STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DANIEL B. SCHMIDT, )

)

Petitioner, )

)

vs. ) CASE NO. 87-4175

)

BOARD OF PROFESSIONAL ) ENGINEERS, DEPARTMENT OF ) PROFESSIONAL REGULATION, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice a formal hearing was conducted on January 13, 1988, at Gainesville, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: Mr. Daniel B. Schmidt (pro se)

2209 Northeast 15th Terrace Gainesville, Florida 32601

For Respondent: H. Reynolds Sampson, Esquire

Assistant General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

ISSUES AND INTRODUCTION

The basic issue in this case is whether the Petitioner should be given a passing grade on the April, 1987, professional engineering examination. At the hearing the specific issues in dispute were narrowed to whether the Petitioner should be given a higher grade on each of three questions on the examination.

At the hearing the Petitioner testified on his own behalf and presented the testimony of two other witnesses. He also offered several documentary exhibits into evidence. The Respondent offered the testimony of one witness and also offered several exhibits. Subsequent to the hearing a transcript of the hearing was filed with the Hearing Officer and the parties were given a reasonable time thereafter within which to file their proposed recommended orders. Both parties filed post-hearing submissions containing proposed findings of fact, conclusions of law, and recommendations. The parties' proposals have been given careful consideration in the preparation of this recommended order. All findings of fact proposed by all parties are addressed in the Appendix which is attached to and incorporated into this recommended order.

FINDINGS OF FACT

Based on the stipulations and admissions of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at hearing, I make the following findings of fact.

1. The April, 1987, professional engineering examination required an applicant to work four problems in the morning session and four problems in the afternoon session, for a total of eight problems. In order to pass the examination, the applicant had to achieve an average score of six points for all eight problems, or a raw score of forty-eight points. Mr. Schmidt's examination was given a total score of forty points, comprised of scores as follows: 10, 8, 5, 5, 4, 4, 3, and 1. Mr. Schmidt, therefore, needs eight additional raw points in order to receive a passing grade on the examination. An additional requirement is that in order to receive a passing grade on the examination, the applicant must score six points or more on at least five of the eight questions.

   
   

2. Mr. Schmidt is challenging three questions on the exam, questions 114,

   411 and 418. On question 114, Mr. Schmidt was given a score of four. On question 411, Mr. Schmidt was given a score of five. On question 418, Mr. Schmidt was given a score of three. At the commencement of the hearing, the Respondent stipulated that Mr. Schmidt's score of question 418 should be increased to five.

   
   

3. The Item Specific Scoring Plan (ISSP) is a device utilized to standardize graders so that a person grading a specific problem for various different candidates would consistently apply the same score to the same type of deficiency throughout the scoring process. There was an individualized Item Specific Scoring Plan for each problem given on the subject examination. Each of the Item Specific Scoring Plans contains objective criteria for assigning from 0 to 10 points to a candidate's answer to each question. There is no evidence that the Item Specific Scoring Plans are defective or arbitrary and capricious.

   
   

4. The percentage of successful candidates on the chemical engineering examination has been rather low on recent examinations. Approximately 15% passed the April, 1986, exam. Only 2.9% passed the October, 1986, exam, and 25% passed the April, 1987, exam. During that same period of time the success rate was generally (but not always) higher for candidates for licensure in other fields of engineering.

   
   

5. The grade of four given to Mr. Schmidt's response to question number

   114 is consistent with the individualized Item Specific Scoring Plan for that question.

   
   

6. The grade of five given to Mr. Schmidt's response to question number

   411 is consistent with the individualized Item Specific Scoring Plan for that question.

   
   

7. The grade of three given to Mr. Schmidt's response to question number

   418 is not consistent with the individualized Item Specific Scoring Plan for that question. The parties have stipulated that Mr. Schmidt's grade on question number 418 should be at least five. The evidence is insufficient to show that Mr. Schmidt is entitled to a higher grade than five on question number 418.

   CONCLUSIONS OF LAW

   
   

   Based on the foregoing findings of fact and on the applicable statutes, rules, and court decisions, I make the following conclusions of law.

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sec. 120.57, Fla. Stat.

   
   

9. Petitioner has submitted evidence that in recent years the candidates for licensure as chemical engineers have been somewhat less successful than the candidates for licensure in other fields of engineering. However, such proof, standing alone, is insufficient to demonstrate any improper or unfair treatment of candidates for licensure as chemical engineers, because there are many other factors which could account for the differences in the success rates.

