STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM L. BINGHAM, )

)

Petitioner, )

)

vs. ) CASE NO. 92-6278

)

DEPARTMENT OF INSURANCE AND )

TREASURER, )

)

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 February 19, 1993, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Mr. William L. Bingham, pro se

11156 Northwest 35th Street Sunrise, Florida 33351

For Respondent: Daniel T. Gross, Esquire

Department of Insurance and Treasurer

412 Larson Building

Tallahassee, Florida 32399-0300 STATEMENT OF THE ISSUE

The issue presented is whether Petitioner's application for entry into the Firefighters' Supplemental Compensation Program at the bachelor's degree level should be granted.

PRELIMINARY STATEMENT

By letter dated September 22, 1992, Respondent advised Petitioner that his application for entry into the Firefighters' Supplemental Compensation Program at the bachelor's degree level was denied, and Petitioner timely requested a formal hearing regarding that determination. This matter was thereafter transferred to the Division of Administrative Hearings for the conduct of that formal proceeding.

Petitioner, William L. Bingham, testified on his own behalf, and Elianne J. Sorel testified on behalf of the Respondent. Additionally, Joint Exhibits numbered 1-4 were admitted in evidence.

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

FINDINGS OF FACT

1. Petitioner is a certified firefighter. He is currently employed as the Deputy Fire Chief of the City of Sunrise, Florida, Fire-Rescue Department. Petitioner began employment with that Department approximately 12 years ago in the capacity of a firefighter and progressed through the ranks to his current position.

   
   

2. Petitioner is currently receiving supplemental compensation at the associate degree level for having obtained an associate of science degree in fire science conferred by Broward Community College on August 3, 1984.

   
   

3. After obtaining his associate degree, Petitioner began working on his bachelor's degree, taking courses part-time at Florida Atlantic University. During the next several years, he pursued a major in the area known as public affairs. What Florida Atlantic University calls a degree in public affairs is known as a degree in public administration elsewhere.

   
   

4. When Petitioner was approximately 80% through the course work for his bachelor's degree in public affairs, he changed his major to political science. Until that time, the courses taken by him were the courses required for a bachelor's degree in public administration. On April 29, 1992, Petitioner received a bachelor of arts degree. His transcript from Florida Atlantic University recites both that his major was political science and that his latest major was "non-degree."

   
   

5. If Petitioner had majored in political science at an earlier stage of his college career, he would not have taken the number of management courses that he took since those courses are not required for a degree in political science. Those management courses have been helpful to him in carrying out his job duties.

   
   

6. There is no college or university in Florida which offers a bachelor's degree in fire science. Moreover, only the University of Cincinnati offers a bachelor's degree in fire science, and it does that only through a home study program.

   
   

7. During the time that he was working on his bachelor's degree, Petitioner was mindful of the course work required for him to gain entry into the Firefighters' Supplemental Compensation Program at the bachelor's level. He was aware that he would not be permitted to repeat any of the fire courses he took for his associates degree and still receive credit from the Department. He did, however, take the two fire courses while working on his bachelor's degree that he did not take as part of the course work in obtaining his associates degree. Taking more fire courses would have required him to repeat courses.

   
   

8. Petitioner's degree is appropriate to his position in the fire service. Petitioner performs solely management duties in his current position as the Deputy Fire Chief. Petitioner's job duties focus on the administrative and policy-related areas of the fire service. His responsibilities include personnel issues, budget preparation and implementation, developing and monitoring rules and regulations, and serving as the liaison between his department and other governmental departments or the public.

   
   

9. In applying for entry into the Firefighters' Supple-mental Compensation Program at the bachelor's degree level, Petitioner identified 27 semester hours

   of courses that were fire-related, that is, part of the required course work for a degree in public administration or specifically identified as fire science courses. Six of those 27 semester hours were fire science courses, which the Department concedes are fire-related.

