The Issue Whether Petitioner, who on November 17, 1999 (two days prior to the final hearing in this case) was certified by Respondent to be eligible to receive, effective June 1, 1999, firefighter supplemental compensation pursuant to Section 633.382, Florida Statutes, is entitled to any further relief from Respondent in this administrative proceeding (which was initiated by Petitioner after he had received Respondent's June 2, 1999, notice of its preliminary determination that Petitioner was not entitled to firefighter supplemental compensation).
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: In August 1994, Petitioner applied to Respondent for entry in the Firefighters Supplemental Compensation Program (1994 Application). The application materials that Respondent received were a completed and signed Firefighters Supplemental Compensation Program Transcript Request form; a copy of Petitioner's transcript from North Carolina Central University (reflecting that he had graduated on May 10, 1986, with a Bachelor of Science degree in biology), along with a cover letter to Respondent from the Office of the University Registrar; a job description; and a letter to Respondent from Petitioner, which read as follows: Enclosed [y]ou will find information regarding my educational earnings. I received a Bachelor of Science (Biology) in May, 1986 from North Carolina Central University in Durham. Additionally, I have earned 29 credits at Miami Dade Community College [a]nd I [a]m [a] Paramedic. Please [r]eview [t]his information and include me in the supplemental compensation program. I[']d [l]ike to thank you in advance for your time and consideration. The job description that was included in the application materials Respondent received was for the classification of Fire Fighter and read as follows: NATURE OF WORK: Skilled fire-fighting work in combating, extinguishing and preventing fires, and in the operation and maintenance of fire department equipment, apparatus and quarters. Work involves responsibility for protecting life and property by fire-fighting and rescue activities, usually under close supervision. Employees of this class are required to learn and participate in the operation of fire apparatus and equipment, and the performance of hazardous tasks under emergency conditions which may require strenuous exertion under such handicaps as smoke and cramped surroundings. Although fire-fighting and rescue activities are the primary responsibilities of this class, the major portion of time is spent in drilling and studying methods, techniques and organization, and in routine duties in the care and maintenance of fire department property and equipment. Employees of this class may be assigned to duty as communications officer, chief driver and aide, and fire prevention inspector, which involves the application of specialized abilities and knowledge developed through experience and training. Specific orders and directions are given by superior officers, but the work requires initiative and a thorough individual understanding of fire- fighting methods. ILLUSTRATIVE EXAMPLES OF WORK PERFORMED: (The examples of work as listed in this class specification are not necessarily descriptive of any one position in the class. The omission of specific statements does not preclude management from assigning specific duties not listed herein if such duties are a logical assignment to the position. Examples of work performed are not to be used for allocation purposes.) Attends training courses; participation in fire drills and attends classes in fire- fighting and first aid; reads and studies assigned materials related to fire-fighting and prevention. Responds to fire alarms with a company; operates pumps, aerial ladders and auxiliary equipment; lays and connects hose; holds nozzles and directs fog or water streams; raises and climbs ladders; uses chemical extinguishers, bars, hooks, lines and other equipment. Performs general maintenance work in the upkeep of fire department property; cleans and washes walls and floors; makes minor repairs to property and equipment; washes, hangs, and dries hoses; washes, cleans, polishes and tests apparatus. Performs limited fire prevention activities; inspects commercial and residential properties for the existence of fire hazards, and seeks removal of such hazards through education and persuasion. When assigned to the Rescue Division the Fire-Fighter should be able to accurately and efficiently evaluate and gather patient assessment information; interpret assessment finding; formulate a working diagnosis (i.e. possible M.I.); plan, prioritize and implement necessary treatment as per Rescue protocol and/or physician direction via the radio; evaluate treatment outcome and re- assess the patient's status; plan and implement additional treatment or modifications as indicated by re-assessment and follow-up evaluation. When assigned as a fire inspector, inspects buildings and premises; reviews plans for compliance with fire regulations specified in the City of Miami Building Code; checks on complaints; and may aid investigation of arson cases when assigned to fire prevention duties. Performs other related work as required. DESIRABLE KNOWLEDGE, ABILITIES AND SKILLS: (The knowledge, skills and abilities identified in this class specification represent those needed to perform the duties of this class. Additional knowledge, skills and abilities may be applicable for individual positions in the employing departments.) Some knowledge of the street system and physical layout of the City of Miami. Ability to learn a wide variety of fire- fighting duties and methods within a reasonable working test period. Ability to establish and maintain effective working relationships with other employees and the general public. Ability to understand and follow oral and written instructions. Ability to perform limited mechanical work involved in maintaining fire-fighting and rescue apparatus, equipment and tools. Physical strength, endurance, agility and freedom from serious physical defects as shown by a physical examination. Coordination and dexterity. DESIRABLE BASIC TRAINING AND EXPERIENCE: Graduation from high school or State of Florida Equivalency Certificate OR Equivalent combination of training and experience. By letter dated August 23, 1994, Respondent advised Petitioner that it had determined that he was not qualified to receive supplemental compensation. The letter, which was received by Petitioner on September 6, 1994, read as follows: After reviewing your transcript, it has been determined that you do not possess an appropriate Major Study Concentration Area to qualify for the Firefighters Supplemental Compensation Program at the Bachelor level. Rule 4A-37.084, Florida Administrative Code, does not list Biology as a "Major Study Concentration Area." Rule 4A-37.084, Florida Administrative Code, states: "4A-37.084 Definitions. For purposes of this part, terms used in Rules 4A-37.082-4A- 37.089 are as defined in Section 633.382(1), Florida Statutes, and terms which are not otherwise defined in said statutes are defined as follows: '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. 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. The major study concentration area, at least 18 semester hours or 27 quarter hours, [must] be readily identifiable and applicable as fire related. Specific Authority 633,45(2)(a) FS. Law Implemented 633.382(2) FS. History-New 01-03-90." 