STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN C. TIMMEL, )

)

Petitioner, )

)

vs. ) CASE NO. 88-2376

) BOARD OF PILOT COMMISSIONERS, )

)

Respondent. )

) STEPHEN CROPPER, )

)

Petitioner, )

)

vs. ) CASE NO. 88-2377

) BOARD OF PILOT COMMISSIONERS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a comparative hearing was held in the above-styled cases on November 22, 1988, at Tampa, Florida.

APPEARANCES

For Petitioner, Margaret D. Mathews, Esquire Timmel: One Tampa City Center

201 North Franklin Street, Suite 2600 Tampa, Florida 33602

For Petitioner, Allen von Spiegelfield, Esquire Cropper: Post Office Box 1438

Tampa, Florida 33601

For Respondent: H. Reynolds Sampson, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

By Petitions for Formal Administrative Hearing dated May 3, 1988, and April 19, 1988, John C. Timmel and Stephen Cropper, Petitioners, requested administrative hearings to challenge the final grades awarded to them on the examination leading to appointment as a Tampa Bay Deputy Pilot.

In October 1987, these Petitioners, and others, sat for an examination to qualify for appointment for one vacancy as a deputy pilot at Tampa Bay. The candidate selected for appointment is the one who passes all sections of the examination and receives the highest overall grade on the examination. Since

both Petitioners are vying for the single position, the cases were consolidated for a comparative hearing.

In this proceeding, Petitioner Timmel challenges the answers determined by Respondent to be the correct answers to questions 139 and 146, and Petitioner Cropper challenges questions 9 and 144. Petitioner Timmel initially challenged the grade he received on the charting portion of the examination but, after presenting evidence in this regard, withdrew this portion of his challenge.

Both of these Petitioners passed all portions of the examination, and the highest final overall grade was received by Timmel, with Cropper some two points behind the 850-odd points received by Timmel. Credit for any of the challenged questions would raise that Petitioner's score at least 3 points.

At the hearing, Petitioner Cropper called four witnesses, including himself, Petitioner Timmel called four witnesses, including himself, Respondent called one witness and 42 exhibits were admitted into evidence.

Proposed findings have been submitted. Treatment accorded those proposed findings is contained in the Appendix attached hereto and made a part hereof.

FINDINGS OF FACT

1. Petitioners Timmel and Cropper were applicants for the one vacancy as deputy pilot at Tampa Bay and sat for the examination in October 1987.

   
   

2. On the initial grading in December 1987, Cropper received an overall grade of 828.2818 (Exhibit 1), and Timmel received an overall grade of 827.96 (Exhibit 3).

   
   

3. Each candidate was allowed to meet with a representative of the examining group and to challenge the answers deemed to be correct. Following this regrading process in December 1988, Timmel received a final overall score of 850.4985 and Cropper received a final overall score of 848.2638.

   
   

4. The appointment as deputy pilot at Tampa Bay was awarded to Timmel on April 4, 1988 (Exhibit 16), and he is currently so employed.

   
   

5. Without any change in Cropper's overall grade, Timmel will remain the applicant with the highest score and the one entitled to the appointment as deputy pilot. Accordingly, Cropper's challenge to questions 9 and 144 will be first considered.

   
   

6. Question 9 is a multiple choice question involving the International Rules of the Road and is intended to test the applicant's knowledge of these rules. This question reads:

   
   

   A signal of one prolonged blast:

   1. Shall be given by a vessel nearing a

      bend or an area of channel where visibility of other vessels may be obscured.

   2. May be given by a vessel leaving a dock or berth space.

   1. Only I is a correct statement.

   2. Only II is a correct statement.

   C . Both I and II are correct statements.

   D. Neither I nor II is a correct statement.

   The correct answer to question 9 is C. Cropper selected answer A.

