Findings Of Fact On April 24, 1987, the Respondent received official confirmation that he had been hired as a Correctional Probation Officer I in the Petitioner's Fort Myers office, effective May 8, 1987. The Respondent had been previously employed as a probation officer in Virginia from September of 1977 until December of 1983. The Respondent went to the Petitioner's Fort Myers office to complete some preliminary paperwork before he began work. On May 5, 1987, the Respondent signed a Statement of Understanding. The document requires the reader to acknowledge that he has read, and fully understands, Section 943.16, Florida Statutes. The statute, which was provided to the reader, requires a trainee who attends an approved criminal justice training program to reimburse the agency for the training costs if he does not remain with the agency for a one-year period. During his employment, the Respondent attended an approved basic recruit training program at the agency's expense. Prior to his attendance, the Respondent requested that his previous training program credits be brought before the Criminal Justice Standards and Training Commission so that a waiver could be obtained to exempt him from the training program. The Petitioner did not seek an exemption from the training program for the Respondent. As a result, the Respondent attended the program at the expense of the agency in order to obtain certification as a correctional probation officer in Florida. Less than one year after his employment began, the Respondent resigned from the Department of Corrections. On November 28, 1987, the Petitioner demanded reimbursement in the amount of three hundred dollars from the Respondent for the training program. The Respondent has refused to pay the three hundred dollars as he has a different interpretation of the statute which gives the Petitioner the authority to seek reimbursement. The Respondent contends that he was not a "trainee" as defined by the statute. He further asserts that the agency had the opportunity to seek an exemption from the program for Respondent. When the agency chose to send an experienced probation officer to a training program that could have been waived, it did so without right to reimbursement.
Findings Of Fact Respondent has been a firefighter for over 29 years, beginning his career in Brentwood, New York in 1965. He is currently certified in Florida as a firefighter. On January 13, 1972, Respondent entered a plea of guilty to the felony crime of unlawful imprisonment in the State of New York. Thereafter, he was sentenced to five years probation on March 3, 1972. He was discharged from probation on May 15, 1974. On October 10, 1977, the State of New York issued Respondent a "Certificate from Disabilities." The certificate purportedly relieves Respondent from "all disabilities and bars to employment, excluding the right to be eligible for public office." On or about December 30, 1994, the State of Florida, Office of Executive Clemency, certified the restoration of civil rights to Respondent. This certification grants "restoration of civil rights in the State of Florida for any and all felony convictions in any state other than Florida, or in any United States court or military court. . ." Following his legal difficulties in New York, Respondent came to the State of Florida and, in 1973, applied for employment with the St. Cloud Fire Department in St. Cloud, Florida. Concerned about whether his New York legal problems posed a problem, Respondent revealed his criminal history. A determination was made by the employing authority that further revelation of Respondent's criminal record on certification forms was not required. Respondent was informed of this decision. Subsequently, the St. Cloud Fire Department completed and provided certification forms to the State of Florida Office of Fire Marshal which did not reveal Respondent's criminal record, resulting in Respondent's certification on October 23, 1974, as a firefighter. Respondent has maintained in his certification to the present date. Following employment with the St. Cloud Fire Department, Respondent was employed at the Holden Heights Fire Department in Orange County, Florida, and subsequently other fire departments. Later, he worked at one time as an emergency medical technician. He eventually worked for the Deltona Fire District in the unincorporated town of Deltona, Florida. Respondent did not intend to mislead any employer regarding his criminal past. Further, no certification form was ever submitted by Respondent to Petitioner in order to obtain certification which denied his criminal past until February 27, 1977, when he executed a document entitled "Fire Fighters Standards Counsel Compliance of New Employees, FFSC Form #C-1." In response to the question on the form requesting information regarding conviction of a felony or a misdemeanor involving moral turpitude, Respondent relied on the assurances he had received from the St. Cloud Fire Department and checked the "no" box. This document was then signed and submitted by Respondent not to obtain certification, but to advise the State Fire College in Ocala, Florida of his status as a volunteer with the Holden Heights Fire Department. The certification also served to maintain Respondent's certification since, at the time, he was not employed as a firefighter. At the time of Respondent's initial certification, Florida law prohibited certification of applicants with a felony conviction or a misdemeanor involving moral turpitude. Petitioner did not, however, conduct independent background checks of applicants at that time, relying instead upon the submitting authorities for verification of this information. Petitioner became aware of Respondent's criminal past in February of 1994, when Respondent was employed in Deltona, Florida, and had become active in the issue of incorporation for the town. A political opponent of Respondent named Robert C. Hoffman apprised Petitioner of Respondent's past. Verification by Petitioner followed, culminating in the issuance of the Administrative Complaint.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered dismissing the Administrative Complaint. DONE and ENTERED this 26th day of April, 1995, at Tallahassee, Florida. DON W. DAVIS, 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 26th day of April, 1995. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties. Petitioner's Proposed Findings 1.-2 Accepted. 3. Rejected, subordinate. 4.-11. Accepted, but not verbatim. 12. Rejected, allegations are not proof, relevance. 13.-17. Accepted, not verbatim. Rejected, no factual basis. Rejected, subordinate. Respondent's Proposed Findings 1.-8. Accepted, not verbatim. 9. Rejected, relevance. 10.-14. Accepted, not verbatim. 15. Rejected, relevance. 16.-18. Accepted, not verbatim. COPIES FURNISHED: Michael K. McCormick, Esq. Division of Legal Services 612 Larson Building Tallahassee, FL 32399-0333 Lawrence G. Walters, Esq. Doran, Walters et al. P. O. Drawer 15110 Daytona Beach, FL 32115 Bill Nelson State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, FL 32399-2152 Dan Sumner Acting General Counsel Dept. of Insurance The Capitol, PL-11 Tallahassee, FL 32399-2152
The Issue 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).
