STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
TOMMY TAYLOR, )
)
Petitioner, )
)
vs. ) CASE NO. 95-4490
)
FLORIDA CRIMINAL JUSTICE ) STANDARDS AND TRAINING COMMISSION ) and FLORIDA DEPARTMENT OF LAW ) ENFORCEMENT, )
)
Respondents. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was conducted in this case at Key West, Florida, on November 29, 1995, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Mr. Tommy Taylor, pro se
Post Office Box 421158
Summerland Key, Florida 33042-1158
For Respondent: Mark P. Brewer, Esquire
Florida Department of Law Enforcement Post Office Box 1489
Tallahassee, Florida 32302-1489
STATEMENT OF THE ISSUE
This is an examination challenge proceeding in which the Petitioner contends that he should be given additional credit for his answers to two challenged questions from Section 5 of the April 25, 1995, Law Enforcement Officer Basic Recruit Training Examination.
PRELIMINARY STATEMENT
In his original petition, the Petitioner challenged three examination questions on the subject examination; namely, questions 30, 38, and 54. At the commencement of the formal hearing on November 29, 1995, the Respondent announced that it would stipulate that the Petitioner should be given credit for his answer to question 38. Accordingly, the case went to hearing on the issue of the Petitioner's entitlement to credit for his answers to questions number 30 and 54.
To facilitate the presentation of evidence, the Hearing Officer requested that the Respondent present its evidence first. 1/ The Respondent presented
the testimony of three witnesses: Ms. Kimberly M. Allen, Dr. Ansu Mason, and Lt. Laurie Luher. 2/ The Respondent also offered six exhibits, all of which were received in evidence. 3/ Official recognition was also taken of the Petitioner's responses to interrogatories and responses to requests for admission in this case.
The Petitioner testified on his own behalf and also presented the testimony of Mr. Terry Bondurant and Mr. Larry LaClair. 4/ The Petitioner did not offer any exhibits.
At the conclusion of the formal hearing neither party intended to have a transcript prepared and no transcript has been filed with the Hearing Officer. The parties were allowed ten days from the conclusion of the hearing within which to serve their respective proposed recommended orders. On December 5, 1995, the Petitioner timely served a written document in which he summarized his arguments in support of his position. The Petitioner's summary does not contain any portion designated as proposed findings of fact, and consists primarily of arguments. Copies of several documents were attached to the Petitioner's summary. Those copies have been treated as unauthorized post-hearing exhibits. Accordingly, those copies have not been considered in the preparation of this Recommended Order.
On December 8, 1995, the Respondent served a timely proposed recommended order containing proposed findings of fact and conclusions of law. The proposed findings of fact are addressed with specificity in the Appendix to this Recommended Order.
FINDINGS OF FACT
Background matters
The Respondent agencies are agencies of the State of Florida and are charged by statute with responsibility for the testing and certification of law enforcement officers in Florida.
Petitioner seeks to become a Florida certified law enforcement officer. To that end, on April 25, 1995, he sat for Section 5 of the certification examination. In order to receive a passing grade on Section 5 of the examination, the Petitioner must answer 80 percent of the questions correctly. The Petitioner was originally given a grade of 75 percent on the April 25, 1995, examination. The examination was then manually graded and the Petitioner was awarded a raw score of 46 points which equates to a percentage score of 77 percent correct.
At the commencement of the hearing the Respondents stipulated that the Petitioner should be given credit for his answer to question 38. That stipulation had the effect of increasing the Petitioner's raw score to 47 and increasing his percentage of correct answers to 78.3 percent. The Petitioner needs a raw score of at least 48 in order to have answered 80 percent of the questions correctly.
Multiple choice questions on a certification examination should have only one correct answer choice. If more than one of the answer choices is arguably valid it is the policy of the Criminal Justice Standards and Training Commission to give candidates the benefit of the doubt and give them credit for an arguably correct answer other than the "keyed" correct answer.
