05-000553 Jason R. Page vs. Department Of Law Enforcement, Criminal Justice Standards And Training Commission Status: Closed Recommended Order on Tuesday, June 28, 2005.

Summary: Petitioner failed to prove that his answers to questions on the State Officer Certification Examination were correct or that the Commission`s decision to give him no credit for his answers was arbitrary or capricious.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JASON R. PAGE, )

)

Petitioner, )

)

vs. ) Case No. 05 - 0553

)

DEPARTMENT OF LAW ENFORCEMENT, )

CRIMINAL JUSTICE STANDARDS AND )

TRAINING COMMISSION, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDE R

Pursuant to notice, a formal hearing was held in this case

on April 26, 2005, by video teleconference, with the Petitioner

appearing in West Palm Beach, Florida, and the Respondent

appearing in Tallahassee, Florida, before Patricia M. Hart, a

duly - desig nated Administrative Law Judge of the Division of

Administrative Hearings, who presided in Tallahassee, Florida.

APPEARANCES

For Petitioner: Jason R. Page, pro se

5939 Northwest Center Street

Port St. Lucie , Florida 34986

For Respondent: Grace A. Jaye, Esquire

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 3230 2 - 1489

STATEMENT OF THE ISSUE

Whether t he Petitioner should receive credit for his

answers to certain examination questions on the State Officer

Certification Examination ("SOCE") administered November 11,

2004.

PRELIMINARY STATEMENT

In a letter dated January 6, 2005, Jason R. Page was

notified by the Florida Department of Law Enforcement, Criminal

Justice Standards and Training Commission ("Commission"), that

his challenge to the SOCE had been reviewed and that it had been

determined that he would not receive additional credit for any

of the qu estions challenged. In a letter dated February 4,

2005, Mr. Page requested an administrative hearing before an

administrative law judge. The Commission forwarded the matter

to the Division of Administrative Hearings for assignment of an

administrative la w judge. The case was originally assigned to

Administrative Law Judge Michael Parrish but subsequently

transferred to the undersigned. Pursuant to notice, the final

hearing was conducted on April 26, 2005.

On February 22, 2005, the Commission filed a res ponse to a

request by Administrative Law Judge Parrish in which it stated

that a passing score on the SOCE was 80%; that Mr. Page had

achieved a score of 75% the third time he had taken the SOCE 1 ;

that no specific point value was assigned to a specific que stion

but that, overall, the questions were worth .333 points each;

and that Mr. Page had challenged questions numbered 24, 35, 46,

47, 55, 63, 88, 102, 159, 193, 195, 201, 219, 248, 251, and 267.

At the hearing, the undersigned requested that the

Commissi on present its evidence first to assist in properly

framing the issues. The Commission presented the testimony of

Dwight Angel, Roy Gunnarsson, and Carol Hendrix, and

Respondent's Exhibits 1 through 3 were offered and received into

evidence. Mr. Page tes tified in his own behalf and presented

the testimony of Justin Rocque. Mr. Page offered no documents

into evidence. At the Commission's request, official

recognition was taken of Section 943.1397, Florida Statutes, and

of Florida Administrative Code Rule Chapter 11B - 30. At the

conclusion of the hearing, Mr. Page withdrew his challenge to

questions numbered 24, 35, 46, 88, 102, 193, 201, 219, and 267,

leaving at issue his answers to questions numbered 47, 55, 63,

159, 195, 248, and 251.

The transcript of the proceedings was filed with the

Division of Administrative Hearings. Mr. Page did not submit a

post - hearing statement or copies of certain document that the

undersigned had requested during the hearing. 2 The Commission

timely filed proposed findings o f fact and conclusions of law,

which have been considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing and on the entire record of this proceeding, the

following f indings of fact are made:

1. The Commission is the state agency charged with the

responsibility for administering officer certification

examinations and for establishing "standards for acceptable

performance on each officer certification examination."