   
   

10. When the Department received Petitioner's application, the employee assigned to review Petitioner's application and college transcript followed the approach being used by the Department for determining an applicant's eligibility. Specifically, if a transcript states a major, the Department only looks at the name of the major and does not review the transcript to ascertain what courses were taken. The Department only reviews the transcript to determine an applicant's major study concentration area if the transcript does not state a major. Accordingly, Petitioner's transcript was not evaluated on the merits.

    
    

11. Petitioner's bachelor of arts degree included sufficient fire-related course work to entitle Petitioner to participate in the Firefighters' Supplemental Compensation Program at the bachelor's degree level.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

13. Section 633.382, Florida Statutes, establishes the Firefighters' Supplemental Compensation Program and provides, in pertinent 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:

          
          

          * * *

          
          

          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).

          
          

14. Respondent has implemented the Firefighters' Supplemental Compensation Program by promulgating certain definitions found in Rule 4A-37.084, Florida Administrative Code, which 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 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.

    
    

    [Emphasis added.]

    
    

15. The sole issue in this case is whether Petitioner possesses an eligible bachelor's degree. There are two ways in which Petitioner can demonstrate that he does. One of those ways is by showing that he possesses a bachelor's degree with a major study concentration area which has been specifically identified in the Rule as being fire-related. If Petitioner, on the other hand, possesses a bachelor's degree which does not specify one of the enumerated major study concentration areas which has been deemed by Rule to be fire-related, then Petitioner can prove that his major study concentration area is fire-related by demonstrating that he has at least 18 semester hours or 27 quarter hours in a major study concentration area which is readily identifiable and applicable as fire-related.

    
    

16. A degree in public administration has been declared by the Rule to be fire-related. Until Petitioner changed majors, he was majoring in public affairs, which is what Florida Atlantic University calls its degree in public administration. Accordingly, had Petitioner not changed majors, it could not be disputed that his degree would have been in an area declared by Rule to be fire- related. Since Petitioner did change majors to a major which is not specifically enumerated to be fire-related, then the burden is on him to show that he has at least 18 semester hours which are readily identifiable and applicable as fire-related. The Department concedes that Petitioner has 6 of those semester hours.

    
    

17. Petitioner has met his burden of showing that the course work which he took while majoring in public affairs/administration exceeded the required additional 12 semester hours, for a total in excess of 18 semester hours, in a major study concentration area that has been defined by the Rule to be fire- related. Thus, the record in this cause reveals that Petitioner has both a major study concentration area in political science, an area not readily identifiable and applicable as fire-related, and a major study concentration area in public administration, an area which is readily identifiable and applicable as fire-related.

    
    

18. Respondent argues that Petitioner did not complete the curriculum requirements for a degree in public affairs/public administration. Although that position is factually correct, neither the Statute nor the Rule requires

    that an applicant complete the curriculum requirements for such a degree. Rather, both the Statute and the Rule require that the degree curriculum include a major study concentration area readily identifiable and applicable to fire- related subjects. In other words, although Petitioner's degree does not specify one of the enumerated majors, Petitioner's degree curriculum did include a major study concentration area specified in the Rule as being readily identifiable and applicable to fire-related subjects. The Department having specified by Rule that public administration is fire-related, and Petitioner having established that he has at least 18 semester hours in that major study concentration area, Petitioner's application for entry into the Firefighters' Supplemental Compensation Program should have been granted.

    
    

19. Under the Department's own rules, applicants who possess a degree with a major study concentration area not specified in the Rule may demonstrate that an additional major study concentration area is fire-related. Simply looking at the name of the degree on Petitioner's transcript and not evaluating the transcript on its merits fails to comply with either the spirit or the letter of the Department's own rules.

RECOMMENDATION

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

for entry into the Firefighters' Supplemental Compensation Program at the

bachelor's degree level.

DONE AND ENTERED this 26th day of March, 1993, in Tallahassee, Leon County, Florida.

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 26th day of March, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-6278

1. Petitioner's proposed findings of fact numbered 1-3 and 5-8 have been adopted either verbatim or in substance in this Recommended Order.

   
   

2. Petitioner's proposed finding of fact numbered 4 has been rejected as being subordinate to the issue being determined herein.

