STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DORIAN KENNETH ZINCK, )

)

Petitioner, )

)

vs. ) CASE NO. 94-2664

)

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, BOARD ) OF PROFESSIONAL ENGINEERS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on February 10, 1995, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Dorian Kenneth Zinck, pro se

521 Beech Road

West Palm Beach, Florida 33409-6205

For Respondent: Wellington H. Meffert, II

Assistant General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUE

The issue presented is whether Petitioner is entitled to a passing grade on the Fundamentals of Engineering examination administered in October, 1993.

PRELIMINARY STATEMENT

Respondent advised Petitioner that he had failed to achieve a passing grade on the October, 1993, Fundamentals of Engineering examination, and Petitioner timely requested a formal hearing regarding that determination. This cause was thereafter transferred to the Division of Administrative Hearings to conduct the formal proceeding.

Petitioner testified on his own behalf, and Petitioner's Exhibits numbered one and two were admitted in evidence. Respondent presented the testimony of Dr. Joseph Allen Klock and, by way of deposition, the testimony of Joseph Earl Hearndon, Jr., which was admitted as Respondent's Exhibit numbered one.

Respondent's Exhibit numbered two was also admitted in evidence.

Both parties submitted post-hearing proposed findings of fact in the form of proposed recommended orders. A specific ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. The National Council of Examiners for Engineering and Surveying (hereinafter "NCEES") writes and otherwise prepares the examinations for candidates seeking engineering licenses in 55 states and jurisdictions. The examinations are then administered by the states and jurisdictions which constitute NCEES' member boards. Respondent, State of Florida, Board of Professional Engineers, is a member board and uses NCEES' examinations.

   
   

2. The Fundamentals of Engineering (hereinafter "FE") examination is given twice a year, in April and in October. The FE examination measures the basic knowledge a candidate has acquired in a bachelor degree program in the first two years during which the candidate takes basic engineering and science courses. Passage of the examination does not result in licensure as an engineer; it results in either an "engineer intern" or an "engineer in training" certificate which shows that the examinee has completed the necessary educational requirements to sit for that eight-hour examination and to have passed it. The next step is that a successful candidate will then complete four years of experience and then pass a principles and practices examination called the "PE" examination in order to then be licensed as a professional engineer. The FE exam is a minimal competency examination.

   
   

3. Questions for the FE examination are written by individuals and are then reviewed by a committee. That committee is composed of registered professional engineers who are practicing engineers and engineers from the academic world, from consulting firms, and from governmental entities. Each question or item on the examination is reviewed by at least 12 to 15 individuals during the review process which takes from one to one and a half years.

   
   

4. As part of the development process, individual items appear on examinations as pre-test questions. The purpose of using pre-test questions is to determine the characteristics of that specific item, as to how hard or easy the item is when used on the target population (candidates for the FE examination), and to verify that minimally competent candidates can answer the test item correctly. If pre-test questions perform as expected, they are used on subsequent examinations. If they do not perform adequately, the questions go back to the committee to be changed or to be discarded.

   
   

5. Pre-test questions on examinations are not scored, and whether an examinee correctly answers that question is irrelevant to the raw score or final grade achieved by that candidate on the examination. Pre-test questions are distributed proportionately throughout the examination, and no subject area on the examination ever consists of only pre-test questions.

   
   

6. Pre-test questions are used by other national testing programs. No unfairness inures to candidates from the presence of pre-test questions on an examination for two reasons. First, all candidates are treated equally. Candidates do not know that the examination contains pre-test questions, and, even if they did, they do not know which questions are pre-test questions and which questions will be scored. Second, the length of the examination itself is not increased by adding pre-test questions. The examination has the same number of questions whether pre-test questions are included or not.

7. In the actual exam preparation, NCEES uses American College Testing and/or Educational Testing Service as contractors. The contractors pull the proper number of items in each subject area from the item bank and assemble the examination which is then sent to the NCEES committee of registered professional engineers to see if changes in the examination are necessary. Once approved, the contractor then prints the examination booklets and sends them to the member boards to administer the examination. Answer sheets from an exam administration are transmitted to the contractor for scanning and statistical analysis. The contractor then recommends a passing point based on a scaling and equating process so that future exams are no easier or harder than past exams. When NCEES approves the passing point, the contractor sends the examination scores or results to the member boards.