Findings Of Fact The Petitioner is an applicant for certification as a correctional officer. 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. 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. 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. 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. 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. 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.
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
Findings Of Fact Findings of Fact 1-15 are based on the facts agreed on by the parties and contained in their Prehearing Stipulation filed on September 19, 1988. Pat Swan has been employed by the Department of Corrections as a Personnel Technician I since July, 1981. On March 3, 1987, Pat Swan assisted the Commission in the investigation of Linda Lundy v. Department of Corrections (FCHR #86-4478) via affidavit. She confirmed allegations and statements asserted by Ms. Lundy. On October 14, 1987, the investigator submitted a recommendation of cause and on November 6, 1987, the final determination of cause was issued. On June 26, 1987, Pat Swan was notified of her transfer to New River Correctional Institution effective July 6, 1987. New River Correctional Institution was a distance of 45 miles from the Region II office. This was a lateral transfer for Pat Swan and resulted in no loss of pay or benefits. There were six other Personnel Technician I's within a 50-mile radius of New River who could have been transferred to the new position. All of those persons are white. No departmental employee was asked if he or she would willingly accept a transfer. Pat Swan was transferred involuntarily. Although the Respondent informed Pat Swan that her reassignment would be for an indefinite period of time, her former position was filled on August 7, 1987, by Ms. Gertrude Bishop. The Respondent was notified of Pat Swan's Complaint of discrimination on July 31, 1987. Subsequent to her notice of transfer, Pat Swan apprised Mr. David Gordon, and he, in turn, approached Mr. Dinkins questioning his own status as an employee. Pat Swan's anniversary date is November 1st. According to the department's rules, she should be evaluated in November of each year. However, she was not evaluated in November, 1986, or November, 1987. The Department's rules dictate that performance evaluations will be generated for each employee within 30 calendar days of the employee's anniversary date, and performance appraisals shall be used for promotion and employee merit raise advancements In November, 1987, Mr. R. Nate Holton, Personnel Manager of New River Correctional Institution, declined to evaluate Pat Swan. The reason given by Mr. Holton was that he was advised by Ms. Lisa Goodner not to evaluate her because she did not have performance standards on file. On April 5, 1988, Pat was notified that effective April 20, 1988, she was going to be transferred back to Region II Personnel Office in the same classification and at the same rate of pay. At her new job she was stationed in the lobby and the job duties have changed. Pat Swan is a member of a protected group. The following additional facts are based on the evidence presented at the formal hearing and on the credibility determinations of the Hearing Officer. Petitioner began employment with DOC in July, 1981, at the Region II office in Gainesville, Florida. Petitioner's supervisor, the Senior Personnel Manager, Don Finley, did not complete a performance appraisal on Swan for the appraisal period of November 1, 1985, to November 1, 1986. As previously noted, Swan assisted the FCHR in its investigation of another case, Lundy v. DOC, FCHR Case No. 86-4478, by filing an affidavit. Career Service System Rules specify that for permanent employees, an annual appraisal shall be completed within 30 calendar days following each employee's anniversary date. (22A-9.003(3), Florida Administrative Code). The appraisals are the responsibility of the employee's immediate supervisor. (22A- 9.003(2), Florida Administrative Code). One of the purposes of the performance appraisal is to determine the employee's eligibility for merit salary advancements. (22A-9.003(3), Florida Administrative Code). Swan's evaluations had been "Exceeds Standards" between 1983 and 1985. November, 1985, was the last evaluation she received. She should have been evaluated in November, 1986, and November, 1987, but was not. In 1986 and 1987 every employee of the Department who received an "exceeds performance standards" annual appraisal received a 3% merit increase on his or her anniversary date. Any special appraisal done outside of the 30 days after the anniversary date does not relate back to the anniversary date so as to make an employee eligible for a merit increase. Lester Dinkins took over the job of senior personnel manager at the Gainesville Office on March 20, 1987. Lester Dinkins prepared new performance standards for Petitioner in April, 1987. These standards covered the period from April 24, 1987, to November 1, 1987. In a memorandum dated April 27, 1987, Lester Dinkins informed Petitioner that since her service for the period November 1, 1986, to April 23, 1987, was not covered by a performance appraisal, her rating for this time period would be "Achieves Performance Standards." In June, 1987, R. Nate Holton, personnel manager at New River Correctional Institution informed Mr. Dinkins that he was having a problem drawing an acceptable applicant for the PTI position which he had advertised. New River Correctional Institution was a new institution. On June 26, 1987, Petitioner was notified that she was being reassigned from her present position as PTI in the Regional Personnel Office to PTI at New River Correctional Institution effective July 6, 1987. The idea to reassign Petitioner was