   
   

7. The International Rules of the Road (Rule 34e) specifically require the sounding of a prolonged blast by a vessel nearing a bend or area of a channel or fairway where other vessels might be obscured by an intervening obstruction. So answer I is a correct statement. The International Rules of the Road contain no provision relating specifically to sound signals by a vessel leaving a dock or berth. However, Rule 36 provides that if necessary to attract the attention of another vessel, any vessel may make light or sound signals that cannot be mistaken for any signal authorized elsewhere in these rules. A prolonged blast from a vessel exiting a berth to alert other ships occupying the channel under which this berth-exiting vessel is about to enter would appear to be authorized by Rule 36.

   
   

8. One of the texts to which the applicants for the pilot's examination were referred is Nautical Rules of the Road by Farnsworth and Young. On page

   113 of that text (Exhibit 24), the following appeared:

   
   

   (g) The Inland Rules state that a vessel leaving a dock shall sound one pro- longed blast. The International Rules

   do not state the same thing. However, a case may be made for giving the signal when moving from a dock, as it can be argued that the dock presents an

   "intervening obstruction," and the signal will be allowed under Rules 9(f) and 34(e).

   
   

9. Doctor Mary Lou Carey testified as an expert in psychometrics and opined that question 9 should have been thrown out because of it having a negative discrimination index. This opinion was predicated upon the fact that more of the examinees in the lower 50-percentile gave the correct answer, (C), than did the examinees in the upper 50-percentile.

   
   

10. This negative discrimination index was noted by the psychometric expert on the Department of Professional Regulation's staff when the grades were compiled. In addition to discussing the problem with the content experts who selected the questions, he also did additional studies of the answers selected by the examinees and found that in the upper 50-percentile of examinees none selected answers B or D, and they were evenly split on selecting A and C. In the lower 50-percentile, 25 percent selected answer A, 8 percent selected B and D, and 58 percent selected the correct answer C. After considering the fact that the question was literally lifted from the text by Farnsworth and Young, and Respondent's content experts agreed that only C was the correct answer, no credit was given to Cropper on question 9. That decision is correct as such a signal may be given by a vessel in international waters when exiting from a berth or slip when the signal cannot be confused with a required signal.

11. Question 144 involved an Aids to Navigation question relating to a conversion of aids from the United States lateral system to an international system adopted by the International Association of Lighthouse Authorities (IALA), which the U.S. agreed to follow in April 1982. That question is:

    
    

    144. Entering from sea at night, you sight

    a light showing composite group flashing characteristics. During the conversion to IALA buoyage, the light could be:

    1. White only.

    2. Green or white only.

    3. Green or red only.

    4. Green, red or white.

       
       

       The correct answer is D, and the answer selected by Cropper is C.

       
       

12. A composite group flashing characteristic on an aid to navigation is used to mark a preferred channel, which aid can be passed on either side. This flashing mode replaced a light exhibiting an interrupted quick flashing characteristic under the former lateral system used in United States waters. Under the IALA system, a light exhibiting the composite group flashing characteristics may be only green or red, while an interrupted quick flashing light may be red, green or white.

    
    

13. Captain Cropper correctly associated the composite group flashing characteristic with a green or red light only, but failed to accept the premise that during the conversion period some mixing between the old and new systems may occur. The purpose of the question was to determine that the candidates recognized the possibility of such a mixing during the conversion period. The

    U.S. Coast Guard, the agency responsible for maintaining U.S. Aids to Navigation and implementing the conversion, clearly recognized the fact that some aids during the conversion may exhibit both pre- and post-modification signals. In Commandant's Instructions 16501.4A (Exhibit 21) which has application throughout the U.S. Coast Guard, subparagraph 4.c provides all changes to the shape, color and light characteristics may be considered as separate modifications resulting in the possibility that an aid may exhibit both pre- and post-modification signals. Although Exhibit 21 was not available to the examinees prior to taking this examination, this exhibit clearly supports the validity of the question and the correct answer thereto.

