STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUSAN SITKOFF,

Petitioner,

vs.

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION,

Respondent.

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) Case No. 02-0850

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RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge, Jeff B. Clark, held a final hearing in this case in Orlando, Florida, on April 30, 2002.

APPEARANCES

For Petitioner: Susan Sitkoff, pro se

14024 Colonial Grand Boulevard Apartment 708

Orlando, Florida 32837

For Respondent: Charles F. Tunnicliff, Esquire

Assistant General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202 STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner is entitled to credit for answers scored as incorrect on questions she

challenged on the March 2001 Practice of Geology and Fundamentals of Geology Examinations.

PRELIMINARY STATEMENT

In March 2001, Petitioner, Susan Sitkoff, sat for both the National Association of State Boards of Geology Practice of Geology Examination and the Fundamentals of Geology Examination. Petitioner received a failing grade of 67 percent on the Fundamentals of Geology Examination and a failing grade of 68 percent on the Practice of Geology Examination. After an informal review by Petitioner on August 6, 2001, Petitioner formally challenged the results of the examinations and requested a formal hearing by letter received on August 21, 2001, by the Bureau of Testing, Department of Business and Professional Regulation.

On February 22, 2002, the Division of Administrative Hearings received a letter from Respondent, Department of Business and Professional Regulation, requesting assignment of an Administrative Law Judge to conduct a final hearing pursuant to Subsection 120.57(1), Florida Statutes. On February 26,

On April 11, 2002, Respondent filed a Motion for Continuance indicating that Petitioner, who had initially

challenged 52 questions, indicated that she now wished to challenge "about 10 questions." During a telephone hearing on the motion, Respondent withdrew the motion and agreed to meet with Petitioner on April 22, 2002, to specifically identify the questions Petitioner was going to challenge at the final hearing.

The final hearing was held as scheduled on April 30, 2002.

At the hearing, Petitioner offered her own testimony and the testimony of Don Strickland, P.G., who was qualified as an expert witness in geology.

Respondent offered the testimony of two witnesses, Jack L. Warner, Ph.D., and Thomas J. Crawford. Dr. Warner was qualified as an expert witness in psychometrics; Mr. Crawford was qualified as an expert witness in geology. Respondent offered five exhibits which were received into evidence and marked "Resp" 1-5. The resumes of each of the expert witnesses were received into evidence as "CT EX" 1-3.

A Transcript of Proceedings was filed with the Division on May 20, 2002. Both parties timely filed Proposed Recommended Orders.

FINDINGS OF FACT

Based on the evidence and the testimony of witnesses presented and the entire record in this proceeding, the following findings of fact are made:

1. In March 2001, Petitioner, Susan Sitkoff, took the Practice of Geology and the Fundamentals of Geology examinations; these are multiple-choice examinations up to four hours in length. These written licensure examinations are designed to assess a candidate's knowledge and skills to practice professional geology. The National Association of State Boards of Geology ("the Association") provides these national examinations which are used by Respondent and its Board of Professional Geologists for licensure examinations. In addition to providing the actual examinations, the Association conducts analyses to ensure examination validity.

2. In order to ensure test fairness and quality, the Association follows Standards for Educational and Psychological Testing (1999), published by the American Educational Research Association, the American Psychological Association, and the National Council on Measurement in Education. Test questions are written and reviewed by panels of subject matter experts who are professional geologists. Statistical analyses are reviewed by the subject matter experts so that any substandard test questions can be eliminated before generating candidates' final scores. These statistical analyses also validate the individual examination questions and answers.

3. Each test question is submitted to four reviews by the panels of subject matter experts. These reviews ensure that each question: (1) has one correct or best answer; (2) is related to the practice of the profession; (3) is related to public protection; (4) possesses language that is clear and direct; (5) is written at an entry-level of difficulty; (6) adequately describes a problem or situation; and (7) is free of trickery.

4. On the March 2001 examinations, nationwide (23 states),

   
   

   462 candidates completed the Fundamentals of Geology examination and 372 completed the Practice of Geology examination. The examination results and a variety of statistical analyses were reviewed by a panel of subject matter experts on April 6

   and 7, 2001. The reviews indicated that the examinations performed very well and exhibited a high degree of internal consistency.

5. Petitioner was notified by the Bureau of Testing, Department of Business and Professional Regulation, on May 18, 2001, that she had earned a failing score of 67 percent on the Fundamentals of Geology examination, and a failing score of

   68 percent on the Practice of Geology examination. A score of

   
   

   70 percent was required to pass each examination section.

   
   

6. On August 6, 2001, Petitioner reviewed her examination in Orlando, Florida.

7. By letter to the Bureau of Testing, Department of Business and Professional Regulation, dated August 16, 2001, Petitioner formally filed her petition for a formal hearing to challenge her examination results.

8. After initially indicating that she would challenge

   
   

   52 questions, Petitioner came to the hearing to challenge

   
   

   17 questions.