Dinkins' suggestion. Dinkins knew nothing of the Lundy case or of Petitioner's affidavit in that case. Petitioner's reassignment was lateral and did not result in a reduction of salary or benefits, or a change in the level of responsibility. Petitioner's reassignment to New River Correctional Institution was within a 45-mile radius of the Gainesville Office. Petitioner's supervisor at New River Correctional Institution was the personnel manager, R. Nate Holton. Mr. Holton had been newly appointed to the position of personnel manager at the time of Petitioner's reassignment. Holton knew nothing of the Lundy case until the allegations regarding it were made in this case. Mr. Holton failed to develop new performance standards for Petitioner and to discuss them with her after she was reassigned to New River Correctional Institution. Mr. Holton could not use the standards which Mr. Dinkins had previously developed for Petitioner to complete her annual performance appraisal because Petitioner's duties at the institution were not exactly the same as they had been at the regional office. In November, 1987, Mr. Holton discovered that he had failed to develop performance standards for Petitioner and he contacted Lisa Goodner, Assistant Chief of the Bureau of Personnel for the Department, to determine his course of action. Ms. Goodner advised Mr. Holton that because he had not identified performance standards for Petitioner when she was reassigned to New River Correctional Institution as required by Chapter 22A-9, Florida Administrative Code, and by the Department's performance appraisal procedures, he could not appraise Petitioner. Petitioner's rating was considered to be at the "Achieves Performance Standards" level for the period of time from April 24, 1977, to November 1, 1987, since this period of service was not covered by a performance appraisal. As Assistant Chief of the Department's Bureau of Personnel, Ms. Goodner provides advice to field personnel staff regarding all areas of personnel administration and the interpretation of personnel rules. Petitioner filed a grievance in which she challenged the fact that she had not received a formal performance appraisal The Department denied Petitioner's grievance pursuant to Chapter 22A- 9.002(2), Florida Administrative Code, which states that employees shall not be expected to meet performance standards which have not been defined and identified to them as being part of the requirements of their positions. A performance appraisal which had been completed on Mr. Holton, even though standards had not been previously written and discussed with him, was ordered sealed and marked invalid by Richard Dugger, Secretary of the Department. While Petitioner was working at New River, the Region II office received a new Personnel Technician III position. David Gordon was promoted to that position. Gertrude Bishop applied for and was promoted to the Personnel Technician II position that had been filed by Gordon. Petitioner met the qualifications for the Personnel Technician II position, but did not apply for it. The opening was advertised statewide and at all DOC facilities. During the time that Petitioner had been at New River Correctional Institution, the Gainesville personnel office had been reorganized in response to a Department audit. The duties of all the personnel technicians in the Gainesville personnel office were changed and redistributed as a result of the audit. Petitioner was placed in the lobby area upon her reassignment to the regional office because there was inadequate space to provide her with her own office. Prior to Petitioner's reassignment to New River Correctional Institution there were 4 persons in the Gainesville personnel office. Petitioner was the only PTI. There are currently 8 persons in the Gainesville personnel office, which number includes 3 PTI's. The duties currently performed by Petitioner are at the professional level and come within the career service class specifications for a PTI. Of the 8 employees in the Gainesville personnel office, 3 of them are black. They are David Gordon, Gertrude Bishop and Petitioner. With the exclusion of Mr. Dinkins, blacks are the highest ranking employees in the Region II personnel office.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order, and therein deny Patricia A. Swan the relief sought and dismiss the Petition for Relief. DONE AND ENTERED this 10th day of November, 1988, in Tallahassee, Leon County, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3167 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, PATRICIA A. SWAN Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 9-11(19-21) and 28(40). Proposed findings of fact 1-8, 13, 16, 17, 22, 23 and 26 are rejected as irrelevant. Proposed findings of fact 12 and 15 are unsupported by the credible and competent, substantial evidence. Proposed findings of fact 14, 18-21, 24, 25, 27, and 29-32 are subordinate to the facts actually found in this Recommended Order. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, FLORIDA DEPARTMENT OF CORRECTIONS 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1 & 16); 2(11); 3(17); 4(2 & 18); 5-12(22-29); 13(8); 14(7); 15(8); 16-25(30-39); 26(14); 27-33(41-47); 34(40); and 35(48). COPIES FURNISHED: Carla D. Franklin, Attorney at Law Post Office Box 694 Gainesville, Florida 32602 Lynn T. Winston Assistant General Counsel Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-1570 Margaret Agerton, Clerk Florida Commission on Human Relations 325 John Knox Road, Suite 240, Building Tallahassee, Florida 32399-1570 Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
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.
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/
Recommendation 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.
