07-005068 Carlos A. Redding vs. Criminal Justice Standards And Training Commission Status: Closed Recommended Order on Tuesday, February 12, 2008.

Summary: Petitioner failed to demonstrate that the challenged questions were ambiguous or failure to award him credit for them was arbitrary or capricious. Petitioner also failed to show that credit for the challenged questions would result in a passing score.

Case No. 07-5068

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CARLOS A. REDDING, ) ) ) ) ) ) ) ) ) ) )

Petitioner, RECOMMENDED ORDER

vs.

CRIMINAL JUSTICE STANDARDS

AND TRAINING COMMISSION,

Respondent.

On January 8, 2008, a hearing was held in Tallahassee,

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

Statutes. The case was considered by Lisa Shearer Nelson,

Administrative Law Judge.

APPEARANCES

For Petitioner: Carlos Redding, pro se

514 South Main Street

Quincy, Florida 32351

For Respondent: Grace A. Jaye, Esquire

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302-1489

STATEMENT OF THE ISSUE

Whether Petitioner's challenge to the State Officer's

examination should be sustained.

PRELIMINARY STATEMENT

This case arose because Petitioner failed to pass the State

Officer Certification examination. On October 9, 2007,

Respondent wrote to Petitioner and advised him that no credit

would be added to his original score based on an expert review of

the items he challenged from the examination. He was instructed

regarding his right to dispute the decision and request a

hearing.

On October 13, 2007, Petitioner wrote the Department's

representative, stating he disputed the agency's decision with

respect to the 11 questions he challenged. The Department

responded October 22, 2007, advising Petitioner that his request

for formal hearing was being denied because it did not conform to

the requirements of Sections 120.569 and 120.57, Florida

Statutes, and Florida Administrative Code Rule 28-106.201.

Petitioner was given the opportunity to file an amended petition

within fifteen days.

On November 1, 2007, Petitioner filed Petitioner's Request

for a Formal Hearing and Challenge to Examination results,

limited to challenging questions 128 and 150. On November 5,

2007, Petitioner’s request was forwarded to the Division of

Administrative Hearings for assignment of an administrative law

judge. The matter was duly noticed for hearing to be conducted

January 8, 2008.

On December 28, 2007, Respondent filed a Motion for

Protective Order, and at the commencement of the hearing,

argument was heard on the Motion, which was unopposed. The

Motion was granted to prevent the actual test questions and

responses from being publicly divulged in any manner by those

having access to them as a result of this proceeding. Pursuant

to the Protective Order, questions and answers from the

examination, to the extent they are included in the record, have

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

be available for public inspection. Likewise, the transcript of

the proceeding shall not be disseminated without redaction of

those portions that contain the text of the questions and answers

to the examination.

At hearing, Petitioner testified on his own behalf and

Petitioner's Exhibits numbered 1-3 were admitted into evidence.

The Department presented two witnesses and Respondent's Composite

Exhibit 1 was admitted. 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 was

filed with the Division on January 22, 2008, and both Proposed

Recommended Orders were timely filed. Both submissions have been

carefully considered in the preparation of this Recommended

Order.

FINDINGS OF FACT

1. Petitioner took the State Officers Certification

Examination (SOCE) on August 29, 2007. This was Petitioner's

third time taking the examination, which he did not pass.

2. While it is clear that Petitioner did not pass, no

evidence was presented indicating what score was achieved on the

examination. Likewise, no evidence was presented regarding the

value of the questions challenged in this proceeding. Therefore,

it cannot be determined on this record whether awarding credit

for or discarding the two challenged questions would result in a

passing score.

3. Question 128 1/ required the applicant to demonstrate

knowledge of the formula used for calculating the speed a car was

traveling from skid marks. The scenario in the question provided

enough information for the test taker to answer the question

correctly. The proposed answers placed different factors from

the scenario in the formula. The correct answer fitting the

formula was answer choice "C". Petitioner answered "B".

4. Petitioner challenged the question because the correct

answer reflected a whole number and resulted from "rounding up,"

when the training materials provided instructed students not to

"round up."

