06-000393 James H. Hall, Jr. vs. Department Of Law Enforcement, Criminal Justice Standards And Training Commission Status: Closed Recommended Order on Wednesday, May 31, 2006.

Summary: Petitioner failed to prove that he was erroneously or improperly denied credit for his responses to the challenged questions.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES H. HALL, JR. , )

)

Petitioner , )

)

vs. ) Case No. 06 - 0393

)

DEPARTMENT OF LAW ENFORCEMENT, )

CRIMINAL JUSTICE STANDARDS AND )

TRAINING COMMISSION , )

)

Respondent . )

)

RECOMMENDED ORDER

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

April 7, 2006, by video teleconference before Carolyn S.

Holifield, a designated Administrative Law Judge of the Division

of Administrative Hearings, who pres ided from Tallahassee,

Florida. Petitioner and the court reporter were in Tampa,

Florida , and Respondent's counsel and witnesses were in

Tallahassee, Florida.

APPEARANCES

For Petitioner: James H. Hall, Jr., pro se

729 Wood Drive

Brooksville, Florida 34601

For Respondent: Grace A. Jaye, Esquire

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302 - 1489

STATEMENT OF THE ISSUE

Whether Petitioner should be given credit for certain

answers provided on the State Officers Certification Examination

(officers certification examination).

PRELIMINARY STATEMENT

By letter dated Dec e mber 21, 2005, Respondent, Department

of Law Enfor cement, Criminal Justice Standards and Training

Commission (Respondent or Commission), notified Petitioner that

it had reviewed his challenges to certain answers on the

officers certification examination. According to the letter,

based on that review, it was determined that Petitioner would

not receive additional credit for any of his challenges.

Petitioner challenged the decision and requested a hearing. On

or about January 31, 200 5 , the matter was forwarded to the

Division of Administrative of Hearings for assignment of an

Administrative Law Judge to conduct a hearing.

Prior to hearing, Respondent filed a Motion for Protective

Order (Motion). At the commencement of the hearing, argument

was heard on the M otion. Upon consideration thereof, at the

heari ng, the undersigned granted Respondent’s Motion to prevent

the actual test questions and responses from being publicly

divulged in any manner by the persons having access to the test

questions and responses. Pursuant to the Protective Order,

questions and answers from the examination have been sealed in

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

for public inspection.

At hearing, Petitioner testified on his own behalf.

Respondent presented the testimony of Wendy Bailey and Roy G.

Gun narsson. Respondent's Composite Exhibit 1 was received into

evidence.

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 April 14, 2006. Respondent requested an extension

of time for the parties to file proposed recommended orders

because of a delay in the Transcript being sent to Petitioner.

The extension was granted , and the time for filing proposed

recommended orders was extended to April 28, 2006. Petitioner

did not file a proposed recommended order. Respondent filed a

Proposed Recommended Order on April 20, 2006, which has been

considered in preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitio ner, James H. Hall, Jr., took the officer s

certification examination and , thereafter , challenged certain

answers to questions on the examination. Specifically,

challenged questions were numbered 40, 49, 63, 89, 112, 115,

156, 143, 203, and 211. At hearin g, Petitioner withdrew his

challenges to questions 143 and 211, leaving eight questions to

be challenged.

2. The Commission is the state agency charged with the

responsibility of administering officer s certification

examinations and establishing "standard s for acceptable

performance on each officer certification examination."

§ 943.13 97 (1), Fla . Stat. (2005) . 1

3 . The officers certification examination is a multiple -

choice examination with four answer choices for each question.

Only one of the proposed answers is deemed correct. The answer

deemed to be correct is the best of the four answer choices.

4. The content of all the questions on the officers

certification examination are derived from the basic recruit

curriculum and from objectives that come f rom a job task

analysis. The objectives appear in the beginning of every

lesson of the curriculum. The curriculum materials are

available to all applicants who take the officers certification

examination.

5. All the questions on the officers certificati on

examination have been validated and field tested.

6. Question 40 was clear and unambiguous and asked

applicants to identify immunizations required for law

enforcement officers. The correct answer to the Question 40

is (a). Petitioner selected answe r choice (c), based on his

belief as to what communicable disease officers should and could

be va c cinated against. The correct answer to Question 40 is

inc l uded in the curriculum materials and is not the answer

selected by Petitioner. The question is sta tistically valid ,

and 69 percent of all test takers who have answered this

question have answered it correctly. Petitioner's reason for

choosing (c) as the answer to Q uestion 40 does not constitute

persuasive evidence establishing that the answer he chose is

correct.

7. Question 49 was clear and unambiguous and required the

applicant s to demonstrate knowledge and application of the

phonetic alphabet used by the F ederal Communications C ommission

and the United States military. The correct answer to

Quest ion 49 is (a). Petitioner selected answer (c) , based on

his belief that the response next to that choice "flowed, that

it didn't have too many syllables in it." The correct answer to

Question 49 is included in the curriculum materials and is not

the answ er selected by Petitioner. The question is

statistically valid , and 89 percent of all test takers who have

answered this question have answered the question correctly.

Petitioner's rationale for selecting answer (c) does not

constitu t e persuasive evidenc e establishing that the answer he

chose is correct.

8. Question 63 was clear and unambiguous and required the

applicants to demonstrate their understanding of various mental

disorders. The correct answer to the question is (d).