Findings Of Fact The facts in this case were undisputed by the individuals having personal knowledge of the incidents and may be summarized in narrative form. Three young road guard inspectors including Respondent Aaron Alderson, occupied Inspection Station 9A on I-75 during the early morning hours on September 30, 1977. Little traffic had passed during the preceding 2 or 3 hours and idleness and exuberant youth brought forth ideas for diversion. Earlier in the evening salt had been sprinkled on Alderson. Around 4:00 a.m. Perry, one of the men in Station 9A, removed his belt and gun before going to the toilet. While he was in the toilet Alderson, as a practical joke, removed the cylinder from Perry's revolver and replaced the revolver in its holster. When Perry came out and put on his belt and gun, Alderson immediately commented to Perry that he would have a hard time firing his gun. Perry then looked at his gun, saw the cylinder missing and he and Alderson replaced the cylinder thus restoring the weapon to operation. Shortly thereafter Alderson and Perry began friendly bumping into each other and then decided to go outside where there was more room for exercise. They removed their belts and guns, leaving them in the station, and went to the side of the building where they began friendly tussling. During this time the other occupant of Station 9A, Hudson, remained in front of the station keeping a lookout for trucks. When a truck entered the ramp, the horseplay was stopped until after the truck had departed. The occupant of Station 9B across the highway from Station 9A was also out in front of his station and could see Alderson and Perry in the lights from Station 9A. After 10 or 15 minutes of horseplay consisting of friendly grappling and tussling, Anderson and Perry had expended sufficient energy to return to the more sedentary chore of waiting for approaching trucks. At all times involved in these incidents, both parties were in uniform, the sun lacked several hours of announcing the approach of day, little, if any, traffic passed Station 9A on the I-75 and the uniforms of Alderson and Perry were neither dirtied nor mussed. As a result of the above incidents, Perry was suspended from duty without pay for 5 days and Alderson was suspended from duty without pay for 10 days. Apparently no appeal was taken by Perry but Alderson's suspension cost him his biweekly salary of $292.63, less withholdings. In 1976, legislation was passed authorizing the arming of road guard inspectors and they were first armed, after completing Police Standards Training, in late 1976. At the time they were authorized to carry arms, they were issued a copy of the Firearms and Ammunition section from the Department of Agriculture's Policy Manual and told to become familiar with it. A copy of this instruction was admitted as Exhibit 1. Respondent acknowledged that he was given a copy of the instruction offered as Exhibit 1 at the time he was authorized to carry a weapon but denies that he read paragraph E thereof with full understanding. Alderson appears to have been employed in 1975, as a road guard inspector and received his first employee performance review dated 11/05/75. Two additional evaluations dated 6/14/76 and 4/10/77, were admitted into evidence with the initial evaluation as a composite exhibit 5. It is noted that Respondent's performance scores, prepared by his supervisor, have increased with each subsequent evaluation. In his latest evaluation Alderson was rated as exceptional and one of the most knowledgeable inspectors in the division. During Alderson's testimony he was open, forthright and responded to all inquiries with composure and decorum. He freely admitted the facts as noted above and acknowledged he now realizes the seriousness of tampering with a weapon as a practical joke. His primary concern with this no appeal was his conviction that the punishment was not commensurate with the offenses and that he had not been given an opportunity to state his side of the case to the superior who actually recommended the punishment before it was approved and awarded. The road guard inspector, who inadvertently disclosed the incident to Roger Pittman, the assistant chief, Road Guard Bureau, who appears to have been the prime mover in the punishment awarded, testified that he felt so bad about the incident he thought about resigning from the road guard. The demeanor of all witnesses leads the undersigned to conclude that the manner in which this incident was handled was detrimental to the morale of the inspectors in the road guard bureau.
The Issue The issue in this case is whether Petitioner, Brandon Michael Post (Petitioner or Mr. Post), achieved a passing score on the practical exam for firefighter certification.
Findings Of Fact The Department is the state agency responsible for the regulatory process governing firefighters, including the process by which candidates apply for certification as firefighters in the State of Florida. In addition to meeting certain background and training requirements, candidates must take and attain passing scores on the Firefighter Minimum Standards Written and Practical Examination (firefighter examination) administered by the Department. Mr. Post applied to the Department for firefighter certification. There is no dispute that Mr. Post met the background and training qualifications for certification in all respects. In addition, Mr. Post took and passed the written portion of the firefighter examination. At issue is whether Mr. Post attained a passing score on the practical portion of the firefighter examination (practical exam). The practical exam has four components covering the following subjects: self-contained breathing apparatus (SCBA); hose operations; ladder operations; and fireground scenarios. In order to pass the practical exam, a candidate must obtain a score of at least 70 percent on each component. If a candidate does not pass the practical exam, the candidate is offered the opportunity for a retest. The practical exams are conducted by Bureau field representatives. A field representative evaluates each candidate's performance and records the candidate's scores on a form called "minimum standards exam field notes" (field notes). There is a separate field notes form for each component of the practical exam. The field notes form identifies each of the separate skills or activities tested. Certain items are scored on a pass-fail basis, because they are considered mandatory skills. Thus, the failure to achieve an acceptable result in a mandatory item results in automatic failure for the component. Other tested items are considered evaluative, and the candidate's performance is given a point score. A total of 100 points is possible for all of the evaluative items; a candidate must attain a score of at least 70 to pass the component. Mr. Post took the firefighter examination on June 13, 2012. In the practical exam, Mr. Post received passing scores of 100 percent for the SCBA component; 100 percent for the hose operation component; and 70 percent for the fireground scenarios component. However, Mr. Post failed the ladder operations component. Mr. Harper was the field representative who administered Mr. Post's practical exam on June 13, 2012, and who completed the field notes reflecting how he scored Mr. Post's performance. Mr. Harper has been a Bureau field representative for more than five years, and in that time, he has administered thousands of practical exams. Mr. Harper gave Mr. Post a failing score for not donning and securing all personal protective equipment (PPE) properly. Donning and securing PPE properly is considered a mandatory item that has to be achieved, because of the importance of this skill to a firefighter's safety. To emphasize the safety concern associated with failing to don and secure all PPE properly, Mr. Harper also gave Mr. Post a failing score for committing an unsafe act that could result in serious injury or death. The "unsafe act" scoring category is separate on the field notes form from the mandatory item "donning and securing all PPE properly." However, a failing score in either one of these categories alone required an automatic failure for the ladder operations