    
    

14. Petitioner Timmel challenged questions 139 and 146. Question 139 reads:

    
    

    The purpose of a solid green lighted buoy is indicated by its:

    1. Color.

    2. Shape.

    3. Number.

       1. Only I is a correct statement.

       2. Only I and II are correct statements.

       3. Only I and III are correct statements.

       4. I, II and III are all correct statements.

       
       

       C is the correct answer. Captain Timmel selected A.

       
       

       All witnesses agreed that the shape of a lighted buoy has no significance, and in discarding number in determining the purpose of a buoy, Timmel assumed

       aids on the western rivers to be included and recalled that many of these aids serve as mile markers and are so numbered. However, under the lateral system, even numbered aids mark the right hand side of a channel when entering from sea, and odd number aids mark the left side of the channel. Accordingly the purpose of such a buoy is also indicated by its number. To overlook this fact, and instead, conjure visions of western rivers aids indicates lack of understanding of the purpose of the examination. Had a question pertaining to aids to navigation on the western rivers been included in this examination, it could well have been challenged as inappropriate to determine an applicant's qualifications for licensure as a Tampa Bay pilot.

       
       

15. Petitioner Timmel further challenged question 146 which states:

    
    

    Which of the following does not assist in identifying major fixed-structure navigation aids?

    1. Color.

    2. Light characteristics.

    3. Number.

    4. Shape.

    
    

    Answer C is the correct answer. Timmel selected D.

    
    

    Captain Timmel defends his answer by asserting each aid has a light list number, and notices to mariners refer to lights by light list number. Major fixed structure navigation aids do not have a number painted on the structure as do buoys and minor aids. The light list describes the shape of these major aids as a cylindrical tower, skeletal structure, etc. The light list number is only useful in locating the page of the light list on which the characteristics of this aid is shown to assist the mariner in identifying the aid. All of the identifying characteristics listed as answers to this question are visual characteristics. The only non-visual characteristic listed is number. Yet, Captain Timmel testified he would have better understood the question had "visually" been inserted before "identifying" in question 146. All aids to navigation are intended to be identified visually, except electronic aids to navigation.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

17. Here the Petitioners have the burden to prove by a preponderance of the evidence that the examination, or its grading, was arbitrary or capricious. State ex rel I. H. Topp v. Board of Electrical Examiners for Jacksonville Beach,

    101 So.2d 583 (Fla. 1st DCA 1958); Cf. State ex rel. Glaser v. J. N. Pepper, 155 So.2d 383 (Fla. 1st DCA 1963)

    
    

18. In Agrico Chemical Company v. State Department of Environmental Regulation, 355 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. Adminis- trative discretion must be reasoned and

    based upon competent substantial evidence. Competent and substantial evidence has been described as such evidence as a reasonable person would accept as adequate to support a conclusion.

    
    

19. Here Petitioners have failed to sustain this burden. All examination questions were prepared by a group of experts on the content of the examination, and the candidates were given an opportunity to present arguments supporting the answers each gave that were deemed incorrect. As a result of these procedures, several candidates were given credit for the answers they noted on the examination, and all other applicants given the same answers were also so credited. Most of these challenged questions were reviewed by a full panel of content experts before the final grades were issued. However, Captain Cropper filed his challenge, although timely, after the panel of content experts had been disbanded. One of the questions challenged by Cropper had been challenged by another examinee and considered by the full panel, but his challenge to question 144 was reviewed only by Captain Hanson. In reviewing the challenge to question 144, Captain Hanson telephoned other authorities to confirm his conclusion that the keyed answer was a correct answer.

    
    

20. Petitioner Cropper contends that because question 144 was reviewed only by Captain Hanson and the other challenged questions were reviewed by the panel, that Captain Cropper was treated differently and such treatment was arbitrary and capricious. That challenge misses the mark. Not only is there no legal requirement that a panel review all challenges, but also more important it is not the quantity of experts voicing an opinion but the quality of the opinion upon which the correctness of the answer must be based. At this hearing, expert opinion was divided regarding the accuracy of Cropper's answer to question 144. Upon full consideration of those opinions, the finding was made that the answer given by Cropper to question 144 was not the correct answer. In this regard, comments of the court in Topp, supra, at p. 586, is pertinent as follows:

    
    

    Admittedly there will be question: on examinations of this type for which the amount of credit to be given various answers may differ in the minds of reasonable men. That such conditions exist is not alone sufficient cause upon which to bottom an alleged abuse of discretion, particularly when as here the ultimate responsibility for assigning grades to such answers falls on those who have been duly elected or

    appointed to the Board and whose function it is to issue a certificate of competency only after being satisfied as to the applicant's entitlement. Under such a circumstance, the court will be extremely reluctant to substitute its judgment for that of the duly authorized Board; else the Board will be compelled through the judicial arm of mandamus to issue its certificates of competency not in its

    own discretion, but upon that of the court.

21. The examination at issue here is both a competency exam and an examination to select the candidate receiving the highest overall score of those who pass all sections of the examination. Both of these Petitioners are highly qualified mariners who competed for the single open position of deputy pilot for Tampa Bay. Unfortunately, only one can receive the appointment.

    
    

22. From the foregoing, it is concluded that Petitioners John C. Timmel and Stephen Cropper have failed to prove by a preponderance of the evidence that in preparing the examination for appointment as deputy pilot for the Ports of Tampa Bay and in grading the answers given by the Petitioners in that examination, the Board of Pilot Commissioners, or their agents and representatives, were arbitrary or capricious. It is therefore

RECOMMENDED that the petitions of John C. Timmel and Stephen Cropper be dismissed.

ENTERED this 10th day of January 1989, in Tallahassee, Florida.

K. N. AYERS 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 10th day of January 1989.

APPENDIX

Treatment accorded Petitioner Timmel's Proposed Findings

1. Accepted.

2. Included in preamble of HO R.O.

3. Accepted as statement of Rule.

4. Rejected as not supported by evidence produced at hearing

5. Included in HO #3.

6. Included in HO #4.

7. Included in HO #5.

8. Rejected. No evidence was submitted regarding those challenges by Cropper which were accepted to raise his overall score from 828.2818 to 848.2638. His challenges to questions 9 and 244 were denied.

9. Rejected. Unsupported by evidence submitted at hearing. 10-12. Included in HO #3.

13, 14, 16, 17. Accepted.

1. Same as HO #6.

2. Included in HO #9.

20, 21. Included in HO #10.

1. Accepted.

2. Included in HO #10.

3. Accepted.

4. Included in HO #10.

5. Included in HO #9.

6. Rejected as mere testimony of witness.

7. Rejected as mere testimony of witness.

8. Rejected as mere testimony of witness.

9. Rejected as mere testimony of witness.

10. Included in HO #6.

11. Included in HO #10.

12. Included in HO #11 and #12. 34, 36. Accepted.

1. Accepted as testimony of witness.

2. Rejected as mere testimony of witness.

3. Included in HO #12.

4. Rejected as mere testimony of witness.

5. Rejected as mere testimony of witness.

6. Rejected as mere testimony of witness.

7. Rejected as mere testimony of witness.

8. Rejected except insofar as included in HO #12.

Treatment Accorded Petitioner Croppcr's Proposed Findings

1. Accepted insofar as included in HO preamble.

2. Accepted, however, no evidence on this was presented.

3. Accepted insofar as included in HO preamble.

4. Rejected as unsupported by evidence presented at hearing.

5. Included in HO #2.

6. Included in HO #3.

7. Rejected. Question 9 was reviewed by the four nembers of the panel, but not at Cropper's request. Only Capt. Hanson reviewed Cropper's challenge to question 144.

8. Included in HO #3.

9. Included in HO #5.

10. Included in HO #13.

11. Included in HO #6.

12. Included in HO #10.

13. Included in HO #13.

1. Accepted.

2. Rejected as recitation of testimony, of witnesses. 17-22. Rejected as recitation of testimony of witnesses.

1. Rejected.

2. Rejected as irrelevant since Cropper was given credit for his answer.

3. Rejected as unsupported by the evidence.

4. Rejected as unsupported by credible evidence.

5. Included in HO preamble.

6. Rejected as unsupported by evidence presented at this hearing.

Treatient Accorded to Respondent's Proposed Findings

1. Included in HO #5 and #13.

2-3. Rejected as mere testimony of witnesses.