§ 943.1397(1), Fla. Stat. (2004).

2. The SOCE is a multiple - choice examination, and there

are four answer choices for each question.

3. Mr. Page was a certified police officer in New Jersey

for approximately three and one - half years before moving to

Florid a. Pursuant to Section 943.13(9), Florida Statutes

(2004), Mr. Page was not required to attend a full six - months'

basic recruit training program because of his background in law

enforcement. Mr. Page did, however, attend a two - week, 80 - hour

state - certifi ed training program in preparation for taking the

SOCE, and he was provided a loose - leaf notebook containing

written course materials. The course materials reflect the

Commission's curriculum, and these materials are provided to the

training institution, which is responsible for copying the

materials and providing them to the students.

4. According to the Commission, the correct answer to

question 47 is "C"; Mr. Page chose answer "A." Question 47

describes the statutory elements of a crime, and the exami nation

candidate must choose the answer that identifies the crime

fitting the statutory elements set forth in the body of the

question. Question 47 is clear and unambiguous; the question is

statistically valid and classified as a moderately easy

question; the correct answer was included among the answer

choices provided; and the correct answer is included in the

Commission's curriculum and in the materials provided by the

Commission to the various training institutions. Mr. Page

failed to introduce persua sive evidence establishing that the

answer he chose is correct.

5. According to the Commission, the correct answer to

question 55 is "D"; Mr. Page chose answer "A." Question 55

describes a scenario, and the answer choices set forth various

actions a law enforcement officer could take under the

circumstances described. The examination candidate is asked to

choose the appropriate action. Question 55 is clear and

unambiguous; the question is statistically valid and classified

as a moderately difficult ques tion; the correct answer was

included among the answer choices provided; and the correct

answer is included in the Commission's curriculum and in the

materials provided by the Commission to the various training

institutions. Mr. Page failed to introduce p ersuasive evidence

establishing that the answer he chose is correct.

6. According to the Commission, the correct answer to

question 63 is "D"; Mr. Page chose answer "A." Question 63

describes the actions of a person, and the answer choices set

forth conc lusions a law enforcement officer could draw from

these actions. The examination candidate is asked to choose the

appropriate conclusion. Question 63 is clear and unambiguous;

the question is statistically valid and classified as a

difficult question 3 ; t he correct answer was included among the

choices provided; and the correct answer is included in the

Commission's curriculum and in the materials provided by the

Commission to the various training institutions. Mr. Page

failed to introduce persuasive evid ence establishing that the

answer he chose is correct.

7. According to the Commission, the correct answer to

question 159 is "B"; Mr. Page chose answer "A." Question 159

requires the examination candidate to fill in the blank in the

body of the question. The examination candidate must choose the

answer that accurately completes the statement contained in the

body of the question. Question 159 is clear and unambiguous;

the question is statistically valid and classified as a

moderately easy question; the correct answer was included among

the choices provided; and the correct answer is included in the

Commission's curriculum and in the materials provided by the

Commission to the various training institutions. Mr. Page

failed to introduce persuasive evidenc e establishing that the

answer he chose is correct.

8. According to the Commission, the correct answer to

question 195 is "A"; Mr. Page chose answer "B." Question 195

describes an activity in which a law enforcement officer might

engage, and the examinat ion candidate is asked to choose the

answer that best describes the consequences of the officer's

engaging in such an activity. Question 195 is clear and

unambiguous; the question is statistically valid and classified

as an easy question; the correct answ er was included among the

choices provided; and the correct answer is included in the

Commission's curriculum and in the materials provided by the

Commission to the various training institutions. Mr. Page

failed to introduce persuasive evidence establishi ng that the

answer he chose is correct.

9. According to the Commission, the correct answer to

question 248 is "B"; Mr. Page chose answer "C." Question 248

describes a scenario, and the answer choices set forth various

actions a law enforcement officer co uld take under the

circumstances described. The examination candidate is asked to

choose the answer describing the appropriate action.