component. Thus, giving Mr. Post a failing score for an "unsafe act" had no effect on his score; Mr. Post's failing score for not donning and securing his PPE properly required an automatic failure for the ladder operations component. Mr. Harper credibly explained why he judged Mr. Post's donning and securing of his PPE to be improper. He recalled in precise detail how Mr. Post's mask had a five-point harness mechanism that is designed to hold the face piece tight to the face, creating an air-tight seal that will keep out dangerous smoke and fumes. There were two straps at the temple, two straps at the jaw, and one at the top center. To secure the mask, the two jaw straps are supposed to be pulled tight at the same time, then the two temple straps are pulled tight at the same time, then the top strap is pulled last to pull the mask up evenly on the face. Mr. Post did not secure his mask this way. Instead of pulling the two jaw and temple straps at the same time, he held the face piece with one hand, and pulled the straps on one side of his face with his other hand. This pulled the mask to the side, instead of centering it. Mr. Post testified that his face piece was on good enough for him to achieve an air-tight seal, which was maintained throughout the exercise. Therefore, he took issue with the opinion that the way he put on his PPE was unsafe. Mr. Post's statements were inconsistent regarding whether the mask was askew, pulled to one side. At the final hearing, Mr. Post testified at first that Mr. Harper's field notes comment was incorrect when it said that the "face piece was pulled to left side." Mr. Post testified that he disagreed with the field notes comment that his face piece was "pulled to one side." But then Mr. Post acknowledged that "it could have been maybe a little bit to the left, but there was no poor seal at all times." This latter statement was closer to Mr. Post's statement in his hearing request: "I had a seal of my face piece but was failed because the harness wasn't quite centered on my head." Mr. Post essentially admitted that he did not "properly" don and secure all of his PPE; his argument is with the extent to which it was improper, and whether his failure to properly secure the harness actually caused harm. Mr. Harper's testimony that Mr. Post improperly donned and secured his PPE and that this failure was an unsafe act that could result in serious injury or death is accepted. Mr. Harper credibly explained the danger of a mask not being harnessed securely with a centered face piece. Even though it is possible to initially attain a proper seal with an off-centered face piece, as Mr. Post did, the fact that it is not properly secured to be centered on the face means that it is easier to dislodge than a centered, properly-harnessed mask. Anything jarring the head gear, or even an abrupt head movement, could cause the mask to move further off-center and break the critical seal that protects the firefighter from toxic gases and smoke. These serious risks cannot be brushed aside simply because Mr. Post managed to make it through a short simulated exercise without dislodging his off-centered mask. The Bureau notified Mr. Post that he did not achieve a passing score on his practical exam because of his failed score on the ladder operations component. As provided by statute, Mr. Post was advised that he was allowed one opportunity to retake the practical exam. Mr. Post took the practical exam retest on September 18, 2012. Once again, Mr. Harper was the field representative who administered the practical exam to Mr. Post. Mr. Post admitted that his retest "was pretty sloppy." On the hose operations component, once again, Mr. Post had problems donning and securing all of his PPE. This time, the problems were with the gear that was supposed to protect his torso. As Mr. Post acknowledged, "my shoulder strap was twisted and . . . my high-pressure hose [was] under [the] strap. That is true. I remember that." His jacket was pulled up in the back, and his shirt was exposed. Based on these problems, Mr. Post received an automatic failure under the mandatory category for failing to don and secure all PPE properly. Mr. Post admitted that he failed to don and secure all of his protective equipment properly. The protective jacket is not supposed to be pulled up in the back, exposing one's shirt. Shoulder straps are not supposed to be twisted, with the high-pressure hose caught under a strap. Mr. Post testified that he did not think he should have been failed for these admitted problems with putting on his protective gear, because no skin was exposed. However, he offered no legitimate challenge to the reasonableness of the exam itself, which makes the proper donning and securing of all of one's PPE a mandatory step. As described, it was entirely reasonable to give Mr. Post an automatic failure on this retest component for his improper donning and securing of his protective gear. Mr. Post also received an automatic failure in the ladder operations component. There were two separate problems with this exercise. One problem was Mr. Post's failure to fully secure the ladder's "dogs" or locking devices that secure the separate sections of a multi-section ladder. The dogs are like clamps that are activated by a spring mechanism; when employed properly, they clamp around a rung at the joinder point of the ladder's separate sections. In Mr. Post's ladder exercise, he failed to properly employ the dogs; they were not fully secured in place around the rung. Instead, they were balanced on the tips, sitting on top of the rung, instead of locked around the rung. Mr. Post attempted to argue that it was not possible for him to have failed to properly employ the dogs in this manner because if the dogs were not locked, the ladder would have fallen down and his stayed upright. However, as Mr. Harper credibly explained, the dogs were sitting on top of the rung (instead of clamped around it). As such, the ladder could remain upright, albeit, in a precarious state that depended on the dogs keeping their balance on top of a rung, instead of in a secure state with the dogs locked in place around the rung. Mr. Harper's testimony is credited; Mr. Post did not effectively rebut the testimony regarding his improper employment of the dogs. The second problem Mr. Post had in the ladder operations component of his retest came in the part of the exercise in which Mr. Post was supposed to exit the building carrying the "victim" and retreat to safety. According to the field notes, Mr. Post received an automatic failure for committing an unsafe act that could result in serious injury or death, because he was running backwards with the victim. Mr. Post did not take issue with this aspect of his retest scoring, admitting that the field notes were accurate: "When you're carrying the victim out of a building, that's the only time you're allowed to go backwards, but I guess I was running where I should have been walking. But I don't really--I don't really testify against that." Mr. Post expressed some generalized concern with the fact that the same field representative--Mr. Harper--administered Mr. Post's initial examination and the retest. However, no evidence was offered to suggest that Mr. Harper's administration of the practical exam or the retest was improper or unfair to Mr. Post in any respect. Indeed, Mr. Post essentially conceded that Mr. Harper fairly and reasonably assessed Mr. Post's admittedly sloppy performance on the retest. Mr. Post's concession in this regard puts to rest any implication that Mr. Post might not have failed the retest if a different field representative had been assigned. Instead, the evidence established that Mr. Post's performance in the practical exam retest earned three different automatic failures, any one of which would have resulted in an overall failing grade on the retest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Respondent, Department of Financial Services, denying the application of Petitioner, Brandon Michael Post, for certification as a firefighter in the State of Florida. DONE AND ENTERED this 9th day of April, 2013, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 9th day of April, 2013.
