STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CAPTAIN JOHN HOWARD ATCHISON, )

)

Petitioner, )

)

vs. )

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF PILOT )

COMMISSIONERS, ) CASE NO. 87-1726

)

Respondent, )

)

and )

)

CAPTAIN JOHN M. BOLTZ )

CAPTAIN EARL R. McMILLIN, )

)

Intervenors. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Willie J. Kendrick, held a public hearing in the above-styled case on August 24, 1987, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Mark G. Evans, Esquire

HOPKINS, GRESHAM & HEAD, P.C.

Suite 1600, Renaissance Square

120 Ralph McGill Boulevard, Northeast Atlanta, Georgia 30308

For Respondent: H. Reynolds Sampson, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Intervenor John M. Boltz, pro se

115 Heron Drive

Melbourne Beach, Florida 32951

For Intervenor Earl R. McMillin, pro se

Post Office Box 1693

Cape Canaveral, Florida 32920 PRELIMINARY STATEMENT

At issue in this proceeding is Petitioner's challenge to the scoring of the deputy pilot examination for Port Canaveral held on December 8, 1986.

Specifically, Petitioner asserts that Respondent erred when it decided to credit two answers to exam question 117, and that if it had credited only the appropriate answer he would be one of the successful candidates for the two available positions as deputy pilot for Port Canaveral.

At hearing, Petitioner testified on his own behalf, and called Captain Earl McMillin and Captain John Hanson as witnesses. Petitioner's exhibits 1-7 and 9 were received into evidence. Respondent called Martin Persampieri and Lila Quero- Munoz as witnesses. Respondent's exhibits 1-6 were received into evidence. Intervenor Boetz testified on his own behalf, and his exhibit 1 was received into evidence. Intervenor McMillin testified on his own behalf.

The transcript of hearing was filed September 17, 1987, and the parties were granted leave until September 28, 1987, to file proposed findings of fact. Petitioner and Respondent elected to file proposed findings of fact, and they have been addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Pursuant to Section 310.011, Florida Statutes, the Board of Pilot Commissioners (Board) was established within the Department of Professional Regulation (Department). The Board, in conformance with Section 310.061, has the authority to determine the number of pilots needed for a given port. To fill those numbers, the Department examines all applicants for the position of pilot or deputy pilot and, if found qualified, appoints and licenses as a pilot or appoints and certifies as a deputy pilot the number prescribed by the Board. See: Section 310.081, Florida Statutes.

   
   

2. On December 8, 1986, the Department held an examination to fill two deputy pilot positions at Port Canaveral. Petitioner and Intervenors, Captain John M. Boltz and Captain Earl R. McMillin were among the candidates examined. A total of twenty-two candidates took the examination.

   
   

3. The facets of the examination were as required by Rule 21SS-5.13(1), Florida Administrative Code. That rule requires that the examination include the following subject areas:

   
   

   1. International Rules of the Road.

   2. Inland Rules of the Road and the Pilot Rules.

   3. Seamanship, Shiphandling and other Subjects Relating to Piloting.

   4. Aids to Navigation.

   5. Local or specific knowledge of the port area for which being examined.

   6. Chartwork of the port area for which being examined, with detailed

      information of the port area required to be charted.

   7. A general examination concerning matters pertaining to a candidates knowledge of federal and state pilotage, fitness and ability to undertake the duties of a certified deputy pilot in the port for

      which being examined, and such other related information as may be deemed pertinent to the examination process, to

      determine whether the applicant is qualified to pilot all classes of vessels liable to enter the port and is familiar with the waters, the channels, the harbor and the port.

      
      

4. Rule 21SS-5.13(2), Florida Administrative Code, mandates that:

   
   

   In order to achieve a passing grade on the examination a candidate must score 90 percent on the subject areas in subsections (1)(a) and (b), and a score of 75 percent on the subject areas in subsection (1)(c), (d), (e),

   (f) and (g).

   
   

   A failure to attain the required percentage in any of the seven subject areas renders the candidate unsuccessful.

   
   

5. Of the twenty-two candidates who took the examination, only four candidates attained a passing score on each of the seven subject areas. Of these four, Captain McMillin was first with an overall score of 94.74 percent, Captain Boltz was second with an overall score of 92.76 percent, and Petitioner was third with an overall score of 92.62 percent. The Department, in accordance with standard practice, ranked the candidates by overall score, and appointed the top two candidates, Captain McMillin and Captain Boltz, to the two available positions.

   
   

6. Following disclosure of his score, Petitioner reviewed his examination and offered a timely objection to question 117. That question reads:

   
   

   The reaction of a ship known as "squat"

   
   

   1. results in a change in trim.

   2. generally varies in direct proportion to the speed.

   1. Only I is a correct statement.

   2. Only II is a correct statement.

   3. Both I and II are correct statements.

   4. Neither I nor II is a correct statement.

   
   

7. As originally keyed, the only correct response to question 117 was answer A. However, after reviewing the test results, the Department decided to rekey the acceptable responses to the question and accord credit for answer A and C.

