The Issue The issue in this case is whether Petitioner is entitled to credit for 14 challenged examination questions in the State Officers Certification Examination (SOCE) for Law Enforcement Officers.
Findings Of Fact Petitioner challenged 14 questions after failing the SOCE for the third and final time on September 30, 2009. The challenged questions are numbered 32, 62, 63, 79, 87, 128, 139, 154, 155, 156, 170, 187, 212, and 236. During the hearing, Petitioner withdrew her challenges to questions 79, 87, 155, and 212. Ten questions remain at issue in this proceeding. A preponderance of the evidence does not support Petitioner’s challenges to the 10 questions at issue. Expert testimony shows the challenged questions were validated through appropriate field testing. The questions are accurate to the curriculum and perform sufficiently during testing. The correct answer to each challenged question was identified in the curriculum by expert testimony during the hearing. The statistical probability of an examinee answering a question correctly is identified in the record by a "P" value. For challenged question 32, the “P” value was 0.80, which means that 80 percent of examinees answered the question correctly. Only 78 of 5,220 examinees chose the answer chosen by Petitioner for question 32. The "P" value for challenged question 62 was 0.76, meaning that 76 percent of examinees answered the question correctly. Only 222 of 1,655 examinees chose the response that Petitioner chose for question 62. The "P" value for challenged question 63 was 0.95, meaning that 95 percent of examinees answered the question correctly. Only 150 of 3,387 examinees chose the response that Petitioner chose for question 63. The "P" value for challenged question 128 was 0.59, meaning that 59 percent of examinees answered the question correctly. Approximately 2,142 of 4,456 examinees chose the response that Petitioner chose for question 128. The "P" value for challenged question 139 was 0.93, meaning that 93 percent of examinees answered the question correctly. Only 20 of 568 examinees chose the response that Petitioner chose for question 139. The "P" value for challenged question 154 was 0.90, meaning that 90 percent of examinees answered the question correctly. Only 51 of 4,331 examinees chose the response that Petitioner chose for question 154. The "P" value for challenged question 156 was 0.80, meaning that 80 percent of examinees answered the question correctly. Only 404 of 5,721 examinees chose the response that Petitioner chose for question 156. The "P" value for challenged question 170 was 0.81, meaning that 81 percent of examinees answered the question correctly. Only 596 of 4,681 examinees chose the response that Petitioner chose for question 170. The "P" value for challenged question 187 was 0.90, meaning that 90 percent of examinees answered the question correctly. Only 28 of 2,908 examinees chose the response that Petitioner chose for question 187. The "P" value for challenged question 236 was 0.92, meaning that 92 percent of examinees answered the question correctly. Only 133 of 2,449 examinees chose the response that Petitioner chose for question 236.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order denying Petitioner’s challenge to the 10 examination questions from the September 20, 2009, Law Enforcement State Officer Certification Examination numbered 32, 62, 63, 128, 139, 154, 156, 170, 187, and 236. DONE AND ENTERED this 9th day of April, 2010, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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, 2010.
The Issue Whether the Petitioner should be fined $11,000.00 and have its license revoked for failing to correct a Class III deficiency and for a Class II deficiency related to the same set of facts.