   
   

8. When the examination is changed in some fashion, a new base line or pass point must be established to ensure that the new examination remains equal in difficulty to past examinations and remains a good measure of competency. The new examination is referred to as the anchor examination. The October, 1990, FE examination was an anchor exam.

   
   

9. The member boards of NCEES determined that the October, 1993, FE examination would be changed to a supplied reference document examination, meaning that the candidate during the examination could use only the supplied reference handbook, a pencil, and a calculator. Candidates would no longer be able to bring their own reference materials to use during the examination. One of the reasons for the change was fairness to the candidates. The FE examination was not being administered uniformly nationwide since some member boards prohibited bringing certain publications into the examination which were allowed by other member boards. Accordingly, it was determined that NCEES would write and distribute at the examination its Fundamentals of Engineering Reference Handbook, thereby placing all candidates nationwide on an equal footing in that all examinees would be using this same reference material of charts, mathematical formulas, and conversion tables during the examination, and no other reference materials would be used during the examination itself.

   
   

10. In August of 1991, NCEES approved the concept of a supplied reference handbook, and a beginning draft was sent to the FE sub-committee of the examination committee for review. The individual members of the sub-committee actually took two FE examinations using the draft of the supplied reference document to ensure that all material needed to solve the problems on an FE examination was included in the reference document and that the document was accurate. On a later occasion the committee took the examination that would be administered in October of 1993 using a subsequent draft of the supplied reference handbook.

    
    

11. The last review of the handbook occurred in February of 1993 when the committee used that draft to review the October 1993 examination for the second time, and NCEES' Fundamentals of Engineering Reference Handbook, First Edition (1993) was finished. When NCEES received its first copies back from the printer, it mailed copies to the deans of engineering at 307 universities in the United States that have accredited engineering programs for review and input.

    As a result, NCEES became aware of some typographical and other errors contained in that document.

    
    

12. In July of 1993 NCEES assembled a group of 12 individuals for a passing point workshop for the October 1993 a/k/a the '93 10 examination. The group consisted of three members of the committee, with the remainder being persons working in the academic world or as accreditation evaluators, and recent

    engineer interns who had passed the FE examination within the previous year and were not yet professional engineers. That group took the '93 10 FE examination using the first edition of the Handbook and then made judgments to determine the pass point for that examination. During that two day workshop, the errors in the Handbook were pointed out to the working group so it could determine if any of the errors contained in the Handbook had any impact on any of the problems contained in the '93 10 examination. The group determined that none of the errors in the Handbook impacted on any test item on the '93 10 FE examination.

    In September of 1993 subsequent to the passing point workshop, the '93 10 FE exam and the first edition of the Handbook went back to the committee of registered professional engineers for a final check, and that committee also determined that none of the errors in the Handbook would have any impact on the questions in the '93 10 FE examination.

    
    

13. An errata sheet to the first edition of the Handbook was subsequently prepared but was not available until December of 1993. In September of 1994 the second printing of the Handbook was completed, and that version incorporated the changes contained on the errata sheet. Of the errors contained in the first edition of the Handbook, only one error was substantive; that is, one mathematical equation was wrong. However, no item on the '93 10 FE exam could be affected by that mathematical error. The remaining errors were typographical or simply matters of convention, i.e., errors in conventional terminology and symbols found in most textbooks such as the use of upper case instead of lower case or symbols being italicized as opposed to being non-italicized.

    
    

14. Candidates for the '93 10 FE examination were able to purchase in advance as a study guide, a Fundamentals of Engineering sample examination which had its second printing in March of 1992. The sample examination was composed of questions taken from previous FE exams which would never be used again on an actual FE examination. The sample examination consisted of actual test questions and multiple choice answers. The sample examination did not show candidates how to solve the problems or work the computation, but merely gave multiple choice responses. Errors were contained on the two pages where the answers to the sample examination were given. The answer key was wrong as to two items on the morning sample examination and was wrong for all of the electrical circuit items, one of the subject areas included in the afternoon sample examination. An errata sheet was prepared and distributed in September of 1993 to those who had purchased the sample examination.

