JONATHAN C. ANTHONY, )
vs. ) Case No. 99-2916
Respondent. )
An administrative hearing was conducted on September 10, 1999, in Orlando, Florida, by Daniel Manry, Administrative Law Judge, Division of Administrative Hearings. The parties and witnesses attended the hearing in Orlando. The court reporter and the undersigned attended the hearing by video conference from Tallahassee, Florida.
For Petitioner: Jonathan C. Anthony, pro se
The issue in this case is whether Petitioner is entitled to retake the written portion of the examination for state certification as a firefighter (the "firefighter examination").
By letter dated May 24, 1999, Respondent notified Petitioner that he did not pass the retest of the written portion of the firefighter examination and denied Petitioner’s application for certification as a firefighter. Petitioner timely requested an administrative hearing. Respondent referred the matter to the Division of Administrative Hearings to conduct the hearing.
At the hearing, Petitioner testified in his own behalf, presented the testimony of two other witnesses, and submitted no exhibits for admission in evidence. Respondent presented the testimony of one witness and submitted five exhibits for admission in evidence.
The identity of the witnesses and exhibits, and the rulings regarding each, are set forth in the Transcript of the hearing filed on September 17, 1999. Respondent’s Unopposed Motion for Extension for Filing of Proposed Recommended Orders was granted on September 28, 1999. Petitioner did not file a proposed recommended order ("PRO"). Respondent timely filed its PRO on October 6, 1999.
Respondent’s Bureau of Fire Standards and Training (the "Bureau") is located in Ocala, Florida. The Bureau is responsible for certifying firefighters throughout the state. The Bureau is the only entity authorized to schedule and administer the examination for state certification as a firefighter.
A person who wishes to become a firefighter must apply to take the examination for state certification. If the application is approved, the person must first complete a minimum standards course certified by the Bureau and given throughout the state prior to each testing period.
The minimum standards course consists of approximately
360 hours. Students attend class four days a week Monday through Friday from 6:00 p.m. until 10:00 p.m.; and from 8:00 a.m. until 5:00 p.m. on Sunday.
Petitioner satisfactorily completed the minimum standards course conducted from October 26, 1998, through April 2, 1999, at the Mid Florida Tech training center in Orlando, Florida. Upon completion of the course, Petitioner
qualified to take the examination given on April 14 and 15, 1999.
The examination for state certification as a firefighter consists of two parts. One part is a practical examination, consisting of a physical test, and the second part is a written examination. Candidates must wear their work uniforms for the practical examination and their dress uniforms for the written examination.
A person must score 70 percent or greater on each part of the examination to be certified as a firefighter. Petitioner scored 80 percent on the practical examination given on April 15, 1999. However, Petitioner scored only 65 percent on the written examination given on April 14, 1999.
A candidate who does not achieve a passing score on either part of the examination is entitled, by rule, to one retest of that part within six months of the original test. If the candidate does not achieve a passing score on the retest, the candidate must submit a new application for certification and re- take the minimum standards course.
By letter dated April 23, 1999, the Bureau notified Petitioner that he had not achieved a passing score on the written examination given on April 14, 1999. By letter dated April 26, 1999, the Bureau notified Petitioner that the Bureau had scheduled Petitioner for a retest on May 12, 1999.
On May 12, 1999, Petitioner achieved a score of 68 percent on the written portion of the examination. By letter dated May 24, 1999, Respondent notified Petitioner that he did not achieve a passing score on the written examination and denied Petitioner’s application for certification as a firefighter. Petitioner timely requested an administrative hearing.
Petitioner does not challenge a question or score used in either written examination given on April 14 or May 12, 1999. Petitioner challenges the procedure used by the Bureau to determine the sequence of the two-part examination given on April 14 and 15, 1999.
During the minimum standards course, students generally are told to be prepared for either examination in any sequence. However, Fire Chief Mullins, Petitioner’s course instructor, specifically told Petitioner and his fellow students that the
practical examination would be given on April 14, 1999, and that the written examination would be given on April 15, 1999.
The written examination in fact was given on April 14, 1999, and the practical examination was given on April 15, 1999. Respondent did not inform Petitioner and his fellow students that the written examination would be given on April 14, 1999, until the morning of the test.
Chief Mullins is the agent of Respondent. The Bureau inspects, approves, and certifies each training center, its course curriculum, and its course instructors. Bureau rules and policies are binding on training centers and on training center personnel, including course instructors. The Bureau can decertify training centers and personnel if either violates agency policy. Course instructors have only that authority granted to them by the Bureau and are responsible to the Bureau.
The testimony of Respondent’s witness claimed that Chief Mullins did not have actual authority to represent to his students the sequence in which the two-part examination would be given. Assuming arguendo that the testimony is supported by applicable law, the testimony is not dispositive. Chief Mullins had the apparent authority to make each representation to Petitioner and his fellow students, and the students reasonably relied on that representation.