1/ At this level of the Firefighters Supplemental Compensation Program it has been determined that your Bachelor Degree is not readily identifiable and applicable as fire related, per Rule 4A-37.084, Florida Administrative Code. Pursuant to Section 120.57, Florida Statutes, and Rule Chapters 4-121 and 28-5, Florida Administrative Code (F.A.C.), you have a right to request a proceeding to contest this action by the Department. You may elect a proceeding by completing the attached Election of Rights form or filing a Petition. Your Petition or Election of a proceeding must be in writing and must be filed with the General Counsel acting as the Agency Clerk, Department of Insurance. If served by U.S. Mail, the Petition or Election should be addressed to the Florida Department of Insurance, at 612 Larson Building, Tallahassee, Florida 32399-0300. If Express Mail or hand delivery is utilized, the Petition or Election should be delivered to 448 Fletcher Building, 101 East Gaines Street, Tallahassee, Florida 32399-0300. The Petition of Election must be received by, and filed in the Department within twenty-one (21) days of the date of your receipt of this notice. If a proceeding is requested and there is no dispute of fact, the provisions of Section 120.57(2), Florida Statutes, would apply. In this regard you may submit oral or written evidence in opposition to the action taken by this agency or a written statement challenging the grounds upon which the agency has relied. While a hearing is normally not required in the absence of a dispute of fact, if you feel that a hearing is necessary one will be conducted in Tallahassee, Florida or by telephonic conference call upon your request. If you dispute material facts which are the basis for this agency's action, you may request a formal adversarial proceeding pursuant to Section 120.57(1), Florida Statutes. If you request this type of proceeding, the request must comply with all of the requirements of Rule Chapters 4-121 and 28-5, F.A.C. and contain: A statement identifying with particularity the allegations of the Department which you dispute and the nature of the dispute; An explanation of what relief you are seeking and believe you are entitled to; Any other information which you contend is material. These proceedings are held before a State hearing officer of the Division of Administrative Hearings. Unless the majority of witnesses are located elsewhere, the Department will request the hearing be conducted in Tallahassee. Unless a Petition or Election or your written submission challenging this action is received by the Department within twenty-one (21) days from the date of the receipt of this notice, the right to a proceeding shall be deemed waived. Failure to follow the procedure outlined with regard to your response to this notice may result in the request being denied. All prior correspondence in this matter shall be considered freeform agency action, and no such correspondence shall operate as a valid request for an administrative proceeding. Any request for administrative proceeding received prior to the date of this notice shall be deemed abandoned unless timely renewed in compliance with the guidelines as set out above. Petitioner did not file a "Petition or Election or . . . written submission challenging this action [described in Respondent's August 23, 1994 letter]" within 21 days of the date of his receipt of the letter. He next corresponded with Respondent in May of 1999, when he applied for a second time for entry in the Firefighters Supplemental Compensation Program. Along with a completed and signed Application for Initial Entry into Supplemental Compensation Program (Second Application), he sent Respondent a copy of his transcript from North Carolina Central University and an "official job description for current position held: FIREFIGHTER/PARAMEDIC," which was different than the job description that had accompanied his 1994 Application and which read as follows: Firefighter Definition: The term firefighter is used to describe all individuals assigned to the various areas within the City of Miami Fire Department. The responsibilities of a Firefighter are very diverse and require specialized training in many areas. Fire Suppression: These individuals are responsible for protecting life and property by means of fire extinguishment. This individual must have a working knowledge of pumps, water friction and resistance tables as well as ropes, foams and nozzles, infra- red cameras and basic building construction and style. Throughout the fire service, physical fitness is important. Hazardous Material Team: Work involves protecting life and property from toxic substances. Must have a working knowledge of fundamental chemistry and chemical interactions with each other. Must be able to identify Department of Transportation Placards to determine substances being transported by vehicles. Additionally, individuals must be familiar with explosive ranges of gases and mixture that have the potential to explode or cause harm to others. Must understand hazardous materials containment areas and the various levels of protective clothing w[o]rn. Emergency Medical Services: Work involves protecting life through use of basic life support and advance life support methods. Individuals involved in these services work under the license and management of a medical director. Paramedics are generally assigned to these positions when possible. Individuals should be able to accurately gather and interpret patient information to formulate a working diagnosis and provide necessary treatment as per protocol or physician[']s direction. Personnel [are] responsible for calculating and administering various drugs under stressful conditions (i.e. cardiac arrest and major trauma) and reporting patient status and treatment via radio to the medical director. A working knowledge of anatomy and physiology, medical terms and conditions is required. Fire Prevention Bureau: Work involves inspecting buildings and premises; reviewing plans for compliance with fire regulations specified in the City of Miami Building Code; checking on complaints; investigating arson cases and conducting public education throughout the City of Miami. Petitioner did not indicate, in submitting his Second Application, that he was seeking anything other than prospective entry in the Firefighters Supplemental Compensation Program. Respondent preliminarily determined that Petitioner's Second Application should be denied because his "Major Study Concentration Areas of Biology does not meet the criteria found in Rule 4A-37.084, Florida Administrative Code, for entry in the program," and so advised Petitioner, who subsequently requested an administrative hearing on the matter. Respondent, however, subsequently changed its mind regarding Petitioner's eligibility for the program and, by letter dated November 17, 1999 (two days prior to the final hearing in this case) advised Petitioner that, "[u]pon [f]urther review of [his] application, it had "found [Petitioner] to be eligible" and that he would receive supplemental compensation effective June 1, 1999. Respondent also prepared and sent to Chief James Fisher of the City of Miami Fire Rescue an Official Acceptance Notification, which read as follows: James E. Kemp, Social Security Number, . . ., has met the eligibility requirements for entry into the Firefighters Supplemental Compensation Program. Effective June 1, 1999, Mr. Kemp will receive Supplemental Compensation for qualifying under the requirements of Section 633.382, Florida Statutes, and Rule 4A-37.085 for possession of a Bachelor's degree. Mr. Kemp will be eligible to receive up to $110.00 a month until such time as he may become ineligible in accordance with Rule 4A- 37.087. Please insure that the referenced firefighter's name and the amount of Supplemental Compensation paid, appears on your Quarterly Report (form FSTE-3). If any further information is needed, please do not hesitate to contact us. (A copy of this Official Acceptance Notification was sent to Petitioner.)
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent enter a final order finding that Petitioner is not entitled to the additional relief he is seeking. DONE AND ENTERED this 5th day of January, 2000, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of January, 2000.
The Issue The issue is whether Respondent properly denied Petitioner's application for certification as a firefighter after Petitioner failed to successfully pass the practical portion of the Minimum Standards Examination.