   
   

3. Respondent's proposed findings of fact numbered 1, 2, 9, 10, and 13 have been adopted either verbatim or in substance in this Recommended Order.

4. Respondent's proposed findings of fact numbered 3-8 have been rejected as being subordinate to the issue being determined herein.

   
   

5. Respondent's proposed finding of fact numbered 11 has been rejected as not being supported by the weight of the evidence.

   
   

6. Respondent's proposed finding of fact numbered 12 has been rejected as not constituting a finding of fact but rather as constituting argument of counsel.

COPIES FURNISHED:

Mr. William L. Bingham 11156 Northwest 35th Street Sunrise, Florida 33351

Daniel T. Gross, Esquire

Department of Insurance and Treasurer

412 Larson Building

Tallahassee, Florida 32399-0300

Tom Gallagher

State Treasurer and Insurance Commissioner The Capitol, Plaza Level

Tallahassee, Florida 32399-0300

Bill O'Neil, General Counsel Department of Insurance

The Capitol, PL-11

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 ten 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.

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AGENCY FINAL ORDER

=================================================================

OFFICE OF THE TREASURER DEPARTMENT OF INSURANCE

IN THE MATTER OF:

CASE NO: 92-L-542DTG

WILLIAM L. BINGHAM DOAH CASE NO. 92-6278

/

FINAL ORDER

THIS CAUSE came on before the undersigned Treasurer of the State of Florida, acting in his capacity as State Fire Marshal, for consideration and final agency action. Mr. Bingham submitted a request for entry into the Firefighter's Supplemental Compensation Program with the Division of State Fire Marshal pursuant to Section 633.382(2), Florida Statutes. The request was denied by the Division by letter dated September 22, 1992. Mr. Bingham timely filed a request for a formal proceeding pursuant to Section 120.57(1), Florida Statutes. The hearing was held on February 19, 1993, in Ft. Lauderdale, Florida before Linda M. Riot, Hearing Officer, Division of Administrative Hearing.

After consideration of the evidence and subsequent written submission by the Department, the Hearing Officer issued her Recommended Order, on March 26, 1993. (Attached as Exhibit A). The Hearing Officer recommended that Mr.

Bingham's request for supplemental compensation be granted. The Department filed exceptions to the Recommended Order on April 5, 1993.

RULING ON EXCEPTIONS TO FINDINGS OF FACT

1. The Department excepts to a portion of the Hearing Officer's finding of fact #3 on the basis that it is not supported by substantial competent evidence in the record. The Hearing Officer finds that a degree in public affairs from Florida Atlantic University is known as a degree in public administration elsewhere. The Hearing Officer cites no record authority for this statement and it does not appear that any officials from Florida Atlantic University or any other post-secondary institutions testified as to what a public affairs degree could be known as at other institutions. Further, the documentary evidence does not support this finding by the Hearing Officer. Joint Exhibit 2 indicates that the Petitioner, Mr. Bingham, received a Bachelor of Arts degree with a major in Political Science from Florida Atlantic University. No where on the official sealed transcript does it indicate that Mr. Bingham received a degree in public affairs or public administration. The Department's exception to finding of fact

   3 is accepted.

   
   

2. The Department excepts to the Hearing Officer's finding of fact #4 on the basis that it is not supported by substantial competent evidence in the record. For the reasons set forth in paragraph 1 above, the Department's exception to finding of fact 4 is accepted.

   
   

3. The Department excepts to the Hearing Officer's finding of fact #9 on the basis that the Hearing Officer erroneously interpreted fire-related courses as a fire-related major study concentration area. The proper standard for reviewing Mr. Bingham's transcript is whether the major study concentration area is fire-related, not whether the Petitioner's major study concentration area includes courses that are job-related. "The intent of the statute and the rule is to require fire fighters to qualify themselves for the performance of their duties by taking fire science courses, not general courses which might be somewhat generally related to the fire fighting career." In the Matter of Jorge Du Quesne; Case No. 91-L-367AKL (Final Order entered November 22, 1991). The Department's exception to finding of fact 9 is accepted.