Petitioner relied on the representation by Respondent’s agent to Petitioner’s detriment. The detriment to Petitioner consisted of three parts. First, Petitioner was lulled into
inaction and lost his opportunity for final preparation before the written examination. Second, the lost opportunity shocked and unnerved Petitioner during the test. Finally, Petitioner was denied an opportunity to take the written examination a second time without being misled by Respondent’s agent.
The first part of the detriment to Petitioner occurred on April 13, 1999. In reliance upon Respondent’s misleading representation, Petitioner deferred his final preparation for the written examination until after the practical test which Petitioner believed in good faith would be given on April 14, 1999. Petitioner’s scheduled final preparation for the written examination included a study group that had been prearranged between Petitioner and some of his fellow students to be conducted after the practical examination was completed. When Respondent scheduled the written examination on April 14, 1999, rather than April 15, 1999, Petitioner lost the opportunity Petitioner had scheduled for final study and preparation during the remainder of the day and night following the practical examination.
The second part of the detriment to Petitioner occurred
to Petitioner’s state of mind during the written examination given on April 14, 1999. Petitioner was shocked and unnerved by the lost opportunity for final preparation before the written examination.
The last part of the detriment to Petitioner occurred when Respondent counted the retest on May 12, 1999, as the second
test rather than the first test. The test given on May 12, 1999, was the first test not flawed by misleading representations from Respondent’s agent which lulled Respondent into inaction before the written examination.
The retest on May 12, 1999, cured the first and second part of the detriment to Petitioner by allowing Petitioner time for final preparation before the written examination. However, the retest did not cure the third part of the detriment to Petitioner. By counting the test given on May 12 as the second test, Respondent did not cure the procedural defect in counting a flawed test as Petitioner’s first test. The detriment to Petitioner is that he would be required to re-apply for certification and take the 360-hour minimum standards course again before he could take a second written examination not flawed by misleading representations that lulled Petitioner into inaction before the written examination.
When Petitioner was given the opportunity for final preparation before the written examination on May 12, 1999, his score improved three percentage points from 65 percent to 68 percent. If Petitioner is given a second opportunity for final preparation before the test, he may, or may not, achieve the additional two percentage points needed to score 70 percent on the written examination. Petitioner is entitled, by rule, to a second opportunity to take the written test without being lulled into inaction before the test by misleading representations from Respondent.
Respondent argues that tests are frequently rescheduled for weather or other acts of God. However, an act of God was not the reason Respondent rescheduled the sequence of the two-part examination on April 14 and 15, 1999. Respondent scheduled the sequence of the two-part examination at issue in this case for administrative convenience.
The Bureau determines the number of days required to give the examination offered to graduates of each training center at the beginning of each training course when the training center sends the Bureau a course roster. The Bureau gives the examination for certification as a firefighter in one day if there are less than 15 applicants enrolled in a training course and in two days if there are 15 to 30 applicants enrolled. If there are more than 30 applicants enrolled, the Bureau gives the examination over three days, adding an additional day for each increment of 15 applicants.
The Bureau does not determine the sequence in which the two parts of the examination will be given until the end of the training course, approximately one week before the first test date, and does not inform the test center until that time. The course instructor, therefore, could not have known what the sequence of testing was going to be on April 14 and 15, 1999, when he misled Petitioner and his fellow students into believing the written examination would be given on April 15, 1999. It is equally correct, however, that neither Petitioner nor his fellow students could have known, or should have known, that the course
instructor was unaware of the sequence of testing when the course instructor repeatedly misled Petitioner and his fellow students during the training course.
The course instructor misrepresented the sequence of testing throughout the course beginning sometime in February 1999 and thereafter until the course was concluded on April 2, 1999. Several times during March 1999, the course instructor represented to Petitioner and his fellow students that the written examination would be given on April 15, 1999.
Respondent has no policy that establishes standards for determining the sequence of the two-part examination. Examiners who administer the tests travel from Ocala to each test site. Approximately one week before leaving for the test site, examiners inform someone at the training center of the testing sequence.
Respondent failed to explicate any standards for determining the sequence of testing except acts of God, which are irrelevant to the facts in this case; the general principle that firefighters must be prepared for any eventuality, which Respondent failed to explain in the record; and the unbridled discretion of the examiner. Respondent did not explicate why the examiner for the examination given on April 14 and 15, 1999, decided to give the written examination on the earlier date or why the course instructor did not correct his prior misleading representations during the week before the examination.
Respondent’s witness testified that Petitioner and his fellow students had no right to know the sequence of testing. While Petitioner and his fellow students may not have had a right to know the sequence of testing, their course instructor volunteered that information and carried out that voluntary agency action in a misleading manner that lulled Petitioner into inaction.
Respondent may not have been required to provide notice of the sequence of testing to Petitioner and his fellow students. Once Respondent voluntarily undertook to provide notice of the sequence of testing, Respondent was required to carry out its voluntary action in a fair and adequate manner.
The notice voluntarily given by Respondent’s agent was neither fair nor adequate but was misleading, arbitrary, and capricious. The course instructor had no way of knowing the sequence of testing before the telephone call from the test examiner, and the test examiner had no standards to limit his discretion to determine the sequence of testing.