Question 248 is clear and unambiguous; the question is

statistically valid and is classified as an easy question; the

c orrect answer was included among the choices provided; and the

correct answer is included in the Commission's curriculum and in

the materials provided by the Commission to the various training

institutions. Mr. Page failed to introduce persuasive evidence

establishing that the answer he chose is correct.

10. According to the Commission, the correct answer to

question 251 is "C"; Mr. Page chose answer "A." Question 251

describes a scenario, and the answer choices provide various

actions a law enforcement officer could take under the

circumstances described. The examination candidate is asked to

choose the appropriate action. Question 251 is clear and

unambiguous; the question is statistically valid and is

classified as a moderately easy question; the cor rect answer was

included among the choices provided; and the correct answer is

included in the Commission's curriculum and in the materials

provided by the Commission to the various training institutions.

Mr. Page failed to introduce persuasive evidence e stablishing

that the answer he chose is correct.

11. The specific curriculum materials referred to by the

Commission as supporting what it deemed to be the correct

answers to questions numbered 47, 63, 159, and 195, were not

included in the loose - leaf not ebook provided to Mr. Page as part

of the 80 - hour training program in which he participated prior

to taking the SOCE. 4 These omissions are not sufficient of

themselves, however, to justify giving Mr. Page credit for his

answers to these four questions. B ecause Mr. Page failed to

establish either that the questions were ambiguous or that the

answers he gave on the examination questions were correct, he is

not entitled to credit for his answers to these questions.

CONCLUSIONS OF LAW

12. The Division of Ad ministrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes (2005).

13. Section 943.1397, Florida Statutes (2004), 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 di scipline. 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 cer tification

examination.

(2) For any applicant who fails to achieve

an 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 trainin g 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.

14. The Petitioner has the burden of proving by a

preponderance of the evidence that the Commission's decision to

give him no credit for his answers to the challenged questions

is arbitrary or capricious or constitutes an abuse of

discretion. See State ex rel. Glaser v. J. M. Pepper , 155 So .

2d. 383 (Fla. 1st DCA 1963); State ex rel. Topp v. Board of

Electrical Examiners , 101 So. 2d. 583 (Fla. 1st DCA 1958).

15. Based on the findings of fact herein, the Petitioner

has failed to meet that burden.

RECOMMENDATION

Based on the foregoing Findin gs of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Department of Law

Enforcement, Criminal Justice Standards and Training Commission,

enter a final order dismissing the challenge of Jason R. Page to

the scoring of his answers on the SOCE administered on

November 11, 2004.

DONE AND ENTERED this 28th day of June, 2005, in

Tallahassee, Leon County, Florida.

S

___________________________________

PATRICIA M. HAR T

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Talla hassee, 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 28th day of June, 2005.

ENDNOTES

1 / Mr. Page achieved a score of 61% the first time he took the

SOCE and a score of 70% the second time he took the examination.

2 / At the Commission's request, the transcri pt of the

proceedings has been sealed and is being returned to the

Commission under seal.

3 / Even though only 52% of the SOCE candidates who have answered

this question answered the question correctly, the question

falls within acceptable statistical par ameters.

4 / Mr. Page's testimony that the materials he was provided by

the training institution did not contain the pages referred to

by the Commission's expert witness as supporting the correct

answer was not controverted either by direct testimony pres ented

by the Commission or in testimony elicited during the

Commission's cross - examination of Mr. Page.

COPIES FURNISHED:

Grace A. Jaye, Esquire

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302 - 1489

Jason R. Page

5939 Northwest Center Street

Port St. Lucie, Florida 34986

Michael Crews, Program Director

Division of Criminal Justice

Professional Services

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

Guy Tunnel l, Commissioner

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

Michael Ramage, General Counsel

Division of Criminal Justice

Professional Services

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32 302

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.