STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DON R. BLACKBURN, )

)

Petitioner, )

)

vs. ) CASE NO. 90-5731

) BOARD OF PROFESSIONAL ENGINEERS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on October 30, 1990, in Fort Myers, Florida.

APPEARANCES

For Petitioner: Don R. Blackburn, pro se

4775 Cedar Hammock Court Fort Myers, Florida 33905

For Respondent: Charles F. Tunnicliff, Esquire

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUES

Whether petitioner's score on the April 1990 professional engineer examination should be changed to a passing grade.

PRELIMINARY STATEMENT

By notice dated July 15, 1990, respondent, Board of Professional Engineers, advised petitioner, Don R. Blackburn, that he had received a 66, or a failing grade, on the April 1990 "review-hearing fundamentals" portion of the professional engineer examination. Thereafter, by letter dated August 15, 1990, petitioner requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes (1989) to contest his grade. As grounds, petitioner contended that (a) engineering review materials and dictionaries were allowed for some but not all candidates, (b) the seventh edition of an examination review manual was authorized for use by candidates while the sixth edition of the same manual was not, and (c) the Department of Professional Regulation (DPR), which administered the examination, did not advise candidates in advance which books and material could be used on the examination but instead left that to the discretion of confused and untrained proctors. The matter was referred by respondent to the Division of Administrative Hearings on September 10, 1990, with a request that a hearing officer be assigned to conduct a hearing. By notice of hearing dated September 24, 1990, a final hearing was scheduled on October 30, 1990, in Fort Myers, Florida.

At final hearing, petitioner testified on his own behalf and presented the testimony of Robert G. Rentz and Olusegun James Oni, both candidates on the same examination. Also, he offered petitioner's exhibits 1-7. All exhibits were received in evidence. Respondent presented the testimony of C. Jeannie Smith, a DPR examination supervisor, George Walton, an examination proctor, and Dr.

Joseph A. Klock, a DPR consultant and accepted as an expert in testing and measurements. Also, it offered respondent's exhibits 1-12. All exhibits were received in evidence.

The transcript of hearing was filed on November 15, 1990. Proposed findings of fact and conclusions of law were filed by respondent on November 26, 1990. A ruling on each proposed finding is made in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. On April 19, 1990, petitioner, Don R. Blackburn, was a candidate on the engineering intern portion of the professional engineer examination given in Miami, Florida. The test was administered by the Department of Professional Regulation (DPR) on behalf of respondent, Board of Professional Engineers (Board). On July 25, 1990, the Board issued a written uniform grade notice advising petitioner that he had received a grade of 66 on the examination. A grade of 70 is necessary to pass this part of the examination.

   
   

2. By letter dated August 15, 1990, petitioner requested a formal hearing to contest his score. In his letter, Blackburn generally contended that the examination was unfairly administered because certain books were allowed to be used by some but not all candidates, untrained proctors were given the authority to scan review materials and determine which could or could not be used by the candidates, and because of the chaos and confusion that occurred during the examination, he was unable to attain a score that he otherwise would have been able to achieve.

   
   

3. Blackburn is an engineer for Lee County and is seeking to pass the engineering intern portion of the examination. A passing grade on that portion is a prerequisite to sitting on the second part of the professional engineer examination. He has taken the examination on a number of occasions and has gradually improved his score to just short of passing. Indeed, on the October 1989 examination, Blackburn scored a 69, or just one point less than the required 70.

   
   

4. Prior to the April 1990 examination, the engineering intern portion of the professional engineer examination was an unrestricted open book examination. This meant candidates could use any and all reference and review materials during the examination. Beginning with the April 1990 examination, the Board imposed certain restrictions on the use of review materials. As early as

   October 9, 1989, the Board's executive director sent a memorandum to all candidates on the October 1989 examination, including Blackburn, concerning the new restrictions. The memorandum stated in part:

   
   

   Please be advised of certain restrictions listed in the Candidate Information Booklet which will not be implemented until the April 1990 examination. These restrictions are found in the "Examination Administration Information" section and are concerning the following two areas:

   * * *

   2. Books or information containing sample questions or engineering problems may also be brought provided they are bound.

   Again, the new restrictions listed in the Candidate Information Booklet regarding the above two areas WILL NOT be implemented until the April 1990 examination.

   
   

5. All candidates on the April 1990 examination were given a Candidate Information Booklet prepared in January 1990 by DPR's Bureau of Examination Services. On pages 13 and 14 of the booklet was found the following information:

   
   

   This is an open book examination. Candidates may use textbooks, handbooks, notes, and reference materials which are bound, copyrighted and printed. The term "bound" refers to material that is bound permanently, hard or paperback stitched or glued, or spiral, plastic or three-ringed bound. The printed material must remain contained (bound) in its cover during the entire examination.

