vs. ) Case No. 00-3491
Respondent. )
Pursuant to notice, a hearing was held in this case in accordance with Section 120.57(1), Florida Statutes, on October 25, 2000, in Tallahassee, Florida, before Stuart M. Lerner, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.
For Respondent: Douglas D. Sunshine, Esquire
Whether Petitioner is entitled to credit for his answers to Questions 34, 65, and 75 on the Fundamentals of Engineering portion of the engineering licensure examination administered on
the morning of April 15, 2000, by the National Council of Examiners for Engineers and Surveyors.
By letter dated August 3, 2000, to the Florida Board of Professional Engineers (Board), Petitioner requested a "formal review" of the failing (converted) score (69) that he received on the April 15, 2000, Fundamentals of Engineering Examination administered by the National Council of Examiners for Engineers and Surveyors. Attachments to his letter reflected that he was specifically challenging the grading of his answers to Questions 34, 65, and 75 of the morning session of the examination.
On August 21, 2000, the Board referred the matter to the Division of Administrative Hearings (Division) for the "assign[ment of] an Administrative Law Judge to conduct a hearing pursuant to Section 120.57(1), Florida Statutes."
As noted above, the hearing was held on October 25, 2000.
At the hearing, Petitioner testified on his own behalf, and Michael Peters, Ph.D., testified (as an expert) on behalf of Respondent. No other testimony was presented. In addition to the testimony of Petitioner and Dr. Peters, a total of ten exhibits (Petitioner's Exhibit 1 and Respondent's Exhibits 1 through 9) were offered and received into evidence.
At the conclusion of the evidentiary portion of the hearing, the undersigned, on the record, advised the parties of their right to file proposed recommended orders and established a
deadline (ten days from the date of the filing of the transcript of the hearing) for the filing of such post-hearing submittals. Petitioner indicated that he would not be filing a proposed recommended order, but instead would rely on his closing statement at hearing.
The hearing Transcript (consisting of one volume) was filed on November 8, 2000. On November 13, 2000, Respondent timely filed a Proposed Recommended Order, which (like Petitioner's closing statement at hearing) has been carefully considered by the undersigned.
Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made:
On April 15, 2000, as part of his effort to obtain a license to practice as an engineer intern in the State of Florida, Petitioner sat for the Fundamentals of Engineering Examination (Examination). This was a national multiple-choice examination developed and administered by the National Council of Examiners for Engineers and Surveyors (NCEES).
The Examination was divided into two sessions: a morning session (AM Part), which tested "lower division subjects" (that is, "the first 90 semester credit hours . . . of engineering course work for a typical bachelor engineering degree program"), and an afternoon session (PM Part), which tested
"upper division subjects" (that is, "the remainder of the engineering course work").
Questions on the AM Part were worth one raw point each.
Questions on the PM Part were worth two raw points each.
The NCEES provided candidates taking the Examination with a Fundamentals of Engineering, Discipline Specific, Reference Handbook (Reference Handbook) that they were allowed to refer to during the Examination. The Reference Handbook, as noted in its Foreword, "contain[ed] only reference formulas and tables; no example problems [we]re included."
Petitioner received a total raw score of 104 on the Examination (54 for the AM Part and 50 for the PM Part). According to the NCEES's Score Conversion Table, a raw score of
104 converted to a score of 69. To pass the Examination, a converted score of 70 (or 107-109 raw points) was needed. Accordingly, Petitioner fell three raw points short of receiving a passing score.
Petitioner has formally requested that the grading of his answers to Questions 34, 65, and 75 of the AM Part be reviewed. He received no credit for any of these answers. Had these answers been deemed correct (and he received one raw point for each answer), he would have passed the Examination (with a converted score of 70).
Question 34 of the AM Part was a clear and unambiguous multiple-choice question that covered subject matter (integral
calculus) with which Petitioner and the other candidates should have been familiar.
There was only one correct answer to this question, and it was among the responses from which the candidates had to choose.
Petitioner chose another answer that was clearly incorrect because it represented a particular solution or expression, and not the "general expression" (representing all solutions) called for by the question.
He therefore appropriately received no credit for his answer.
Questions 65 and 75 of the AM Part, like Question 34, were clear and unambiguous multiple choice questions that covered subject areas (centroids and thermodynamics, respectively) with which Petitioner and the other candidates should have been familiar. Each of these questions, again like Question 34, had only one correct answer that was listed among the choices from which the candidates had to choose. To answer each question correctly, the candidates had to use a formula that was set forth in the Reference Handbook (on page 21 in the case of Question 65 and on page 46 in the case of Question 75).
Petitioner selected neither the correct answer to Question 65, nor the correct answer to Question 75, and therefore was not entitled to any credit for his answers to these questions.
