASURER
INSURANCE COMMISSIONER
The Capitol, Tallahassee, Florida 32399-0300 April 8, 1991
Robert E. Neale, Esquire Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
Re: In the Matter of Peter T. Campbell; DOAH Case No. 90-4529 Dear Mr. Neale;
The Department is in receipt of your letter dated April 2, 1991, to Mr.
Peter T. Campbell, III. We are hereby requesting that you consider the retroactivity issue, based on the record presented at the hearing, and make recommendation to the parties.
Since the time to request an appeal of the Final Order has already run, and in the interest fairness, the Department requests that jurisdiction of this matter be returned to the Division of Administrative Hearings solely for the purpose of resolving the retroactivity issue.
We are enclosing the record from the hearing for your reference. Thank you for assistance in this matter.
Sincerely,
Bill O'Neil, Esquire General Counsel
The Capitol
Tallahassee, Florida 32399-0300
| Issue Date | Proceedings |
|---|---|
| Dec. 18, 1990 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 14, 1991 | Agency Final Order | |
| Dec. 18, 1990 | Recommended Order | Firefighter meets requirements for supplemental compensation due to courses taken resembling major in fire science - partly retroactive |
