STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RALPH SANCHIOUS, )

)

Petitioner, )

)

vs. ) CASE NO. 89-7002

)

FLORIDA DEPARTMENT OF )

ENVIRONMENTAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

On February 14, 1990, a formal administrative hearing was held in this case in Polk City, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Ralph Sanchious, pro se

Polk Correctional Institution 3876 Evans Road, Box 50

Polk City, Florida 33868

For Respondent: Cynthia K. Christen, Esquire

Department of Environmental Regulation

2600 Blair Stone Road Tallahassee, Florida 32399-2400

STATEMENT OF THE ISSUES

Whether the Respondent, the Department of Environmental Regulation (DER), should deny the Petitioner's application for a Class C drinking water treatment plant operator certificate based on the Petitioner's alleged cheating on the examination.

PRELIMINARY STATEMENT

The Petitioner, Ralph Sanchious, was determined to be eligible for certification as a Class C Water Treatment Operator, subject only to successful completion of DER's written examination. He sat for the November 2, 1989, examination at the Polk Correctional Institution (PCI) in Polk City, Florida, and completed the examination but was accused of cheating. As a result, his examination answers never were sent to the DER in Tallahassee and have not been scored. His examination answer sheet remains at PCI pending the disposition of this proceeding.

FINDINGS OF FACT

1. The Respondent, the Department of Environmental Regulation (DER), previously determined that the Petitioner, Ralph Sanchious (Sanchious), was eligible for certification as a Class C Water Treatment Operator, subject only to successful completion of DER's examination. Sanchious sat for the November 2, 1989, examination administered at the Polk Correctional Institution (PCI) in Polk City, Florida.

   
   

2. Although the examination notice that had been mailed to Sanchious, as well as to the other examinees, stated that examinees were not allowed to have "[a]ny other papers or notes . . . in the examination room," Sanchious brought his examination notice itself and the envelope it came in. At least one other examinee did the same.

   
   

3. During the examination, which was multiple choice, Sanchious copied the question numbers on the envelope and marked next to each question number the letter signifying the choice he had made as his answer. He did not try to hide what he was doing. He did it openly right in front of the examination proctor, Henry P. Ziegler, Jr.

   
   

4. Sanchious intended to take the record of his exam answers with him when he left the examination to help him pass a reexamination, if he did not pass the November 2, 1989 exam. Since examinees must give the examination booklet containing the multiple choice questions to the proctor at the end of the examination, it is not clear how a record of his answers would help him pass a reexamination unless Sanchious knew or believed he could learn when the same examination would be re-administered. It must be inferred that Sanchious knew or believed he could learn when the same examination would be re-administered, although it is not clear how he knew or why he believed he could learn this. Ralph Nichols, the instructor who taught the course that prepared Sanchious to take the examination, did not know or believe he could learn when the same examination would be repeated unchanged, and he did not think any of the examinees knew or could learn this.

   
   

5. Neither the DER rules, the written examination notice, nor the oral instructions of the examination proctor advised Sanchious or the other examinees that he was not permitted to record his answers or take the record of his answers with him when he left the exam. Sanchious did not think what he was doing was wrong, was cheating or was in violation of any rules or regulations of either the DER, PCI or any test-taking "conventions." If he did, he would have tried to hide what he was doing from the proctor.

   
   

6. At the end of the examination, Ziegler, the proctor, collected the examination answer sheets, test booklets and scratch paper, if any, from all examinees. Normally, Ziegler would return the answer sheet and exam booklet to the testing agency and destroy the scratch papers to maintain test security. But he confiscated Sanchious' answer sheet, examination booklet and materials, including the record of his answers that he had made on the envelope, and asked Sanchious what was on the envelope. Sanchious answered truthfully and told Ziegler what he planned to do with his record of the answers. Ziegler, an accepted expert in proctoring examinations, understood from examination "conventions" he had learned as an examination proctor that it is a breach of

   examination security, and therefore forbidden for proctors to allow, an examinee to record examination answers and leave the examination site with them. Ziegler conferred with Barbara Jacobs, PCI Educational Program Manager, to ask her what she thought should be done. Jacobs then told Sanchious he would not be

   permitted to remove the envelope on which he had recorded his answers. Sanchious replied with words to effect "fine, I already finished the examination, and all my answers are on the answer sheets." Ziegler, Jacobs and Nichols conferred further to decide whether what Sanchious had done was

   "cheating." They decided it was and declined to forward Sanchious' answer sheet to DER. Ziegler's letter to DER explained that he and Jacobs "deem taking out answers to these tests to be a serious breach of test security, since it is possible that Sanchious might have wanted to sell the answers to other inmates on his compound. We are both sure that you would not want Sanchious to do this, so we have withdrawn his answer sheets from the rest of the test takers' sheets and are not forwarding Sanchious' answer sheet to you for scoring. We trust you agree with our decision to not allow this inmate's test to be scored due to what we firmly believe was an unacceptable breach of security of your tests on the part of Sanchious."