CONCLUSIONS OF LAW
A person seeking to become licensed by the Department of Business and Professional Regulation (Department) to practice as an engineer intern in the State of Florida must take and pass a licensure examination. Sections 471.005(5) and 471.013(1)(b), Florida Statutes; and Board Rule 61G15-21.001, Florida Administrative Code.
"The engineer intern [licensure] examination is defined to be Part One of the written examination provided by the NCEES 1/ as set forth in Paragraph 61G15-21.002(1), and graded pursuant to Rule 61G15-21.004(1)." Board Rule 61G15-21.005, Florida Administrative Code.
Rule 61G15-21.002(1), Florida Administrative Code, describes the Examination. It provides, in pertinent part, as follows:
The Engineering Fundamentals Examination shall include all questions and problems on subjects normally connected with the basic fundamentals of engineering education. The Fundamentals of the Engineering Examination is an eight-hour supplied reference examination: 120 one-point questions in the four hour morning session and 60 two-point questions in the four-hour afternoon session. The morning session is common to all disciplines, and examinees shall work all questions in this session. Listed below are the topics that the examination will cover and the percentage of questions.
Morning Session Percentage of
Disciplines Questions
Chemistry 9%
Computers 6%
Dynamics | 7% |
Electrical Circuits | 10% |
Engineering Economics | 4% |
Ethics | 4% |
Fluid Mechanics | 7% |
Materials Science/ |
|
Structure of Matter | 7% |
Mathematics | 20% |
Mechanics of Materials | 7% |
Statics | 10% |
Thermodynamics | 9% |
The afternoon session is administered for five disciplines with a general engineering section for all remaining disciplines. . . .
See also Board Rule 61G15-21.001(1), Florida Administrative Code, which provides the following additional information regarding the administration of "the written examination provided by the NCEES":
Candidates are permitted to bring certain reference materials, slide rules and certain calculators. A list of approved reference materials and calculators will be provided to all candidates prior to each examination.
All materials including pens and pencils are to be furnished by the applicant. National examination security requirements as set forth by the NCEES shall be followed throughout the administration of the examination.
Board's Rule 61G15-21.004(1), Florida Administrative Code, explains how the Examination is graded. It provides as follows:
The criteria for determining the minimum score necessary for passing the Engineering Fundamentals Examination shall be developed through the collective judgment of qualified experts appointed by NCEES to set the raw score that represents the minimum amount of knowledge necessary to pass the examination. The judges shall use a Modified Angoff Method
in determining the minimally acceptable raw score necessary to pass the Fundamentals of Engineering Examination. Using the above mentioned Modified Angoff Method, the judges will indicate the probability that a minimally knowledgeable Fundamentals of Engineering examinee would answer any specific questions correctly. The probability of a correct response is then assigned to each question. Each judge will then make an estimate of the percentage of minimally knowledgeable examinees who would know the answer to each question. The totals of each of the judges is added together and divided by the number of judges to determine the overall estimate of the minimum standards necessary. The minimum number of correct answers required to achieve a passing score will take into account the relative difficulty of each examination through scaling and equating each examination to the base examination. The raw score necessary to show competence shall be deemed to be a 70 on a scale of 100.
The Board's Rule 61G15-21.006, Florida Administrative Code, provides that "[e]xam review procedures are governed by rule 61-11.017, F.A.C." and that "[a]ll reviews of answers, questions, papers, grades, and grading key shall be at a mutually convenient time and subject to national testing security requirements in order to insure the integrity of the examination.
Rule 61-11.017, Florida Administrative Code, is a Department rule which provides, in pertinent part, that "[r]eview of examinations developed by or for a national council, association, society (herein after referred as national organization) shall be conducted in accordance with national examination security guidelines."
In the instant case, after receiving a failing score on the Fundamentals of Engineering portion of the NCEES-administered and graded engineering licensure examination, Petitioner, by letter dated August 3, 2000 (with attachments), requested a "formal review" by the Board of his failing score. The attachments to the letter revealed that Petitioner was specifically challenging the scoring of his answers to Questions 34, 65, and 75 of the AM Part.
The Board (acting through the Florida Engineers Management Corporation, a Florida not-for-profit corporation created pursuant to Section 471.038, Florida Statutes, "to provide administrative, investigative, and prosecutorial services" to the Board) referred Petitioner's challenge to the Division for hearing.