5. The question did not ask the applicant for the exact

number, but asked that they identify the answer with the correct

formula components. Petitioner's answer did not include the

appropriate formula components. The correctness of Petitioner's

answer was in no way affected by his complaint about "rounding

up." Indeed, all of the available answers were whole numbers.

6. Question 128 is statistically valid. Eighty-two percent

of all applicants who have answered this question have answered

it correctly. The question has been answered by 3,606 students.

Of that number, 2,960 students have answered the question

correctly, while only 399 have chosen the answer selected by

Petitioner.

7. Question 150 required the applicant to determine what

charges could be considered against a person going under or

attempting to go under a crime-scene tape. The scenario in the

question provided enough information for the test-taker to answer

the question correctly. Given the facts presented in the

scenario for question 150, the correct answer was "D".

Petitioner answered "C".

8. Petitioner's challenge to the question is based upon

assumptions related to the scenario that were not presented in

the examination, coupled with a misreading of the training

materials. Moreover, of the 1,126 applicants who have answered

question 150, 757 students have answered the question correctly.

Only 353 applicants have chosen the answer selected by

Petitioner.

9. Petitioner has failed to show that either question 128

or question 150 was unclear, ambiguous or in any respect unfair

or unreasonable. Neither has he established that he answered

either question correctly.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with Sections 120.569 and 120.57(1), Florida

Statutes.

11. Section 943.17(1)(e), Florida Statutes, requires the

Criminal Justice Standards and Training Commission to implement,

administer, maintain and revise a job-related certification for

each discipline the Commission certifies.

12. 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

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

reenrolled in, and successfully completed,

the basic recruit training program.

13. Petitioner bears the burden of proof in this

proceeding, and must show by a preponderance of the evidence that

he actually passed the SOCE examination. He must prove that

Respondent capriciously and arbitrarily failed to give petitioner

the grade he earned on the exam. Harac v. Department of

Professional Regulation , 484 So. 2d 1333, 1338 (Fla. 3d DCA

1986); State ex rel. Glaser v. Pepper , 155 So. 2d 383, 384 (Fla.

1st DCA 1963); State ex rel. Topp v. Board of Electrical

Contractors of Jacksonville Beach , 101 So. 2d 583, 586 (Fla. 1st

DCA 1958).

14. In this case, Petitioner has failed to meet his burden.

As a preliminary matter, it cannot be determined on this record

whether credit for or the discarding of the challenged questions

would result in a passing score on the examination.

15. Even assuming that receiving credit for the challenged

questions would result in a passing score, Petitioner has failed

to present any evidence that he was erroneously or improperly

denied credit for his responses to Questions 128 and 150. He has

failed to show that either question was unclear, ambiguous,

misleading, or unfair or unreasonable in any way. Nor has

Petitioner established that he correctly answered either of the

disputed questions. Accordingly, Petitioner's challenge to

questions 128 and 150 must fail.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law

reached, it is

RECOMMENDED:

That the Florida Department of Law Enforcement enter a final

order rejecting Petitioner's challenge to the scoring on

questions 128 and 150 of the SOCE and dismiss the petition in

this proceeding.

DONE AND ENTERED this 12th day of February, 2008, in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

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 12th day of February, 2008.

ENDNOTE

1 / The text of the questions challenged have not been recited in

order to preserve their confidentiality. § 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 work papers

directly related thereto, prepared,

prescribed, or administered pursuant to

§§ 943.13(9) or (10) and 943.17 are exempt

from the provisions of § 119.07(1) and

§ 24(a), Art. I of the State Constitution . .

.")

COPIES FURNISHED:

Carlos A. Redding

514 South Main Street

Quincy, Florida 32351

Grace A. Jaye, Esquire

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302-1489

Michael Crews, Program Director

Division of Criminal Justice

Professionalism Services

Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302-1489

Michael Ramage, General Counsel

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 recommended order should be filed with the agency that will

issue the final order in this case.