14-004666 Gregory K. Chapman vs. Florida Department Of Law Enforcement Status: Closed Recommended Order on Wednesday, July 8, 2015.

Summary: Petitioner failed to prove that any of the challenged questions on the law enforcement certification exam were invalid or incorrectly scored. Recommend dismissal of the petition.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GREGORY K. CHAPMAN,

Petitioner,

vs. Case No. 14 - 4666

FLORIDA DEPARTMENT OF LAW

ENFORCEMENT,

Respondent.

_______________________________/

RECOMMENDED ORDER

On May 19, 2015, Admin istrative Law Judge Lisa Shearer

Nelson conducted a duly - noticed hearing pursuant to section

120.57(1), Florida Statutes (2014), in Tallahassee, Florida.

APPEARANCES

For Petitioner: Gregory Chapman, pro se

5870 Westmont Road

Milton, Florida 325 83

For Respondent: Linton B. Eason, Esquire

Post Office Box 1489

Tallahassee, Florida 32302 - 1489

STATEMENT OF THE ISSUE

The issue to be decided is whether Petitio nerÓs challenges

to questions on the s tate o fficer c ertification examination

sho uld be sustained, resulting in additional points being added

to his score.

PRELIMINARY STATEMENT

Petitioner, Gregory Chapman, was notified that he failed to

obtain a passing score on the law enforcement state officer

certification examination (the Exam) a dministered on March 30 ,

2014. Mr. Chapman challenged six questions on the Exam, and was

notified by letter dated July 22, 2014, that no additional credit

would be awarded based on his challenges to questions on the

examination. Petitioner filed a Petiti on for Formal Hearing

before the Florida Division of Administrative Hearing (sic) , and

on October 8, 2014, the matter was referred to the Division of

Administrative Hearings ( DOAH ) for assignment of an

administrative law judge.

The case was originally noti ced for hearing to commence on

December 8, 2014, and on December 1, 2014, a Protective Order was

issued with respect to disclosure of the questions and answers,

which are exempt from public disclosure pursuant to section

119.071(1)(a), Florida Statutes (20 14). Respondent filed a

Motion for Continuance on December 5, 2014, based upon his

military commitment for the United States Army Reserves. The

matter w as continued to February 5, 2015 . Another Motion for

Continuance was filed, this time at the behest o f the Respondent,

for good cause shown, and the case was again rescheduled for

March 26, 2015.

On the day scheduled for hearing, the parties both appeared.

However, Petitioner had retained counsel who requested that yet

another continuance be granted to a llow him the opportunity to

review the questions and answers and adequately prepare for

hearing. Over the objection of the Department, a final

continuance was granted and the case rescheduled for May 19,

2015. Both parties were admonished that no further continuance

would be granted absent extreme emergency.

On May 11, 2015, counsel for Petitioner filed a Motion to

Withdraw, which was granted by Order dated May 14, 2015. On the

morning of the hearing, Petitioner called the undersignedÓs

office and advise d that he would not be able to attend the

hearing in person, although no reason was volunteered regarding

his inability to appear. Petitioner was allowed to participate

in the hearing by telephone.

At the hearing, Petitioner indicated for the first time t hat

he intended to challenge the examination based on the allegation

that he received a course book from a different year than the

edition used to create the examination. He acknowledged that he

had not amended his petition or notified Respondent of his

i ntention to challenge the examination on this basis. Petitioner

was advised that the Notice of Hearing indicated that the issue

to be resolved was the validity of the six questions challenged,

and absent a motion to amend his petition, the hearing would

a ddress the issues described in the Notice of Hearing.

In order to provide structure to the hearing, Respondent

presented its case first. This order of presentation did not

change the burden of proof. Petitioner presented no witnesses or

exhibits, but ins tead attempted to prove his case through the

cross - examination of RespondentÓs witnesses. Respondent

presented the testimony of Roy Gunnarson, and RespondentÓs

Exhibits 2, 4, 5, 6, and 7 were admitted into evidence without

objection.