    
    

15. Petitioner took the '93 10 FE examination, which contained 140 items during the morning portion and 70 items during the afternoon portion. Approximately 25 percent of the questions on the examination were pre-test questions. The minimum passing score for that examination was 70, and Petitioner achieved a score of only 68. Accordingly, Petitioner failed that examination.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.

    
    

17. Section 471.015(1), Florida Statutes, sets forth the requirement of successful completion of a licensing examination to qualify to practice engineering in the State of Florida, and Section 471.013(1)(c) sets forth the requirement that a person must successfully complete the fundamentals examination prior to taking the principles and practice part of the engineering

    examination. Accordingly, Petitioner must successfully complete the fundamentals examination in order to be eligible to take the other portion of the engineering examination in order to practice engineering in the State of Florida.

    
    

18. Petitioner's challenge to the score he obtained on the '93 10 FE examination is limited to several general challenges to the examination itself. Petitioner has not challenged any specific question on the examination and has waived, during the final hearing in this cause, the majority of disputes set forth in his amended petition filed December 2, 1994. After dismissing portions of his amended petition challenging the administration of the exam and the Department's examination review procedures, Petitioner's remaining arguments involve the use of pre-test questions on the examination and the NCEES' issuance of the sample examination and the Handbook which contained errors.

    
    

19. As to Petitioner's challenge to the use of pre-test questions on the examination, Petitioner suggests both that they should not be included at all and that they should be included but counted if Petitioner answered them correctly. The evidence is uncontroverted that the use of pre-test questions is appropriate and standard in the national testing industry. Petitioner offered no evidence that the inclusion of pre-test questions on the examination or that the exclusion of pre-test questions from the scoring of that examination was improper or caused him to fail to achieve a passing score.

    
    

20. Similarly, Petitioner offered no evidence that the mistakes in NCEES' publications caused him to be treated differently than other candidates or caused him to fail to achieve a passing score. As to the errors on the answer sheet for the sample examination, none of the questions in the sample examination appeared on the '93 10 FE exam. Although Petitioner testified that he did not receive the errata sheet for that sample exam, there is no showing that any wrong answer on the sample exam caused Petitioner to fail to correctly answer a sufficient number of questions on the '93 10 FE exam. Likewise, the evidence is uncontroverted that the errors appearing in the Handbook given to Petitioner for his use during the '93 10 exam had no impact on the questions on that exam.

    
    

21. Accordingly, Petitioner has failed to prove that he attained the minimum passing score on the '93 10 examination. Further, Petitioner has shown no basis in fact or in law for granting to him additional credit sufficient to meet the minimum passing score, as he has argued herein.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Petitioner failed to

achieve a passing score on the October 1993 Fundamentals of Engineering examination and dismissing the amended petition filed in this cause.

DONE and ENTERED this 14th day of April, 1995, at Tallahassee, Florida.

LINDA M. RIGOT, 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 14th day of April, 1995.

APPENDIX TO RECOMMENDED ORDER

1. Petitioner's proposed findings of fact numbered 1-5 and 8 have been adopted either verbatim or in substance in this Recommended Order.

2. Petitioner's proposed finding of fact numbered 7 has been rejected as being subordinate to the issues herein.

3. Petitioner's proposed findings of fact numbered 6 and 9 have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony or conclusions of law.

4. Respondent's proposed findings of fact numbered 1-15 have been adopted either verbatim or in substance in this Recommended Order.

5. Respondent's proposed finding of fact numbered 16 has been rejected as being unnecessary to the issues involved herein.

COPIES FURNISHED:

Wellington H. Meffert, II Assistant General Counsel Department of Business

and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750

Dorian Kenneth Zinck, pro se

521 Beech Road

West Palm Beach, Florida 33409

Angel Gonzalez, Executive Director Board of Professional Engineers Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0755

Lynda Goodgame, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this 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 contact the agency that will issue the final order in this case concerning agency 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: 94-002664

Orders for Case No: 94-002664