Findings Of Fact Petitioner applied for certification as a firefighter in October 2002. In order to be certified, Petitioner was required to successfully complete the Minimum Standards Course. The course consists of taking a minimum of 360 hours of training at one of 30 certified centers in Florida. After completing the training course, Petitioner was required to take the Minimum Standards Examination, which is structured in two parts: a written portion and a practical portion. The practical portion consists of four sections or evolutions including the Self-Contained Breathing Apparatus (SCBA), the hose pull, the ladder operation, and the fire skills section. To pass the four practical evolutions, an applicant must achieve a score of at least 70 percent on each one. Each evolution of the practical exam has certain elements or skills that are graded. The ladder test contains eleven skills and requires that the test be completed in not more than two minutes and forty-five seconds. The eleven skills for the ladder evolution include but are not limited to the following: ladder properly lifted, carried, (50 feet) and positioned for raise; maintains control of ladder during entire operation; extremities in safe position during entire operation; ladder halyard properly secured and proper safety applied; fly section extended without utilizing the wall; and fly section out and positioned correctly. After completing the Minimum Standards Course, Petitioner took the initial Minimum Standards Examination on February 19, 2003. Petitioner passed the written portion of the exam but did not pass the practical portion of the initial exam because he made a score of 60 on the ladder operations evolution of the practical examination. In a memorandum dated March 5, 2003, the Department formally advised Petitioner that he had failed the ladder portion of the practical exam for failure to maintain control of ladder. The memorandum also informed Petitioner that he was scheduled for a retake of the minimum standards practical retest of the ladder evolution. In another memorandum dated March 5, 2003, the Department advised Petitioner that he was scheduled to retake the ladder portion of the practical examination at the Florida State Fire College in Ocala, Florida, on May 22, 2003, at 8:00 a.m. Petitioner took the retest of the ladder portion of the practical examination as scheduled on May 22, 2003, in Ocala, Florida. Petitioner did not successfully complete the retest, losing points on three skills and not completing the test in the requisite amount of time. However, there was a problem with the ladder used by Petitioner on the retest in that the "fly" was not locked on the ladder. Ralph Chase is a field representative with the Division of State Fire Marshall of the Department. Mr. Chase was the examiner who tested Petitioner on the retake of the ladder portion of the practical exam on May 22, 2003. Mr. Chase is an experienced examiner. Because of the problem with the ladder on Petitioner's initial attempt on the ladder retest, Mr. Chase allowed Petitioner a second attempt to pass the ladder retest on May 22, 2003, although it is unusual to do so. On the second retest, Petitioner finished the test within the required amount of time but points were counted off for the following skills: ladder properly lifted, carried, (50 feet) and positioned for raise; extremities in safe position during entire operation; ladder halyard properly secured and proper safety applied; and fly section out and positioned correctly. Mr. Chase also made a notation that Petitioner had "poor control" but nonetheless gave Petitioner a passing score on the mandatory skill of maintaining control of ladder during the entire operation. Petitioner made a score of 60 on his second attempt of the retest which is below the required passing score of 70. Phillip Hershman was present at the retest in Ocala on May 22, 2003. Mr. Hershman was there to retake the hose pull portion of the practical exam. At the time of the hearing, he had been employed by the Suwannee County Fire Department for two months. Mr. Hershman was about 50 feet away from Petitioner during Petitioner's ladder retest. There was considerable noise near Mr. Hershman because the self-contained breathing apparatus test was also being conducted nearby. Mr. Hershman had a side view of Petitioner during the ladder retest. He could not see everything that was going on during the ladder retest. Mr. Hershman saw Petitioner look over the ladder and say something to Mr. Chase but could not hear what was said. He saw Mr. Chase speaking to Petitioner. When Petitioner picked up the ladder for the retest, Mr. Hershman saw the rungs of the ladder slide open. He saw Petitioner adjust the ladder and pick it up again. He did not see the ladder touch the wall until final resting of the ladder. Petitioner maintains that the ladder he used on the second retest attempt on May 22, 2003, was defective in the same manner as the first. However, Mr. Chase examined the ladder used in the second test to make sure it was in the correct position. Upon examining the ladder Petitioner used in the second retest, Mr. Chase found it to be "normal." It is unclear from the record whether Mr. Hershman witnessed both of Petitioner's attempts at the ladder retest on May 22, 2003. In any event, in instances where Mr. Hershman's testimony and Mr. Chase's testimony are in conflict, Mr. Chase's testimony of the events regarding Petitioner's retest is more persuasive. He is an experienced examiner, he was the person testing Petitioner, and he has a clear recollection of the events that occurred. While Mr. Hershman's testimony is credible, he was not in the same position, neither physically nor through experience, as Mr. Chase to determine how Petitioner should have been graded on the retake tests. In the First Amended Denial Letter dated August 15, 2003, Respondent informed Petitioner that since he passed the written portion of the Firefighter Minimum Standards Examination, a Firefighter I certificate was enclosed. Further, the August 15, 2003, letter informed Petitioner that he did not achieve a passing score on the 24" Ladder Carry, Raise and Extension evolution of the Firefighter Minimum Standards practical retest. He was informed that it will be necessary to either repeat the entire Minimum Standards Course or complete the Firefighter II Course before retaking the Firefighter Minimum Standards Examination.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department enter a final order denying Petitioner's application and that Petitioner be permitted to either repeat the Minimum Standards Course or complete the Firefighter II course before retaking the Firefighter Minimum Standards Examination. DONE AND ENTERED this 31st day of October, 2003, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 2003. COPIES FURNISHED: Casia R. Belk, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0330 William Glenn Cone, Esquire 1530 Ryar Road, No. 7 Jacksonville, Florida 32216 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
Findings Of Fact At all times relevant and material to these proceedings, the Petitioner has been employed as a firefighter with the Metro-Dade Fire Department. The Petitioner's primary function with the Metro-Dade Fire Department is as a firefighter. By letter dated May 30, 1991, and received on June 10, 1991, the Petitioner applied to the Respondent for Firefighters Supplemental Compensation at the Bachelor degree level. Three transcripts were submitted with the Petitioner's application. The first was from Miami-Dade Community College, and showed that an Associate of Science degree in Fire Science was awarded to the Petitioner on May 4, 1991. The second transcript was from Broward Community College, showing many courses taken by Petitioner, but no degree awarded. 3/ The third transcript was from Florida International University, and showed that a Bachelor of Science degree with a major in Industrial Technology was awarded to Petitioner on December 12, 1980. Petitioner's Bachelor degree from Florida International University is not based upon, and does not include, any of the courses in fire science that formed the basis for Petitioner's Associate degree from Miami-Dade Community College. 4/ Petitioner's transcript of her Bachelor degree does not reveal a major study concentration area of at least 18 semester hours or 27 quarter hours which is readily identifiable and applicable as fire-related. On or about June 24, 1991, the Respondent notified the Petitioner that she was eligible for the Firefighters Supplemental Compensation Program at the Associate degree level by virtue of her Associate of Science degree in Fire Science from Miami-Dade Community College. On or about June 26, 1991, the Respondent notified the Petitioner that she was not eligible for the Firefighters Supplemental Compensation Program at the Bachelor degree level because Petitioner's major in Industrial Technology from Florida International University was not a recognized Major Study Concentration Area in Rule 4A-37.084. The denial letter cites and quotes the definition of "Bachelor's Degree" at Rule 4A- 37.084(3), Florida Administrative Code. Rule 4A-37.084(3)(a), Florida Administrative Code, the rule which is the subject of this rule challenge proceeding, reads as follows (with the challenged portion underscored [<> --Ed.]): "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. 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 Decree be used in consideration for qualification of the Bachelor's Degree Supplemental Compensation.> 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.
The Issue Is Petitioner entitled to be certified as a Firefighter based upon examination results through an examination administered by Respondent? See Section 633.35, Florida Statutes.