   No writing tablets, unbound tablets or unbound "loose notes" will be allowed. No books with contents directed toward sample questions or solutions of engineering problems are permitted in the examination room. Examinees are not permitted to exchange reference materials or aids during the examination. (Emphasis in original)

   
   

   What the emphasized language meant is that "review" manuals, which contain problems and solutions, were prohibited from use during the examination while "reference" books were not. However, the booklet did not list the specific names of published materials that would be permitted or excluded. In order to ascertain which books he might use on the next examination, on March 27, 1990, Blackburn telephoned the Board in Tallahassee and spoke with a female employee named "B. J." who advised him that "review publications directed principally towards the solution of engineering problems" would be excluded. When asked if "Lindeburg's Sixth Edition" would be authorized, B. J. told Blackburn she wasn't sure and that it would be left up to the proctors in the room. She did say, however, that a review manual authored by Schaum could be used.

6. The engineering intern examination in April 1990 was administered in two separate rooms at the Radisson Hotel in Miami, Florida. Blackburn was in a "very large" upstairs room with approximately thirty other candidates while a similar number took the examination in a downstairs room. The examination in the upstairs room began at 8:43 a.m. after various instructions were read to the candidates by the examination supervisor, Jeannie Smith, a veteran of twenty years in proctoring and supervising professional examinations. According to Smith, there was "considerable confusion" concerning which books could be used by the candidates, particularly since this was the first examination given with the new restrictions. She also acknowledged that there was "chaos" prior to the beginning of the examination and that this was, "extremely upsetting" to the examinees. However, before the examination began, Smith announced on a microphone the names of certain books which the Board had given her that were either prohibited or could be used by candidates. She further advised that if candidates had any questions they were to come to a bulletin board by the microphone where she had posted Xerox copies of the covers of various books. If a book could be used, it had the word "YES" printed on the cover while a "NO" was printed on those covers of books that could not be used. 1/ It is noted that only one cover sheet with a "YES" was posted, that being the Civil Engineering Reference Manual, Fourth Edition, Michael R. Lindeburg. However, at least three candidates who took the examination that morning, including petitioner, did not see the posted materials nor hear the invitation for candidates to come to the bulletin board. One book in issue that was specifically prohibited was Engineer In Training Review Manual, Sixth Edition, Michael R. Lindeburg, which contained 378 solved problems, and thus fell within the general prohibition of review manuals described on page 14 of the Candidate Information Booklet. However, those candidates who had the Seventh Edition of the same book were allowed to keep and use that manual even though it contained

   422 solved problems, or some 44 more solved problems than was contained in the prohibited Sixth Edition. By allowing those students having the Seventh Edition to use the same even though it contained "review" materials, DPR violated the instructions contained in the Candidate Information Booklet and gave an advantage to those candidates not enjoyed by others, including petitioner. In addition, at least one other candidate in the upstairs group was allowed to use a prohibited review manual (Schaum's Outline Series, Theory and Problems of Electric Power Systems) but still that candidate did not attain a passing grade.

   
   

7. Petitioner also contended that candidates taking the examination in the downstairs room were allowed to use language dictionaries during the morning part of the examination while those upstairs could not. 2/ Petitioner's contention is grounded upon hearsay evidence and accordingly it is found that no competent proof to support this claim was submitted. However, there was obviously some confusion over this matter because, after receiving complaints of this nature from two candidates, Smith telephoned the Board's offices in Tallahassee during the lunch break to ascertain whether such books could be used. Upon learning that they could not, she advised the upstairs group at the beginning of the afternoon session that dictionaries were not allowed.

   
   

8. Blackburn also established that during the examination proctors went from desk to desk examining the materials that each candidate had in his possession. If a candidate had what the proctor perceived to be a book containing solutions to problems, the candidate was told to put the book on the floor. In the alternative, she candidates were told that if they tore the offending pages out of the book, they could continue using the remaining materials. Petitioner has complained that the proctors were not engineers and they were untrained in determining whether a book was acceptable or not. The Board has conceded that engineers do not proctor examinations but asserted that

   they are intelligent enough to determine whether books fall within the proscribed category. According to Blackburn's proctor at the examination, George Walton, a retired Coast Guard captain and engineering graduate of the Coast Guard Academy, he relied upon the list of approved and disapproved books supplied by the Board prior to the examination in determining whether materials would be excluded or not. Walton also stated that if he examined a book and found it contained solutions, he would disallow the same unless the offending pages were removed.

   
   

9. A DPR expert in testing and measurements, Dr. Joseph A. Klock, examined the pass/fail rate for the examination taken by Blackburn and compared that rate to the October 1989 examination rate. Doctor Klock found no significant difference in the two rates and concluded that there was no statistically significant difference in performance of candidates over those time periods despite the confusion which occurred during the April 1990 examination.