   
   

4. The Department excepts to the Hearing Officer's finding of fact #11 on the basis that it is not supported by substantial competent evidence in the

record. For the reasons set forth in paragraphs 1 and 3 above, the Department's exception to finding of fact #11 is accepted.

RULING ON EXCEPTIONS TO CONCLUSIONS OF LAW

1. The Department excepts to the Hearing Officer's conclusion of law #15 the reason being that the Hearing Officer uses an erroneous interpretation of the applicable Rules. It appears that in this conclusion of law the Hearing Officer is simply restating the provisions of Rule 4A-37.084(3) and (5), Florida Administrative Code. Although some what difficult to follow, it does not appear that the Hearing Officer has erroneously interpreted this Rule. The Department's exception to conclusion of law #15 is rejected.

   
   

2. The Department excepts to the Hearing Officer's conclusion of law #16, again the reason being that the Hearing Officer uses an erroneous interpretation of the applicable Rules and that the conclusion is not supported by competent substantial evidence. The Hearing Officer has based this conclusion of law solely on her theory that if the Petitioner had not changed his major and had attended a different school he might have had his major called something else that would be fire-related. The Hearing Officer does not have authority to arbitrarily change the Petitioner's major study concentration area, nor is there substantial competent evidence in the record to support such a change. The Department's exception to conclusion of law #16 is accepted.

   
   

3. The Department excepts to the Hearing Officer's conclusion of law #17 on the basis that it is not supported by substantial competent evidence. For the reasons set forth in paragraph 2 above, the Department's exception to conclusion of law #17 is accepted.

   
   

4. The Department excepts to the Hearing Officer's conclusion of law #18 on the basis that it is not supported by substantial competent evidence. For the reasons set forth in paragraph 2 above, the Department's exception to conclusion of law #18 is accepted.

RULING ON EXCEPTIONS TO RULINGS ON FINDINGS SUBMITTED

BY RESPONDENT IN APPENDIX TO RECOMMENDED ORDER

1. To the extent not inconsistent with the rulings on exceptions to findings of fact contained herein, the Department's exceptions to the Hearing Officer's appendix to Recommended Order are accepted.

RULING ON EXCEPTIONS TO RECOMMENDATION

Based on the foregoing rulings on the Department's exceptions to the Hearing Officer's findings of fact and conclusions of law, the Hearing Officer's recommendation that the Petitioner be accepted into the Firefighter's Supplemental Compensation Program is rejected and the appropriate disposition of this case is that Petitioner is denied participation said program.

Upon careful consideration of the record, the submissions of the parties and being otherwise advised in the premises, it is

ORDERED:

1. The Findings of Fact of the Hearing Officer are adopted as the Department's Findings of Fact, with the exception of Findings of Fact #3, 4, 9 and 11.

   
   

2. The Conclusions of Law of the Hearing Officer are adopted as the Department's Conclusions of Law with the exception of Conclusions of Law #16, 17, and 18,

   
   

3. That the Hearing Officer's recommendation that Mr. Bingham's request for entry into the Firefighter's Supplemental Compensation Program be accepted is rejected and the appropriate disposition of this case is that Mr. Bingham's request is denied.

ACCORDINGLY, the request for entry into the Firefighter's Supplemental Compensation Program submitted by WILLIAM L. BINGHAM is hereby 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, Florida Rules of Appellate Procedure. Review proceedings must be instituted by filing a petition or notice of appeal with the General Counsel, acting as the agency clerk, at 612 Larson Building, Tallahassee, Florida, and a copy of the same with the appropriate district court of appeal within thirty

(30) days of rendition of this Order.

DONE and ORDERED this 6th day of May 1993.

TOM GALLAGHER

Treasurer and State Fire Marshal

COPIES FURNISHED: HONORABLE LINDA M. RIGOT,

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

WILLIAM L. BINGHAM

11156 Northwest 35th Street Sunrise, Florida 33351

DANIEL T. GROSS, ESQUIRE

Division of Legal Services 612 Larson Building

Tallahassee, Florida 32399-0300

Docket for Case No: 92-006278

Orders for Case No: 92-006278