02-002726 Kutina Mcleod vs. Department Of Law Enforcement Status: Closed Recommended Order on Wednesday, October 30, 2002.

Summary: Petitioner failed to demonstrate her answers on certification exam should be given credit as Agency`s answer taken from course material and not flawed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KUTINA MCLEOD, )

)

Petitioner, )

)

vs. ) Case No. 02 - 2726

)

DEPARTMENT OF LAW EN FORCEMENT, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this

case by video teleconference before J. D. Parrish, a

designated Administrative Law Judge of the Division of

Administrative Hearings with the Petitioner and witnesses

appearing from Key West, Florida, on August 30, 2002.

APPEARANCES

For Petitioner: Kutina McLeod, pro s e

309 Julia Street

Key West, Florida 33040

For Respondent: Grace A. Jaye, Esquire

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302 - 1489

STATEMENT OF THE ISSUES

Whether the Petitioner, Kutina McLeod, should have

received credit for answers provided on the examination for

the State Officers Certification Examination for Correctional

Officers (the exam).

PRELIMINARY STATEMENT

On April 24, 2002, the Petitioner took the exam for the

third time. The Petitioner was required to pass the course

entitled "Interpersonal Skills 2, Communications" in order to

achieve certification as a correctional officer. After the

Petitioner received a notice that she had failed the exam and

would be required to re - enter and successfully complete the

basic training program in order to satisfy all requirements of

the program, she elected to challenge the exam results. That

challenge was forwarded to the Divis ion of Administrative

Hearings for formal proceedings on June 27, 2002.

Prior to the hearing a Protective Order was entered

requiring all parties to maintain the confidentiality of the

exam questions and answers. Further, such documents have been

sealed in the record and, in accordance with law, shall not be

available for public inspection.

At the hearing, the Petitioner testified on her own

behalf. The Respondent presented testimony from Fernando

Lopez, Michael H. Jones and Dwight Angel. All exhibits we re

received in evidence, sealed in an envelope, and marked for

identification as Joint Exhibit 1.

At the conclusion of the hearing the parties were advised

to file proposed recommended orders within ten days of the

filing of the transcript. The transcript of these proceedings

was filed on September 16, 2002. The Petitioner filed a

letter commenting on the hearing on September 4, 2002. The

Respondent's Proposed Recommended Order was filed on

September 24, 2002. All proposals have been fully considered

i n the preparation of this order.

FINDINGS OF FACT

1. The Petitioner is an applicant for certification as a

correctional officer.

2. The Respondent is the state agency charged with the

responsibility of certifying correctional officers. As such,

it must administer the examinations used to assure competency

for certification.

3. The examination at issue in this proceeding is known

as the State Officers Certification Examination for

Correctional Officers. It is a multiple - choice test that is

scored by mar king the best of the proposed answers. Only one

of the proposed answers is deemed correct.

4. As to this Petitioner, four questions were challenged

that the Petitioner did not receive credit for on the exam.

As to each challenged question, the Petitioner felt her answer

should have received credit.

5. All of the questions challenged by the Petitioner

were taken almost verbatim from the exam's course materials.

The Petitioner attended the course and was instructed as to

each of the challenged matters. The instruction did not

deviate from the language that later appeared on the exam.

6. None of the challenged questions proved to be

statistically invalid by virtue of the number of wrong answers

provided to the question. In fact, as to one of the

Petitioner's challenged questions, 88 percent of the persons

tested responded accurately. Only 5 percent of the persons

tested gave the answer that the Petitioner provided.

7. The Petitioner's confusion as to the answers she

provided was probably influenced by her experiences as an

officer within a jail setting. The Petitioner provided

answers based on the totality of her experience and not just

the material covered in the instructional course. None of the

Petitioner's answers, however, were more correct than those

set forth by the Respondent.

CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of

these proceedings. Section 120.57, Florida Statutes.

9. The Petitioner bears the burden of proof in this

cause to establish that the answers she provided should have

received credit on the exam. To do so the Petitioner must

establish that the questions were faulty, arbitrarily or

capriciously worded or graded, or that she failed to receive

credit through a grading process that was devoid of logic or

reason. The Petitioner has failed to meet that burden.

10. Section 943.1397, Florida Statutes, provides, in

pertinent part:

(1) Except as provided in subsection (4),

on and after July 1, 1993, the commission

shall not certify any person as an officer

until the person has achieved an acceptable

score on the officer certification

examination for the applicable criminal

justice discipline. The commission shall

establish procedures by rule for the

administration of the officer certification

examinations and student examination

reviews. Further, the commission shall

establish standards for acceptable

performance on each officer certification

examination.

(2) For any applicant who fails to achieve

a n acceptable score on an officer

certification examination, the commission

shall, by rule, establish a procedure for

retaking the examination, and the rule may

include a remedial training program

requirement. An applicant shall not take

an officer certification examination more

than three times, unless the applicant has

reenrolled in, and successfully completed,

the basic recruit training program.

11. In this case the questions posed, and now challenged

by the Petitioner, were directly culled from the course

materials. They were not arbitrarily designed, arbitrarily

graded, or faulty. That the Petitioner became confused by the

questions did not, as a matter of law, render them defective

or devoid of logic or reason.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions

of Law, it is RECOMMENDED that the Department of Law

Enforcement, Criminal Justice Standards and Training

Commission, enter a Final Order dismissing the Petitioner's

challenge to the exam.

DONE AND ENTERED this 30th day of October, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

J. D. PARRISH

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 30th day of October, 2002.

COPIES FURNISHED:

Grace A. Jaye, Esquire

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302 - 1489

Kutina McLeod

309 Julia Street

Key West, Florida 33040

Michael Ramage, General Counsel

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

James T. Moore, Commissioner

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.