Findings Of Fact Petitioner applied for certification as a Firefighter on June 19, 1998. Subsequently he completed the Firefighter training program administered at Volusia County Fire Science Institute commensurate with the requirements set forth in Section 633.35(1), Florida Statutes. On December 15, 1998, Petitioner took the state examination following completion of the "Minimum Standards Course." The state examination was administered by the Bureau of Fire Standards and Training. That examination was constituted of a written and practical portion with the expectation that a minimum score of 70% was required in both aspects of the examination. See Rule 4A-37.056(6)(b), Florida Administrative Code. When the December 15, 1998 examination was graded, the Petitioner passed the practical with a score of 90. Petitioner did not pass the written, receiving a score of 66. Officials within the Respondent's agency were persuaded that some portions of the examination given on December 15, 1998, were arguably beyond the abilities of a beginning Firefighter. This decision was arrived at recognizing that material on the test had been presented in the "Minimum Standards Course." Nonetheless, adjustments were made to the scores of the candidates in recognition of the difficulty of some of the examination questions. The re-scoring improved Petitioner's written score from 66 to 67. On February 9, 1999, Petitioner retook the written portion of the state examination and received a score of 59. That score was adjusted on the same basis as has been described in relation to the December 15, 1998, examination session. With the adjustment Petitioner received a score of 62. Petitioner took a third written examination on May 12, 1999. This examination was given, having purged the examination instrument of the more difficult questions that had been presented on the occasion of the December 15, 1998, and the February 9, 1999, examinations. In the instance of the May 12, 1999 examination, Petitioner received a 66 on the written portion. Petitioner has failed to demonstrate that the nature of the examinations, taking into account the adjustments in the scoring, were beyond the expectation of the competence of a candidate who had undergone the "Minimum Standards Course" in preparation for this state examination or that Respondent failed to appropriately administer and grade the examinations given Petitioner.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered upholding the examination results in the several examinations administered to Petitioner in relation to the written portion, as adjusted, and finding that Petitioner has exhausted his opportunities for examination in this cycle. DONE AND ENTERED this 23rd day of December, 1999, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of December, 1999. COPIES FURNISHED: Elenita Gomez, Esquire Department of Insurance 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Anthony Robert Shuta, II 3043 Pine Tree Drive Edgewater, Florida 32141 Daniel Y. Sumner, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300 Bill Nelson, State Treasurer and Insurance Commissioner The Capital, Plaza Level 11 Tallahassee, Florida 32399-0300
Findings Of Fact The petition herein was dated January 9, 1975 by Petitioner, and was filed with PERC on January 17, 1975. (Hearing Officer's Exhibit 1). The hearing was properly scheduled by notice dated March 26, 1975, and was conducted on April 17, 1975, by agreement of the parties. (Hearing Officer's Exhibit 2, Tr. 10, 11). The Town of Palm Beach is a public employer within the meaning of Fla. Stat. Section 447.002(2). (Stipulation, Tr. 5, 6). The Town of Palm Beach Association of Firefighters, Local 1866, is an employee organization within the meaning of Fla. Stat. Section 447.002(10). (Stipulation, Tr. 6-8). During the course of the past five years, Petitioner has requested recognition, or has otherwise sought to engage in collective bargaining with the Public Employer on several occasions through written and oral communications. Most recently Petitioner sought recognition through letters dated December 28, 1974, and April 11, 1975. (Tr 85-240, Petitioner's Exhibits 1, 2). There is no contractual bar to holding an election in this case. (Stipulation, Tr. 9, 10). The parties have not engaged in collective bargaining under the auspices of the Public Employees Relations Act. The parties engaged in collective bargaining in a limited fashion prior to the passage of the Act. Efforts on Petitioner's part to engage in collective bargaining with the public employer began in 1969. (Tr. 85-240, Petitioner's Exhibits 1-23). Registration material delivered by Petitioner to PERC was dated January 7, 1975, and was received by PERC on January 13, 1975. Additional materials were received by PERC on February 10, 1975. PERC acknowledged receipt of the registration material on February 10, 1975. The Public Employer contended at the hearing that registration was not proper because the source of certain funds was not adequately revealed. PERC has previously concluded that registration was complete and proper. (PERC registration File No. 8G-OR-756-1044, TR 11-15, 22-27, 225-238; Hearing Officer's Exhibit 3; Petitioner's Exhibit 4). Petitioner filed the requisite showing of interest with its petition. The Public Employer has asserted that the showing of interest is not adequate, however, no evidence was presented to counter the administrative determination previously made by PERC. (Hearing Officer's Exhibit 4; Tr 16, 17; Public Employer's Motion to Dismiss). There are between forty-five and fifty-five persons in the unit proposed by Petitioner. All of the employees within the proposed unit are engaged in firefighting and/or paramedical rescue operations. The employees within the proposed unit work the same twenty-four hours on duty, forty-eight hours off duty shift. They eat and sleep in the same area while on duty, and wear the same or similar uniforms. There is a significant amount of interchange in duties among the employees. Wages and other terms of employment, job and salary classifications are determined for all of the employees within the proposed unit in the same manner. The bargaining history indicates a firm desire on the part of the employees to belong to a unit such as Petitioner proposes. (Tr 148-151,298-345, 369-372). The Public Employer contends that the only appropriate unit would include all public safety employees. No direct testimony was offered in support of this contention. Direct and cross-examination of Petitioner's witnesses indicate that the fire department and other public safety departments do not generally work together. Firefighters do not perform police functions or lifeguard functions. Police and lifeguards do not perform fire department functions. There is no interchange of employees between the departments, although there was evidence presented that transfers between the departments do occur. (Tr 148-151, 298-345, 369-372). Fire lieutenants are the senior officers in charge of each shift at two of the Town's three fire stations. Captains are in charge of shifts at the headquarters fire station. Fire lieutenants have four persons working under them. Fire lieutenants work the same shift as the other firefighters, wear the same uniform with no adornment of any kind, perform the same daily duties such as cleaning equipment, and teaching or participating in classes and training exercises. They perform the same firefighting duties. The fire lieutenant is charged with filling out a log book, checking the roster, answering the radio, preparing training schedules, and filling out fire reports, which duties the other firefighters do not generally perform. The fire lieutenants fill out evaluation reports on personnel who work on their shifts. The personnel are graded numerically from one to ten in approximately twenty categories, e.g., public contact and taking directions. These reports form a part of the procedure through which an employee is granted or denied a merit pay increase or is granted or denied a promotion. If an employee who works under a lieutenant has a grievance, the lieutenant is the person to whom the grievance is first carried. The lieutenant is the person in charge of maintaining order at the fire station and is in charge of any fire operations until a senior officer arrives on the scene. The fire lieutenants report directly to fire captains. The lieutenant takes no direct roll, other than making reports, in hiring, firing, promotion or transferring employees. The lieutenant is not responsible for personnel administration nor for collective bargaining. He takes no roll in formulating or administering the budget. Lieutenants and captains do not perform any functions as a group. Lieutenant Walker indicated that he has never attended a meeting at which lieutenants and captains met as a group. If a lieutenant or a captain is absent from work, other personnel fill the position. Val Williams, a pumper/operator, has served as a captain for as long a period as two months. (Tr 248-296, 302-319, 315-332; Petitioner's Exhibits 24, 25, 26). Fire captains perform generally the same duties and fulfill the same rolls as fire lieutenants. Captains head the shifts at the headquarters stations. In addition to duties performed by lieutenants, captains conduct fire inspections, and serve as the next step in the chain of command above lieutenants. Captains answer directly to the assistant fire chief. (Tr 259-61, 334; Petitioner's Exhibits 24, 25, 26). Assistant fire chiefs are in charge of each shift for all three fire stations. They oversee the operations of each station, and visit each station on at least one occasion during the course of each shift. Assistant fire chiefs answer to the deputy chief; the deputy chief answers to the chief; the chief answers to the town manager. (Tr 265-66, Petitioner's Exhibits 24, 25, 26). Mobile Intensive Care Unit (MICU) attendants and driver/operators, and paramedic specialists work the same shifts and wear the same uniforms as firefighters. Each is paid approximately five percent more than a firefighter who has been employed for the sane period of time. Driver/operators answer fire calls, drive to the fire with a firefighter, and occasionally fight fires. They answer directly to lieutenants. Paramedic specialists answer directly to the deputy fire chief. Paramedic specialists receive extensive training apart from firefighting training. Paramedic specialists answer fire calls, but the testimony was not clear as to whether they are permitted to fight fires. Paramedic specialists do not perform any personnel administration or policy making roll. (Tr 333, 334, 346-358, 373-386). There are one clerk and one mechanic who work with the fire department. They apparently answer to the fire chief. Each works an eight hour day, five days weekly. They do not work directly with firefighters. (Tr 330- 333).