Petitioner selected answe r (a). The correct answer is included

in the curriculum material and is not the answer chosen by

Petitioner. The question is statistically valid , and 91 percent

of all test takers who have answered this question have answered

it correctly. Petitioner f ailed to introduce persuasive

evidence establishing that the answer he chose is correct.

9. Question 89 is clear and unambiguous and required

applicants to know what an officer should do when a suspect is

shot. The correct answer is (b). Petitioner sele cted answer

choice (c). T he correct answer is included in the curriculum

material and is not the same answer selected by Petitioner.

Question 89 is statistically valid , and 90 percent of all test

takers who have answered this question have answered it

co rrectly. Petitioner failed to introduce persuasive evidence

establishing that the answer he chose is correct.

10. Question 112 is clear and unambiguous and required

applicants to demon s trate knowledge relative to parties at a

traffic crash scene. The co rrect answer to the question is (d).

Petitioner selected answer choice (b). The correct answer is

included in the curriculum material and is not the answer

selected by Petitioner. The question is statistically valid ,

and 68 percent of all test takers wh o answered this question

answered it correctly. Petitioner failed to introduce

persuasive evidence establishing that the answer he chose is

correct.

11. Question 115 is clear and unambiguous and required the

applicant to demonstrate knowledge of the offi cers' duty

regarding the Miranda warning. The correct answer choice

is (a). Petitioner selected answer choice (b). The correct

answer is included in the curriculum material and is not the

answer selected by Petitioner. The question is statistically

va lid , and 85 percent of all test takers who answered this

question answered it correctly. Petitioner failed to introduce

persuasive evidence establishing that the answer he chose is

correct.

12. Question 156 is clear and unambiguous and required the

appli cant to demonstrate knowledge regarding the consent given

by an adult needing assistance. The correct answer for

Question 156 is (a). Petitioner selected answer choice (b).

The correct answer is included in the curriculum material and is

not the answer selected by Petitioner. The question is

statistically valid , and 73 percent of all persons who have

answered this question have answered it correctly. Petitioner

failed to introduce persuasive evidence establishing that the

answer he chose is correct.

1 3. Question 203 is clear and unambiguous and required the

applicant to demonstrate knowledge regarding the officers'

responsibility in domestic violence incidents. The correct

answer for Question 203 is (c). Petitioner selected the answer

choice (d). T he correct answer is included in the curriculum

material and is not the answer selected by Petitioner. The

question is statistically valid , and 68 percent of all test

takers who have answered this question have answered the

question correctly. Petitioner failed to introduce persuasive

evidence establishing that the answer he chose is correct.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has

jurisdiction over the subject matter of and parties to this

proceeding pursuant to Chapter 120, F lorida Statutes, and

Florida Administrative Code Chapter 28.

15. S ubs ection 943.17(e), Florida Statutes, requires the

Commission to "implement, administer, maintain, and revise a

job - related officer certification examination for each

discipline."

16. S ub s ection 943.1397, F lorida S tatutes, provides, in

pertinent part:

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

on or after July 1, 1993, the commission

shall not certify any person as an officer

until the person has achieved an acceptable

score on the off icer 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 sha ll

establish standards for acceptable

performance on each officer certification

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 training program

requirement. An applicant shall not take an

officer certification examination more than

three times, unless the applicant has

re enrolled in, and successfully completed,

the basic recruit training program.

17. Petitioner has the burden of proof in this proceeding.

Petitioner must show by a preponderance of the evidence that the

challenged questions on the Commission's officers certification

examination were faulty, arbitra rily or capriciously worded or

graded, or that the Commission's decision to give him no credit

for his answers to the challenged questions is arbitrary and

capricious or constitutes an abuse of discretion. See H a rac v.

Department of Professional Regulatio n , 484 So. 2d 1333, 1338

(Fla. 3d DCA 1986); State ex. rel. Glaser v. J.M. Pepper , 155

So. 2d 383 (Fla. 1 st DCA 1963); State ex Rel. I.H. Topp v. Board

of Electrical Examiners for Jacksonville Beach, Florida , 101 So.

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

18. In th is case, Petitioner has failed to present any

evidence that supports his contention that he was erroneously or

improperly denied credit for his responses to Q uestions 40, 49,

63, 89, 112, 115, 156, and 203. Petitioner has failed to show

that any of the qu estions in dispute were unclear, ambiguous,

misleading, or in any other respect unfair or unreasonable.

Also, Petitioner has not established that he correctly answered

any of the disputed questions. Therefore, Petitioner has failed

to meet his burden of proof.

19. Having failed to meet his burden of proof,

Petitioner's challenge to the scoring he received on the

officers certification examination should be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law it is

RECO MMENDED that the Florida Department of Law Enforcement

enter a final order rejecting Petitioner's challenge to the

scoring on Q uestions 40, 49, 63, 89, 112, 115, 156, and 203 and

dismissing the Petition.

DONE AND ENTERED this 31st day of May , 2006 , in

Tal lahassee, Leon County, Florida.

S

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9 675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 31st day of May , 2006 .

ENDNOTE

1/ All references to Florida Statutes are to Florida

Statutes (2005), unless otherwise indicated.

COPIES FURNISHED :

Grace A. Jaye, Esquire

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302 - 1489

James H . Hall , Jr.

729 Wood Drive

Brooksville, Florida 34601

Michael Crews, Program Director

Division of Criminal Justice

Pr ofessionalism 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

Al l 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.