In those instances where a State of Florida licensing board or agency is empowered to alter a candidate's failing examination score, the candidate is entitled to a hearing, pursuant to Chapter 120, Florida Statutes, to contest his or her failing score. At the hearing, the candidate bears the burden of establishing, by a preponderance of the evidence, that his or her failing score was the product of arbitrary or otherwise improper or erroneous grading. See Harac v. Department of Professional Regulation, Board of Architecture, 484 So. 2d 1333, 1338
(Fla. 3d DCA 1986)("Ordinarily one who fails a licensure examination would shoulder a heavy burden in proving that a
subjective evaluation by an expert is arbitrary."); Florida Department of Health and Rehabilitative Services v. Career Service Commission, 289 So. 2d 412, 414 (Fla. 4th
DCA 1974)(1974)("[T]he burden of proof is on the party asserting the affirmative on an issue before an administrative
tribunal. . . . 'As a general rule the comparative degree of proof by which a case must be established is the same before an administrative tribunal as in a judicial proceeding--that is, [a] preponderance of the evidence. It is not satisfied by proof creating an equipoise, but it does not require proof beyond a reasonable doubt.'"); and Section 120.57(1)(j), Florida Statutes ("Findings of fact shall be based upon a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute, and shall be based exclusively on the evidence of record and on matters officially recognized.").
Petitioner failed to submit such proof in the instant case.
In attempting to demonstrate that he answered the questions in dispute correctly and therefore should have received credit for his answers, Petitioner relied exclusively on his own testimony, which he was free to do notwithstanding his interest in the outcome of the case. 2/ See Martuccio v. Department of Professional Regulation, 622 So. 2d 607, 609-10 (Fla. 1st DCA 1993).
Respondent countered Petitioner's testimony with the testimony of an independent expert witness, Michael Peters, Ph.D. Dr. Peters is chairperson of the Florida A & M University-Florida State University College of Engineering's Department of Chemical Engineering, and he has been teaching at the university level since 1981. Given Dr. Peters' impressive credentials and qualifications, and his apparent candor and lack of bias, the undersigned has credited his expert testimony and determined that Petitioner did not answer Questions 34, 65, and 75 of the AM Part correctly and therefore did not deserve to receive any credit for these answers.
Moreover, even if Petitioner had demonstrated that his answers to these questions were correct, the undersigned would still not recommend that the Board change the score Petitioner received from the NCEES on the Examination. This is because the Examination is "an examination developed by or for a national board, council, association, or society," within the meaning of the Department's Rule 61-11.012(1), Florida Administrative Code, and, pursuant to that rule provision, the Board must "accept the development and grading of such [an] examination without modification." See also Department Rule 61-11.010(1)(a), Florida Administrative Code ("National Examinations shall be graded solely and exclusively by the National examination provider or its designee. National examinations shall include those developed by or for national boards, councils, associations or
societies."); and Board Rule 61G15-21.003(1), Florida Administrative Code ("All grading will be done by an expert committee provided by the national testing service supplying the examination.").
In view of the foregoing, Petitioner's challenge to the NCEES' scoring of his answers to Questions 34, 65, and 75 of the AM Part of the Examination should be rejected.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that a final order be entered rejecting Petitioner's challenge to the failing score he received from the NCEES on the Fundamentals of Engineering portion of the April 15, 2000, engineering licensure examination.
DONE AND ENTERED this 15th day of November, 2000, in Tallahassee, Leon County, Florida.
STUART M. LERNER
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 15th day of November, 2000.
ENDNOTES
1/ A licensing board within the Department of Business and Professional Regulation, such as the Board of Professional Engineers, is authorized by Section 455.217(1)(d), Florida Statutes, to "approve by rule the use of any national examination which the department has certified as meeting requirements of national examinations and generally accepted testing standards pursuant to department rules." A "national examination," as that term is used in Section 455.217, Florida Statutes, is defined in Rule 61-11.015, Florida Administrative Code, as follows:
. . . To ensure compliance, the following definition of a national examination shall be applied when using a national examination.
A national examination is an examination developed by or for a national professional association, board, council or society (hereinafter referred to as organization) and administered for the purpose of assessing entry level skills necessary to protect the health, safety and welfare of the public from incompetent practice.
The purpose of the examination shall be to establish entry level standards of practice that shall be common to all practitioners.
The practice of the profession at the national level must be defined through an occupational survey with a representative sample of all practitioners and professional practices.
The examination for licensure must assess the scope of practice and the entry skills defined by the national occupational survey.
The national organization must be generally recognized by practitioners across the nation in the form of representatives from the State Boards or shall have membership representing a substantial number of the nation's practitioners who have been licensed through the national organization examination.
The national organization shall be the responsible body for overseeing the development and scoring of the national examination.
The national organization shall provide security guidelines for the development and grading of the national examination and shall oversee the enforcement of these guidelines.
2/ On cross-examination, Petitioner reconsidered his position concerning the grading of his answer to Question 65 and acknowledged that his answer to the question was not correct.
Douglas D. Sunshine, Esquire
Natalie Lowe, Executive Director Florida Board of Professional Engineers 1208 Hays Street
Barbara D. Auger, General Counsel Department of Business and
All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.