   
   

8. Petitioner objects to the Department's decision to accord credit for answer C, which he asserts is a technically incorrect response. Significantly, had the Department not rekeyed the responses to the question, Petitioner, who elected response A, would have achieved a better overall score than Captain Boltz, who elected response C.

   
   

9. Question 117 was developed by Captain John C. Hanson, the Department's consultant, from Shiphandling For The Mariner, by MacElrevey; a source recommended to all candidates prior to the examination. Pertinent to this case, MacElrevey teaches:

   
   

   As a ship begins to make way through the

   water she undergoes a change in mean draft known as sinkage. This change may occur equally forward and aft or may be greater at the bow or the stern, the resulting change in trim being known as "squat."

   
   

   When passing through the water the ship displaces an amount of water equal to her own weight. This water must move outward from and around the hull in all directions. The water so displaced moves primarily along and under the hull and returns astern of the ship to "fill" the space left by the ship as she moves on. Naturally, the faster the ship is moving the greater the velocity of this flow under and along her hull, and the greater

   the corresponding pressure drop as a result of that increased velocity. Depending upon where the greatest drop in pressure occurs along the length of the hull, this reduced pressure will result in greater sinkage (increase in draft) at the bow or stern, although the draft increases to some degree all along the length of the ship.

   
   

   As the ship enters shallow water the flow of water becomes increasingly restricted due to the reduced clearance both under and on one or both sides of the hull. The degree of restriction or "blockage factor" is dependent upon several variables . . .

   
   

   Consider first the effect of ship's speed since this is the factor over which the mariner has the greatest control. It has been found, based upon observations of both actual ships and models, that squat varies in proportion to the square of the speed. If ship's speed is doubled, squat increased by a factor of four. With today's large ships and minimal underkeel clearances it becomes immediately obvious why speed and resulting squat must be very much on the shiphandler's mind. (Emphasis added)

   
   

10. The question developed by Captain Hanson was designed to test the candidate's knowledge of squat and the effect of speed on squat, which is important information for a pilot who must navigate through shallow waters or confined channels. The correct technical response to question 117 as posed, and as intended by Captain Hanson, was answer A. Answer C was an incorrect response because squat does not technically vary in direct proportion to speed but, rather, in proportion to the square of the speed. 1/

    
    

11. Notwithstanding the fact that answer A was the intended and only technically correct response to question 117, the Department's Office of Examination Services decided to also afford credit for answer C. This decision was predicated on its conclusion, after a review of the responses to the

    question, that the phrase "direct proportion" could logically have been interpreted by the candidates in a non-technical sense to mean: that squat is directly related to speed (i.e., if speed increases/decreases, squat increases/decreases). If so interpreted, answer C would also have been a correct response to question 117. Accordingly, the Department concluded that it would afford credit for answer C, as well as answer A. The proof accords logic and reason to the Department's decision.

    
    

12. The twenty-two candidates who took the examination were experts in seamanship and shiphandling. A review of the responses to question 117 by these twenty-two candidates revealed that: three chose answer A, one chose answer B, and 18 chose answer C. Of the four who attained a passing score, two chose answer A and two chose answer C. Notably, 82 percent of the candidates in both the upper and lower half of the class chose answer C.

    
    

13. Because of its poor statistical performance, Ms. Lila Quero-Munoz of the Office of Examination Services, an expert in psychometrics, was of the opinion that the question needed close review. In Ms. Quero-Munoz' opinion, which is credited, when 18 of 22 qualified people select a response other than the one that was keyed, there is good reason to suspect that there is something in the phrasing of the question that is subject to misinterpretation.

    
    

14. Upon review of question 117, Ms. Quero-Munoz and Martin Persampieri, also of the Office of Examination Services, were of the opinion, which opinion is credited, that the phrase "direct proportion" could have logically been interpreted as meaning that squat is directly related to speed, instead of its technical or mathematical definition. Therefore, the Department's decision to afford credit for answer C had a logical and reasonable basis. /2

    
    

15. The testimony of Captain Hanson, Petitioner, Captain McMillin and Captain Boltz lends support to the conclusion that the Department acted logically and reasonably when it decided to rekey the answers to question 117. Captain Hanson, when he prepared the question, did not intend it to be a trick question. Yet, Petitioner and Captain McMillin, both of whom responded with answer A, thought the question to be tricky and applied the technical or mathematical definition of "direct proportion." Captain Boltz was not familiar with the technical definition of "direct proportion" and ascribed to it the general proposition that squat is directly related to speed. Notably, the term "direct proportion" was not defined anywhere in the sources recommended by the Department to the candidates.

    
    

16. The Department, in carrying out the examination process, is charged with the responsibility of ensuring that the examination for deputy pilot adequately and reliably measures a candidate's ability to practice the profession of deputy pilot. Further, it must ensure that the examination questions are a reliable measurement of the general areas of competence specified in Rule 21SS-5.13(1), Florida Administrative Code. These responsibilities were adequately addressed by the Department in this case.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

18. In this case, the burden rested upon Petitioner to demonstrate by a preponderance of the evidence that the Department's decision to allow credit for answer C to question 117 was arbitrary or capricious. See: State ex rel.