Question Number 30
Question number 30 on Section 5 of the April 25, 1995, examination relates to Law Enforcement Objective CJD-704(A1), the topic of which is "Use of Force Matrix/Levels of Resistance Matrix." Question number 30 is a multiple choice question, the answer to which involves identification of the appropriate initial officer response level to a situation described in the question. 5/
The situation described in question number 30 involves conduct by the subjects described in the question that could be interpreted as at least level 5 resistance on the Level of Resistance Matrix. When faced with that level of resistance, the Use of Force Matrix authorizes a broad range of officer responses from as little as "arrival" or "officer presence" to as much as "incapacitation," with nine or ten authorized intermediate responselevels in between. Judging from the "keyed" correct answer, question number 30 was apparently intended to test the candidates' knowledge of the first response level itemized on the Use of Force/Levels of Resistance Matrix. However, the question is worded in such a way that it appears to be asking what the candidate would do first if he or she responded to the situation described in the question. In view of the definitions in Law Enforcement Objective CJD-704(A1) of the terms "Presence" and "Dialogue" under the caption "OFFICER RESPONSE LEVELS," the answer chosen by the Petitioner is as good an answer, if not a better answer, than the "keyed" answer. 6/
Question number 30 is also ambiguous because of all of the potential variables that might be present in a situation such as that described in the question, which variables could change the nature of the most appropriate response. By reason of this ambiguity in the subject question, the answer chosen by the Petitioner is as good an answer, if not a better answer, than the "keyed" answer.
Question Number 54
Question number 54 on Section 5 of the April 25, 1995, examination relates to Law Enforcement Objective CJD-723(F1), the topic of which is "Vehicle Pullovers." Question number 54 is a multiple choice question, the answer to which involves identification of the first thing an officer should do in the situation described in the question. 7/
Question number 54 is ambiguous and misleading when the question is considered in light of the language of the relevant portions of Law Enforcement Objective CJD-723(F1), which read as follows:
OBJECTIVES:
The student will:
* * *
Describe the proper positioning of the patrol vehicle, to include:
approximately 15 feet behind the vehicle
approximately 3 feet to the left
turn the radio up
leave flashing lights on during the entire stop.
Recall that an officer should constantly observe the vehicle and occupants.
Identify the procedures to be followed while approaching the vehicle on foot, to include:
be aware of traffic conditions
observe the driver and passengers by looking in the side or rear windows
check the trunk to be sure it is closed.
approach slowly and carefully from the left front door of the patrol vehicle to just behind the left front door of the violator's vehicle when only the front seat is occupied
minimize exposure by standing just to the
rear of the violator's vehicle, if rear seat occupied
visually check persons and passenger's compart- ment for weapons
carry flashlight, if needed, leaving strong hand free for possible weapon use
Recall that it is important to have the driver turn off the engine [immediately] after stopping.
Identify steps to follow during the initial violator contact, to include:
greet the offender with courtesy
obtain the driver's license and registration [immediately] to gain control
briefly state reasons for stop
do not accept a purse or wallet with a license inside; ask the offender to remove it
do not argue with the offender; thoroughly explain the reason for the stop. [Emphasis added.]
The language from CJD-723(F1) quoted above does not purport to prioritize the actions it describes, nor does it clearly state which of the many actions described in that language should be taken first. Several of the actions described above could be reasonably identified as the first action a police officer should take under the circumstances described in question number
The answer chosen by the Petitioner is as good an answer, if not a better answer, than the "keyed" answer. 8/
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sec. 120.57(1), Fla. Stat.
In a case of this nature the Petitioner bears the burden of proving by a preponderance of the evidence his entitlement to the relief he seeks. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778, 787 (Fla. 1st DCA 1981).
As observed in the Findings of Fact above, the answers to questions 30 and 54 chosen by the Petitioner are answers as good as, or better than, the "keyed" answers to those questions. In view of the Commission's policy of giving candidates credit for answer choices which are arguably as valid as the "keyed" answers, the Petitioner should be given credit for his answers to both question 30 and question 54. To do otherwise would be illogical and, therefore, arbitrary.
On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be issued in this case concluding that the Petitioner is entitled to credit for his answers to questions 30 and 54 and adjusting his examination score accordingly.
DONE AND ENTERED this 24th day of January, 1996, at Tallahassee, Leon County, Florida.
MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 24th day of January 1996.
ENDNOTES
1/ This change in the normal order of presentation did not change the burden of proof. In a case of this nature the party challenging the examination bears the burden of proving by a preponderance of the evidence his entitlement to the relief requested.
2/ Witnesses Allen and Mason are employed by the Standards and Training Division of the Florida Department of Law Enforcement; witness Luher is an Instructor at the Florida Marine Patrol Training Academy.
3/ Two of the exhibits, Respondent's 4 and Respondent's 5, are comprised of the text of the examination questions at issue here. While these two exhibits have been in the possession of the Hearing Officer, they have been treated as sealed confidential documents and they are being returned to the Respondent in a sealed envelope.
4/ Bondurant and LaClair are both employed at the Criminal Justice Academy of the Florida Keys Community College. They both have
prior law enforcement experience and are both presently certified instructors at the Criminal Justice Academy of the Florida Keys Community College.
