STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT F. ROBB, )

)

Petitioner, )

)

vs. ) Case No. 99-2528

) FLORIDA ENGINEERS MANAGEMENT ) CORPORATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge, Mary Clark, held a formal hearing in the above-styled case on September 23, 1999, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Jeff G. Peters, Esquire

Cedar Woods Office Center 1266 Paul Russell Road Tallahassee, Florida 32301

For Respondent: William H. Hollimon, Esquire

Ausley & McMullen, P.A.

227 South Calhoun street Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue for resolution in this proceeding is whether Petitioner is entitled to additional credit for his response to question 124 in the Principles and Practice of Engineering portion of the engineering licensure examination administered on

October 30, 1998, by the National Council of Examinees for Engineers and Surveyors (NCEES).

PRELIMINARY STATEMENT

On May 24, 1999, Petitioner filed his request for formal hearing challenging the failing score he received on the

October 30, 1998, Principles and Practice of Engineering portion of the engineering licensure examination administered by the NCEES. On June 7, 1999, the matter was referred to the Division of Administrative Hearings (DOAH) for the assignment of an administrative law judge to conduct the hearing. The case was assigned and the hearing proceeded as described above.

At the hearing, Petitioner presented the expert testimony of

J. Keith Dantin, P.E., and William M. Bishop, P.E. Respondent presented the expert testimony of Clayton A. Campbell, P.E. No other witnesses testified. In addition to the witnesses' testimony, a total of 18 exhibits (Petitioner's Exhibits 1 through 6 and Respondent's Exhibits 1 through 12) were offered and received into evidence without objection.

A Transcript was filed on October 7, 1999, and the parties' Proposed Recommended Orders were filed on October 18, 1999.

FINDINGS OF FACT

1. Petitioner is a candidate for licensure as a professional engineer. On October 30, 1998, Petitioner sat for the Principles and Practice of Engineering portion of the

   examination in civil engineering. This is a national examination developed, controlled, and administered by the NCEES.

2. Respondent is a Florida non-profit corporation created by Section 471.038, Florida Statutes, to provide administrative and other services to the Florida Board of Professional Engineers (Board).

3. Petitioner was notified in January 1999, that his raw- score on the examination was 45, which converted to a full score of 67, was below the required passing score of 70. He contested the score and asked for a rescore of his responses to examination questions 123 and 124.

4. NCEES reviewed the responses and awarded two additional points for question 123; it awarded no additional points for question 124. The rescore resulted in a raw-score of 47 and a full score of 69, still short of a passing grade.

5. Petitioner then requested a formal administrative hearing and, as stated above, confined his challenge to his score on question 124.

6. Question 124 involved computations for a detour roadway during a bridge replacement project. The question had four parts, thus requiring four computations (a-d). Segments of the detour were expressed in metric lengths (meters) in the question. A beginning station was described as 5 + 000.000. The question required that all computations be carried out to the appropriate significant digits.

7. As described by the scoring plan for question 124, a perfect score was 10 points for an "exceptionally competent" response. The next highest score was 8 points for "more than minimum but less than exceptional competence," described as:

   Failure to provide answers to the required accuracy and a correct solution to requirements (a)-(d) OR an incorrect solution to one of the requests (a)-(d) with all answers within the required accuracy.

   Failure to provide the answers to the required accuracy will result in a deduction of two points at any level of scoring. (Respondent's Exhibit no. 8)

8. The NCEES scorers awarded Petitioner a "6" for question 124, both initially and upon his requested review. Six points indicated "minimum competence," described as:

   Demonstrated a competent knowledge of reverse curves with a correct solution to at least two of the requirements meeting the required accuracy or a correct solution to at least three of the four possible requirements but answer(s) fail to meet the required accuracy. (Respondent's Exhibit no. 8)

   
   

9. A solution is the methodology or process employed to reach a numerical result or answer in the examination problem, according to the competent credible testimony of Petitioner's experts. Those experts would have scored Petitioner's responses to question 124 as an "8" or "9".

10. On rescoring, the NCEES score's comments in assigning a score of "6" were:

    SCORER'S COMMENTS:

    
    

    Requirement (a)-Failed to meet accuracy requirements of +/-0.015m.

    Requirement(b)-Decimal error was made. The station was in km and the curve length was in meters.