Findings Of Fact The Agency is the state agency responsible for the licensing and regulation of ALF's in the State of Florida. The Petitioner is licensed to operate Woodland Field, Inc., as an ALF in Jacksonville, Florida. Robert Cunningham was called as a witness for the Agency. He is a Health Facilities Evaluator II. His duties include performing surveys of different health care facility types. Mr. Cunningham was familiar with Woodland Field because he had surveyed Woodland Field, Inc. Mr. Cunningham identified the Agency's composite Exhibit 1, item 1, as a copy of a letter to Ms. Wallace reporting himself and Audrey Deas, R.N.'s findings of the state appraisal survey of February 14, 2002. Mr. Cunningham found that one staff member on duty at the time of the survey, who was hired in 2001, did not have a Level I background screening on file. See Tag A511, Exhibit 1, item 1. Mr. Cunningham also testified that a staff worker must have a Level I background screening. Mr. Cunningham discussed the employee with Ms. Harriett Wallace and made her aware of the fault, and that it was a Class III deficiency. Mr. Cunningham gave the facility a 30-day period up to and including March 16, 2002, to correct the deficiency. Mr. Cunningham identified the Agency's composite Exhibit 1, item 2, as a copy of a follow-up survey conducted on March 15, 2002, by himself and Audrey Deas. On the follow-up of March 15, 2002, Mr. Cunningham testified that he found Tag A511 uncorrected. The employee who did not meet background screening requirements in February was still there in March. Additionally, it was determined that this person had committed disqualifying offenses. See Tag A1115. Mr. Cunningham testified that he surveyed the facility a day earlier than the full 30 days given for the correction because a plan of correction submitted by the facility showed everything to be corrected on or before March 15, 2002, or a day early. However, the Petitioner had until the following day to effect the correction. Mr. Cunningham cited Tag A1115 because of the police report that he received from Protective Services of Department of Children and Family Services suggested further problems with this particular employee. Robert Dickson was called as a witness for the Agency. Mr. Dickson is employed by the Agency in the Jacksonville Field Office as a Health Facility Evaluator Supervisor. Mr. Dickson supervised Mr. Cunningham and others in the Jacksonville Field Office. Mr. Dickson is familiar with Woodland Field, Inc. Mr. Dickson identified the Agency's Composite Exhibit 1, item 3, as a copy of a recommendation for sanction drafted by himself and approved by his supervisor's designee on March 23, 2002, based on the on-site visits February 14 and March 15, 2002. Petitioner was originally cited for a Class III deficiency, Tag A511. Upon re-inspection, Petitioner was again cited for an uncorrected Class III deficiency, Tag A511, which warranted a fine. The Class II deficiency, Tag A1115, pertaining to the disqualified employee being retained in the facility and a Class III deficiency, Tag A511, pertaining to the employer who was not in compliance with Level I background screening requirements were the bases for levying the second fine on Petitioner. However, it is noted that both cited violations relate to the same factual predicate. Both citations relate to the employment of Pamela Harvey. Petitioner could have come into compliance merely by firing her. At the time of the second inspection, the Petitioner had initiated a background check on Pamela Harvey and been advised by FDLE that Pamela Harvey was cleared for employment. The source of Pamela Harvey's disqualification may have been communicated orally to Wallace by Cunningham, but there is uncertainty about whether the Department had provided Wallace a copy of the disqualifying record. There was no uncertainty about Pamela Harvey's clearance by FDLE. A conflict existed at this point between agencies regarding clearance of Pamela Harvey, and it was incumbent upon the Agency to provide Wallace with a copy of the disqualifying record and resolve the conflict, not just cite Petitioner for an alleged violation. Ms. Wallace had initiated the paperwork for the background screen of the subject employee after the first survey, and around the 1st of March, received notice from Tallahassee that the employee was cleared. Ms. Wallace notified Mr. Cunningham that she had received a clear report from Tallahassee. See Petitioner's Exhibit 2. Therefore, she had complied with the screening requirement for which she was originally cited. She had appropriate documentation. Mr. Cunningham verbally advised Ms. Wallace about the employee's arrest, but did not provide her a written copy of the file which AHCA had received from the Protective Services of the Department of Children and Family Services. The reviewing personnel in AHCA had the information on the employee; however, the FDLE, from whom an employer requests a background check did not have the record of conviction. Over the next several months, the Petitioner continued to submit information to FDLE and receive back an all clear on Harvey. The Agency's witnesses could not state with certainty that they ever gave the Petitioner a copy of the information from the Department of Children and Family Services.