The Issue The issue for consideration in this case is whether Respondent's certification as a fire fighter in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the allegations herein, Petitioner, Department of Insurance and Treasurer, (Department), was the state Fire Marshal and the agency responsible for the certification of fire fighters in Florida. Respondent was either an applicant for certification or a certified fire fighter in this state. On or about January 22, 1991, Respondent, James M. Yingling, submitted an application for certification as a fire fighter to the Division of State Fire Marshal, Florida State Fire College, Bureau of Fire Standards and Training, on which he indicated he had not used tobacco or tobacco products for at least one (1) year immediately preceding the filing of the application. Along with the application, Mr. Yingling submitted certain documentation including his high school diploma, his driver's license, a personal inquiry waiver, fingerprints, a report of medical examination, and an affidavit of even date in which he affirmed he had not been a user of tobacco or tobacco products for at least one year immediately preceding his application for certification as a fire fighter. Provisions of Section 633.345, Florida Statutes, set out the requirements for certification as a fire fighter in Florida. One of these criteria calls for the applicant not to have used tobacco for one year prior to the filing of the application for certification. Had Respondent used tobacco or tobacco products within that year, he would not have been certified. John R. Scott, a full time employee of Grumman Aircraft in Ft.Pierce, was a part-time volunteer fire fighter at the Jensen Beach Volunteer Fire Department when the Respondent became a member in August, 1990. Mr. Scott saw Respondent at the station house on several occasions and they went out on calls together. Mr. Scott executed a sworn statement on April 11, 1991, indicating that since he has known Respondent, Respondent has been a smoker. Scott claims he has seen Respondent smoking at the station on several occasions and on one occasion at a test site in Orlando when both were there to take the test for Emergency Medical Technician, in January, 1991. He claims to have seen Respondent borrow cigarettes from several fire fighters at the station and return a pack later on. Mr. Scott is a smoker and claims to have been approached by Respondent frequently to give him cigarettes. In April, 1991, Mr. Scott requested that his daughter, Rebecca Brown, type several copies similar to that statement signed by him to be given to and signed by others who had agreed to do so. Only Mr. Schwarz and Ms. Brown actually signed such statements, however, and the others refused to do so. These signed statements, along with Mr. Scott's statement, were forwarded to the Fire Marshal's office. According to Mr. Scott, the others, who backed out, did so because they were afraid of repercussions, but none of these individuals were present to testify and the hearsay testimony of Mr. Scott on that point is insufficient to support a Finding of Fact to that effect. Both Mr. Schwarz and Ms. Brown also indicated they had seen Respondent smoking either at the station or elsewhere from the time he was hired in August, 1990, until the time he applied for certification in January, 1991. No other fire fighter from whom Respondent is supposed to have borrowed cigarettes presented evidence to that effect, however. Mr. Schwarz was recognized as a troublemaker at the fire department and was allowed to retire in lieu of disciplinary action. Ms. Brown is Mr. Scott's daughter and the wife of another fire fighter in the Department. The credibility of both is somewhat suspect. Evidence regarding Mr. Scott also detracts from his credibility. He was known in the department to be a practical joker whose pranks from time to time got out of hand or were excessive. His honesty and integrity were seriously suspect due to his tendency to bring items taken, with or without permission, from his employer, Grumman, to work projects at the department. These were not always minor items, either, and Scott frequently remarked that he had gotten them from "G-Mart" under such circumstances as to give rise to the suspicion they were stolen. On the other hand, Respondent, recognized as a hard driving, somewhat brash and bragging young man, is nonetheless well though of by the majority of his peers and superior in the Department. He categorically denies the allegations against him. Neither former Chief Yurillo nor Capt. Recta, both of whom worked with Respondent, recall having ever seen him smoke and neither was approached by Respondent for a cigarette. When the allegations involved here came up, an internal investigation was begun at the Department, a part of which included a voluntary urinalysis examination of the Respondent. The results of that test, done by an independent laboratory, reflected no evidence of the use of tobacco at the time the test was taken. Mr. Scott and Mr. Schwarz both indicate that subsequent to the filing of their affidavits, Respondent came to them and suggested that if they were not sure of the facts they had alleged, they could withdraw them. In fact, neither did so voluntarily. Scott, in April, 1991, after a meeting with Yurillo and Respondent, executed a statement typed for him by Mr. Recca in which he claims he was mistaken in his original allegations regarding Respondent's tobacco use. Scott claims he was pressured into recanting. Yurillo, Recca and Respondent claim Scott's action was voluntary. Whatever the facts regarding the withdrawal of Scott's original statement, analysis of the evidence of record indicates there is insufficient evidence to establish that Respondent used tobacco or tobacco products within a year immediately preceding his application for certification or that he falsified his application and the supporting affidavit, and it is so found.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore recommended that a Final Order be entered dismissing the Administrative Complaint in this matter which seeks to discipline Respondent, James M. Yingling's certification as a fire fighter. RECOMMENDED in Tallahassee, Florida this 9th day of April, 1992. ARNOLD H. POLLOCK 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 9th day of April, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-4458 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. For the Petitioner: - 3. Accepted and incorporated herein. Accepted as the testimony of the witnesses. Not necessarily accepted as true. Rejected as testimony of Mr. Scott not considered credible. Accepted. For the Respondent: None received. COPIES FURNISHED: Elizabeth J. Gregovits, Esquire Office of Legal Services 412 Larson Building Tallahassee, Florida 32399-0300 Michael J. Mortell, Esquire 2801 E. Ocean Blvd., Suite 2A Stuart, Florida 34996 Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neill General Counsel Department of Insurance The Capitol, Plaza Level - 11 Tallahassee, Florida 32399-0300
The Issue The issues presented are whether Petitioner is entitled to supplemental compensation payments, and, if so, whether those payments should be retroactive.
Findings Of Fact At all times material hereto, Petitioner has been a certified firefighter, having become certified in February 1999. On December 17, 1994, Petitioner received a Bachelor of Science degree with a major in hospitality administration. In 1999, Petitioner applied for admission to the Firefighters Supplemental Compensation Program at the bachelor's degree level. Petitioner's current job title with the Miami-Dade Fire Department is "firefighter." He submitted a copy of his job description. The "Nature of Work" in his job description is described as "specialized work in the protection of life and property through combatting [sic] fires, performing emergency medical rescue duties and participating in fire prevention activities." Petitioner agrees that his main job duties are fire prevention, fire suppression, protection of life and property, and medical rescue. Petitioner's job description lists the following under "Knowledges [sic], Abilities and Skills": Knowledge of modern firefighting techniques and principles. Knowledge of basic mechanical principles in operating a variety of complex equipment and apparatus. Knowledge of department regulations and operational procedures. Knowledge of firefighting equipment and gear on assigned apparatus. Knowledge of the fundamental principles of hydraulics. Knowledge of emergency medical rescue practices, methods, and techniques. Knowledge of the geography of the metropolitan area. Knowledge of fire prevention principles and programs. Knowledge of the need for personal hygiene and clean living quarters. Ability to react promptly and correctly in emergency situations. Ability to assess a situation, draw valid conclusions, and take appropriate action. Ability to read, retain and apply guidelines, regulations and policies to a variety of situations. Ability to understand and carry out written and verbal instructions. Ability to use basic hand and power tools. Ability to read, interpret and comprehend diagrams, charts, and gauges. Physical strength and agility sufficient to perform assigned duties including physical tasks requiring sustained effort. None of the skills listed in Petitioner's job description relates to a major in hospitality administration. A college degree is not required in order to become a firefighter for the Miami-Dade Fire Department. The level of education required is either a high school diploma or the equivalency. Rule 4A-37.084, Florida Administrative Code, lists nine major study concentration areas for which supplemental compensation will be paid to qualified firefighters. Hospitality administration is not one of the nine majors listed in the Rule. The Department has never awarded an applicant supplemental compensation for a Bachelor of Science degree with a major in hospitality administration. The Department makes a determination of whether a particular college degree which is not one of the nine listed in the Rule is readily identifiable as applicable to fire department duties by reviewing the applicant's job description and verifying the degree received according to the applicant's college transcript. Petitioner's major is not readily identifiable to his fire department duties as evidenced by the transcript and job description Petitioner submitted to the Department. If a required job activity is prevalent, it should appear on the official job description. Unlike protection of life and property and fire suppression which are listed on Petitioner's job description, customer service is not a main part of a firefighter's duties nor is it listed on Petitioner's job description. Petitioner has not yet achieved the rank of lieutenant or fire chief with the Miami-Dade Fire Department although he intends to achieve those ranks over time. A lieutenant's or a fire chief's job descriptions would reflect different duties from those listed on a regular firefighter's job description. Petitioner's Fire Chief is Chief Paulison. Paulison declined to write a letter to the Department stating that Petitioner's degree is directly related to Petitioner's job duties.