1. Accepted.

2. Accepted.

3. Accepted and included in HO #10.

4. Accepted.

5. Accepted insofar as included in HO #12.

6. Included in HO #8.

7. Accepted as conclusion of law.

COPIES FURNISHED:

Margaret D. Mathews, Esquire One Tampa City Center

201 North Franklin Street Suite 2600

Tampa, Florida 33602

Bruce D. Lamb, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Allen von Spiegelfield, Esquire Post Office Box 1438

Tampa, Florida 33601

H. Reynolds Sampson, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Louella Cook Executive Director Board of Port Pilots

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF PILOT COMMISSIONERS

JOHN C. TIMMEL,

Petitioner,

vs. DOAH CASE NO. 88-2376

BOARD OF PILOT COMMISSIONERS,

Respondent.

/ STEPHEN CROPPER,

Petitioner,

vs. DOAH CASE NO. 88-2377

BOARD OF PILOT COMMISSIONERS,

Respondent.

/

FINAL ORDER OF THE BOARD OF PILOT COMMISSIONERS

THIS MATTER came before the Board of Pilot Commissioners pursuant to Section 120.57(1)(b)(9), Florida Statutes, on July 11, 1989, in Orlando, Florida, for the purpose of considering the Hearing Officer's Recommended Order (attached as Exhibit A). Petitioner Timmel was represented by Margaret D. Mathews, Esquire, Petitioner Crooper was represented by Allen von Spiegelfeld, Esquire, and Respondent was represented by Michael Mone, Esquire. Petitioner Timmel filed Exceptions to the Recommended Order (attached as Exhibit B).

Petitioner Cropper filed Exceptions to the Findings of Fact and Conclusions of Law in the Recommended Order (attached as Exhibit C).

Upon review of the Recommended Order, the arguments, and the exceptions, the Board makes the following findings and conclusions.

FINDINGS OF FACT

The Findings of Fact in the Recommended Order are adopted without modification.

CONCLUSIONS OF LAW

The Board has jurisdiction of this matter pursuant to Section 120.57(1), Florida Statutes, and Chapter 310, Florida Statutes.

The Conclusions of Law in the Recommended Order are adopted without modification.

WHEREFORE, IT IS ORDERED that:

The Petitions of John C. Timmel and Stephen Cropper are DISMISSED. This Order takes effect upon filing with the Clerk of the agency.

The parties are notified, pursuant to Section 120.59 and 120.68, Florida Statutes, that they may appeal this Final Order by filing, within thirty days of the filing date of this Order, a notice of appeal with the Clerk of the agency and a copy of the notice of appeal, accompanied by filing fees prescribed by law, with the District Court of Appeal.

ORDERED this 11th day of August, 1989.

BOARD OF PILOT COMMISSIONS

CHAIRPERSON B.J. PETERS

CERTIFICATE OF SERVICE

I CERTIFY that a copy of this Final Order was provided by Certified Mail to Margaret D. Mathews, Stagg, Hardy and Yerrid, One Tampa City Center, 201 N. Franklin Street, Suite 2600, Tampa, Florida 33602; Allen von Spiegelfeld, Fowler and White, 501 Kennedy Boulevard, Suite 1700, Tampa, Florida 33602; and by hand delivery to Michael Mone, Department of Professional Regulation, 1940 N. Monroe Streets Tallahassee, Florida 32399-00750, this 15th day of August, 1989.

ANNA POLK EXECUTIVE DIRECTOR

BOARD OF PILOT COMMISSIONERS

COPIES FURNISHED:

K. N. Ayers Hearing officer

Division of Administrative Hearings 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Docket for Case No: 88-002376

Orders for Case No: 88-002376