05-004544 Jenny Lancett vs. Department Of Law Enforcement, Criminal Justice Standards And Training Commission Status: Closed Recommended Order on Wednesday, June 28, 2006.

Summary: Petitioner`s challenges to the test results were inadequate to support an award of additional credit.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JENNY LANCETT, )

)

Petitioner, )

)

vs. ) Case Nos. 05 - 4544

) 06 - 0325

FLORIDA DEPARTMENT OF LAW )

ENFORCEMENT, CRIMINAL JUSTICE )

STANDARDS AND TRAINING )

COMMISSION, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice a formal hearing was held in this case

on April 5, 2006, by video teleconference with the Petitioner

appearing from West Palm Beach, Florida, before J. D. Parrish,

a designated A dministrative Law Judge of the Division of

Administrative Hearings in Tallahassee, Florida. Counsel for

all parties appeared in Tallahassee.

APPEARANCES

For Petitioner: Bruce Alexander Minnick, Esquire

Minnick Law Firm

Post Office Box 15588

Tallahassee, Florida 32317 - 5588

For Respondent: Linton B. Eason, Esquire

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302 - 1489

STATEMENT OF THE ISSUE

Whether the Petitioner, Jenny Lancett (Petitioner) is

entitled to additional credit for the answers she provided to

challenged examination questions. The Petitioner has

challenged the State Officers Certification Examination (SOCE)

for Law Enforcement Officers given in July of 2005 (DOAH Case

No. 05 - 4544) and September of 2005 (DOAH Case No. 06 - 0325).

PRELIMINARY STATEMENT

The Petitioner maintains she is entitled to additional

credit for the answe rs she provided to the challenged

examination questions, and that, if granted, her overall score

for the examination(s) would have resulted in a “pass” grade.

The Respondent, the Criminal Justice Standards and Training

Commission (Respondent or Commission ) claims that the

Petitioner’s examinations were appropriately graded and scored

and that she failed both.

These cases began in May of 2005. The Petitioner first

took the SOCE in May of 2005 and received an overall “fail”

score. That examination was n ot challenged. The Petitioner

then took the SOCE again on July 27, 2005, and also received

an overall “fail” score. The July exam results were timely

challenged and the matter was timely forwarded to the Division

of Administrative Hearings for formal pro ceedings (DOAH Case

No. 05 - 4544). At hearing, the Petitioner challenged 13

questions from this test date (Questions 45, 56, 90, 141, 151,

156, 161, 163, 207, 227, 234, 238, and 242). The challenge to

question 238 was later withdrawn and is not in content ion.

Similarly, the Petitioner took the September 2005 SOCE

and did not achieve the minimum passing grade. For this

examination the Petitioner challenged 12 questions (Questions

44, 63, 134, 160, 162, 165, 166, 178, 189, 194, 195, and 208).

The chall enged examinations are of particular concern to

the Petitioner because, coupled with the failed examination

results from the May (2005) test date, she has not achieved a

passing score on three occasions. Based upon that, unless she

is entitled to sufficie nt credit from the questions

challenged, the Petitioner will be not be able to establish

that she has achieved a pass grade as provided for in Florida

Administrative Code Rule 11B - 30.0062.

At the hearing, the parties presented Joint Exhibits 1,

2, 3, 4, 5 , 6, 7, 8, 9, and 10, which were received in

evidence by stipulation. The Petitioner testified in her

behalf and presented testimony from Timothy Kozyra, Roy

Gunnarsson, Ralph Stacy Lehman, and Carol Hendrix.

On May 17, 2006, the Petitioner requested ad ditional time

within which to file a Proposed Recommended Order. That

request was granted, and both parties were granted leave until

June 20, 2006, to file proposed orders. Both parties filed

proposed orders that have been reviewed in the preparation of

this Recommended Order.

FINDINGS OF FACT

1. The Petitioner is an applicant for certification as a

law enforcement officer. In order to be eligible to sit for

the state examination, the Petitioner successfully completed

an academy course that was sponsor ed by the Palm Beach County

Sheriff’s Office. To become fully certified, the Petitioner

must take and achieve a passing score on the SOCE. The

Petitioner took the SOCE on July 27, 2005, but did not pass.

She also took the SOCE on September 21, 2005, and did not

pass.

2. The Respondent is the state agency charged with the

responsibility of administering examinations for certification

for the SOCE.

3. After the July and September examinations for the

SOCE were administered and the Petitioner received fa iling

scores, she requested and attended examination review sessions

conducted at the Respondent’s headquarters in Tallahassee,

Florida.

4. The review sessions were held at the Florida

Department of Law Enforcement and the Petitioner was given

copies of t he examination questions for which she did not

provide the correct answers. The Petitioner was not told the

correct answers.

5. As to the July examination, the Petitioner timely

challenged Questions 45, 56, 90, 141, 151, 156, 161, 163, 207,

227, 234, 2 38, and 242. That examination challenge was

forwarded to the Division of Administrative Hearings on

December 14, 2005, and was designated as DOAH Case No. 05 -

4544. The Petitioner withdrew her challenge to Question 238.

6. As to the September examination , the Petitioner

timely challenged Questions 44, 63, 134, 160, 162, 165, 166,

178, 189, 194, 195, and 208. That examination challenge was

forwarded to the Division of Administrative Hearings on

January 26, 2006, and was assigned DOAH Case No. 06 - 0325.