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Agency for Health Care Administration enter a final order dismissing both complaints. DONE AND ENTERED this 6th day of December, 2002, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 6th day of December, 2002. COPIES FURNISHED: Michael O. Mathis, Esquire Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308-5403 Harriett Wallace, Administrator Woodland Field, Inc. 8236 Moncrief-Dinsmore Road Jacksonville, Florida 32219 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Rhonda M. Medows, M.D., Secretary Agency for Health Care Administration 2727 Mahan Drive, Suite 3116 Tallahassee, Florida 32308
The Issue Whether Petitioner's request for a waiver from a rule which would allow her to reactivate her law enforcement certification without further training or examination should be granted.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this proceeding, Petitioner, Zoe Gail McLendon, whose correctional officer and law enforcement certifications became inactive in October 1999, seeks a waiver from the requirements of Rule 11B-27.0026(2)(a) and (b), Florida Administrative Code. That rule requires that in order for her to activate her certifications, Petitioner must successfully complete refresher training courses and pass certification examinations in each discipline. If the waiver is approved, Petitioner intends to activate her law enforcement certification and seek employment with the Citrus County Sheriff's Office as an auxilliary deputy sheriff. Without reaching the merits of her request, Respondent, Florida Department of Law Enforcement (FDLE), Criminal Justice Standards and Training Commission (Commission), rendered a preliminary decision on May 3, 2000, denying Petitioner's request on the ground that she was actually seeking a waiver of a statute, which is expressly forbidden by Section 120.542(1), Florida Statutes (1999). Petitioner was first certified as a law enforcement officer on March 24, 1987, having been issued Law Enforcement Certification No. 66303. She is also certified as a correctional officer, having been issued Correctional Officer Certification No. 66304 on May 8, 1984. From December 16, 1983, until October 1, 1995, Petitioner was employed by the Citrus County Sheriff's Office as a correctional officer at the Citrus County Detention Facility. When the position was privatized on October 1, 1995, she continued to work in the same position for Correctional Corporations of America until October 23, 1995, when she voluntarily resigned. She has not worked with a law enforcement agency since that time. Under Section 943.1395(3), Florida Statutes (1999), if a certified officer is separated from employment and is not re- employed by a law enforcement agency within four years after the date of separation, the officer must meet the minimum qualifications for certification, including any retraining required by Commission rule. The purpose of such retraining is to bring the officer's skills up-to-date after having been inactive over the prior four-year period. Rule 11B-27.0026(1)(a) and (b), Florida Administrative Code, implements the foregoing statute and provides that a person seeking to reactivate a law enforcement certification must take a 92-hour certification examination refresher course and a high- liability training course (including defensive tactics, firearms, and driving), and successfully complete the state certification examination. Therefore, Petitioner had to be re-employed by a law enforcement agency no later than October 23, 1999, or be subject to these additional training and examination requirements. Petitioner acknowledges that she was aware of this requirement. In addition to the foregoing requirements, Petitioner was also required to complete forty hours of mandatory retraining as a correctional officer by June 30, 1997, and a similar number of hours of mandatory retraining as a law enforcement officer by June 30, 1999. In May 1999, Petitioner spoke by telephone with Bonnie Miller (Miller), human resource director for the Citrus County Sheriff's Office, concerning possible employment as an auxilliary deputy. Petitioner explained that she needed to complete her mandatory retraining by June 30, 2000, and to be re-employed before October 23, 1999, in order to keep her law enforcement certification from expiring. Miller told Petitioner that any application she filed would be considered, but that she should speak with