STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JASON R. PAGE, )

)

Petitioner, )

)

vs. ) Case No. 05-0553

) DEPARTMENT OF LAW ENFORCEMENT, ) CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on April 26, 2005, by video teleconference, with the Petitioner appearing in West Palm Beach, Florida, and the Respondent appearing in Tallahassee, Florida, before Patricia M. Hart, a duly-designated Administrative Law Judge of the Division of Administrative Hearings, who presided in Tallahassee, Florida.

APPEARANCES

For Petitioner: Jason R. Page, pro se

5939 Northwest Center Street Port St. Lucie, Florida 34986

For Respondent: Grace A. Jaye, Esquire

Florida Department of Law Enforcement Post Office Box 1489

Tallahassee, Florida 32302-1489

STATEMENT OF THE ISSUE

Whether the Petitioner should receive credit for his answers to certain examination questions on the State Officer Certification Examination ("SOCE") administered November 11, 2004.

PRELIMINARY STATEMENT

In a letter dated January 6, 2005, Jason R. Page was notified by the Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission ("Commission"), that his challenge to the SOCE had been reviewed and that it had been determined that he would not receive additional credit for any of the questions challenged. In a letter dated February 4, 2005, Mr. Page requested an administrative hearing before an administrative law judge. The Commission forwarded the matter to the Division of Administrative Hearings for assignment of an administrative law judge. The case was originally assigned to Administrative Law Judge Michael Parrish but subsequently transferred to the undersigned. Pursuant to notice, the final hearing was conducted on April 26, 2005.

On February 22, 2005, the Commission filed a response to a request by Administrative Law Judge Parrish in which it stated that a passing score on the SOCE was 80%; that Mr. Page had achieved a score of 75% the third time he had taken the SOCE1; that no specific point value was assigned to a specific question

but that, overall, the questions were worth .333 points each; and that Mr. Page had challenged questions numbered 24, 35, 46, 47, 55, 63, 88, 102, 159, 193, 195, 201, 219, 248, 251, and 267.

At the hearing, the undersigned requested that the Commission present its evidence first to assist in properly framing the issues. The Commission presented the testimony of Dwight Angel, Roy Gunnarsson, and Carol Hendrix, and Respondent's Exhibits 1 through 3 were offered and received into evidence. Mr. Page testified in his own behalf and presented the testimony of Justin Rocque. Mr. Page offered no documents into evidence. At the Commission's request, official recognition was taken of Section 943.1397, Florida Statutes, and of Florida Administrative Code Rule Chapter 11B-30. At the conclusion of the hearing, Mr. Page withdrew his challenge to questions numbered 24, 35, 46, 88, 102, 193, 201, 219, and 267, leaving at issue his answers to questions numbered 47, 55, 63, 159, 195, 248, and 251.

The transcript of the proceedings was filed with the Division of Administrative Hearings. Mr. Page did not submit a post-hearing statement or copies of certain document that the undersigned had requested during the hearing.2 The Commission timely filed proposed findings of fact and conclusions of law, which have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:

1. The Commission is the state agency charged with the responsibility for administering officer certification examinations and for establishing "standards for acceptable performance on each officer certification examination."

   § 943.1397(1), Fla. Stat. (2004).

   
   

2. The SOCE is a multiple-choice examination, and there are four answer choices for each question.

3. Mr. Page was a certified police officer in New Jersey for approximately three and one-half years before moving to Florida. Pursuant to Section 943.13(9), Florida Statutes (2004), Mr. Page was not required to attend a full six-months' basic recruit training program because of his background in law enforcement. Mr. Page did, however, attend a two-week, 80-hour state-certified training program in preparation for taking the SOCE, and he was provided a loose-leaf notebook containing written course materials. The course materials reflect the Commission's curriculum, and these materials are provided to the training institution, which is responsible for copying the materials and providing them to the students.

4. According to the Commission, the correct answer to question 47 is "C"; Mr. Page chose answer "A." Question 47 describes the statutory elements of a crime, and the examination candidate must choose the answer that identifies the crime fitting the statutory elements set forth in the body of the question. Question 47 is clear and unambiguous; the question is statistically valid and classified as a moderately easy question; the correct answer was included among the answer choices provided; and the correct answer is included in the Commission's curriculum and in the materials provided by the Commission to the various training institutions. Mr. Page failed to introduce persuasive evidence establishing that the answer he chose is correct.

5. According to the Commission, the correct answer to question 55 is "D"; Mr. Page chose answer "A." Question 55 describes a scenario, and the answer choices set forth various actions a law enforcement officer could take under the circumstances described. The examination candidate is asked to choose the appropriate action. Question 55 is clear and unambiguous; the question is statistically valid and classified as a moderately difficult question; the correct answer was included among the answer choices provided; and the correct answer is included in the Commission's curriculum and in the materials provided by the Commission to the various training

   institutions. Mr. Page failed to introduce persuasive evidence establishing that the answer he chose is correct.

