STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KUTINA MCLEOD, )

)

Petitioner, )

)

vs. ) Case No. 02-2726

) DEPARTMENT OF LAW ENFORCEMENT, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case by video teleconference before J. D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings with the Petitioner and witnesses appearing from Key West, Florida, on August 30, 2002.

APPEARANCES

For Petitioner: Kutina McLeod, pro se

309 Julia Street

Key West, Florida 33040

For Respondent: Grace A. Jaye, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302-1489 STATEMENT OF THE ISSUES

Whether the Petitioner, Kutina McLeod, should have received credit for answers provided on the examination for the State Officers Certification Examination for Correctional Officers (the exam).

PRELIMINARY STATEMENT

On April 24, 2002, the Petitioner took the exam for the third time. The Petitioner was required to pass the course entitled "Interpersonal Skills 2, Communications" in order to achieve certification as a correctional officer. After the Petitioner received a notice that she had failed the exam and would be required to re-enter and successfully complete the basic training program in order to satisfy all requirements of the program, she elected to challenge the exam results. That challenge was forwarded to the Division of Administrative Hearings for formal proceedings on June 27, 2002.

Prior to the hearing a Protective Order was entered requiring all parties to maintain the confidentiality of the exam questions and answers. Further, such documents have been sealed in the record and, in accordance with law, shall not be available for public inspection.

At the hearing, the Petitioner testified on her own behalf. The Respondent presented testimony from Fernando Lopez, Michael H. Jones and Dwight Angel. All exhibits were received in evidence, sealed in an envelope, and marked for identification as Joint Exhibit 1.

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 September 16, 2002. The Petitioner filed a letter commenting on the hearing on September 4, 2002. The Respondent's Proposed Recommended Order was filed on September 24, 2002. All proposals have been fully considered in the preparation of this order.

FINDINGS OF FACT

1. The Petitioner is an applicant for certification as a correctional officer.

2. The Respondent is the state agency charged with the responsibility of certifying correctional officers. As such, it must administer the examinations used to assure competency for certification.

3. The examination at issue in this proceeding is known as the State Officers Certification Examination for Correctional Officers. It is a multiple-choice test that is scored by marking the best of the proposed answers. Only one of the proposed answers is deemed correct.

4. As to this Petitioner, four questions were challenged that the Petitioner did not receive credit for on the exam.

   As to each challenged question, the Petitioner felt her answer should have received credit.

5. All of the questions challenged by the Petitioner were taken almost verbatim from the exam's course materials. The Petitioner attended the course and was instructed as to

   each of the challenged matters. The instruction did not deviate from the language that later appeared on the exam.

6. None of the challenged questions proved to be statistically invalid by virtue of the number of wrong answers provided to the question. In fact, as to one of the Petitioner's challenged questions, 88 percent of the persons tested responded accurately. Only 5 percent of the persons tested gave the answer that the Petitioner provided.

7. The Petitioner's confusion as to the answers she provided was probably influenced by her experiences as an officer within a jail setting. The Petitioner provided answers based on the totality of her experience and not just the material covered in the instructional course. None of the Petitioner's answers, however, were more correct than those set forth by the Respondent.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Section 120.57, Florida Statutes.

9. The Petitioner bears the burden of proof in this cause to establish that the answers she provided should have received credit on the exam. To do so the Petitioner must establish that the questions were faulty, arbitrarily or capriciously worded or graded, or that she failed to receive

   credit through a grading process that was devoid of logic or reason. The Petitioner has failed to meet that burden.

10. 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.

       
       

11. In this case the questions posed, and now challenged by the Petitioner, were directly culled from the course materials. They were not arbitrarily designed, arbitrarily graded, or faulty. That the Petitioner became confused by the questions did not, as a matter of law, render them defective or devoid of logic or reason.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Law Enforcement, Criminal Justice Standards and Training Commission, enter a Final Order dismissing the Petitioner's challenge to the exam.

DONE AND ENTERED this 30th day of October, 2002, in Tallahassee, Leon County, Florida.

___________________________________

J. D. PARRISH Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 2002.

COPIES FURNISHED:

Grace A. Jaye, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489

Kutina McLeod

309 Julia Street

Key West, Florida 33040

Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

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.

Docket for Case No: 02-002726

Orders for Case No: 02-002726