The Issue The issue is whether Respondent committed an act or acts of age discrimination against Petitioner by not selecting him for promotion to sergeant with the Santa Rosa County Sheriff's Office.
Findings Of Fact Petitioner, Steven L. Boles, was employed at the Santa Rosa County Sheriff's Office in April 2001 as a deputy sheriff. Petitioner's date of birth is June 15, 1958, making him approximately 47-48 years old at all times related to the promotion issues, which are the subject of this proceeding. Petitioner completed 34 college classes while a deputy sheriff and attained a Bachelor's Degree from Troy State University. He was continuing his education towards a Master's Degree during the promotion period at issue. Petitioner had over 20 years' experience in the United States Air Force, during which his duties included managing a 24-person flight, supervising, planning, administering, and executed law enforcement and security training for a 270-person unit. The Florida Department of Law Enforcement recognized Petitioner's qualifications as being equivalent to those required by the State of Florida for certified law enforcement officers. During Petitioner's time as a deputy sheriff, he worked one position besides his road patrol duties. In 2003, he transferred to a property detective position where he served for almost a year. When he did not receive training that he deemed necessary to better perform his job, he transferred back to his road patrol position. Petitioner was certified as an all-terrain vehicle ("ATV") instructor in April 2006. Petitioner did not serve in a supervisory capacity while employed by Respondent. Under Sheriff Wendell Hall's administration, the promotional process for sergeant and lieutenant was established in General Order D-017. Applicants were ranked on an eligibility list based upon their scoring for specific criteria: advanced training courses, formal education, seniority, supervisory experience, written examinations, and an oral review board. Sheriff Hall promoted from the top of the list in order of ranking. The Fraternal Order of Police ("FOP") is the bargaining agent for deputy sheriffs. During collective bargaining negotiations in 2005, the FOP asked Sheriff Hall to change the promotional process to provide greater flexibility in promotions. The FOP believes that the top-ranked applicant is not necessarily the best candidate for an available position. The sheriff and the FOP executed a collective bargaining agreement ("CBA") in 2005 to implement changes in the promotional process that would afford more flexibility. Pursuant to Article 9 of the CBA, the parties agreed that General Order D-017 would be utilized in promotions. To effect the changes requested by the FOP, General Order D-017 was revised in December 2005. The new policy continued to provide that applicants would be ranked based upon scoring for specific criteria, but added field training officer experience ("FTO") as a new category to be scored. Additionally, the policy provided that the division captains and department major would review the promotion roster and provide a written recommendation to the sheriff for promotion of candidates. The sheriff would be provided with the top five names for one vacancy and one additional name for each additional vacancy. The new policy for promotion was provided to the FOP for review prior to its enactment. Pursuant to the CBA, the FOP could request impact bargaining within ten days of receipt of the policy. Because the FOP did not object to the policy, it became effective on December 26, 2005. The revised policy, General Order D-017, was provided to all members of Respondent, including Petitioner. Petitioner was aware that the process had been changed to permit the division captains and the department major to make written recommendations for promotion. Petitioner received a memorandum from Sheriff Hall on February 17, 2006, informing him of his eligibility to sit for the written promotion examination on March 22, 2006. Petitioner learned in that memorandum that credit for training courses and formal education would not be given for anything that had not occurred and was not present in the training office on or before March 10, 2006. When vacancies for sergeant and lieutenant became available in 2006, the promotional process followed the revised policy. Points were allocated to the applicants under the revised criteria, and the top 20 candidates were ranked. Major Steve Collier and Captains Jack Onkka and Jim Spencer met on May 26, 2006, pursuant to the newly-adopted policy, to review the applicants and make promotion recommendations to the sheriff. Because there were six vacancies for sergeant, the top 10 names on the roster were reviewed. Petitioner was ranked number five on the roster. Major Collier and Captains Onkka and Spencer concluded that the primary consideration for the recommendations for sergeant and lieutenant would be the motivation and initiative displayed by the applicants while employed at the Sheriff's Office. Believing that these qualities demonstrate the foundation of leadership, Collier, Onkka, and Spencer discussed each of the applicants to determine who best exemplified these characteristics. Collier, Onkka, and Spencer recommended six applicants who were ranked in the top 10 of the promotional roster: George Hawkins, Joseph Dunne, William Dunsford, Wayne Enterkin, Jerry Salter, and Todd Reaves. Prior to the review by Collier, Onkka, and Spencer, three of these deputies were ranked higher in the roster than Petitioner and three of them were ranked lower. The reviewers selected these six deputies for promotion to sergeant because each had undertaken an assignment outside his normal duties or otherwise had distinguished himself in a manner that set him apart from the other candidates. George Hawkins, ranked number one on the roster, was recommended as a result of his field officer training experience. Further, he performed as an acting supervisor when the shift sergeant was absent, which the reviewers deemed significant. Field officer training was particularly valued by the reviewers because it required the deputy to serve as a front line supervisor for trainees as well as an instructor and mentor. Joseph Dunne also had performed field officer training and consistently volunteered for special operations projects that were after hours. William Dunsford, although not a FTO, was a member of the hostage negotiation team and, pursuant to this assignment, was on-call 24 hours a day, seven days a week. Similar to Dunne, Dunsford volunteered for special operations after hours. He particularly impressed Major Collier with noteworthy arrests and for his high level of professionalism and motivation. Wayne Enterkin was recommended as a result of his field officer training experience and his initiation of