The Issue The issue in this case is whether Petitioner David Hall’s answer to question number 115 on the Florida State Officer Certification Examination should have been accepted as correct.
Findings Of Fact Petitioner is a former police officer from New York who wishes to relocate to Florida. He took the exam on June 30, 2015. According to his Petition for Formal Administrative Hearing, Petitioner missed passing the exam by one question. He made the decision to challenge the Department’s determination as to the correct answer for exam question number 115. That question and answer choices as set forth in the exam are as follows: Q: In accordance with Chapter 810, F.S., how are burglaries classified? Intent of suspects Type of location entered Tools used in commission Number of persons involved Petitioner chose Answer A. He reasoned that, according to the curriculum, burglary was distinguished from trespassing by a single element, i.e., the intent of the offender. While acknowledging that the type of location was also a way to classify burglaries, he reasoned that either answer would be equally correct. Petitioner cites to the Florida Basic Recruit Training Program book (the “Manual”) utilized by the Florida Law Enforcement Academy (Volume 1, Version 2014.07), which was the primary curriculum material for persons taking the exam in June 2015. On page 337 of the Manual, the following statement appears: Trespassing and burglary are similar, yet different, and can be confusing. Trespassing involves being somewhere that you do not own and without permission of the owner. The difference with burglary is that you are somewhere that you do not own and without permission of the owner; however, the intent of being there is different. The intent for being there is to commit another crime, such as theft. Petitioner analogized a house guest versus an intruder to classify each crime, but his analysis addressed the elements of the crimes rather than how the crimes are classified. The Department used experienced field training officers to help develop and verify the exam questions. The officers reviewed question 115 and found it to be valid, legitimate, and in accordance with the Manual. The proper and only fully correct answer to question 115 was B, type of location entered. The basis for this answer appears in the Manual at page 336, which states in pertinent part: Chapter 810, F.S. classifies burglaries according to the type of location entered, such as a dwelling, structure, or conveyance. Penalties are more severe for burglary of a dwelling than for a structure or conveyance. (Emphasis added). The Department maintains that the clear language of question number 115-–taken almost verbatim from the Manual-– dictates a single answer, B. The question asks how the crime of burglary, which by its definition includes the offender’s intent, is classified. That is, the question is concerned with how the crime will be classified (i.e., more or less severely) based upon where it occurred. The question does not ask for the elements of burglary, which would require the examinee to include intent. The question was not ambiguous. Interestingly, Roy Gunnarsson, FDLE’s training and research manager, an expert in psychometrics, a field of study and practice involving the measurement of human knowledge skills and abilities, determined that more examinees (165) answered the same way as Petitioner than answered correctly (164). But as the expert testified, testing is not governed by majority vote. From the test results, it is clear that question number 115 was difficult, with most examinees failing to answer correctly. That does not invalidate the question; it only verifies that the question was harder than others. Because of Petitioner’s challenge, Mr. Gunnarsson prepared an “Item Challenge Response,” a review of the challenged question and its possible answers. After conducting an intensive review of the matter, he concluded that the question and answer were “accurate, located in the curriculum, and [he] denies the validity of the examinee’s claim.” His opinion was based upon the application of psychometrics to the test and on his experience and training. Petitioner, who seemed to have extensive knowledge concerning law enforcement, argued his position quite well. Unfortunately, his arguments are not supported by the plain language appearing in the training manual.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Law Enforcement denying Petitioner David Hall’s challenge to question number 115 in the Florida State Officer Certification Examination. DONE AND ENTERED this 11th day of February, 2016, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 11th day of February, 2016. COPIES FURNISHED: Linton B. Eason, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 (eServed) David Joshua Hall 29 Slosson Lane Geneva, New York 14456 (eServed) Jason Jones, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 (eServed) Richard L. Swearingen, Commissioner Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 (eServed)
Other Judicial Opinions A party who is adversely affected by this final order is entitled to judicial review. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the agency clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the appellate district where the party resides. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed.
The Issue Whether petitioner should be removed from the Florida Retirement System, as of July 1, 1979, on grounds of ineligibility.
