STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

DEAN J. JOHN, )

)

Petitioner, )

)

vs. ) CASE NO. 90-7665

) DEPARTMENT OF INSURANCE AND ) TREASURER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer from the Division of Administrative Hearings, on February 26, 1991, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Dean J. John, pro se

6890 Scott Street

Hollywood, Florida 33024

For Respondent: Andrew K. Levine, Esquire

Department of Insurance and Treasurer - Division of State Fire Marshall

412 Larson Building Tallahassee, Florida 32399-0300

STATEMENT OF THE ISSUE

The issue presented is whether Petitioner's application for supplemental compensation pursuant to the Firefighters Supplemental Compensation Program should be approved.

PRELIMINARY STATEMENT

Respondent denied Petitioner's application for supplemental compensation for the reason that Petitioner's bachelor's degree was not in a major study concentration area which was readily identifiable and applicable as fire- related, and Petitioner timely requested a formal hearing regarding that determination. This cause was thereafter transferred to the Division of Administrative Hearings for the conduct of that formal proceeding.

Petitioner testified on his own behalf and presented the testimony of Gary Rainey. Respondent presented the testimony of Frederick C. Stark.

Additionally, Joint Exhibit numbered 1 and Petitioner's Exhibits numbered 1-4 were admitted in evidence.

Both parties submitted post-hearing proposed findings of fact. A ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner is employed as a Captain with the Metro-Dade Fire Department.

   
   

2. Petitioner earned a Bachelor of Arts Degree from the State University of New York at Buffalo, an accredited academic institution, on February 12, 1969. At the time that Petitioner attended that university, it did not offer courses in fire science.

   
   

3. Petitioner applied to Respondent for supplemental compensation at the bachelor's degree level. His university transcript, which accompanied his application, indicates that Petitioner's major study concentration area was psychology.

   
   

4. The Metro-Dade Fire Department requires its officers to attend an officers' training program. That program does not award college credits, and Petitioner did not attend that program as part of the course-work required to earn his bachelor's degree. Rather, it is an in-service training program. Although that program does include some instruction in some basic psychological principles, there is no indication that that program is different from in- service training programs for supervisors and managers in any occupation.

   
   

5. Although Metropolitan Dade County does offer a tuition refund program for its employees, that program is unrelated to the State's Firefighters Supplemental Compensation Program and has different criteria. Further, Petitioner's bachelor's degree was not earned in conjunction with that program.

   
   

6. Petitioner's job description as a captain does require that he possess supervisory skills. Those supervisory skills appear to be the same supervisory skills required in any occupation. His job description does not require that he have a degree or training in psychology. The only educational requirement for employment as a fire captain with the Metro-Dade Fire Department is graduation from a standard high school or possession of a Florida G.E.D.

   
   

7. Petitioner's transcript for his bachelor's degree does not reveal a sufficient number of course hours which are readily identifiable and applicable as fire-related. Although it does reveal the titles of the courses taken by Petitioner in earning his bachelor's degree, it is not accompanied by any catalog from the university which explains the contents of any of the courses taken by him. Accordingly, none of the courses taken by Petitioner is readily identifiable and applicable as fire-related.

   
   

8. Petitioner is not employed by the Metro-Dade Fire Department as a psychologist or counselor. To the extent that his job requires him to utilize basic psychological-managerial principles, it is because his job includes being a supervisor-manager and not because his job requires an expertise in psychology.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes (1990).

   
   

10. Section 633.382, Florida Statutes, establishes the Firefighters Supplemental Compensation Program and provides, in part, as follows:

    
    

    1. QUALIFICATIONS FOR SUPPLEMENTAL COMPENSATION--

       1. In addition to the compensation now paid by an employing agency to any firefighter, every firefighter shall be paid supplemental compensation by the employing agency when such firefighter has complied with one of the following criteria:

          * * *

          1. 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).

             
             

11. The policy guidelines are found in Chapter 4A-37, Florida Administrative Code. Rule 4A-37.084, Florida Administrative Code, provides the definitions for the Firefighters Supplemental Compensation Program and provides, in part, as follows:

    
    

    1. "Bachelor's Degree" 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.

