STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KENNETH A. CARPER, )

)

Petitioner, )

)

vs. ) CASE NO. 87-4979

)

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

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing in the above action was held on February 5, 1988, in Orlando, Florida, before Mary Clark, Hearing Officer of the Division of Administrative Hearings.

The parties were represented as follows:

For Petitioner: Brian E. Currie, Esquire

SANDERS, McEWAN, MIMS & MARTINEZ, P.A.

108 East Central Boulevard Post Office Box 753 Orlando, Florida 32802-0753

For Respondent: H. Reynolds Sampson, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

BACKGROUND AND PROCEDURAL MATTERS

Petitioner, Kenneth A. Carper (Carper), took the Florida Professional Engineer's examination on April 10, 1987. He was notified that he failed the principles and practice portion of the examination with a score of 67.2. A score of 70 was required to pass.

This proceeding resulted from Carper's challenge of his score.

At the commencement of the hearing, the parties stipulated that Carper has a raw score of 45 points and needs 48 points to pass. His challenge is limited to the score which he received on a single question, #121. He received a "6" out of a possible 10 points.

The parties also stipulated that the standard for measuring the appropriate score is the National Council of Engineering Examiners Item Specific Scoring Plan (ISSP) developed for question #121. This document, and the solution submitted by Carper for the question was admitted as joint composite exhibit #1. A deposition of Respondent's expert, Dr. Louis Motz, was admitted by stipulation

as joint exhibit #2, in lieu of live testimony. Petitioner specifically reserved the right to object to the qualifications and expertise of the witness

At hearing, Carper testified in his own behalf and presented the testimony of two expert witnesses. His four exhibits, including his answer to question #421, the experts' resumes, and a portion of a Florida DOT manual, were received into evidence. Respondent objected to exhibit #4. (Portion of DOT manual), based on lack of relevance.

Respondent's case was presented through the joint exhibit and deposition addressed above. After hearing, both parties submitted memoranda and proposed recommended orders. The proposed findings of fact are addressed in the attached Appendix.

ISSUE

The single issue for determination is whether Petitioner is entitled to at least three more points on his response to question #121. If not, he has failed the examination.

FINDINGS OF FACT

1. Kenneth A. Carper graduated summa cum laude with a bachelor's degree from the University of Central Florida. In the nine years since graduation he has worked for an engineering firm primarily in the area of drainage design.

   
   

2. Question #121 is the type of problem he deals with daily. The ultimate objective of the question is to determine whether the flow of an open channel with given specifications is subcritical or supercritical. The question required the computation of the channel's critical depth and normal depth.

   
   

   In the hypothetical situation described by the question, certain extraneous information was given. An appropriate answer required that this "red herring" be ignored.

   
   

3. The ISSP is a standardized grading device by which a person subjectively grading a problem will consistently apply a score based upon specified types and numbers of deficiencies. The intent is to reduce the chance of over-leniency or an overly strict approach by different graders.

   
   

4. The ISSP developed by the National Council of Engineering Examiners for question #121 provides in pertinent part:

   
   

   10. QUALIFIED: All CATEGORIES satisfied,

   correct solution, well organized, all relevant ASPECTS fully addressed.

   Correct approach; numerical answers correct within rounding errors; conclusion correct; adequate written records. All parts are of equal weight (3 parts).

   
   

   9. QUALIFIED: All CATEGORIES satisfied,

   correct solution but exces- sively conservative in choice of working values; or presen- tation lacking in completeness

   of equations, diagrams, orderly steps in solution, etc.

   All correct, as in 10 above, except for a single math/units error; or inadequate written record.

   
   

   8. QUALIFIED: All CATEGORIES satisfied,

   errors attributable to misread table or calculating devices. Errors would be corrected by routine checking. Results reasonable, though not correct.

   All correct, as in 10 above, except for multiple math/units errors; or inadequate written record; or in combination.

   
   

   7. QUALIFIED: All CATEGORIES satisfied.

   Obtains solution, but chooses less than optimum approach.

   Solution is awkward but reasonable.

   Same as 8 above, except for more gross errors; or in combination; or a single part of three parts required completely wrong or missing, with the other two parts correct.

   
   

   6. QUALIFIED: All CATEGORIES satisfied,

   applicant demonstrates minimally adequate knowledge in all relevant ASPECTS of the item.

   Multiple math/units/records errors; or in combination; or one part completely missing or wrong, with other errors; or in combination.

   
   

   (Joint Exhibit 1)

   
   

5. The grader of Carper's examination did not testify, but provided notations on the answer sheet. The solution required selection of an appropriate formula, which Carper did; it also required a trial and error mathematical computation of the value of "y." In the first part of the question Carper found "y" to be "... between 9.2 and 9.3, say 9.3'." The grader crossed out this answer with the notation,-- "not an engineering answer-Finish iteration to a close enough' final value." The grader's answer was 9.24.

   
   

   In the second part of the question, Carper indicated "y" was "... between

   6.8 and 7.0, say 7.0'." The grader's answer was 6.99, and similar notations, were made, "not an engineering answer. Finish the iteration."