   
   

9. Petitioner challenged questions 21, 35, 53, and 60 on the Fundamentals of Geology examination.

10. At the hearing, Petitioner withdrew her challenge to questions 26, 78, 79, 91, and 98 on the Fundamentals of Geology examination.

11. Petitioner challenged questions 62 and 71 on the Practice of Geology examination.

12. At the hearing, Petitioner withdrew her challenge to questions 15, 26, 31, 53, 57, and 68 on the Practice of Geology examination.

13. In the discussion related to the challenge of question

    
    

    21 on the Fundamentals of Geology examination, Petitioner indicated that she believed "b," "c," and "d" were all correct answers. She answered "c." Respondent indicated that "b" was the correct answer. Petitioner’s expert witness opined that answer "c" was not the most correct answer.

14. Regarding question 35 on the Fundamentals of Geology examination, Petitioner's expert witness opined that "d" (Petitioner's answer) was a misleading, but agreed that a careful reading indicated that "c" was the correct answer. Respondent's expert witnesses opined that this question was not a “trick question” [or answer] but rather used a distractor answer to deter candidates without the necessary knowledge to answer the question. Seventy-two percent of the candidates answered this question correctly on the examination.

15. There was an in-depth discussion of the answers to question 53 on the Fundamentals of Geology examination. Petitioner submitted that her answer, "b," was the more correct answer. Petitioner's expert opined that "a," "b," and "c" were all correct answers. Respondent's expert geologist opined that only "c" was the correct answer. The testimony revealed that

    51 percent of the candidates taking the examination answered "b," a higher ratio than for the correct answer "c."

16. Respondent's expert psychometrician, Dr. Warner, indicated that the panels of subject matter experts had specifically reviewed this question due to the fact that more candidates chose the "distractor" answer than the "correct" answer. The panels of subject matter experts confirmed that "c" was the correct answer.

17. Question 60 on the Fundamentals of Geology examination involved a diagram, which Petitioner felt was unclear in that she was unable to determine if it was a plane view or a top view. She answered "c"; the offered "correct" answer was "a." Respondent's expert geologist reported that the diagram in the question was, in fact, a structure contour map on the top of a limestone bed and the diagrams revealed a single bed. Seventy- seven percent of the candidates answered the question correctly.

18. Petitioner indicated that she did not believe there was a correct answer to question 62 on the Practice of Geology examination and further stated that "unless you work with inclinometers for a living it would be difficult to answer this question correctly." Petitioner's expert indicated that he did not have much experience in the area. Respondent's expert geologist opined that "c," not "d," as selected by Petitioner, was the correct answer. He also indicated that he confirmed his opinion with another expert geologist from the panel of subject matter experts.

19. Question 71 on the Practice of Geology examination addresses federal regulations in the assessment of environmental sites. Petitioner indicated that "anyone doing a Phase I [environmental assessment] would have used the ASTM guidelines" which, unfortunately, guided her to an incorrect answer involving an “ASTM circular.” Petitioner conceded that, “. . .

    they put federal regulations in here which would exclude that answer.”

20. In no instance during her presentation did Petitioner demonstrate that any examination question she challenged or the "correct" answer, as offered by Respondent, was faulty, arbitrarily or capriciously worded or graded, or that she was inappropriately denied credit for any answer she gave.

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding, pursuant to Section 120.57, Florida Statutes.

22. The burden of proof is on Petitioner. Petitioner must show by a preponderance of evidence that the examinations were faulty, arbitrarily or capriciously worded or graded, or that Petitioner was arbitrarily or capriciously denied credit through a grading process devoid of logic or reason. Horac v. Department of Professional Regulation, 484 So. 2d 1333, 1338 (Fla. 3d DCA 1986); State ex rel Glaser v. J.M. Pepper, 155 So. 2d 383 (Fla. 1st DCA 1963); State ex rel I.H Topp v. Board of Electrical Contractors for Jacksonville Beach, Florida, 101 So. 2d 583 (Fla. 1st DCA 1958). Petitioner failed to satisfy her burden of proof.

23. To the contrary, the evidence revealed that Respondent, as authorized by Subsection 455.217(1)(d), Florida

    Statutes, utilizes a national examination which is carefully prepared by the National Association of State Boards of Geology to insure fairness and quality. This organization utilizes panels of expert professional geologists to prepare the examinations and review the results of each examination to insure valid examinations which measure the competency of the candidates for licensure who take the examinations.

24. No evidence was presented that would indicate that Petitioner should be given credit for her answers to any of the questions she challenged.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered confirming Petitioner’s examination score and dismissing her challenge.

DONE AND ENTERED this 24th day of June, 2002, in Tallahassee, Leon County, Florida.

_____ JEFF B. 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 24th day of June, 2002.

COPIES FURNISHED:

Susan Sitkoff

14024 Colonial Grand Boulevard Apartment 708

Orlando, Florida 32837

Charles F. Tunnicliff, Esquire Assistant General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-2202

Hardy L. Roberts, III, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-2202

Sherry Landrum, Executive Director Board of Professional Geologists 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: 02-000850

Orders for Case No: 02-000850