   
   

10. Blackburn did not present any evidence to show that if he had used the Seventh Edition of the Engineer In Training Review Manual, he would have been able to achieve more points on a particular problem and thus would have had a passing grade. Blackburn's principal complaint was that he had spent many hours preparing for the examination in question, that he was forced to guess which books to bring to the examination, and because of the confusion and chaos that took place at the beginning of the examination as well as his awareness that others were using a review manual with solved problems, it was impossible for him to give his best effort on the examination.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes (1989).

    
    

12. As the petitioner in this cause, Blackburn bears the burden of proving by a preponderance of the evidence that he is entitled to a passing grade. See, e.g., Fla. Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778, 789 (Fla. 1st DCA 1981).

    
    

13. Respondent relies principally upon the case of Alvarez v. Department of Professional Regulation, Acupuncture, 458 So.2d 808 (Fla. 1st DCA 1984), and contends that even if there were irregularities on the examination, as the evidence herein shows, at best petitioner is only entitled to retake the examination at no charge. In Alvarez, the agency's instructions on a portion of the acupuncture licensure examination were found to be "substantially insufficient and misleading." Although the unsuccessful candidates contended they should have received a passing grade on the examination because of the misleading instructions, the court concluded they were entitled only to retake the examination "at no cost to them." Id. at 811. In that way, the court concluded that the public was protected (from unqualified persons) while the examinees were not penalized "for the agency's inadequate and sometimes misleading instructions." Accord: Jones v. Department of Professional Regulation, Board of Acupuncture, 524 So.2d 700 (Fla. 1st DCA 1988) (if the instructions to a portion of an examination are misleading and insufficient, the remedy is to allow those persons who failed the examination due to the misleading instructions to retake that portion of the examination). However, the Alvarez and Jones decisions are not directly on point with the factual scenario here since petitioner does not quarrel with the instructions to specific questions but contends instead that the test was unfairly administered

    because some candidates were allowed to use review manuals containing solved problems while others were not. Under these circumstances, it appears to the undersigned that in order for petitioner to receive a higher grade, it is incumbent on him to show that, had he used the review manuals in question, he would have received a different (higher) grade. This is because all examinees, presumably including some who passed the examination without using those manuals, took the examination under the same chaotic and confusing conditions. Absent such proof, which admittedly would be difficult to adduce, petitioner's request to have his grade changed must be denied. However, the Alvarez decision is relevant to the extent that Blackburn should not be charged a fee to retake the next examination.

    
    

14. A final point merits attention. Petitioner should not be faulted for bringing this appeal since he understandably was upset with the manner in which the examination was administered on April 19, 1990. Having come within one point of passing on the prior examination, and having entered the testing site with high expectations, petitioner had a legitimate grievance concerning the chaos, confusion, and conflicting advice he encountered that day.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner's request to receive a passing grade on the

April 1990 professional engineer examination be DENIED. However, petitioner

should be entitled to retake the next examination at no charge.

DONE and ENTERED this 28th day of November, 1990, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of November, 1990.

ENDNOTES

1/ Prohibited books for which copies of cover sheets with the word "NO" were posted included Engineering Mechanics, 3d Edition, McLean and Nelson, Fundamentals of Engineering, Merle C. Potter, 1001 Solved Engineering Fundamentals Problems, Michael R. Lindeburg, Chemical Engineering Review Manual, 3d Edition, Randall N. Robinson, Engineering Economics and Practice, William Glendinning, Fundamentals of Engineering Review, Iowa State University Research Foundation, Solutions Manual for the Engineer-In-Training Review Manual, Michael

R. Lindeburg, Solutions Manual for the Civil Engineering Reference Manual, Michael R. Lindeburg, Engineer-In Training Review Manual, Sixth Edition, Michael

R. Lindeburg, and Schaum's Outline Series, Theory and Problems of Electric Power Systems, Syed A. Nasar.

2/ According to one witness, language dictionary would be helpful to a foreign candidate who did not speak English well.

APPENDIX

Respondent:

1. Partially adopted in finding of fact 1.

2. Partially adopted in finding of fact 2. 3-4. Partially used in Preliminary Statement. 5-6. Partially adopted in finding of fact 5. 7-9. Partially adopted in finding of fact 6.

1. Partially adopted in finding of fact 7.

2. Partially adopted in finding of fact 9.

Note - Where a finding has been partially adopted, the remainder has been rejected as being irrelevant, unnecessary, subordinate, not supported by the evidence or cumulative.

COPIES FURNISHED:

Charles F. Tunnicliff, Esquire 1940 North Monroe Street, Suite 60

Tallahassee, FL 32399-0792

Mr. Don R. Blackburn 4775 Cedar Hammock Court Fort Myers, FL 33905

Kenneth D. Easley, Esquire 1940 North Monroe Street Tallahassee, FL 32399-0750

Rex Smith Executive Director

Board of Professional Engineers 1940 North Monroe Street Tallahassee, FL 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning their rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-005731

Orders for Case No: 90-005731