    
    

    Requirement(c)-Same error as in Requirement (b). No points were deducted for this error.

    
    

    Requirement (d)-Solution is correct.

    
    

    Minimum competence was shown by this solution.

    
    

11. The grading process for the portions of the examination of which question 124 was a part was subjective within the guidelines provided by NCEES. Different scorers could award different points for the same answer. Petitioner's experts and Respondent's expert, all competent, credible witnesses, differed as to the score they would award.

12. Petitioner's response to (a) of question 124 was not accurate within +/- 0.015m. That error alone would have resulted in a 2-point penalty. However, he also mis-read the initial stationing provided in the problem statement, resulting in inaccurate answers for (b) and (c).

13. A correct solution generally includes the appropriate use of available data. In this case Petitioner's error in reading the correct station position was a technical error only and was caused by a misleading expression of the position in the question itself. His solutions to (a)-(d) were otherwise correct.

14. In Florida, the only engineers who use the metric system are consultants for the Florida Department of Transportation (FDOT) and even that agency is phasing out the use of metrics. The use of metric measurements is not the standard of practice for Florida Professional Engineers. Out of the 30 projects that Respondent's expert has done since he was licensed, only one involved the use of the metric units. J. Keith Dantin, P.E., one of Petitioner's experts, has never in his 14 years of experience worked on a roadway or surveying problem in metric units.

15. The Candidate Information Booklets provided by the Respondent to the examinees are conflicting and confusing. The February 1998 version states: "Examinees should be prepared to solve bridge problems using either metric or English units of measure. All other problems are in English units." (Petitioner's Exhibit No. 1). The October 1998 version states under the category Structural Design Standards: "All problems are in English units" (Respondent's Exhibit No. 3, boldface in original).

16. When FDOT uses metric units it still expresses those units in English terminology. Thus, where question 124 positioned the beginning station at 5 + 000.000, the English translation would have been 50 + 00. It is evident that Petitioner read the station to be 5 + 00, missing one of the O's; if he had used the 5 + 000, or if the question had expressed the

    position at 50 + 00 (the English terminology used by the FDOT), all of Petitioner's answers would have been correct and his solutions would not have included the merely mechanical error of utilizing the wrong beginning station position.

17. While he felt that he, personally, would understand the problem, Respondent's expert agreed there might be a bit of confusion.

18. Respondent's expert was candid and credible but his professional experience was substantially less than Petitioner's experts, who also were candid and, on balance, more competent. Petitioner should have been scored an 8 on question 124. His solutions were basically correct and his answers were off merely due to the confusing expression of the beginning station. In real practice his error would have been caught before it reached the field and the error in no way betrayed a lack of fitness to practice as a professional engineer.

    CONCLUSIONS OF LAW

    
    

19. The DOAH has jurisdiction in this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

20. Petitioner in this case bears the burden of establishing, by a preponderance of the evidence, that his failing score was the result of arbitrary, improper, or erroneous grading. This is ordinarily a heavy burden of proof when, as here, there is a subjective evaluation by an expert. Harac v.

    Department of Professional Regulation, Board of Architecture, 484 So. 2d 1333 (Fla. 3rd DCA 1986).

21. Petitioner met his burden of proof. The quality of his solutions and responses to question 124 met the standard for a score of "8," rather than a score of "6," as described in the NCEES scoring plan. The errors committed by Petitioner were the result of misreading data which all of the expert witnesses concurred was confusing and not representative of the standard of professional engineering practice in Florida.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That Petitioner's challenge to his score on question 124 be sustained and that his score be upgraded by 2 points, from a "6" to "8".

DONE AND ENTERED this 3rd day of November, 1999, in Tallahassee, Leon County, Florida.

MARY CLARK

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 3rd day of November, 1999.

COPIES FURNISHED:

William H. Hollimon, Esquire Ausley & McMullen, P.A.

227 South Calhoun street Tallahassee, Florida 32302

Jeff G. Peters, Esquire Cedar Woods Office Center 1266 Paul Russell Road Tallahassee, Florida 32301

Natalie A. Lowe, Esquire

Vice President for Legal Affairs Florida Board of Professional Engineers 1208 Hays Street

Tallahassee, Florida 32301

Barbara D. Auger, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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.

Docket for Case No: 99-002528

Orders for Case No: 99-002528