5/ In order the preserve the confidentiality of the examination question, the text of the question is not included in this Recommended Order. The full text of the question appears in Respondent Exhibit 4.
6/ In view of the way the question is worded so as to appear to be asking what the candidate would do, an even better answer choice would appear to be "verbal direction," but "verbal direction" was not one of the answer choices for question number 30. Where what appears to be the best answer to the question is not among the answer choices, there is serious doubt as to the subject matter validity of the question. The Hearing Officer's doubts as to the subject matter
validity are based on a common sense reading of the language in Law Enforcement Objective CJD-704(A1).
7/ In order the preserve the confidentiality of the examination question, the text of the question is not included in this Recommended Order. The full text of the question appears in Respondent Exhibit 5.
8/ In view of the quoted language for CJD-723(F1), the most logical literal answer to question number 54 would be "properly position the patrol vehicle," but that was not one of the available answer choices. The next most logical answer would "observe the stopped vehicle before approaching it," but that was not one of the available answer choices. As between the "keyed" answer and the answer chosen by the Petitioner, the latter appears to be the better choice because the answer chosen by the Petitioner is one of the actions described in CJD-723(F1) as action that should be taken "immediately."
APPENDIX
The following are my specific rulings on all proposed findings of fact submitted by all parties.
Findings submitted by Petitioner:
The Petitioner did not submit any proposed findings of fact. The Petitioner's post-hearing summary consists almost entirely of argument.
Findings submitted by Respondent:
Paragraph 1: Accepted, although this is more nearly a conclusion of law, rather than a finding of fact.
Paragraphs 2, 3, and 4: Accepted.
Paragraphs 5, 6, 7, 8, 9, and 10: Rejected as either not fully supported by persuasive competent substantial evidence or as contrary to the greater weight of the evidence.
Paragraph 11: Rejected as irrelevant to the disposition of this case.
COPIES FURNISHED:
Mr. Tommy Taylor, pro se Post Office Box 421158
Summerland Key, Florida 33042-1158
Mark P. Brewer, Esquire
Florida Department of Law Enforcement Post Office Box 1489
Tallahassee, Florida 32302-1489
Leon Lowry, II, Director Criminal Justice Standards
and Training Commission Post Office Box 1489 Tallahassee, Florida 32302
Michael Ramage, General Counsel Criminal Justice Standards
and Training Commission Post Office Box 1489 Tallahassee, Florida 32302
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
CRIMINAL JUSTICE STANDARDS AND TRAINING
COMMISSION
TOMMY TAYLOR,
Petitioner,
vs. DOAH CASE NUMBER: 95-4490
CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION,
Respondent.
/
FINAL ORDER
This matter came before the Criminal Justice Standards and Training Commission (the Commission) at a public meeting on April 18, 1996, in Altamonte Springs, Florida. Petitioner, having failed to successfully pass the law enforcement certification examination he took on April 25, 1995, has contested his score on that examination by challenging Questions 30 and 54 of the examination. In accordance with 120.57(1), Florida Statutes, a formal hearing was held on this matter, and a Recommended Order was submitted by a Hearing Officer from the Division of Administrative Hearings (DOAH) to the Commission for consideration. The Respondent filed exceptions to the Recommended Order, a copy of which is attached and incorporated herein by reference.
The Commission has reviewed the Administrative Complaint, the Recommended Order, the exceptions filed by the Respondent, the transcript of the formal
hearing, the documentary evidence introduced at the formal hearing, and pleadings of the parties in the case file; has heard arguments of the parties; and is otherwise fully advised in the matter. The Commission finds as follows:
Standards for Review
Under 120.57(1)(b)10, Florida Statutes, the Commission may reject or modify the Hearing Officer's conclusions of law and interpretations of administrative rules in the Recommended Order. The Commission, however, may not reject or modify the Hearing Officer's findings of fact unless the Commission determines from a review of the complete record that 1) those findings of fact were not based on competent substantial evidence or 2) the proceedings on which the findings of fact were based did not comply with the essential requirements of the law.
The Florida Supreme Court, in De Groot v. Sheffield, 95 So.2d 912, 916 (Fla. 1957), defined "competent substantial evidence" to be evidence that is "sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached."
Additionally, the Commission may not reweigh the evidence, resolve conflicts in the evidence, judge the credibility of witnesses or otherwise interpret the evidence anew simply to fit its desired conclusion. Heifetz v. Department of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985).
Nor may the Commission modify the recommended action in the Recommended Order without first reviewing the complete record. 120.57(1)(b)10, Florida Statutes.