   
   

10. In a case of this nature the Petitioner bears the burden of demonstrating by a preponderance of the evidence that the decision of the graders was arbitrary or capricious. See State ex rel. Glaser v. J. M. Pepper,

    155 So.2d 383 (Fla. 1st DCA 1963); State ex rel. Topp v. Board of Electrical Examiners for Jacksonville Beach, 101 So.2d 583 (Fla. 4th DCA 1958).

    
    

11. Absent a showing that the examining board failed to follow standard procedures for conducting and/or grading the examination, or a showing that the candidate was treated differently from other examination candidates, examination results will not generally be disturbed. Macino v. Department of Professional Regulation, Board of Architecture, 5 FALR 994A (1983). See, also, John Howard Atchison v. Department of Professional Regulation, Bd. of Pilot Commissioners, DOAH Case No. 87-1726. (Recommended Order issued October 21, 1987.)

    
    

12. With regard to the Petitioner's evidence regarding the specific examination questions he has challenged; viewed in the light most favorable to the Petitioner, the most it demonstrates is that reasonable men may differ regarding the interpretation to be given to the standardized criteria and to the adequacy of a specific response to a specific problem. This is not, however, sufficient to support a conclusion that the Petitioner's responses to the problems were arbitrarily or capriciously graded, or that there was any abuse of discretion in this case. To the contrary, the greater weight of the evidence supports a conclusion that reasonable grades have been assigned to the Petitioner's responses to the three challenged questions.

RECOMMENDATION

Based on all of the foregoing, I recommend that the Board of Professional Engineers issue a final order to the following effect: Increasing Petitioner's score on question 418 from three to five, leaving Petitioner's other scores unchanged, and assigning to Petitioner a final grade of forty-two.

DONE AND ORDERED this 11th day of March, 1988, at Tallahassee, Florida.

MICHAEL M. PARRISH, 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 11th day of March, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4175

The following are my specific rulings on all of the proposed findings of fact submitted by the parties.

Findings proposed by Petitioner:

Petitioner's proposed findings regarding problem number 114 are essentially correct summaries of the testimony as far as they go. Nevertheless, most of them have been omitted as unnecessary subordinate details, particularly in view of the further testimony of Dr. O'Connell to the effect that he had no quarrel with the ISSP for this question and to the testimony of both Dr. O'Connell and Dr. Hanley to the effect that the grade given to Petitioner on this question is consistent with the ISSP.

Petitioner's proposed findings regarding problem number 411 have for the most part been rejected as irrelevant on the basis of testimony by both Dr.

O'Connell and Dr. Hanley to the effect that the ISSP required evidence of a trial and error solution and that such a solution is not shown in the Petitioner's answer.

Petitioner's proposed findings regarding problem number 418 are essentially correct summaries of the testimony as far as they go. Nevertheless, most of them have been omitted as unnecessary subordinate details, in view of additional evidence to the effect that the Petitioner's boxed answer to this question was not a reasonable answer.

With regard to the penultimate paragraph of the Petitioner's proposed findings, the first two sentences are essentially correct, but also irrelevant, because the burden of proof is on the Petitioner rather than on `the Respondent. With regard to the remainder of the penultimate paragraph, I have made findings regarding the success rate of chemical engineers, but find that evidence, standing along, insufficient to establish any impropriety in the examination.

The final paragraph of the Petitioner's proposed findings is more in the nature of argument than proposed facts. It may well be that the Petitioner received less prehearing information from the Respondent than he was entitled to receive, but those are matters which should be raised before rather than after the hearing, and are matters which are waived if not timely asserted.

Findings proposed by Respondent: Paragraph 1: Accepted.

Paragraph 2: Accepted.

Paragraph 3: Omitted as unnecessary subordinate details. Paragraph 4: Omitted as unnecessary subordinate details.

Paragraph 5: The essence of this paragraph has been accepted, but most details have been omitted an unnecessary.

Paragraph 6: Accepted.

Paragraph 7: Accepted.

Paragraph 8: Accepted in substance.

Paragraph 9: Accepted.

Paragraph 10: Accepted.

Paragraph 11: Accepted.

Paragraph 12: Omitted as unnecessary subordinate details.

COPIES FURNISHED:

Mr. Daniel B. Schmidt

2209 Northeast 15th Terrace Gainesville, Florida 32601

H. Reynolds Sampson, Esquire Assistant General Counsel Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

William O'Neil, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Allen R. Smith, Executive Director Board of Professional Engineers

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 87-004175

Orders for Case No: 87-004175