07-002132 Matthew Zullo vs. Criminal Justice Standards And Training Commission Status: Closed Recommended Order on Tuesday, August 21, 2007.

Summary: Applicant failed to show that he should have received a passing grade on the State Officer Certification Examination for Correctional Officers.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MATTHEW ZULLO, )

)

Petitioner, )

)

vs. ) Case No. 07-2132

)

CRIMINAL JUSTICE STANDARDS AND )

TRAINING COMMISSION, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case

pursuant to Sections 120.569 and 120.57(1), Florida Statutes, 1

before Stuart M. Lerner, a duly-designated administrative law

judge of the Division of Administrative Hearings (DOAH), on

July 16, 2007, by telephone conference call.

APPEARANCES

For Petitioner: Matthew A. Zullo, pro se

117 Drake Way

Sebastian, Florida 32958

For Respondent: Grace A. Jaye, Esquire

Assistant General Counsel

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32303-1489

STATEMENT OF THE ISSUE

Whether Petitioner's challenge to the failing grade he

received on the February 28, 2007, State Officer Certification

Examination for Correctional Officers should be sustained.

PRELIMINARY STATEMENT

By letter to Respondent dated April 24, 2007, Petitioner

requested a hearing to contest the failing score that he had

received on the February 28, 2007 State Officer Certification

Examination for Correctional Officers.

On May 11, 2007, Respondent referred the matter to DOAH for

the assignment of an administrative law judge to conduct the

hearing Petitioner had requested.

As noted above, the hearing was held on July 16, 2007.

Five witnesses testified at the hearing: Annette Zullo,

Respondent, Catherine Miller, Sergeant Edward Lee, and Roy

Gunnarsson. In addition to the testimony of these five

witnesses, three exhibits (Petitioner's Exhibits 1 and 2, and

Respondent's Exhibit 1) were offered and received into evidence.

At the conclusion of the evidentiary portion of the

hearing, the undersigned announced, on the record, that post-

hearing submittals had to be filed no later than ten days

following the date of the filing with DOAH of the transcript of

the hearing. The hearing Transcript (consisting of one volume)

was filed with DOAH on August 8, 2007.

On August 13, 2007, Respondent timely filed a Proposed

Recommended Order. To date, Respondent has not filed any post-

hearing submittal.

FINDINGS OF FACT

Based upon the evidence adduced at hearing and the record

as a whole, the following findings of fact are made:

1. Petitioner sat for the State Officer Certification

Examination for Correctional Officers administered on

February 28, 2007 (February 2007 Certification Examination).

2. To attain a passing score on the February 2007

Certification Examination, candidates needed to answer 199

questions correctly.

3. Petitioner did not attain a passing score. He received

credit for answering 198 questions correctly, one shy of the 199

needed to pass the examination.

4. One of the questions he was not given credit for

answering correctly was Question 162.

5. Question 162 was a clear and unambiguous multiple

choice question with four possible answers to choose from ("a,"

"b," "c," or "d").

6. The correct answer to Question 162 was "d."

Approximately 80 percent of the candidates who sat for the

February 2007 Certification Examination gave this answer.

7. The answer that Petitioner selected, "c," was

incorrect. Had this answer contained the prefatory language,

"basis for," or other words to same effect, it too would have

been correct. Such language, however, was missing from "c,"

making it an incorrect choice. 2

8. Question 162 has appeared on prior Certification

Examinations. Over the years, it has been answered a total of

1,422 times, with answer "d" having been selected 1,192 of these

occasions and answer "c" having been selected a mere 206 times.

9. Because Petitioner selected an answer to Question 162

that was incorrect, he appropriately received no credit for his

answer.

CONCLUSIONS OF LAW

10. DOAH has jurisdiction over the subject matter of this

proceeding and of the parties hereto pursuant to Chapter 120,

Florida Statutes.

11. Respondent is responsible for certifying correctional

officers for employment. § 943.1395(1), Fla. Stat.