    Glaser v. J. M. Pepper, 155 So.2d 383 (Fla. 1st DCA 1963), and State ex rel. I.

    H. Topp v. Board of Electrical Examiners, 101 So.2d 583 (Fla. 4th DCA 1958). In Agrico Chemical Company v. State Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1978), the Court defined arbitrary and capricious as follows:

    
    

    A capricious action is one which is taken without thought or reason or irrationally.

    An arbitrary decision is one not supported by facts or logic, or despotic. Administrative discretion must be reasoned and based upon competent substantial evidence. Competent substantial evidence has been described as such evidence as a reasonable person would accept as adequate to support a conclusion.

    
    

    Id., at page 763.

    
    

19. Here, the proof fails to support the conclusion that the Department acted arbitrarily or capriciously. In its most favorable light, the proof merely demonstrates that reasonable men may differ regarding the interpretation to be given to a certain question and the adequacy of the responses to that question. This is not, however, sufficient to support a determination that the Department abused its discretion in this case. State ex rel. I. H. Topp v. Board of Electrical Examiners, supra.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the examination challenge filed by Petitioner be

DISMISSED.

DONE AND ENTERED this 21st day of October, 1987, in Tallahassee, Leon County, Florida.

WILLIAM J. KENDRICK

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 21st day of October, 1987.

ENDNOTES

1/ "Direct proportion" is defined in mathematic texts as "a statement that the ratio of two variable quantities is equal to a constant." Captain Hanson understood the phrase "direct proportion" to be so defined when he drafted

question 117, and intended that answer C be false since it was contrary to the teaching of MacElrevey, a recommended source.

2/ The proof establishes that if "direct proportion" is accorded its technical meaning, there is only one correct response to question 117: answer A. This was the response intended by Captain Hanson when he drafted the question. The decision to rekey the answers to question 117 was made by Ms. Quero-Munoz of the Office of Examination Services, not Captain Hanson. She made the decision based upon the exercise of her expertise in psychometrics, not upon any expertise in shiphandling and seamanship. However, according to Captain Hanson, answer C did reflect the basic knowledge that if speed increases, squat increases. There was no suggestion or proof that such measure was not an adequate measure of a candidate's ability to practice the profession of deputy pilot. Accordingly, the fact that Captain Hanson did not make the decision to double key the answers to question 117 was not shown to be pertinent.

Petitioner also seeks to attach significance to the fact the Department made the decision without inquiring of the candidates as to why they selected answer C. The Department's reason for not polling the candidates was because their response would be biased and not a good indicator. The Department's reasoning is logical and credited. Accordingly, the Department's failure to poll the candidates is not a compelling factor to be considered. It is also not significant that no candidate protested the Department's failure to credit answer C. By the time the exams were reviewed by the candidates, the question had already been rekeyed and credit accorded for answer C. Logically, no one would object when they had already been afforded credit.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1726

The following are my rulings on the proposed findings of fact submitted by the parties pursuant to Section 120.59(2), Florida Statutes (1985).

Petitioner's proposed findings of fact are addressed as follows:

1. Addressed in paragraph 1. 2-3. Addressed in paragraph 2.

1. Not at issue in this case, and not necessary to result reached.

2. Addressed in paragraph 9.

3. Addressed in paragraph 3.

4. Addressed in paragraph 16.

8-9. Addressed in paragraphs 4-6.

1. Addressed in paragraphs 9 and 16.

2. Addressed in paragraph 5.

3. Addressed in paragraph 6.

4. Not necessary to result reached.

5. Addressed in paragraph 6.

6. To the extent pertinent, addressed in paragraphs 7-11, and footnote 2.

7. Addressed in paragraphs 6 and 8.

8. Not necessary to result reached.

9. Addressed in paragraphs 6 and 7.

10. Addressed in paragraph 12.

11. Addressed in paragraph 9.

21-23. Addressed in paragraphs 6-8 and footnote 2.

24-27. Addressed in paragraphs 10 and 15. Second paragraph of paragraph 26 is addressed in paragraph 14, and footnote

2.

28. Addressed in paragraph 8.

The Department's proposed findings of fact are addressed as follows:

1. Addressed in paragraphs 6 and 12.

2. Addressed in paragraph 15.

3. Addressed in paragraph 12.

4. Addressed in paragraphs 9 and 10.

5. Addressed in paragraph 15.

6. Addressed in paragraphs 13-14.

COPIES FURNISHED:

Mark G. Evans, Esquire

Suite 1600, Renaissance Square

120 Ralph McGill Blvd., N.E. Atlanta, Georgia 30308

H. Reynolds Sampson, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

John M. Boltz, pro se

115 Heron Drive

Melbourne Beach, Florida 32951

Earl R. McMillin, pro se Post Office Box 1693

Cape Canaveral, Florida 32920

Pat Guilford, Executive Director Board of Port Pilots

130 North Monroe Street Tallahassee, Florida 32399-0750

Tom Gallagher, Secretary

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

Docket for Case No: 87-001726

Orders for Case No: 87-001726