Findings Of Fact Petitioner, a licensed attorney, practices law in Clewiston, Hendry County, Florida. Since at least September 1, 1970, he has continuously engaged in the private practice of law in Clewiston. On September 1, 1970, the Glades County School Board ("School Board" or "Board") hired him as the School Board attorney, a position which he continues to hold. This is a part-time position, since the Board has no need for a full-time attorney. The School Board is headquartered at Moore Haven, 16 miles northwest of Clewiston, in neighboring Glades County. The terms and conditions of petitioner's employment with the School Board have remained virtually unchanged since he was originally hired. Each year, the School Board sets his salary consisting of a monthly retainer or salary, plus a fixed amount per hour for any additional professional services or litigation required by the School Board. For the 1979-80 school year, the Board set his salary or retainer--terms which the School Board used interchangeably-- as shown by the Minutes of the July 11, 1979, meeting: 3. SALARY/SCHOOL BOARD ATTORNEY - 1979-80 Chairman Hilliard opened the floor for discussion on the salary for the school board attorney for the 1979-80 school year. After some discussion between the board and Mr. Potter, the board proposed a retainer of $750.00 per month. (annual salary of $9,000.00) plus $50.00 per hour for additional pro fessional services or litigation required by the board. ON MOTION by Sapp, seconded by Johnson, the board approved this pro- posal for school board attorney for the 1979-80 school year. (Vote: Arnold, yes; Johnson, yes; Taylor, yes; Sapp, yes; Hilliard, yes.) His salary is paid from the School Board's regular employee salary account. But as the School Board's attorney, unlike other School Board employees, he does not accrue annual leave, sick leave, or pay during vacations, holidays or illness, though when he is sick or on vacation, there is no adjustment to his salary. He is reimbursed for work-related travel and meals at the rates provided by Section 112.061, Florida Statutes (1983), and is covered by the School Board's group health and life insurance, and Workers' Compensation. Since 1970, the Board has withheld his Social Security contributions from his fixed monthly salary payments; has paid the employer's Social Security contributions on his salary payments; and has annually reported his monthly salary payments on Internal Revenue Service Form W-2. To this extent, the School Board considered him an employee and treated him the same as it treated its other employees. The legal services which he furnished the School Board are described in his employment agreement and the School Board's job description for the position: TYPICAL DUTIES: Attend all regular Board meetings and such special meetings as deemed advisable by Board Chairman or Superintendent. Be available for routine telephone or personal consultations with Board Chairman, Superintendent and Staff members. Perform legal research. Prepare or approve leases or agreements prior to execution by Board. Prepare and prosecute law suits in behalf of Board and defend law suits against Board, including any actions against Superintendent, Staff or other school district employees allegedly arising etc., unless special counsel is deemed necessary by Board Attorney with Board's concurrence. Attend the quarterly seminars/meetings of Florida School Board Attorneys Association; and any other approved by Board. Represent Board and/or Superintendent in personnel matters where appropriate, as well as student discipline matters. School Board meetings, held monthly, last approximately one and one-half hours. Litigation, although described as a typical duty, is considered extra work, and an hourly rate is charged over and above the monthly salary. Petitioner agrees that he would not knowingly accept any new clients which would cause a conflict of interest with his School Board employment. Although he has been free to turn down work assigned by the School Board, he never has--at least through 1976. As explained by Mr. Strope, Superintendent of Schools from 1968 to 1976, although petitioner was free to turn down work, he "shouldn't have." Petitioner is not required to maintain any set office hours, and his monthly salary does not vary with the number of hours' work. He is not furnished office space by the School Board. The majority of his legal work for the Board is performed at his private law office, in Clewiston. The cost of operating his law office is not a budget item in the School Board's budget. Under his employment arrangement with the School Board, he furnishes all personnel, equipment, and facilities needed to perform his services. He is responsible for supervising the secretaries who work in his private office. Occasionally, when he is at School Board headquarters in Moore Haven he will ask a School Board employee to type a document. At his request, however, the School Board will furnish him pencils, legal pads, legal periodicals and stationery. It also pays for his travel; for per diem expenses incurred while attending legal seminars or meetings; and for long distance telephone calls made in connection with his School Board employment. He is neither responsible for, nor supervises, any employee of the School Board. The School Board does not furnish him any legal secretaries or part-time attorney assistants. He has not shown what percentage, or amount, of his working hours are devoted to performing legal services for the School Board, as opposed to legal services which he performs for his other clients. Other than assigning specific legal tasks, the School Board exercises no more control over the means, methods, and manner by which petitioner performs the legal work given him than is ordinarily exercised by any client over an attorney. Because of ethical constraints and the nature of legal work, petitioner must exercise independent professional judgment. Since September 1, 1970 2/, petitioner has been enrolled in the FRS. This was accomplished by his filling out a prescribed form which the School Board then filed with the Division. The Board then began reporting him on its employee rolls. There is no evidence that the initial FRS entry form, filed with the Division, described petitioner's work duties or the nature of his employment with the School Board. Both the Board and the Division enrolled him in the FRS, believing that he was eligible for membership. The Division did not question or investigate the nature of his employment relationship with the Board until 1983. From his initial enrollment until January 1, 1975, when FRS became a non-contributory system, petitioner contributed one-half of the the required FRS contribution, while the School Board contributed the other half. Since January 1, 1975, the School Board has contributed 100 percent of his contributions to FRS. During the 1970s petitioner's membership in the FRS prevented him from participating in any other tax sheltered retirement plan. 3/ Since July 1, 1979, the Division has, by rule, given notice that consultants and other professional persons contracting with public employers are, ordinarily, ineligible for membership in the FRS. All public employers, including the School Board, have been asked to remove such persons from their retirement payrolls. Since at least July 8, 1981, petitioner was on notice that his status as an employee, and his eligibility for continued membership in the FRS, were in question. Both the parties stipulate that part-time electricians, plumbers, painters, combustion engine mechanics, air conditioning mechanics, janitors or sewage plant operators (and even other occupations) employed in 1983 by the Glades County School Board on a year-round salary basis (i.e., at least 10 consecutive months), and paid out of the School Board's regular salary and wage account, would be mandatory members of FRS by statute. (Prehearing Stip., para. E. 6)
Recommendation Based on the foregoing, it is RECOMMENDED: That the Division enter an order removing petitioner from membership in the Florida Retirement System, as of July 1, 1979; and That the Division return to petitioner and the School Board their respective FRS contributions, mistakenly made to his account. DONE and RECOMMENDED this 14th day of February, 1984, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of February, 1984.