the drug court officers program, which involved juvenile offenders. He particularly distinguished himself in the drug court program. Jerry Salter was recommended as a result of field officer training experience and his assignment to the special weapons and tactics ("SWAT") team. As in the case of hostage negotiators, SWAT team members must undergo additional tactical training and are on-call 24 hours a day, seven days a week. They must also maintain a high level of physical fitness to participate in this unit. Todd Reaves was recommended because of his field officer training experience and his participation on the hostage negotiation team. Reeves also made noteworthy arrests in the northern part of the county, which was not a particularly busy area. Reeves had also received a lifesaver award for his extraordinary actions in providing care to a canine officer who was shot by a suspect. Petitioner was not recommended because the reviewers were not aware of any activities and assignments that set him apart from the other candidates. They were unaware of the fact that Petitioner had become certified as an ATV instructor, since that occurred on April 21, 2006, after the March 10, 2006, information deadline. The reviewing panel would not have given as much credit for Petitioner being an ATV instructor, even if his certification had occurred before March 10, 2006, since this activity did not require as much of a time commitment as a field training officer, hostage negotiation team member, or SWAT team member. The panel also passed over William Bass (ranked number two on the roster) and Christian Turcic (ranked number seven). Deputy Bass was deemed not particularly motivated and refused a transfer to a busier district when it was offered. Deputy Turcic was passed so he could complete his new assignment as a trainer of a new dog. Once he completed his assignment, he received a promotion to sergeant in September 2006. The age of the candidates for promotion was not a topic discussed by the reviewing panel. Sheriff Hall promoted Deputies Dunne, Dunsford, Enterkin, Hawkins, Reeves, and Salter in June 2006. He based his decision to promote these deputies upon the recommendations of his staff without regard to their age. When Petitioner became aware of the identities of the promoted deputies, he tendered a brief letter of resignation, dated June 15, 2006, in which he stated that his total loss of faith in the administration caused the need for him to leave immediately. Petitioner followed the brief letter with an email to Sheriff Hall on June 16, 2006, in which he elaborated on his qualifications and justifications of why he should have received a promotion to sergeant. Petitioner informed Sheriff Hall that he believed a "good-ol-boy system" was in place in the Santa Rosa County Sheriff's Office. In his letter and email resigning from Respondent, Petitioner made no mention of his age as a factor in his failure to be promoted to sergeant. Petitioner never inquired as to why he was not promoted. He met with Sheriff Hall, who informed him that he could be considered for promotion at a later date and encouraged him to contact Major Collier. Petitioner never spoke with Major Collier regarding his failure to be promoted to sergeant.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FCHR issue a final order finding Respondent not guilty of the "unlawful employment practice" alleged by Petitioner and dismissing Petitioner's employment discrimination charge. DONE AND ENTERED this 5th day of December, 2007, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 5th day of December, 2007. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Steven L. Boles 262 County Road 617 Hanceville, Alabama 35077 Robert W. Evans, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street, Suite 100 Tallahassee, Florida 32308 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issues are: (1) whether Petitioner passed the Practical Examination for Firefighter Retention test; and (2) whether Petitioner's application for firefighter recertification was properly denied.
Findings Of Fact Petitioner completed his minimum standards training and took the standardized state test in 2004 and Respondent issued him a Firefighter Certificate that year. Florida law requires Petitioner to be employed by a fire agency within a three year period after passing the state examination to keep his minimum standards credentials active. Petitioner is a full-time employee at American Medical Response. Because Petitioner has not been active as a firefighter during the past three years, Petitioner made application to the Department to take the Retention Examination. The practical portion consists of four sections or "evolutions" including the SCBA,1 the hose pull, the ladder operation, and the fire ground skills section. To pass the four practical evolutions, an applicant must achieve a score of at least 70 percent on each component. Each evolution of the practical exam has certain elements or skills that are graded. The SCBA portion of the test contains skills related to checking, donning, and properly activating the SCBA that enables a firefighter to breathe in a hostile environment, such as a burning building. The SCBA portion of the Retention Examination also has an established maximum time allotted for the examinee to complete a minimum of 70 percent of the skills. The time limitation is a mandatory requirement. If an examinee completes a minimum of 70 percent of the skills in a particular part, but fails to do so within the maximum allotted time specified for that part, the examinee has not met the mandatory time requirement and, thus, is not awarded any points for that part. Petitioner took the initial Retention Examination in May 2009. Petitioner did not pass the SCBA and fire ground skills components of the practical portion of the initial exam. On September 24, 2009, Petitioner took the Retention Examination re-test for the SCBA and fire skills components. Petitioner passed the fire skills component. The maximum time allotted for completion of the SCBA part of the Retention Examination is two minutes. Petitioner's completion time on the September 2009 Retention Examination re- test was two minutes and 30 seconds. Because Petitioner failed to complete a minimum of 70 percent of skills in the SCBA portion of the Retention Examination within the maximum time allotted, the Bureau properly awarded him zero points. It is an automatic failure if an examinee does not complete the exam in time. Therefore, Petitioner did not earn a passing score on the Retention Examination re-test. As a result of Petitioner's failing to pass the Retention Examination, his Firefighter Certificate of compliance expired. The Division employs field representatives to administer the Retention Examination to examinees in accordance