   
   

7. Although the DER did not respond to Ziegler's letter, it denied his application certification because it did not consider Sanchious to have passed the exam.

   
   

8. Sanchious' answer sheets remain in the possession of Barbara Jacobs at

   PCI.

   
   

9. DER authorizes the use of scratch paper in their certification

   examinations. DER has no rules or written notification of any kind that examinees may not record their answers on scratch paper during the examination. In fact, DER now encourages examinees to keep track of where they are on the examination by marking the examination booklet; and marking the answers on the booklet, as well as the answer sheet, would be one acceptable way of keeping track. It is understood that the examination proctor will collect the exam booklets and all scratch paper.

   
   

10. DER always has allowed examinees other than prison inmates, and now allows all examinees, to review their scored examination answer sheets and the examination booklet to verify any incorrect answers. Persons choosing such a review are not permitted to take notes of the correct answers with them after the review.

    
    

11. On two occasions, DER has discovered that an examinee smuggled "crib sheets" (summary notes of substantive information that probably would assist an examinee) into the exam site. Once, the proctor caught the examinee; the other time, it could not be determined who had smuggled the "crib sheets." Once DER received anonymous information that an individual in Orlando regularly was obtaining a list of what purported to be the actual answers to questions and was furnishing the list to certain examinees as a favor. This information has not resulted in any findings, and it is not clear how the individual would have obtained a written list of correct answers to the questions on a particular examination. On the most recent examination in Jacksonville, DER caught an examinee smuggling into the examination a list of the actual answers to the questions. Again, it is not clear how the answers were obtained. None of these incidents involved an examination at PCI, and none involved an examinee recording his own answers to exam questions on a separate piece of paper with intent to leave with the record of the answers after the examination.

    CONCLUSIONS OF LAW

    
    

12. DER is authorized to establish qualifications for, and to examine and certify, water treatment plant operators. Section 403.101(3), Florida Statutes (1989).

    
    

13. F.A.C. Rule 17-602.350(1) provides, in pertinent part, that DER "may refuse to issue or renew a certificate for any one of the following reasons:

    
    

    1. Failure to pass the appropriate examination as provided for in Rule 17- 602.320, F.A.C.

    2. Fraud or "cheating".

       
       

14. "Cheating" is not defined or further described in DER's rules or in Chapter 403 of the Florida Statutes (1989). The definition of the verb "to cheat" in Black's Law Dictionary (5th Ed. 1979), comports with the common understanding of the word:

    
    

    "To deceive and defraud. It necessarily implies a fraudulent intent. The word `cheat and defraud' usually mean to induce a person to part with the possession of property by reason of intentionally false representations relied and acted upon by such person to his harm. They include not only the crime of false pretenses, but also all civil frauds, and include all trick, devices, artifices, or deceptions used to deprive another of property or other right.

    
    

15. In the context of the facts of this case, Sanchious clearly would have "cheated" on the November 2, 1989, Class C water treatment operator examination if he had intentionally induced, or tried to induce, the DER to give him a passing grade on the exam, and therefore an operator certificate, by submitting answers that he had obtained before the examination and brought in with him, or by submitting answers he had obtained from another examinee during the exam.

    But the answers to the November 2, 1989, examination that Sanchious attempted to submit to the DER for scoring were his own honest answers. They were not the result of cheating.

    
    

16. If Sanchious had succeeded in removing the answers he had written down during the November 2, 1989, examination and used his answers, together with his scores and perhaps other information, to give him the answers to the questions on a subsequent repeat of the same examination, it would have been cheating on the subsequent examination. But, even though he intended to use the answers he recorded and attempted to remove from the examination site in a way that would constitute cheating, Sanchious was unsuccessful in his attempt to do so and did not "cheat" the DER.

    
    

17. If the statutory or rule scheme for certification of operators indicated that good moral character, or some similar criterion, was required for licensure (as, e.g., in many of the regulatory schemes in other parts of the Florida Statutes) and treated cheating as an indication of less than good moral character, what Sanchious tried to do might come within such a broader concept of cheating. But there is nothing in the statute or rules to suggest that good moral character is a requirement for certification. To the contrary, the

    statutory and rule criteria for certification as an operator indicate that the DER's concern is with the technical knowledge and ability of the applicant, not with the applicant's moral character. "Fraud or cheating," as used in F.A.C. Rule 17-602.350(1)(d), refers to fraud or cheating on the examination, not in general.