The Transcript of the hearing was filed with the Division on

May 27, 2015. Respondent filed a Proposed Recommended Order on

June 9, 2015. Petitioner filed what is labeled as a Proposed

Recommended Order on that same day, but the document filed

appears to be the sample form f or a proposed recommended order

provided by the Division on its website for pro se litigants.

There is, however, no content included related to the facts or

the law with respect to this proceeding. Both documents,

although filed more than 10 days from th e filing of the

Transcript, have been reviewed in the preparation of this

Recommended Order.

FINDING S OF FACT

1. Petitioner took the state officer certification

examination o n March 26, 2014. No evidence was placed in the

record with respect to his sco re on the examination. However,

his petition indicates that he failed the examination by two

questions, an allegation that Respondent does not appear to

dispute.

2. The parties stipulated that the validity of four, as

opposed to six, questions are at iss ue in this proceeding .

3. Questions for the Exam are written by in - house exam

development staff, based upon the official training curriculum.

The questions are then shared with an advisory team comprising

approximately 20 members, who are full - time law enforcement

officers in the State of Florida. The team members, who are

considered to be subject matter experts, are selected through

nominations from their respective agencies and their experience

in law enforcement.

4. The subject matter experts revie w the questions for

content to en sure that they are valid for the curriculum that is

required for law enforcement officers. Staff then conducts an

internal review to ensure that the questions meet their

formatting guidelines, and if a question passes succ essfully

through all of those requirements, then the question is placed

into a pilot or field - test rotation. Pilot questions are placed

on examinations but are not included in an examineeÓs score,

which allows the Department to collect statistical data on the

question to ensure that it is not only valid in terms of content,

but that it is also psychometrically and statistically sound.

5. Test questions are examined in accordance with standards

established by the American Psychological Association, and the

National Council on Measurement in Education that outline the

standards for test items. The questions used by Respondent

comply with the applicable standards.

6. To reduce the possibility for error with respect to the

questions asked, an examination wi ll include multiple questions

concerning the same curriculum.

7. The purpose of the law enforcement certification

examination is to certify an examineeÓs knowledge of the official

training curriculum that has been established and approved by the

Florida Criminal Justice and Training Commission. The Exam was

linked directly to the curriculum. If there is a major change as

a result of case law that would b ring the validity of an item in

the test bank into question, the question is removed. However,

that rarely happens, because the examination is meant to cover

basic principles as opposed to more advanced details related to

law enforcement practices.

8. In evaluating the validity of PetitionerÓs challenged

qu estions, the Department examined certain stati stics related to

each question. The first statistic deals with the mean

difficulty value. The mean difficulty value reflects the

percentage of examinees who have answered the question correctly

for the life of the question to date.

9. The focal difficul ty value is the percentage of

examinees who answered the question correctly during the

administration of the examination that Petitioner is challenging.

10. The mean point - biserial correlation is a quality

control measure that correlates performance on a particular

question to overall performance on the exam. A positive value

indicates that the question is statistically sound. A negative

value indicates that there may be a problem with the question.

11. The next value examined is the focal point - biseria l

correlation, which is calculated using the examinees in the

administration of the examination being challenged. Like the

po i nt - biserial correlation, the calculation should yield a

positive number to indicate an acceptable question.

12. Also examined i s the number of students who have

answered the question, and the number of students who chose the

correct answer. The final value examined is the number of

examinees who chose the same (incorrect) answer as the person

challenging the examination.

13. Pe titioner challenged questions 59, 126, 179, and 185.

14. With respect to question 59, the correct answer was

Ðc.Ñ Petitioner chose answer Ðb.Ñ

15. The question, which will not be repeated verbatim here,

involved the use of force and the concept of objec tive

reasonableness. The subject matter was adequately covered in the

curriculum, which has not changed from 2012 to the present with

respect to this issue.

16. The mean difficulty value for question 59 was .83. The

focal difficulty value was .79. Both the mean point - biserial

correlation and the focal point - biserial correlation were .29. A

total of 2,535 examinees had answered the question, and 2,109

answered it correctly.

17. Question 59 is a statistically - valid question, and

Petitioner presented no evidence to indicate that his answer

should be considered the correct answer.