Recommendation Based on 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. DONE AND ENTERED this 19th day of April, 2000, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 2000. COPIES FURNISHED: Bill Nelson, State Treasurer and Insurance Commissioner Department of Insurance The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Daniel Y. Sumner, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300 Elenita Gomez, Esquire Department of Insurance Division of Legal Services 200 Gaines Street 612 Larson Building Tallahassee, Florida 32399-0333 Walter W. Wray 2983 Northwest 200th Terrace Miami, Florida 33056
Findings Of Fact The Cocoa Fire Department consists of 32 employees including a Chief, 3 captains, 3 lieutenants, 24 firefighters, and a secretary to the chief. All personnel except the Chief and the secretary are on three shifts of 24 hours on duty and 48 hours off duty. During each shift, a captain is in charge and the second in command is a lieutenant. Ten employees are on each shift and are located at either Station 1 or Station 2. Normally, at Station 1 there is a captain and a maximum of 7 firefighters. At Station 2, there is normally a lieutenant and 1 firefighter. The bulk of the firefighting equipment is located at Station 1, which includes 2 pumpers, a rescue truck, and an aerial truck. Station 2 is a residential station at which two pumpers are located. The shift or duty-captain is in charge of both stations and normally goes to fires handled by Station 2 unless they are of a minor nature. The Department averages about 3 runs a day, either for fires or on rescue calls. The bulk of their activity is rescue operations which are attended normally by two firemen. However, these calls can be handled by an officer and one firefighter if the officer is an emergency medical technician. The employees of the fire department and the city of Cocoa entered into an agreement on March 12, 1974, concerning their relationship (Exhibit 11). The agreement states that it is to provide, where not otherwise mandated by statute or ordinance, for the salary structure, fringe benefits, and conditions of employment of the firemen covered by the agreement. This agreement in Article 1C is referred to as a collective bargaining agreement and deals with those matters that customarily would be included in such a document. Although it does not specifically mention specific classifications of fire department employees as being included thereunder except by the term "employees of the City of Cocoa Fire Department", in the first paragraph of the agreement, Article 16, dealing with wages, lists the titles of recruit firemen, fire lieutenant and fire captain and their pay plan with annual step increments. Accordingly, it is concluded that the intent of the agreement was to cover all employees of the fire department other than the Chief and his secretary. The agreement generally provides uniform provisions applicable to all members of the department concerning transfer rights, time off for jury duty, provision of counsel for defense of civil actions, overtime pay, education leave, bereavement leave, sick leave, holidays, vacations based on time with the department, uniform maintenance, terminations and wages. There is no distinction by rank other than by years of service drawn as to different classifications of personnel. Testimony presented at the hearing established that the majority of captains and lieutenants participated on the side of labor in discussions leading to the agreement and that they presently desire to be included in the proposed bargaining unit under consideration. It further established that the agreement was formulated because the employees wanted financial conditions applicable to them spelled out clearly rather than remain in the existing city pay plan which was not as specific as desired. The firemen viewed their situation as differing from that of other city employees because of the nature of their functions and the shift work involving extended hours on duty. In the agreement, they were provided certain benefits that other city employees do not enjoy, some of which were requested by the group and some of which were voluntarily offered by the city. The department is governed by rules and regulations proposed by the Chief and approved by the public employer which include provisions that the department operates in paramilitary fashion with a chain of command extending from the Chief through the duty captain, duty lieutenant and senior firemen to the remainder of the employees. It also indicates that insubordination will not be tolerated with penalties of verbal reprimand, permanent written reprimand, suspension, loss of pay and termination. They further provide that violations of the rules, regulations, directives, and memos, generally should be' handled by the captain or duty officer of the shift, but that if, in his opinion, the violation warrants further action he should give the Chief a written statement of the facts. It states that the captain or duty officer of the shift will be held accountable by the Chief to run the shift in accordance with the rules and regulations of the department, and that violations will consist of penalties including verbal reprimand by the captain or duty officer, permanent written reprimand by the captain or duty officer, written reprimand by the Chief, suspension without pay by the Chief, or termination by order of the Chief (Exhibit 12). In this connection, testimony at the hearing established that the hiring, firing and suspending of employees by the Chief must be approved by the city manager. As to discipline, minor infractions are taken by a lieutenant to the captain and, depending on the severity of the matter, the captain is authorized to handle it himself. This includes minor infractions, with sanctions of oral or written reprimands, or recommendations for suspension or other adverse actions. The budget of the department is submitted by the Chief to the city manager for approval. Ultimate approval is given by the city counsel. Although the Chief inquires of the captains as to the need for and condition of the department equipment, they are not consulted as to actual preparation of the proposed budget. The Chief holds staff meetings approximately monthly whenever he deems it necessary. Normally, these are attended by himself, the captains, and lieutenants. At the meetings, personnel problems, operations and training matters, and current programs are discussed with input from the officers. However, all major policy decisions are formulated by the Chief. The job descriptions and duties performed by the officers and men of the department are as follows: Captains - The official job description for this position (Exhibit 8) describes the major function of a fire captain as being responsible supervisory work in directing the activities in fire fighting and in the maintenance of fire department property and equipment. It provides that the first captain at the scene of a fire has complete charge of all operations until the arrival of an officer of superior rank. It further provides that under departmental general regulations, a captain may be assigned as a company officer and has direct responsibility for discipline and the proper maintenance of apparatus, equipment, and the station. His duties may include training functions or supervising a special activity or unit within the department. As illustrative duties, he assumes complete charge of the station and the fire company on route to alarms and at the scene of the fire until the arrival of a superior officer. He directs the work of the firefighters in house duties, testing and maintaining equipment, and inspecting the station house grounds and apparatus. He acts as the department training officer and may conduct company drills or instruction periods. He conducts roll call, inspects personnel and maintains discipline, and transmits order and information to the men. Testimony at the hearing established that each of the shift captains would assume command of the fire department in the absence of the Chief. When the Chief is present, the captain in charge of the shift acts as his assistant and has total command of both fire stations, subject to the approval of the Chief. Captains can set vacation schedules of the men and also change them. He can give time off in an emergency situation and makes effective recommendations concerning bereavement leave. To move a man from one shift to another, the captain would be obliged to consult the Chief. If an employee reported in sick, he notifies the captain who then, if the department is understaffed, calls in off-duty personnel for overtime work, using an established list which must be exhausted in fairness to all. A captain performs combat roles and responds on the department trucks or will proceed in a rescue vehicle or pickup truck to the scene of the fire or rescue operation. He works the same hours as the other men and receives the same sick leave, vacation, and overtime pay. Occasionally, he will perform maintenance and housekeeping duties voluntarily at the station. He normally goes to the suppression of fires handled by Station 2 unless they are of a minor nature. LIEUTENANTS - The job description for this position provides that a lieutenant has direct command over firemen in a fire company on an assigned shift, subject to general regulations of the department and the direction of a superior officer. In the absence of the captain, the lieutenant