Sergeant Vern Blevins (Blevins), the training officer, who was more familiar with the mandatory retraining requirements. Petitioner then telephoned Blevins to inquire whether her recent graduation from St. Leo College with a degree in Criminal Justice would satisfy the mandatory retraining requirement. Blevins told Petitioner that he did not know if the degree would satisfy the domestic violence, human diversity, and juvenile sexual offender portions of the training requirement. He also told her that the Sheriff's Office had no in-house training courses available before June 30, 1999, and he referred her to several nearby schools that offered such training, including the Withlacoochee Vocational Technical Center (Vo-Tech Center) and a community college. On a later undisclosed date, Petitioner spoke with an instructor named Eva Brown at the Vo-Tech Center and says Brown advised her to make an inquiry about retraining with FDLE's office in Tallahassee. On October 11, 1999, or less than two weeks before her certificates became inactive, Petitioner telephoned Brenda Harp in the FDLE's records section and left a message (and two contact telephone numbers) indicating that she needed a question answered. Another record sections employee, Ms. Murozzi, attempted to return the call the same day but was unable to reach Petitioner at either of the two telephone numbers given. Efforts to reach Petitioner the following day were also unsuccessful. On October 22, 1999, or the day before her law enforcement certification became inactive, Petitioner again telephoned the Commission and spoke for about an hour with Murozzi concerning her situation. Petitioner was told essentially the same thing that she already knew - that her certification would expire the following day since she had not completed the mandatory retraining or become employed by a law enforcement agency. A suggestion was made by Murozzi that perhaps Petitioner might seek a waiver from the Commission's rule. This proceeding followed. While it is true that a strict application of the rule will obviously create a substantial hardship on Petitioner, the application of the rule will not affect Petitioner in a manner significantly different from the way it affects other similarly situated persons who are subject to the rule. Indeed, the evidence shows that "several thousand" individuals in the same situation as Petitioner have been required to undergo the very same training and examination requirements that Petitioner seeks to have waived. This indicates rather clearly that Petitioner's circumstances are not unusual, and that thousands of officers have found themselves in the same situation. At the same time, Petitioner cannot satisfy the purpose of the underlying statute [Section 943.1395(3), Florida Statutes (1999)] by any other means. In other words, without the retraining and examination required by the rule, Petitioner's law enforcement skills cannot be brought up-to-date. Although not germane to the waiver issue, at hearing Petitioner contended that the Commission had the responsibility to timely notify her before October 1999 of all requirements that she had to satisfy in order to keep her certificates active. State law provides, however, that the local employing agency (rather than the Commission or FDLE) has this duty. If an officer is unemployed, like Petitioner was, then the responsibility rests upon the individual to ascertain that information. This is because there are "a couple of hundred thousand or more inactive officers" at any given time, and the Commission neither has the statutory duty nor the computer capability to keep track of certification requirements for that number of inactive officers and to relay that information to each inactive officer. At hearing, Petitioner also took the position that because the Florida Statutes provide for a waiver of rules under certain circumstances, she is automatically entitled to one. This contention has been found to be without merit.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order denying Petitioner's request for a waiver from the requirements of Rule 11B-27.0026(2)(a) and (b), Florida Administrative Code. DONE AND ENTERED this 7th day of November, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (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 7th day of November, 2000. COPIES FURNISHED: A. Leon Lowrey, II, Program Director Division of Criminal Justice Professionalism Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Michael R. Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Zoe Gail McLendon Post Office Box 842 Dunnellon, Florida 34430 Shehla A. Milliron, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489
The Issue The issue in this case is whether Petitioner should receive credit for any or all of the four challenged questions from the State Officers Certification Examination (“SOCE” or “Exam”).