Rulings on Exceptions
The Respondent raises a number of exceptions to the Hearing Officer's Recommended Order. The Petitioner filed no exceptions to the Recommended Order. The Commission's rulings on the Respondent's exceptions are as follows:
The Commission rejects the Respondent's exception that Footnote 2 of the Recommended Order fails to show that Dr. Mason was recognized as an expert in the area of psychometrics.
The Commission rejects the Respondent's exception that Footnote 2 of the Recommended Order fails to show that Lt. Luher was recognized as an expert witness in the area of Basic Law Enforcement Instruction and Basic Law Enforcement curriculum, including Defensive Tactics and Vehicle Operations.
The Commission accepts the Respondent's exception to that part of paragraph 4 of the Recommended stating that the Commission had a "policy" of giving credit for "arguably correct" answers on certification examinations. The Commission, after a review of the complete record of the formal hearing, finds that there is no competent substantial evidence in the record to support the Hearing Officer's finding regarding the so-called "policy." The Commission has never had such a "policy," expressed or implied, nor has the Commission found any evidence in the record indicating that such a "policy" existed. Without attempting to attribute a reason for the finding on the "policy," the Commission notes that originally the Petitioner challenged three test questions but, like all other officer candidates who took the examination and missed Question 38, was given credit by the Commission's staff for that question because of a challenge brought by another examinee. The fact that the Commission's staff,
based on the recommendations of subject matter experts, accepts a proper challenge to an examination question and awards credit for a correct answer to all examinees does not imply that the Commission has a "policy. . . to give candidates the benefit of the doubt and give them credit for an arguably correct answer other than the 'keyed' correct answer." (R.O., par. 4) The Commission has no such "policy."
The Commission accepts the Respondent's exception to paragraph 6 of the Recommended Order. The Commission, after a review of the complete record of the formal hearing, finds that there is no competent substantial evidence in the record to support the Hearing Officer's conclusion that question number 30 "is worded in such a way that it appears to be asking what the candidate would do first if he or she responded to the situation described in the question." (R.O., par. 6) Question 30 presents a one-sentence scenario and concludes with the sentence: "What is your first officer response level?" The phrase "first officer response level" is a term of art on which law enforcement officer candidates are trained and tested. Therefore, the only correct answer to question 30 was option D: "Presence." The Hearing Officer's conclusion that the Petitioner's answer, "is as good an answer, if not a better answer, than the 'keyed' answer" (R.O., par. 6) is not supported by fact or law.
For the reasons stated in paragraph 4, above, the Commission accepts the Respondent's exceptions to paragraph 7 of the Recommended Order. There is no evidence in the record to support the Hearing Officer's conclusion that Question 30 is ambiguous.
The Commission accepts the Respondent's exceptions to paragraph 9 of the Recommended Order, in which the Hearing Officer concludes that Question 54 is "ambiguous and misleading." Question 54 is straightforward:
What is the first action an officer should take after stopping a traffic violator?
Ask the violator for his/her driver's license.
Explain the reason for stopping the violator.
Greet the violator with courtesy.
Make the violator turn off the head lights.
Based on Law Enforcement Objective CJD-723 (F1), cited in relevant part in paragraph 9 of the Recommended Order, and in the context of the four options presented for that question, the only correct answer is "C." There is no evidence in the record to support the Hearing Officer's conclusion that Question
54 is ambiguous.
The Commission accepts the Respondent's exceptions to paragraph 10 of the Recommended Order. For the reasons stated in paragraph 6, above, there is nothing to support the Hearing Officer's conclusion that the Petitioner's answer to Question 54 "is as good an answer, if not a better answer, than the 'keyed' answer." (R.O., par. 10)
The Commission accepts the Respondent's exceptions to paragraph 13 of the Recommended Order. For the reasons stated in paragraphs 1-7, above, the Commission rejects the Hearing Officer's conclusions of law in paragraph 13, especially the conclusion that not giving the Petitioner credit for his answers to Questions 30 and 54 "would be illogical and, therefore, arbitrary." (R.O., par. 13)
III Findings of Fact
The Hearing Officer's findings of fact in paragraphs 1-3, 5 and 8 of the Recommended Order are approved, adopted and incorporated herein by reference. For reasons set forth in the Rulings on Exceptions, above, the Commission rejects the Hearing Officer's conclusions in paragraphs 4, 6, 7, 9 and 10 of the Recommended Order.