Respondent asserts that the changed testing sequence, if any, did not cause extreme hardship to Petitioner. In support of its assertion, Respondent submitted evidence that other students overcame any hardship and passed the written test.
Respondent misses the point. If some students were not harmed by Respondent’s misleading notice, the absence of harm does not eliminate the error in the agency notice to those students. It merely means that the error in the notice to those
students was harmless error. The lack of harm to those students does not eliminate the prejudice to a student who was harmed by the error in notice. If an agency voluntarily undertakes action and does so in a faulty and misleading manner, the agency properly should suffer the consequences of such action rather than the person who is prejudiced by such action.
The harm caused by faulty and misleading notice to a particular student is not measured by the prejudice, or lack of prejudice, to other students. Such harm is personal and is properly measured by the facts and circumstances unique to the individual student and his or her state of mind.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.57(1), Florida Statutes (1997). The parties were duly noticed for the hearing. (All chapter and section references are to Florida Statutes (1997) unless otherwise stated.)
The burden of proof is on Petitioner. Petitioner must show by a preponderance of evidence that the examination was faulty, arbitrarily or capriciously worded or graded, or that Petitioner was arbitrarily or capriciously denied credit through a grading process devoid of logic or reason. Harac vs. Department of Professional Regulation, 484 So. 2d 1333, 1338 (Fla. 3d DCA 1986); State ex rel Glaser vs. J.M. Pepper, 155 So. 2d 383 (Fla. 1st DCA 1963); State ex rel I.H Topp vs. Board of
Electrical Contractors for Jacksonville Beach, Florida, 101 So. 2d 583 (Fla. 1st DCA 1958).
Petitioner does not allege that the examination was arbitrarily or capriciously worded or graded. Nor does Petitioner allege that he was denied credit through a grading process devoid of logic or reason. Petitioner alleges that the examination was faulty in that Respondent provided Petitioner with misleading notice of the sequence of testing for the written and practical tests given on April 14 and 15, 1999.
Petitioner satisfied his burden of proof. Petitioner showed by a preponderance of the evidence that the written examination given on April 14, 1999, was faulty.
Neither party cited any authority that requires Respondent to provide Petitioner with notice of the sequence of testing. However, Respondent undertook such action voluntarily.
The testimony of Petitioner and his witnesses shows that the course instructor for Petitioner’s training class voluntarily represented that the written examination would be given on April 15, 1999. For reasons stated in the Findings of Fact and incorporated by this reference, the class instructor was Respondent’s servant or agent. Testimony about the instructor’s statements is admissible pursuant to Section 90.801(18)(d). That testimony was consistent, credible, and persuasive.
A state agency may not be required to carry out a particular action. However, an agency which undertakes voluntary action must do so in a fair and adequate manner. Washington v.
Kirskey, 811 F.2d 561 (11th Cir. 1987). Fair play is the essence of due process. Galvon v. Press, 347 U.S. 522, 74 S.Ct. 737,
L.Ed. 911 (1954); Brady v. Gebbie, 859 F.2d 1543 (9th Cir. 1988);
Matthews v. Harney County, 819 F.2d 889 (9th Cir. 1987).
Unlike the employees in Galvon and its progeny, Petitioner does not have a proprietary right in a position of employment. By rule, however, Petitioner has a legal right to a fair opportunity to take two written tests. An agency cannot deviate from a valid existing rule. Section 120.68(7)(e)2.
The voluntary notice preceding the first examination was neither adequate nor fair. Rather, it was misleading, arbitrary, and capricious. The course instructor had no way of knowing the sequence of testing before the telephone call from the test examiner, and the test examiner had no standards to constrain the exercise of unbridled agency discretion in determining the sequence of testing.
Petitioner reasonably relied on the faulty notice given by Respondent’s course instructor to the detriment of Petitioner. The misleading notice lulled Petitioner into inaction in his final preparation before the written examination. Petitioner was shocked and unnerved by the changed testing sequence and by the lost opportunity for final preparation before the written test.
The remedy for the inaction caused by Respondent’s misleading information is a second opportunity for final preparation before the written examination. The time requirements for a second examination within six months of the
first examination are tolled during the period of this proceeding. Machules vs. Department of Administration, 523 So. 2d 1132 (Fla. 1988).
The three percent increase in Petitioner’s score between the written test taken on April 14 and that taken on
May 12, 1999, shows that final preparation has a positive effect on Petitioner’s test performance. Pursuant to Chapter 4A-37 of Respondent’s rules, Petitioner is entitled to a fair and meaningful retake of the written examination given on
May 12, 1999.
RECOMMENDED that Respondent enter a final order granting Petitioner's challenge to the written examination given on April 14, 1999, and granting Petitioner’s request to retake the written examination given on May 12, 1999.
DONE AND ENTERED this 6th day of December, 1999, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 1999.
Daniel Y. Sumner, General Counsel Department of Insurance
Jonathan C. Anthony
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.