assumes his duties and responsibilities and is responsible for the discipline of the men on his shift and the maintenance of apparatus and equipment at a fire station. At a fire, he is responsible for the effective combatting of the fire until relieved of command by a superior fire officer. H enters burning buildings with his men to direct their work, and at major fires he is under the command of the superior officer. Illustrative duties are responding to fire alarms that are within an assigned district, driving apparatus or directing the route to be taken to the fire and determine what equipment and apparatus are necessary. He makes decisions as to the best methods of extinguishing fires and directs the use of equipment until relieved of command by a Superior officer. He supervises the laying of hose lines, directing of water streams, placing of ladders, ventilation of buildings, rescuing of persons and placing of salvage covers. He conducts company drills and instruction periods as directed by his superior officer. He sees that all station equipment is returned to the proper place after a fire has been extinguished and that the equipment is in good working order at all times. He supervises the cleaning of quarters, equipment and apparatus at the fire house, conducts roll call, inspects personnel and maintains discipline, and transmits orders and information to men (Exhibit 9). Testimony at the hearing establishes that the lieutenants are in charge of Station 2 during shift at which there is himself and one firefighter. A1though he is not required to perform maintenance and housekeeping duties, the lieutenants usually help to clean hoses and to keep the quarters clean because of limited manpower and because that has been the practice in the past. On unusual occasions, a lieutenant might exercise disciplinary power with respect to the one firefighter at Station 2, or under circumstances where he is in charge of a shift in the absence of a captain. If a man came in late for duty, the lieutenant could handle it himself or report to the Chief. He has little or no meaningful participation in personnel matters dealing with promotion, suspension, hiring or firing of employees. If he is on a rescue call, he is not necessarily in charge of the operation. The individual who is not driving is the one who is in charge, and rescue operations are a team endeavor. A lieutenant is interchangeable with a firefighter and his activities vary depending on the situation. Sometimes he serves as a hydrant man, sometimes on the truck, and overall performs essentially the same firefighting functions as that of the firefighters. FIREFIGHTER - The job description provides that this is general duty work in the prevention of fire damage and that, although the work involves combatting, extinguishing and preventing fires, and operation of equipment, a large part of the time is spent in study and in cleaning fire department equipment, apparatus, and quarters. Work is performed by a member of a team and a superior officer is usually available to assign definite duties. The standard firefighting duties are set forth in the job description (Exhibit 10). Testimony at the hearing established that the firefighter looks upon the captain as his primary supervisor, although he acknowledges the lieutenant to be his superior officer. The duties of officers and men of the department have not changed since the inception of the collective bargaining agreement.
The Issue The issue presented is whether Petitioner's application for supplemental compensation pursuant to the Firefighters Supplemental Compensation Program should be approved.
Findings Of Fact Petitioner is employed as a Captain with the Metro-Dade Fire Department. 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. 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. 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. 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. 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. 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. 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.
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 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. Petitioner's third unnumbered paragraph has been rejected as not being supported by the weight of the credible evidence in this cause. Petitioner's thirteenth and sixteenth unnumbered paragraphs have been rejected as being irrelevant to the issues involved herein. Petitioner's fourteenth unnumbered paragraph has been adopted in substance in this Recommended Order. 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. 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 Respondent's proposed findings of fact numbered 6 and 12 have been rejected as being irrelevant to the issues involved herein. 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
The Issue The issue in this case is whether Orange County Fire Rescue (Respondent) committed an act of unlawful employment discrimination against Marlene Serrano (Petitioner) in violation of the Florida Civil Rights Act of 1992.
Findings Of Fact The Petitioner is a Puerto Rican-born Hispanic female. At all times material to this case, the Petitioner was employed by the Orange County Fire Rescue Department (FRD), a unit of the Orange County government. In order to increase the number of firefighters available to the Respondent, the FRD posted a job advertisement in July 2008 ("Job Req. #007931"), seeking to hire state- certified paramedics who were capable of becoming state-certified firefighters. The advertisement clearly indicated that applicants should be state-certified paramedics who were "[c]apable of successfully completing and maintaining the Florida State Firefighter certification after three (3) years of being hired." Employees hired into the new paramedic-firefighter positions were identified as "paramedics." Employees hired as paramedics only were identified as "PMOs." On September 8, 2008, the FRD officially hired four paramedics for the positions advertised by Job Req. #007931. The group included the Petitioner, two Caucasian females (Sarah Wilson and Jennifer Massey) and a Caucasian male (Shane Doolittle). It was commonly understood by those hired, including the Petitioner, that they were required to obtain state certification as firefighters by September 18, 2011, the third anniversary of their employment. Pursuant to the advertised job requirements, the paramedics were required to pass a physical ability test (referred to as the "CPAT") and complete the Orange County firefighter orientation program. The Petitioner passed the CPAT on her second attempt and completed the orientation program. Candidates seeking to be certified by the State of Florida as firefighters are required to complete a 450-hour firefighter training course (commonly referred to as Firefighter I and II Minimum Standards classes) and to pass a firefighter certification exam. The Petitioner had completed the Firefighter I and II Minimum Standards classes as of December 17, 2010. On December 22, 2010, the Petitioner took the firefighter certification exam at the Central Florida Firefighter Academy and failed the hose and ladder components of the exam. When the Petitioner failed to pass the exam, the Respondent placed her in a fire station with a ladder truck company so that she could improve her ladder skills. On February 22, 2011, the Petitioner retook the firefighter certification exam at a training facility in Ocala, Florida, where she successfully completed the hose component of the exam, but again failed the ladder component. A candidate for firefighter certification is permitted to take the exam twice. A candidate who twice fails the exam is required to retake the Firefighter II Minimum Standards class before being permitted to retake the certification exam. On March 8, 2011, the Petitioner met with FRD officials to assess her progress towards obtaining the firefighter certification. The Petitioner had received notice of the meeting on March 1, 2011, from Assistant Fire Chief Brian Morrow. Similar meetings occurred with the other paramedics employed by the Respondent. During the meeting, the Petitioner advised the FRD officials that she intended to dispute the results of her second test. The Petitioner was aware that she could not retake the certification exam without retaking the Firefighter II Minimum Standards class. Although the Petitioner contacted a training facility to inquire about course schedules, she did not attempt to retake the training course. The March 8 meeting and discussion was memorialized in a letter to the Petitioner dated March 14, 2011. The letter contained an assessment of her progress towards certification. The letter also noted that she was required to obtain her state certification prior to September 18, 2011, and that failure to obtain certification by that date could result in termination of her employment. The Petitioner received the letter on March 16, 2011. In an email dated March 22, 2011, to FRD Lieutenant John Benton, the Petitioner advised that she was trying to determine how she would be able to go to class and maintain her work schedule. Lt. Benton forwarded the email to Assistant Fire Chief Morrow. Assistant Fire Chief Morrow replied to the Petitioner's email on March 29, 2011, wherein he advised her that the FRD had met its obligation to fund the certification training. He asked the Petitioner to advise him of the status of her appeal, to