Findings Of Fact Petitioner attended law enforcement proficiency training and was provided with 76 hours of instruction. Petitioner was instructed from the 2018 versions of the law enforcement and high liability textbooks. Respondent utilized experienced field training officers, curriculum development staff, and advisory teams to develop curriculum and corresponding examination questions for the SOCE. The questions are evaluated and validated through a process that includes internal and external review for content and accuracy and are field tested as non-graded questions a minimum of 100 times in actual exams for further validation and statistical data collection prior to use on graded exams. When examinees sit for the SOCE, they are informed prior to beginning the Exam that the questions and answers are derived solely from the curriculum and that there is only one correct answer for each question. Petitioner took and failed the Exam three times: on April 4, 2019; April 17, 2019; and July 25, 2019. Petitioner obtained a raw score of 149 correct answers out of a total of 190 graded questions on his third and final attempt on July 25, 2019. A passing score for the Exam is 80 percent, which requires a minimum of 152 correct answers. In order to pass the Exam, Petitioner would need credit for at least three more questions added to his score. Petitioner challenged a total of four multiple-choice questions. Respondent provides each examinee who fails to achieve a passing score the opportunity to review and challenge any question for which he or she did not receive credit. Exam questions challenged by examinees are reviewed by subject-matter experts from advisory teams, and credit is awarded when warranted. The review process strictly addresses the accuracy of the examination questions as they relate to the training curriculum. If credit is awarded, thereby invalidating a challenged exam question, that question is removed from use in all future exams. Each of the four exam questions at issue was challenged by Petitioner and reviewed by Respondent. Following the review process for each of the four challenged questions, no additional credit was awarded. Respondent upheld the validity and accuracy of each of the four questions and answers as originally scored in accordance with the exam key as having no other possible correct answers based on the curriculum. With respect to Question One: Methamphetamine Laboratory, examinees were asked to select which of four statements about such laboratories is accurate. Petitioner chose answer A. for Question One, based on his reasoning that it stated that methamphetamine labs produce an odor similar to bleach and that the training materials mention bleach in the relevant section. Petitioner’s selection of answer A. is based on a misreading of the training materials. The clear language of Question One dictates a single correct answer, which is directly based on the training curriculum. The curriculum describes a range of sizes for how small or large a methamphetamine lab may be, which is reflected verbatim in answer B. The correct answer to Question One is B., consistent with Respondent’s answer key. With respect to Question Two: Battery by a First Responder, examinees were asked to determine what crime an officer could be charged with based on a hypothetical wherein the officer provided first aid to a person without consent. Petitioner chose answer D., stating that the question was open to interpretation because it did not state whether the officer actually touched the person in the hypothetical. Petitioner’s answer was based on the assumption of elements of a negligence claim that were not presented in the question. The clear language of Question Two dictates a single correct answer, which is directly based on the training curriculum. The curriculum states that first responders may be charged with battery for rendering emergency care without the patient’s consent, which is accurate to the hypothetical described in Question Two and reflected in Answer A. The correct answer to Question Two is A., consistent with Respondent’s answer key. With respect to Question Three: First Aid, examinees were asked to select which step a first-aid provider should take first when trying to stop a specified type of bleeding. Petitioner chose answer B., which Petitioner stated was described in the curriculum as a step to be used to control bleeding. Although the step Petitioner chose was described as a step to be used to control bleeding in the curriculum, it was not listed as the first step. The clear language of Question Three dictates a single correct answer, which is directly based on the training curriculum. The curriculum lists, in order, what steps a first-aid provider should take to control bleeding. The first step listed in the curriculum is reflected in answer D. The correct answer to Question Three is D., consistent with Respondent’s answer key. With respect to Question Four: Sexual Harassment, examinees were presented with a hypothetical exchange between two officers and then prompted to select which type of sexual harassment was demonstrated in the hypothetical. Petitioner chose answer D., based on his opinion that the question was poorly worded, leaving the answer open for interpretation. Petitioner did not cite to any portion of the training curriculum as a basis for his selection of answer D. The clear language of Question Four dictates a single correct answer, which is directly based on the training curriculum. The curriculum specifically states that a conversation of the type described in Question Four’s hypothetical is verbal sexual harassment, as reflected in answer A. The correct answer to Question Four is A., consistent with Respondent’s answer key.