6. According to the Commission, the correct answer to question 63 is "D"; Mr. Page chose answer "A." Question 63 describes the actions of a person, and the answer choices set forth conclusions a law enforcement officer could draw from these actions. The examination candidate is asked to choose the appropriate conclusion. Question 63 is clear and unambiguous; the question is statistically valid and classified as a difficult question3; the correct answer was included among the choices provided; and the correct answer is included in the Commission's curriculum and in the materials provided by the Commission to the various training institutions. Mr. Page failed to introduce persuasive evidence establishing that the answer he chose is correct.

7. According to the Commission, the correct answer to question 159 is "B"; Mr. Page chose answer "A." Question 159 requires the examination candidate to fill in the blank in the body of the question. The examination candidate must choose the answer that accurately completes the statement contained in the body of the question. Question 159 is clear and unambiguous; the question is statistically valid and classified as a moderately easy question; the correct answer was included among the choices provided; and the correct answer is included in the

   Commission's curriculum and in the materials provided by the Commission to the various training institutions. Mr. Page failed to introduce persuasive evidence establishing that the answer he chose is correct.

8. According to the Commission, the correct answer to question 195 is "A"; Mr. Page chose answer "B." Question 195 describes an activity in which a law enforcement officer might engage, and the examination candidate is asked to choose the answer that best describes the consequences of the officer's engaging in such an activity. Question 195 is clear and unambiguous; the question is statistically valid and classified as an easy question; the correct answer was included among the choices provided; and the correct answer is included in the Commission's curriculum and in the materials provided by the Commission to the various training institutions. Mr. Page failed to introduce persuasive evidence establishing that the answer he chose is correct.

9. According to the Commission, the correct answer to question 248 is "B"; Mr. Page chose answer "C." Question 248 describes a scenario, and the answer choices set forth various actions a law enforcement officer could take under the circumstances described. The examination candidate is asked to choose the answer describing the appropriate action.

   Question 248 is clear and unambiguous; the question is

   statistically valid and is classified as an easy question; the correct answer was included among the choices provided; and the correct answer is included in the Commission's curriculum and in the materials provided by the Commission to the various training institutions. Mr. Page failed to introduce persuasive evidence establishing that the answer he chose is correct.

10. According to the Commission, the correct answer to question 251 is "C"; Mr. Page chose answer "A." Question 251 describes a scenario, and the answer choices provide various actions a law enforcement officer could take under the circumstances described. The examination candidate is asked to choose the appropriate action. Question 251 is clear and unambiguous; the question is statistically valid and is classified as a moderately easy question; the correct answer was included among the choices provided; and the correct answer is included in the Commission's curriculum and in the materials provided by the Commission to the various training institutions. Mr. Page failed to introduce persuasive evidence establishing that the answer he chose is correct.

11. The specific curriculum materials referred to by the Commission as supporting what it deemed to be the correct answers to questions numbered 47, 63, 159, and 195, were not included in the loose-leaf notebook provided to Mr. Page as part of the 80-hour training program in which he participated prior

    to taking the SOCE.4 These omissions are not sufficient of themselves, however, to justify giving Mr. Page credit for his answers to these four questions. Because Mr. Page failed to establish either that the questions were ambiguous or that the answers he gave on the examination questions were correct, he is not entitled to credit for his answers to these questions.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2005).

13. Section 943.1397, Florida Statutes (2004), 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.

       
       

14. The Petitioner has the burden of proving by a preponderance of the evidence that the Commission's decision to give him no credit for his answers to the challenged questions is arbitrary or capricious or constitutes an abuse of discretion. See State ex rel. Glaser v. J. M. Pepper, 155 So. 2d. 383 (Fla. 1st DCA 1963); State ex rel. Topp v. Board of Electrical Examiners, 101 So. 2d. 583 (Fla. 1st DCA 1958).

15. Based on the findings of fact herein, the Petitioner has failed to meet that burden.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission, enter a final order dismissing the challenge of Jason R. Page to the scoring of his answers on the SOCE administered on

November 11, 2004.

DONE AND ENTERED this 28th day of June, 2005, in Tallahassee, Leon County, Florida.

S

PATRICIA M. HART

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 28th day of June, 2005.

ENDNOTES

1/ Mr. Page achieved a score of 61% the first time he took the SOCE and a score of 70% the second time he took the examination.

2/ At the Commission's request, the transcript of the proceedings has been sealed and is being returned to the Commission under seal.

3/ Even though only 52% of the SOCE candidates who have answered this question answered the question correctly, the question falls within acceptable statistical parameters.

4/ Mr. Page's testimony that the materials he was provided by the training institution did not contain the pages referred to by the Commission's expert witness as supporting the correct answer was not controverted either by direct testimony presented by the Commission or in testimony elicited during the Commission's cross-examination of Mr. Page.

COPIES FURNISHED:

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

Jason R. Page

5939 Northwest Center Street Port St. Lucie, Florida 34986

Michael Crews, Program Director Division of Criminal Justice

Professional Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Guy Tunnell, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Michael Ramage, General Counsel Division of Criminal Justice

Professional Services 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: 05-000553

Orders for Case No: 05-000553