identify the class she was planning to take, and to outline her schedule and specify the hours she would use as vacation time and as "time trades." He asked for a response "as soon as possible" and invited the Petitioner to contact him directly to resolve any questions. The Petitioner received Assistant Fire Chief Morrow's March 29 email, but did not respond to it. Assistant Fire Chief Morrow subsequently contacted the Petitioner by telephone to inquire as to the issues noted in the email, but received little additional information from the Petitioner regarding her plans. After receiving the official notice that she had failed her second attempt at the certification exam, the Petitioner filed an administrative appeal (DOAH Case No 11-1556) to dispute the scoring of the exam. A hearing was conducted before an Administrative Law Judge (ALJ) on May 24, 2011. On July 7, 2011, the ALJ issued a Recommended Order finding that the Respondent failed the exam and recommending that the appeal be denied. By Final Order dated August 20, 2011, the State of Florida, Department of Financial Services, Division of State Fire Marshall, adopted the findings and recommendation of the ALJ and denied the Petitioner's appeal of the exam grading. The Final Order specifically noted that the Petitioner's certification was denied until she obtained a passing score on the exam. The Petitioner made no further efforts to become a state-certified firefighter. She did not register to retake the Firefighter II Minimum Standards class. As of September 17, 2011, the Petitioner was not a certified firefighter and was not actively engaged in seeking certification. Because the Petitioner did not meet the published job requirements and was making no effort to meet them, the Respondent terminated the Petitioner from employment on September 17, 2011. The Respondent offered to permit the Petitioner to resign from her employment rather than be terminated, but she declined the offer. At the hearing, the Petitioner testified that, after she twice failed to pass the certification exam and was unsuccessful in challenging the scoring of the second attempt, she had no further interest in obtaining the certification. There is no evidence that the Petitioner requested an extension of the applicable three-year certification deadline. Nonetheless, the Petitioner has asserted that the Respondent provided deadline extensions to other paramedics and that the Respondent's actions, in not providing an extension to her and in terminating her employment, were based on her race or national origin. There is no evidence to support the assertion. The March 14, 2011, letter specifically referenced the published job requirements set forth in Job Req. #007931, as well as the applicable provisions of the Collective Bargaining Agreement (CBA) governing the Petitioner's employment by the Respondent. The Petitioner was a member of the Orange County Professional Fire Fighters Association. Her employment by the Respondent was subject to a CBA dated December 14, 2010, between the Respondent and the Orange County Professional Fire Fighters Association, Local 2057, International Association of Fire Fighters. Section IV, Article 60, of the CBA provided as follows: ARTICLE 60 - PARAMEDIC PROMOTIONS/STATUS CHANGE Employees in the Paramedic classification agree to, upon reaching three (3) years of employment [sic] to meet the requirements of the Firefighter classification. Either upon reaching three (3) years of employment, or upon the desire of the department, the employee shall be moved from the Paramedic pay plan to Step 1 of the Firefighter pay step plan or to the higher nearest step to the employee's Paramedic current rate of pay. Nothing in this Agreement shall prohibit the Orange County Fire/Rescue Department from terminating the employment of a Paramedic when upon reaching three (3) years employment the minimum requirements for the position of Firefighter have not been met. Employees not meeting the minimum qualifications by the three (3) year employment anniversary may be separated from county employment without a predetermination hearing (PDH) and without access to Article 17 - Grievance and Arbitration Procedure of this contract. It is the sole discretion of Fire Rescue Management to extend the three (3) year time frame limitation due to case-by-case circumstances and/or operational need. The evidence establishes that certification deadlines have rarely been extended by FRD officials. The evidence fails to establish that FRD officials have considered race or national origin in making decisions related to deadline extensions. Sarah Wilson, a Caucasian female, was hired at the same time as the Petitioner and the deadline by which she was required to have obtained firefighter certification was September 18, 2011. Ms. Wilson completed the training course on September 15, 2011. She was scheduled to sit for the certification exam on October 4 and 5, 2011. The scheduling of the exam was the responsibility of the training facility. Neither Ms. Wilson nor the Respondent had any control over the testing date or the scheduling of the exam. The Respondent permitted Ms. Wilson to remain employed beyond the certification deadline and through the dates of the exam, an extension of 17 days. The extension granted to Ms. Wilson was the only time that the Respondent has allowed a paramedic more than 36 months of employment in which to obtain the required certification. Ms. Wilson passed the firefighter exam on October 4 and 5, 2011, and became a state-certified firefighter. Had Ms. Wilson not passed the exam on October 4 and 5, 2011, her employment would have been terminated by the Respondent. At the time of the hearing, Ms. Wilson retained all required certifications and remained employed as a firefighter paramedic with the FRD. In contrast to Ms. Wilson, the Petitioner was making no effort to obtain the required certification when the certification deadline passed. There was no evidence that the Respondent's extension of Ms. Wilson's certification deadline was based upon race or national origin. Jennifer Massey, a Caucasian female who was hired at the same time as the Petitioner, left her employment with the Respondent prior to the certification deadline. Shane Doolittle, a Caucasian male, was hired at the same time as the Petitioner, and the deadline by which he was required to have obtained firefighter certification was originally September 18, 2011. However, Mr. Doolittle was called to active military duty for three months during the three-year certification period. In order to provide Mr. Doolittle with the full 36 months of employment prior to the certification deadline, the Respondent extended Mr. Doolittle's certification deadline by three months, to December 18, 2011. In contrast to Mr. Doolittle, the Petitioner was employed and present with the FRD throughout the three-year period and had a full 36 consecutive months in which to obtain the required certification. There was no evidence that the Respondent's extension of Mr. Doolittle's certification deadline was based upon race or national origin. Mr. Doolittle did not become certified by the extended deadline, and the Respondent terminated his employment on December 18, 2011. There is no evidence that the Respondent was not invested in each paramedic successfully completing their training and meeting the requirements set forth in Job Req. #007931. The Respondent hired 12 paramedics in 2008. The Respondent paid the tuition and equipment costs for each paramedic who sought state certification as a firefighter. Additionally, the Respondent paid the salaries and benefits for the paramedics while in classes or exams, as well as the costs of the employees who covered the shifts of such paramedics. The Petitioner received the same training and benefits as all other employees seeking certification. The Respondent anticipated that the Petitioner would ultimately complete the training and exam requirements for certification, and she participated in the recruit training graduation ceremony with her colleagues. The 2008 hires included a Puerto Rican-born Hispanic male who obtained his firefighter certification prior to the deadline, and a Caucasian male who resigned from employment in lieu of termination because he had not obtained the firefighter certification by the deadline and was making no progress towards doing so. During the termination meeting with the Petitioner, FRD Chief Michael Howe advised the Petitioner that she was eligible for re-employment with the FRD if she obtained the firefighter certification. About a week after the termination meeting, Chief Howe called the Petitioner and left a voice message, offering to loan equipment to the Petitioner and to sponsor her for a discount on tuition costs, should she choose to retake the required course and become re-eligible for the certification exam. Chief Howe received no response from the Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the complaint filed by the Petitioner against the Respondent in this case. DONE AND ENTERED this 8th day of February, 2013, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of February, 2013. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Susan T. Spradley, Esquire Gray Robinson, P.A. Post Office Box 3068 Orlando, Florida 32802 Scott Christopher Adams, Esquire LaBar and Adams, P.A. 1527 East Concord Street Orlando, Florida 32803 Cheyanne Costilla, Interim General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