   
   

6. It is apparent that the grader felt that the solution should be carried out to the nearest hundredth place. Yet, in a very similar question (#421), also requiring computation of normal depth, Carper's answer, 4.7' was marked "OK", and he received the full 10 points for his solution.

   
   

7. Nothing in the instructions specifically requires a solution to the nearest hundredth. This is left to the judgement of the engineer.

8. "Real world" engineering practice would not require a solution to the nearest hundredth place. The design of a large open channel is substantially less precise than the design of a bridge or multi-story building. In hydraulics, the practice is often to round up, for example, from a 9.8 to 10, as a conservative measure. It is also common to use estimates; for example, the roughness coefficient (resistance of the channel walls) is a textbook figure, rather than one derived from the structure itself. Given the lack of precision inherent in the formula, the computation of value beyond the tenth place serves no valid purpose.

   
   

9. The sample solution to #121 provided by the grader specifically states "ignore backwater curve." While Carper's solution does ignore the "red herring," his work sheet does not affirmatively note that he did. Respondent claims that the grader could not know whether the back water curve was properly ignored, or just overlooked.

   
   

   At worst, this minor deficiency constitutes an inadequate written record.

   
   

10. The appropriate score, based on the ISSP table reflected in paragraph 4, above, is "9." Carper selected the proper formula, performed the mathematics and arrived at answers reflecting acceptable engineering practice. The descriptions of deficiencies for the scores of less than 9 do not apply to Carper's solution for this question. Respondent's expert conceded that the solution did not contain a mathematics error.

    
    

11. In making these findings I have considered and weighed the opinions of the three experts who testified in this proceeding.

    
    

    Both experts presented by Petitioner were qualified, without objection, in the engineering fields of hydraulics, hydrology and water resource management. They both have over 30 years of extensive practical experience in those fields, and they both have lectured or taught in colleges and universities. The weight of their testimony is tempered by their personal knowledge of Petitioner for eight or nine years and by their knowledge of the score he needed to pass the examination.

    
    

    Nothing in the substance of their testimony, however, revealed a bias in favor of their colleague, and their testimony was considered candid and forthright. They would have scored #121 as "9" or "10".

    
    

    Respondent's expert, a consulting engineer, employed as an Associate Professor in the University of Florida Civil Engineering Department did not know Carper, nor was he advised of the score he would need to pass. He would have given Carper a "6" or "7" on question #121, but more likely a 7, based on Carper's failure to carry his answer to "three significant figures." This opinion was not adequately explained in terms of acceptable engineering practice, but rather was based on acceptance of the test grader's judgement. (Joint Exhibit #2, Deposition, p. 29) Respondent's expert was less qualified than Petitioner's experts. His primary experience as a consulting engineer has been in review of the work of others, rather than active design.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1), F.S.

13. "Ordinarily one who fails a licensure examination would shoulder a heavy burden in proving that a subjective evaluation by an expert is arbitrary." Harac v. Department of Professional Regulation, Board of Architecture, 484 So.2d 1333, 1338 (Fla. 3rd DCA 1986), citing Sanitarians' Registration Board v. Solomon, 148 So.2d 744 (Fla. 1st DCA 1963).

    
    

14. The applicant in this case proved that his answer was consistent with good engineering judgement.

Rule 21H-21.003 F.A.C., provides the guidelines for grades for part two of the engineers examination:

* * *

Grades on Part Two of the examination will be based upon the application of good engineering judgment, the selection and evaluation of pertinent information and the demonstration of the ability to make reasonable assumptions when necessary.

Answers may vary due to assumptions made. Partial credit will normally be given if correct fundamental engineering principles are used, even though the answer may be incorrect. All grading will be done by an expert committee provided by the national testing service supplying the examination.

* * *

The testimony of Petitioner's experts adequately rebutted any presumption of the validity of the grader's judgement that the answers should have been carried out to the nearest hundredth place. The grader did not testify to support that judgement nor did Respondent's expert supply that justification.

The answer suggested by the grader was not reasonable or consistent with good engineering judgement, according to the evidence presented in this case.

RECOMMENDATION

Based upon the foregoing, it is hereby RECOMMENDED:

That a Final Order be entered, awarding Kenneth Carper 9 points for question #121, thereby providing a passing grade for the engineering examination.

DONE and RECOMMENDED this 29th day of February, 1988, in Tallahassee, Florida.

MARY CLARK

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 29th day of February, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4979

The following constitute my rulings on the findings of fact proposed by the parties:

Petitioner

1-5. Addressed in Background. 6-7. Adopted in paragraph #11.

8. Addressed in Background.

Respondent

1. Addressed in Background.

2. Adopted in substance in paragraph #3.

3. Adopted in paragraph #10.

4. Adopted in substance in paragraph #10.

5. Adopted in paragraph #9.

6. Adopted in substance in paragraph #5.

7. Rejected as unsubstantiated speculation.

COPIES FURNISHED:

Brian E. Currie, Esquire SANDERS, McEWAN, MIMS &

MARTINEZ, P.A

108 East Central Boulevard Post Office Box 753 Orlando, Florida 32802-0753

H. Reynolds Sampson, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Allen R. Smith, Jr.

Executive Director

Board of Professional Engineers Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

William O'Neal, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 87-004979

Orders for Case No: 87-004979