       1. A firefighter may receive Supplemental Compensation based on possession of a Bachelor's Degree regardless of whether or not an Associate Degree was previously earned. In no event shall receipt of a transcript for an Associate Degree be used in consideration for qualification of the Bachelor's Degree Supplemental Compensation.

       2. 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 defined in

    this rule chapter are considered to be readily identifiable and applicable as fire-related.

    * * *

    (5) "Major Study Concentration Area" means, identified on official sealed transcripts, a major in fire science, fire science technology, fire science administration, fire protection engineer, municipal management, public administration, emergency medical technology, paramedic training, 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.

    
    

12. That Rule, which became effective on January 3, 1990, was in effect before the date on which Petitioner filed his application for supplemental compensation.

    
    

13. Psychology is not one of those major study concentration areas listed in Subsection (5) of Rule 4A-37.084, Florida Administrative Code, which Respondent has determined to be readily identifiable and fire-related per se. Accordingly, the burden is on Petitioner to show that his major study concentration area includes 18 semester hours or 27 quarter hours which are readily identifiable and applicable as fire-related. Petitioner has failed to meet his burden of proof. Petitioner has not shown that any of the courses which he took in earning his bachelor's degree is readily identifiable and applicable as fire-related or that a degree in psychology is readily identifiable and applicable as fire-related. Further, although Petitioner argues that he would be eligible for tuition refund from Metropolitan Dade County if he were to take courses in psychology, Metropolitan Dade County's tuition refund program is not related to the State's Firefighters Supplemental Compensation Program and does not utilize the same criteria.

    
    

14. Similarly, Petitioner's argument that his job requirements make his degree in psychology fire-related is without merit. His job description does not require that he have expertise in the area of psychology although it does require that he have a knowledge of supervisory principles and be able to work well with others. Such a job description is a general job description for supervisors in any occupation. Further, Petitioner is not employed by the Metro-Dade Fire Department as a psychologist. Although it may well be, as Petitioner argues, that he is called upon to render assistance to people in crisis at a fire-fighting scene, the rendering of such assistance would result from Petitioner being a caring and concerned person and would not be one of the

    duties required of him according to his job description. His job description as a fire captain does not include the rendering of assistance to persons in crisis.

    
    

15. Additionally, to the extent that Petitioner is required to have a working knowledge of some basic psychological/management principles, the Metro- Dade Fire Department includes those principles in its in-service officers' training program and does not appear to require any in-depth understanding of psychology. The psychological/management techniques included in that in-service training are not techniques related to firefighting but are, rather, techniques related to being a good supervisor in any field of endeavor.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's application

for supplemental compensation pursuant to the Firefighters Supplemental Compensation Program.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 23rd day of April, 1991.

LINDA M. RIGOT

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of April, 1991.

APPENDIX TO RECOMMENDED ORDER

1. Petitioner's first, second, fourth through twelfth, fifteenth, and seventeenth unnumbered paragraphs have been rejected as not constituting findings of fact but rather as constituting argument.

2. Petitioner's third unnumbered paragraph has been rejected as not being supported by the weight of the credible evidence in this cause.

3. Petitioner's thirteenth and sixteenth unnumbered paragraphs have been rejected as being irrelevant to the issues involved herein.

4. Petitioner's fourteenth unnumbered paragraph has been adopted in substance in this Recommended Order.

5. Respondent's proposed findings of fact numbered 1, 2, 4, 5, 9, and 10 have been adopted either verbatim or in substance in this Recommended Order.

6. Respondent's proposed findings of fact numbered 3, 11, and 13 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony

7. Respondent's proposed findings of fact numbered 6 and 12 have been rejected as being irrelevant to the issues involved herein.

8. Respondent's proposed findings of fact numbered 7 and 8 have been rejected as being unnecessary for determination of the issues herein.

Copies furnished:

Andrew K. Levine, Esquire Department of Insurance and

Treasurer

Division of State Fire Marshall

412 Larson Building Tallahassee, Florida 32399-0300

Dean J. John

6890 Scott Street

Hollywood, Florida 33024

Tom Gallagher

State Treasurer and Insurance Commissioner

The Capitol, Plaza Level Tallahassee, Florida 32399-0300

Bill O'Neil, General Counsel Department of Insurance and

Treasurer

The Capitol, Plaza Level Tallahassee, Florida 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.

Docket for Case No: 90-007665

Orders for Case No: 90-007665