    
    

18. Even if what Sanchious did were construed as "cheating" under F.A.C. Rule 17-602.350(1)(d), the rule only authorizes the DER to deny certification on that ground, it does not require denial. In this case, Sanchious honestly did not believe that what he was doing was "cheating" and, not being an expert test proctor, he did not know it was in violation of "test conventions." He recorded his test answers in full view of the test proctor and made no attempt to hide what he was doing. While it was entirely proper for the test proctor to confiscate the record of Sanchious' answers in order to preserve the absolute security of the examination, it was not warranted under the circumstances to decline to score Sanchious' answers and deny certification on the ground that he "cheated" and did not "pass" the examination.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent, the Department of Environmental Regulation, enter a final order that the Petitioner's answers to the November 2, 1989, Class C Water Treatment examination be scored and, if the Petitioner scored a passing grade, that the Petitioner be certified as a Class C Water Treatment Plant Operator.

RECOMMENDED this 7th day of March, 1990, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 7th day of March, 1990.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-7002

To comply with the requirements of Section 120.59(2), Florida Statutes (1989), the following rulings are made on the Respondent's proposed findings of fact (the Petitioner not having filed any):

1.-3. Accepted and incorporated to the extent not subordinate or unnecessary.

1. Rejected as not proven by the evidence. Ziegler first conferred with Nichols before deciding that Sanchious had "cheated." Otherwise, accepted and incorporated.

2. Rejected as not proven by the evidence. It was not proven whether Sanchious knew or could learn when the same examination would be re- administered, knowledge that would be indispensable to the use of Sanchious' exam answers to cheat on a subsequent examination. Otherwise, accepted and incorporated.

6.-10. Accepted and incorporated to the extent not subordinate or unnecessary.

11. First sentence, accepted and incorporated to the extent not subordinate or unnecessary; second sentence, see 5., above.

12.-13. Accepted and incorporated to the extent not subordinate or unnecessary.

14. Rejected as not proven by the evidence. First, Setchfield agreed that whether Sanchious or someone else knew or could learn when the same examination would be re-administered would be indispensable to the future use of his exam answers to improve one's odds of choosing or guessing correct answers. Second, she testified that she could not answer the "philosophical" question whether the "cheating" she described would have occurred when Sanchious recorded and removed the answers with the intent to try to use them to improve his odds of choosing or guessing correct answers on a future exam or when he actually used the information on a future examination.

COPIES FURNISHED:

Ralph Sanchious (W-44)

Polk Correctional Institution 3876 Evans Road, Box 50

Polk City, Florida 33868

Cynthia K. Christen, Esquire Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Dale H. Twachtmann, Secretary Department of Environmental

Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400

Daniel H. Thompson General Counsel

Department of Environmental Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400

=================================================================

AGENCY FINAL ORDER

=================================================================

BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

RALPH SANCHIOUS,

Petitioner,

vs.

DOAH Case No.: 89-7002

STATE OF FLORIDA DEPARTMENT OGC Case No.: 89-1582 OF ENVIRONMENTAL REGULATION,

Respondent.

/

FINAL ORDER

On February 14, 1990, a Hearing Officer from the Division of Administrative Hearings submitted to the Department of Environmental Regulation (Department) and Ralph Sanchious (Sanchious) his Recommended Order, a copy of which is attached as Exhibit A. The Department filed its exceptions to the Recommended Order on March 20, 1990. The Department's filing of the exceptions was timely. Sanchious has not filed any response to the Department's exceptions.

BACKGROUND

This proceeding arises from the application of Sanchious for certification as a Class C drinking water treatment plant operator. As required for the certification, he took the written examination given by the Department at the Polk Correctional Institution (PCI) in Polk City, Florida, where he was an inmate. Although the examination notice had stated that examinees were not allowed to have any other papers or notes in the examination room, Sanchious brought his examination notice and the envelope that had enclosed it. During the examination, he then openly recorded the question numbers and his answers on the back of the envelope. He later admitted that he had done this to improve his chances of passing a subsequent test if he failed the first one. The Department allows all examinees to review their scored answer sheets and verify which questions they missed. By eliminating answers known to be wrong, an applicant's statistical odds of choosing the correct answer on a retest on the same test would improve. Sanchious testified that he did not think that he was cheating, doing anything wrong, or violating any rules of the Department or

test-taking conventions.

At the close of the examination, the proctors questioned Sanchious about the notes of the answers, decided that he had been cheating, and confiscated the notes. Moreover, because they viewed his actions as cheating, they declined to forward his examination to the Department for grading and notified the Department of their action and reasons.