12. It cannot issue such a certificate, however, "until

the person has achieved an acceptable score on the officer

certification examination." § 943.1397(1), Fla. Stat.

13. Applicants for certification not "achiev[ing] an

acceptable score on the officer certification examination" are

entitled to "review their missed examination items and

corresponding grading key" and to express their "concerns"

regarding the grading of their answers. Fla. Admin. Code R.

11B-30.012.

14. Florida Administrative Code Rule 11B-30.013 provides:

Should [Respondent] deny an

individual's . . . grade review challenge,

[Respondent] shall notify the individual by

submitting a statement denying the

challenge. The statement shall specify the

basis for [Respondent's] denial and shall be

forwarded to the individual. The individual

shall be entitled to a hearing pursuant to

the Administrative Procedures Act set forth

in Chapter 120, F.S., and the Uniform Rules

of Procedure, Rule Chapter 28, F.A.C.

15. At any requested hearing, the burden is on the

candidate to establish by a preponderance of the evidence that

his or her examination was erroneously or improperly graded. See

Espinoza v. Department of Business and Professional Regulation,

Florida Board of Professional Engineers , 739 So. 2d 1250, 1251

(Fla. 3rd DCA 1999); Harac v. Department of Professional

Regulation, Board of Architecture , 484 So. 2d 1333, 1338 (Fla. 3d

DCA 1986); Florida Department of Health and Rehabilitative

Services v. Career Service Commission , 289 So. 2d 412, 414 (Fla.

4th DCA 1974); and Hall v. Florida Department of Law Enforcement,

Criminal Justice Standards and Training Commission , No. 06-0393,

2006 Fla. Div. Adm. Hear. LEXIS 234 *9-10 (Fla. DOAH May 31,

2006)(Recommended Order).

16. In the instant case, Petitioner requested a hearing to

contest the failing score he attained on the February 2007

Certification Examination. His challenge is directed exclusively

to his failure to have received credit for the answer he gave in

response to Question 162. If Petitioner had received credit for

this answer, he would have had a passing score on the

examination.

17. A review of the record evidence reveals that Petitioner

has not made a sufficient showing in support of his position that

he was erroneously or improperly denied credit for his answer to

Question 162.

18. Petitioner has failed to show that this multiple choice

question was unclear, ambiguous or in any other respect unfair or

unreasonable. Neither has he established that he correctly

answered the question.

19. Accordingly, in declining to award him credit for his

answer to the question, those grading his examination did not act

arbitrarily or without reason or logic.

20. In view of the foregoing, Petitioner's challenge to

the failing score he received on the February 2007 Certification

Examination is without merit.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered rejecting

Petitioner's challenge to the failing score he received on the

February 2007 Certification Examination.

DONE AND ENTERED this 21st day of August, 2007, in

Tallahassee, Leon County, Florida.

S

___________________________________

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of August, 2007.

ENDNOTES

1 All references in this Recommended Order to Florida Statutes

are to Florida Statutes (2007).

2 The undersigned has not recited the text of Question 162 in

the interest of preserving its confidentiality. See §

943.173(3), Fla. Stat. ("All examinations, assessments, and

instruments and the results of examinations, other than test

scores on officer certification examinations, including

developmental materials and workpapers directly related thereto,

prepared, prescribed, or administered pursuant to ss. 943.13(9)

or (10) and 943.17 are exempt from the provisions of s.

119.07(1) and s. 24(a), Art. I of the State

Constitution. . . .").

COPIES FURNISHED:

Matthew A. Zullo, pro se

117 Drake Way

Sebastian, Florida 32958

Grace A. Jaye, Esquire

Assistant General Counsel

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32303-1489

Michael Crews, Program Director

Division of Criminal Justice

Professionalism Services

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

Michael Ramage, General Counsel

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions

to this recommended order should be filed with the agency that

will issue the final order in this case.