IV. Conclusions of Law
The Hearing Officer's conclusions of law in paragraphs 11 and 12 of the Recommended Order are approved, adopted and incorporated herein by reference. The Commission rejects the Hearing Officer's conclusions of law in paragraph 13 of the Recommended Order. In the absence of competent substantial evidence in the record to support a finding that Questions 30 and 54 are arbitrary or devoid of logic and reason, the Hearing Officer may not substitute his judgment on testing questions and answers for that of the Commission. State v. Board of Electrical Examiners, 101 So.2d 583 (Fla. 1st DCA 1958). See also Harac v.
Department of Professional Regulation, 484 So.2d 1333 (Fla. 3rd DCA 1986).
It is therefore ORDERED AND ADJUDGED that the Petitioner's challenge to Questions 30 and 54 of the law enforcement officer certification examination he took on April 25, 1995, is hereby DENIED.
This Final Order will become effective upon filing with the Clerk of the Department of Law Enforcement.
SO ORDERED this 10th day of June, 1996.
CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION
WILLIAM A. LIQUORI CHAIRMAN
NOTICE
THIS ORDER CONSTITUTES FINAL AGENCY ACTION. ANY PARTY WHO IS ADVERSELY AFFECTED BY THIS ORDER HAS THE RIGHT TO SEEK JUDICIAL REVIEW UNDER SECTION 120.68, FLORIDA STATUTES, BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE CLERK OF THE DEPARTMENT OF LAW ENFORCEMENT, P.O. BOX 1489, TALLAHASSEE, FLORIDA 32302-1489, AND BY FILING A SECOND COPY OF THE NOTICE OF APPEAL WITH THE APPROPRIATE DISTRICT COURT OF APPEAL IN ACCORDANCE WITH RULE 9.110, FLORIDA RULES OF APPELLATE PROCEDURE. SUCH NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF THE DATE THIS ORDER IS RENDERED.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished to TOMMY TAYLOR, Post Office Box 421158, Summerland Key, Florida 33042-1158, by
U.S. Mail on or before 5:00 P.M., this 10th day of June, 1996.
Brenda S. Miller
cc: Honorable Richard D. Roth Monroe County Sheriff's Office 5525 College Road
Key West, Florida 33040-6547
| Issue Date | Proceedings |
|---|---|
| Jun. 13, 1996 | Final Order filed. |
| Jun. 12, 1996 | Final Order filed. |
| Jan. 24, 1996 | Recommended Order sent out. CASE CLOSED. Hearing held 11-29-95. |
| Dec. 08, 1995 | (Respondent) Recommended Order (for Hearing Officer signature) filed. |
| Dec. 07, 1995 | Letter to Hearing Officer from Tommy Taylor Re: Summation of Administrative Hearing on November 29, 1995, Key West, Florida filed. |
| Nov. 29, 1995 | CASE STATUS: Hearing Held. |
| Nov. 22, 1995 | (Respondent) Notice of Discovery Response w/cover letter filed. |
| Nov. 17, 1995 | Order sent out. (Motion to Relinquish denied) |
| Nov. 15, 1995 | (Respondent) Notice of Telephone Hearing; Cover Letter filed. |
| Nov. 13, 1995 | (Respondents) Motion to Relinquish Jurisdiction; (Respondents) Motion for Matters to Be Admitted; (Respondents) Request for Admissions; (Respondents) Motion to Compel Discovery filed. |
| Oct. 25, 1995 | Notice of Service of Respondent`s First Set of Interrogatories filed. |
| Oct. 24, 1995 | (Respondent) Notice of Service of Respondent`s First Set of Interrogatories; Letter to Mark Brewer from Tommy Taylor (cc: Hearing Officer) Re: Questions from the certification exam filed. |
| Oct. 10, 1995 | Notice of Service of Respondent`s First Set of Interrogatories; Request for Admissions filed. |
| Oct. 03, 1995 | Letter to Hearing Officer from Tommy Taylor Re: Requesting information; Letter to Tommy Taylor from Patricia S. Melton Re: Reviewing the questions and answers indicated on certification examination challenge form filed. |
| Sep. 28, 1995 | Joint Response filed. |
| Sep. 21, 1995 | Notice of Hearing sent out. (hearing set for 11/29/95; 10:00am; Key West) |
| Sep. 18, 1995 | Initial Case File Pleadings; & Cover Letter to MMP from M. Brewer filed. |
| Sep. 11, 1995 | Initial Order issued. |
| Sep. 07, 1995 | Statement Of Facts; Florida Officer Certification Examination (2); Agency referral letter; Request for Administrative Hearing, letter form filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 10, 1996 | Agency Final Order | |
| Jan. 24, 1996 | Recommended Order | Petitioner established entitlement to higher scores on police officer certification examination. |