Not having received the examination for grading, the Department issued a Notice of Final Order Denying Certification to Sanchious, and his petition to commence this proceeding followed. On February 14, 1990, the formal administrative hearing in this matter was held in Polk City, Florida, before a Hearing Officer of the Division of Administrative Hearings. The Hearing Officer concluded that Sanchious had not cheated and recommended that the Department enter a final order that Sanchious' examination be forwarded to the Department for grading and that Sanchious be granted the certification that he had requested, if he earned a passing grade on the examination.

RULING ON EXCEPTION

In the sole exception raised by the Department, it argues that in Conclusion of Law No. 5 the Hearing Officer misplaced his emphasis on Sanchious' lack of success in attempting to cheat. Regardless of lack of success and regardless of the examinee's subjective label for his actions, states the Department, an attempt to cheat constitutes cheating and warrants denial of certification. Under Section 120.57(1)(b)(10) of the Florida Statutes, I have the authority as agency head to modify conclusions of law recommended by the Hearing Officer. In this case, I must agree with the exception.

Under Rule 17-602.350(1) of the Florida Administrative Code, the factors on which the Hearing Officer relied do not support his conclusion that Sanchious was not cheating. The success or failure of an attempt to cheat is irrelevant to its classification as cheating under the rule. Every cheater caught in the act of cheating fails. His failure should not excuse him from the consequences of his cheating. Nor should the examinee's subjective belief in his own innocence determine whether an act is cheating. Any lawbreaker may rationalize his actions to his own satisfaction. The rationalization does not change the real nature of those acts. In this case, rule 17-602.350(1) lists cheating as one of the reasons for denying certification but does not define the term. The meaning of the word cheating is plain and common, requiring no further construction. See e.g. Southeastern Fisheries Association, Inc., v.

Department of Natural Resources, 453 So.2d. 1351 (Fla. 1984) (construction of statutory language of common usage must give the words their plain and ordinary meaning). The common meaning of cheating in the context of taking a test includes the intentional use of any techniques that would give the user an unfair advantage in passing the test, not based on the real merits of the examinee's knowledge of the subject matter of the test.

Accepting all the Hearing Officer's findings of fact as true, I nonetheless rule that as a matter of law, Sanchious cheated on the test at issue, within the meaning of rule 17-602.350(1). He wrote down the answers, admittedly intending to use them to improve his statistical chances of passing if he took the same test again. When the Department's representatives apprehended him and confiscated his answer notes, they stopped his cheating in mid-stream. That his device would require two tests to succeed does not matter. The rule does not require the Department to look the other way until the acts of cheating have run their full course. The law does not blindfold the Department to the patent iniquity of an applicant's actions or bind the Department to certify an applicant caught in the very act of cheating. I therefore accept the Department's exceptions and reject the Hearing Office's contrary conclusions of law on this issue, both Conclusion of Law No. 4 and Conclusion of Law No. 5.

CONCLUSION

As a result of my ruling on the exception discussed above, I conclude that the Department should deny Sanchious certification on the ground of his having been caught cheating on the examination.

Based on the ruling on the only exception raised, it is ORDERED that

1. Except as stated above, the findings of fact and conclusions of law of the Recommended Order are adopted.

   
   

2. The recommendation of the Hearing Officer is rejected.

   
   

3. The application of Ralph Sanchious for certification as a Class C Water Treatment Plant Operator is DENIED.

NOTICE OF RIGHTS

Any party to this Final Order has the right to see judicial review of this order under section 120.68 of the Florida Statutes by filing a notice of appeal under rule 9.110 of the Florida Rules Of Appellate Procedure with the clerk of the Department in the Office of General Counsel, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400, and by filing a copy of the notice of appeal accompanied by the applicable filing fees with the appropriate district court of appeal. The notice of appeal must be filed within thirty days from the date when this order is filed with the clerk of the Department.

DONE AND ORDERED on this 19th day of April 1990 in Tallahassee, Florida.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

Dale Twachtmann Secretary

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400

Telephone: (904) 488-4805

CERTIFICATE OF SERVICE

I CERTIFY that a true copy of the foregoing was hand delivered to J. Lawrence Johnston, Hearing Officer, 1230 Apalachee Parkway, The DeSoto Building, Tallahassee, Florida 32399-1550, and a true copy was mailed to Ralph Sanchious (W-44), 3876 Evans Road, Box 50, Polk City, Florida 33868-9213, on this 20th day of April 1990.

Timothy A. Smith Assistant General Counsel

Department of Environmental Regulation

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Telephone: (904) 488-9730

Docket for Case No: 89-007002

Orders for Case No: 89-007002