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 rejecting Petitioner’s challenge to the failing score he received on the July 25, 2019, SOCE. DONE AND ENTERED this 23rd day of March, 2020, in Tallahassee, Leon County, Florida. S BRITTANY O. FINKBEINER 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 23rd day of March, 2020. COPIES FURNISHED: Lester Blount 6025 Wedgewood Village Circle Lake Worth, Florida 33463 (eServed) Christopher David Bufano, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 (eServed) Linton B. Eason, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 (eServed) Jason Jones, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 (eServed) Dean Register, Program Director Division of Criminal Justice Professionalism Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489
The Issue The issue is whether Petitioner is entitled to a passing score on the law enforcement officer certification examination.
Findings Of Fact Petitioner took the law enforcement officer certification examination on October 20, 2005. He needs to obtain credit for two more correct answers in order to pass the test. Respondent has challenged the scoring of five questions. The first challenged question asked what an examinee should do when he or she, as a law enforcement officer, is the first person on the scene of an accident with an eviscerated victim. The correct answer called for conservative treatment, consistent with the level of medical training of the typical law enforcement officer and the preeminent objective doing no harm to the victim. Respondent's more aggressive response is unsupported by the relevant curriculum and clearly would have further endangered the accident victim. The second challenged question asked the examinee how he or she, as a law enforcement officer, should approach a dangerous situation. The question specifically warned against so-called "tombstone courage" that can cost an officer his or her life. Consistent with his take-charge attitude, as exemplified by his first response, Respondent selected an answer that constituted his taking action, based on the fact that he is supplied with a sidearm. The correct answer discouraged the officer from risking his life to be a hero. At the hearing, Petitioner did not contest that his answer was incorrect to the second challenged question. He testified that he actually provided the correct answer to the question. However, examination of the answer sheet proved otherwise. The third challenged question asked the examinee to identify the penalty for an officer tampering with the evidence at a crime scene. As noted in the Conclusions of Law, the correct answer is revocation, not the lesser penalty that Petitioner selected. The fourth challenged question asked the examinee to identify the "first" thing he or she would have to have done to ensure that a weapon found in the prisoner section of a police car, immediately after the prisoner had been transported, would be admissible into evidence. Petitioner insisted that the first thing would be to search the compartment immediately after the prisoner was removed from the car, but the correct answer focused on what had to take place earlier--a search of the compartment prior to the prisoner's occupying the compartment. The fifth challenged question asked the examinee to identify a statement in the active voice. All but one of the choices were in the passive voice, and Respondent selected one of these statements. Respondent correctly graded each of the challenged questions, and Petitioner failed to pass the law enforcement officer certification examination.
Recommendation It is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order dismissing Petitioner's challenge to the law enforcement officer certification examination. DONE AND ENTERED this 20th day of June, 2006, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 20th day of June, 2006. COPIES FURNISHED: Michael Crews, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Grace A. Jaye, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Commodore Bradford 13628 Folkstone Court Wellington, Florida 33414
The Issue The issues to be determined in this proceeding are whether the Respondent committed the acts alleged in the Amended Administrative Complaint and, if so, what penalty should be imposed?