with the applicable rules and procedures. Dennis Hackett is and has been a field representative with the Bureau of Fire Standards and Training for six years. As a field representative, Mr. Hackett administers and scores the minimum standards examination for firefighters, including the Retention Examination. Mr. Hackett has administered well over a thousand SCBA tests. Mr. Hackett was the examiner who tested Petitioner on the September 24, 2009, for re-test of the SCBA portion of the practical exam. Mr. Hackett timed Petitioner at two minutes and 30 seconds. Petitioner testified that before taking the retest, he practiced the SCBA test and had completed it within the time limit. Petitioner first learned SCBA skills in 2004 at the Coral Springs Fire Academy. At the academy, Petitioner took a three month, 450-hour course of fundamental firefighter skills. On or about September 16, 2009, Petitioner took a refresher course in Ocala, Florida. The course was two days and taught the SCBA skills in a manner different from how Petitioner had been taught at Coral Springs Fire Academy. Petitioner testified that the refresher course wasn't fair because he didn't have enough time to learn the new method. He asserted that the two day course was too short to learn the new method and techniques to compensate for errors. Petitioner admitted that a minor hiccup slowed him down while taking the re-test on September 24, 2009. Petitioner said, "It's not like I can't do it because I could do it, it's just I went over the time limit. I didn't have ample enough time to learn the new way of doing it or to overcome any minor obstacles." In a memorandum dated September 25, 2009, the Department formally advised Petitioner that he had failed the SCBA portion of the Minimum Standards Practical Retention Retest. The memorandum also informed Petitioner that, "Because you did not pass the retest, your Firefighter Certificate of compliance #117349, has expired as of 09/24/2009. It will be necessary for you to repeat the firefighter Minimum Recruit Training Program and submit a new application before any additional testing can be allowed." An individual is allowed to re-take the Retention Examination one time. If the person does not pass the re-test, he must repeat the Firefighter Minimum Recruit Training Program before he is eligible to re-take the Retention Examination. See § 633.352, Fla. Stat., and Fla. Admin. Code R. 69A-37.0527. As noted above, Petitioner did not pass the SCBA portion of the Retention Examination re-test. Therefore, before he is eligible to re-take that examination, he must repeat the Firefighter Minimum Recruit Training Program. Petitioner failed to establish that he was entitled to a passing grade for his performance on the Retention Examination re-test. The greater weight of the credible evidence established that Petitioner's performance on the Retention Examination re-test was appropriately and fairly graded.
Recommendation Upon consideration of the Findings of Fact and the Conclusions of Law reached, it is RECOMMENDED that the Department enter a final order denying Petitioner's application to retain his certification as a firefighter in the State of Florida. DONE AND ENTERED this 25th day of March, 2010, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY 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 25th day of March, 2010.
The Issue Whether the Petitioner submitted a false test result to the Miami-Dade College School of Justice in order to register for the Correctional Officer Basic Recruit Training Course.
Findings Of Fact The Petitioner is an applicant to become a corrections officer. As such, she was required to take and pass the BAT as a prerequisite to the Corrections Officer Basic Recruit Training course. It was Petitioner’s intention to take the requisite course offered at Miami-Dade College. The Respondent is the state agency responsible for the licensing and certification of all corrections officers. On February 7, 2002, the Petitioner took the BAT for corrections officers. The Petitioner scored a 58 percent on the BAT and was given a “fail.” In order to pass the BAT, a score of 68 percent must be achieved. Those who fail the BAT may retake the test not sooner than 30 days after the original test administration date. According to the Petitioner, she did not understand that she had failed the BAT. Petitioner alleged that two men who she thought worked for Miami-Dade County advised her that she had passed the examination. More specifically, the men told Petitioner of the need for Haitian corrections officers and they promised to help her obtain employment as a corrections officer. In return, the Petitioner was to pay the men a certain amount of money as compensation for their help. In truth, the men were not connected to Miami-Dade County. There is no evidence that such individuals were authorized to procure Haitians such as this Petitioner for employment as corrections officers. Moreover, the test results that they furnished to Petitioner, which she then gave to Miami- Dade College, represented she had taken the BAT on March 7, 2002. Petitioner did not take the examination on March 7, 2002. The BAT results dated March 7, 2002 represented Petitioner had achieved a “pass” on the test. Petitioner knew or should have known that a test date of March 7, 2002, was not accurate or possible since she did not take the BAT on that date. Additionally, she should have realized that the only test date that could be stated as her own was February 7, 2002 as that was the only date Petitioner took the BAT. In order to register for the corrections officer basic recruit course at Miami-Dade College, Petitioner gave the BAT results with the March 7, 2002, date to the registering agent. The March 7, 2002, “pass” result did not accurately reflect the Petitioner’s performance on the BAT. The Petitioner maintains that the two men who sought her money in exchange for their help in obtaining the corrections officer job perpetrated any wrongdoing and that she was an innocent dupe in their plot. Neither of the individuals testified in this case, and according to Petitioner, their whereabouts is unknown. The Petitioner turned in the March 7, 2002, BAT results in order to register for the basic recruit course.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a final order disqualifying the Petitioner from taking the BAT for a period of five years in accordance with Florida Administrative Code Rule 11B-35.0011(5). S DONE AND ENTERED this 8th day of March, 2005, 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 8th day of March, 2005. COPIES FURNISHED: Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Grace A. Jaye, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Ronald J. Cohen, Esquire Ronald J. Cohen, P.A. 8100 Oak Lane, Suite 403 Miami Lakes, Florida 33016