18. Question 126 involved what kind of treatment should be

considered for gunshot wounds to the torso. The correct answer

was Ðc.Ñ Petitioner chose answer Ðb.Ñ The subject ma tter was

adequately covered in the curriculum, which has not changed from

2012 to the present with respect to this issue.

19. The mean difficulty value for question 126 was .56.

The focal difficulty value was .60. The mean point - biserial

correlation wa s .23 and the focal point - biserial correlation wa s

.20. A total of 2,5 42 examinees had answered the question, and

1,411 answered it correctly.

20 . Question 126 is a statistically - valid question, and

Petitioner presented no evidence to indicate that his an swer

should be considered the correct answer.

21. Question 179 addressed field sobriety tests. The

correct answer was Ða.Ñ Petitioner chose answer Ðb.Ñ The

subject matter was adequately covered in the curriculum , which

has not changed from 201 2 to the p resent with respect to this

issue.

22. The mean difficulty value for question 179 wa s .77.

The focal difficulty value wa s also .77. The mean point - biserial

correlation was .20 and the focal point - biserial correlation wa s

.09. A total of 2,566 examinees had answe red the question, and

1,967 answered it correctly.

23. Question 179 is a statistically - valid question, and

Petitioner presented no evidence to indicate that his answer

should be considered the correct answer.

24. Finally, question 185 addressed proper traffic stops.

The correct answer was Ða.Ñ Petitioner chose answer Ðd.Ñ The

subject matter was adequately covered in the curriculum, which

has not changed from 2012 to the present with respect to this

issue.

25. The mean difficulty value for qu estion 185 was .90.

The focal difficulty value was .84. The mean point - biserial

correlation was .17 and the focal point - biserial correlation was

.08. A total of 2,867 examinees had answe red the question, and

2,574 answered it correctly.

26 . Question 18 5 is a statistically - valid question, and

Petitioner presented no evidence to indicate that his answer

should be considered the correct answer.

27. Petitioner failed to demonstrate that any of the

questions challenged were unclear, ambiguous, or in any res pect

unfair or unreasonable. Neither has he established that he

answered an y of the challenged questions correctly.

CONCLUSIONS OF LAW

2 8 . The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with s ections 120.569 and 120.57 (1) .

29 . Section 943.17(1)(e), Florida Statutes (2014) , requires

the Criminal Justice Standards and Training Commission to

implement, administer, maintain , and revise a job - related

certification for each disci pline the Commission certifies.

30 . Section 943.1397 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, t he 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, establis h 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.

31 . Petitioner bears the burden of proof in this

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

he actually passed the Exam . He must prove that Respondent

capriciously and arbitrarily fa iled to give P etitioner the grade

he earned on the exam. Harac v. Dep Ó t of Prof Ól Reg . , 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.

Bd . of Elec . Contractors of Ja cksonville Beach , 101 So. 2d 583,

586 (Fla. 1st DCA 1958).

32 . 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.

33 . 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

deni ed credit for his responses to q uestions 59, 126, 179, or

185 . He has failed to show that any of the challenged question s

w ere unclear, ambiguous, misleading, or unfair or unreasonable in

any way. Nor has Petitioner established t hat he correctly

answered any of the dispu ted questions. Accordingly,

Petitioner's challenge to questions 59, 126, 179, and 185 must

fail.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Department of Law

Enforcement enter a Final Order rejecting PetitionerÓs challenge

to the scoring of questions 59, 126, 179, and 185, and dismiss

the petition in this proceeding.

DONE AND ENTERED this 8th day of July , 2015 , in Tallahassee,

Leon County, Florida.

S

L ISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 8th day of July , 2015 .

COPIES FURNISHED:

Linton B. Eason, Esquire

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302 - 1489

(eServed)

Greg Chapman

5870 Westmont Road

Milton, Florida 32 583

(eServed)

Thomas Kirwin, General Counsel

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

(eServed)

Richard L. Swearingen, Commissioner

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Flo rida 32302

(eServed)

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

wil l issue the Final Order in this case.