Findings Of Fact At all times material to the allegations in the Amended Administrative Complaint, Respondent held Florida Educator's Certificate 726297, covering the areas of biology and technology education, which was valid through June 30, 2006.2/ At all times relevant to these proceedings, Respondent was employed as a teacher at Fort Clark Middle School in the Alachua County School District. On or about December 22, 1999, Respondent was given a Citation/Notice to Appear by the Department of Environmental Protection, Division of Law Enforcement, at the Paynes Prairie Preserve, and charged with trespass in a restricted area, a misdemeanor offense. The case was docketed as State of Florida v. Daniel Gardiner, Case No. 99-14490-MMA (Eighth Judicial Circuit, in and for Alachua County, Florida). On March 28, 2000, Respondent entered into an agreement for deferred prosecution of the criminal charge (the Deferred Prosecution Agreement). The Deferred Prosecution Agreement provided in pertinent part: It appearing that you have committed offenses(s) against the State of Florida referenced above and it further appearing after an investigation of those offense(s) and your background that the best interests of justice will be served by the following procedures: On the authority of ROD SMITH as State Attorney for Alachua County, Florida, prosecution in this matter will be deferred for a period of 6 months from the date hereof, and your bond(s), if any, returned now, PROVIDED you agree to do (sic) fully abide by the following terms and conditions during said period: You shall refrain from violating any federal or state law or county municipal ordinance. If arrested, you shall immediately inform the State Attorney's Office in writing of the charge, and promptly advise in writing of the final disposition of the charge (i.e., dismissed, plea of guilty or not guilty by a judge or jury). Your execution of this instrument shall constitute a withdrawal of any demand for speedy trial previously filed by you pursuant to Florida Statute 918.015 and Fla.R.Cr.Pr. 3.191, and a stipulation that the periods of time established by said Rule for trial and any other rights conferred upon you by said Rule are waived. * * * (5) SPECIAL CONDITIONS, if any: Donate $150.00 to Newberry High School Academy of Criminal Justice Scholarship Fund, . . . . Perform 24 hours of Community Service . . . . You shall not enter any state parks. * * * If you comply with these conditions during the period of deferred prosecution, the charge(s) referred to above will be dismissed. The period of deferred prosecution may be shortened or terminated early by the State Attorney. . . . Respondent was represented by counsel in connection with the Deferred Prosecution Agreement, and signed a statement acknowledging that he understood the conditions of the Agreement and had received advice from his attorney regarding the matter. On or about July 11, 2000, the Assistant State Attorney entered a nolle proseque/no information with respect to the above-referenced charge, and the charge was dismissed based upon Respondent's completion of the Deferred Prosecution Agreement. Respondent reported his Deferred Prosecution Agreement to the assistant principal of Fort Clark Middle School. He did so because he believed it was required under what he referred to as the educator's Code of Ethics. The Principles of Professional Conduct for the Education Profession are adopted by rule at Florida Administrative Code Rule 6B-1.006, and are in the Chapter referred to as the Code of Ethics of the Education Profession in Florida. The reporting requirement with respect to criminal proceedings provides the following: (4) Obligation to the profession of education requires that the individual: * * * (m) Shall self-report within forty-eight (48) hours to appropriate authorities (as determined by the district) any arrests/charges involving the abuse of a child or the sale and/or possession of a controlled substance. . . . In addition, shall self-report any conviction, finding of guilt, withholding of adjudication, commitment to a pretrial diversion program, or entering a plea of guilty or Nolo Contendre for any criminal offense other than a minor traffic violation with forty-eight (48) hours after the final judgment. . . . On or about January 18, 2002, Respondent submitted an application to the Florida Department of Education to add an additional subject to his certification. The application contained the following question: 28. Have you ever been convicted, found guilty, had adjudication withheld, entered a pretrial diversion program, or pled guilty or nolo contendere (no contest) to a criminal offense other than a minor traffic violation (DUI is NOT a minor traffic violation)? Failure to answer this question accurately could cause denial or a certificate. Respondent answered question 28 "no." The text of the rule quoted above that identifies what conduct triggers self- reporting, and the text of the question on the application submitted to the Department, are virtually identical. The application contained the following statement: I hereby certify that I subscribe to and will uphold the principles incorporated in the Constitutions of the United States of America and the State of Florida. I understand that Florida Statutes provide for revocation of an Educator's Certificate if evidence and proof are established that the certificate has been obtained by fraudulent means. I further certify that all information pertaining to this application is true, correct, and complete. Respondent signed the application, and his signature is notarized. Respondent did not consult his attorney before signing and submitting the application. His testimony that he did not believe that pretrial intervention encompassed a deferred prosecution agreement is not credible.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered finding Respondent to be guilty of the violations alleged in Counts II-V and dismissing Count I of the Amended Administrative Complaint; imposing a reprimand, a $500.00 fine, and an administrative sanction barring Respondent from applying for a new certificate for a period of six months. DONE AND ENTERED this 17th day of April, 2009, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 17th day of April, 2009.