7. On February 3, 2006, in response to the Joint Motion

to Consolidate, the cases were consolidated for formal hearing

and rescheduled for hearing to March 21 - 22, 2006. The case

was heard on April 5, 2006.

8. As to each challenged examination, the applican t must

answer 250 questions and achieve at least 180 correct answers.

Twenty - five questions of the 250 do not count but are

considered “throw - away” questions. All questions are posed in

English. All questions are multiple choice and an applicant

is give n credit for only the correct answer. The Respondent

deems the correct answer to be the best choice from among the

options offered.

9. The Petitioner is an Hispanic female who reads,

writes, and speaks English. Although she inquired about

accommodations , the Petitioner was not afforded any

accommodations while taking the challenged examinations based

upon English as her non - native language. The Commission

requires that all applicants take the examination in English.

Similarly, accommodations are not af forded applicants who

maintain “test anxiety” as a basis for concern.

10. All questions and answers for the challenged

examinations are considered confidential as a matter of law.

11. As to each of the questions challenged by the

Petitioner, the Petiti oner failed to select the correct and

best option from the multiple - choice selections noted.

12. As to each of the questions challenged by the

Petitioner, the wording and options noted are clearly stated

and are within the curriculum covered by the acad emy.

13. Of the numerous Hispanic candidates who have

successfully completed the Palm Beach County academy during

Mr. Kozyra’s tenure, only two have failed to achieve a passing

score on the SOCE within three attempts.

14. The Petitioner submitted no cr edible evidence to

support her claim that the answers she provided on the

challenged examination questions were correct or that the

questions in their wording or grading were flawed. The

persuasive weight of the evidence was to the contrary.

15. A questi on which asks the applicant to provide a

response that is “most accurately” describing the situation

(as did Question 56 on the July examination) means that of the

choices offered only one can be considered “most accurate.”

If the applicant chooses an ans wer that is not the “most

accurate,” credit is not given. Many of the Petitioner’s

responses fell into this type of erroneous response. The

Petitioner simply failed to provide the “most accurate” from

the selections offered.

16. As to each of the select ions chosen by the

Petitioner, a clear majority of the applicants taking the

examinations selected the correct option. None of the

examinations questions challenged by the Petitioner were

incorrectly answered by a majority of the applicants. In some

inst ances as many as 94 percent of the test takers chose the

correct answer whereas the Petitioner did not.

17. The Respondent provided sufficient explanation and

the record clearly establishes that as to each of the

erroneous answers provided by this Petitio ner, the correct

answer (as scored by the Respondent) was the best or correct

answer. The Petitioner cannot be entitled to additional

credit when her answers were not correct.

CONCLUSIONS OF LAW

18. The Division of Administrative Hearings has

jurisdictio n over the parties to and the subject matter of

these proceedings. §§ 120.569 and 120.57(1), Fla. Stat.

(2005).

19. As the applicant, the Petitioner has the burden of

proof in this matter to show by a preponderance of the

evidence that the examination qu estions were faulty,

arbitrarily or capriciously worded or graded, or that the

Petitioner was arbitrarily or capriciously denied credit

through a grading process devoid of logic or reason. See

Harac v Department of Professional Regulation, Board of

Archit ecture , 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); State ex. rel. Glaser v. J.M. Pepper , 155 So. 2d 383

(Fla. 1st DCA 1986); and State ex. rel. I.H. Topp v. Board of

Electrical Contractors for Jacksonville Beach, Florida , 101

So. 2d 583 (Fla. 1st DCA 1958).

20. Section 943.1397, Florida Statutes (2005), provides

that an applicant shall not take the SOCE more than three

times, unl ess the applicant has enrolled in, and successfully

completed the basic recruit training program. Thus, the

Petitioner’s concern and status as applicant for certification

afford her standing to challenge the examinations. Indeed,

the Petitioner must pass the SOCE to become certified.

Nevertheless, the Petitioner failed to meet her burden of

proof in this matter. The answers provided by the Petitioner

were not correct. Moreover, the questions challenged were not

vague, ambiguous, flawed, or faultily wor ded. The Respondent

did not act arbitrarily or capriciously in the wording or

grading of the examinations. The examination process was not

devoid of logic or reason. While the Petitioner may have had

test anxiety or a language disadvantage, the examinat ions were

not unduly burdensome to any applicant. All applicants are

placed in the stressful environment of the examination. All

Hispanic applicants (who must take the examination in a non -

native language) are required to achieve a passing grade on

the E nglish - only test. In fact, the vast majority of the

Hispanic candidates who, like the Petitioner successfully

completed the Palm Beach County academy, have achieved a

passing score on the SOCE.

RECOMMENDATION

Based on the foregoing Findings of Fact and C onclusions

of Law, it is RECOMMENDED that the Petitioner’s challenges to

the July and September 2005 certification examinations be

denied.

DONE AND ENTERED this 28th day of June, 2006, in

Tallahassee, Leon County, Florida.

S

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 Cler k of the

Division of Administrative Hearings

this 28th day of June, 2006.

COPIES FURNISHED :

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

Bruce A. Minnick, Esquire

Minnick Law Firm

Post Office Box 15588

Tallahassee, Florida 32317 - 5588

Linton B. Eason, Esquire

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302 - 1489

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 Recommen ded Order should be filed with the

agency that will issue the Final Order in this case.