Findings Of Fact SJRWMD caused "Request for Qualifications No. 91H157" to be published in the Jacksonville Business Journal on May 3 through 9, 1991. In part, the request stated: Interested firms shall submit a letter of interest (three (3) copies) which contains, but is not limited to, the following: Experience in assessing the environmental fate of pollutants. Familiarity with current and historical agricultural practices employed by vegetable farms in Florida. In particular, knowledge of the storage and application of pesticides and herbicides is required. Ability to perform environmental chemistry and to assess the toxicological, chemical, and physical properties of hazardous materials. Ability to evaluate and/or develop site monitoring plans, industrial hygiene plans, site safety plans, decontamination plans, remediation plans, and abatement measures. Experience in performing environmental audits at potential hazardous waste sites. Staff must have the OSHA required 40 hours Hazardous Waste Site Safety Training pursuant to 29 CFE 1910.120. Documentation of experience in sampling of surface water, ground water, soil, sediment, including installation of temporary and permanent wells and split-spoon borings while following current state and federal approved procedures, and must be capable of preparing and implementing a quality assurance project plan specific to each site assessment. At least $5,000,000 of professional liability insurance. Evaluation of submitted letters of interest will be pursuant to Section 287.055, Florida Statutes. Contracts shall be negotiated pursuant to provisions of Section 287.055, Florida Statutes. Petitioner's Exhibit No. 1. Halff, Jammal and Geraghty & Miller, Inc. (G & M) among others, responded to the request for qualifications with letters of interest. SJRWMD staff evaluated the letters of interest and ranked the respondents in order: Halff was first; Jammal was second; and G & M was third. Staff recommended beginning negotiations with Halff. After tabling the matter at the first Board meeting at which it came up, the Board discussed the staff recommendation on August 14, 1991, and, it seemed from a tape recording of the meeting in evidence, was unfavorably impressed with the fact that Halff had only one full-time employee in Florida, Robert Barnard. (Three other people are in petitioner's Jacksonville office on "a sub-contract basis." T.50.) Mr. Barnard, who would have had charge of the work for SJRWMD if Halff had been chosen, spoke at the Board meeting. He came up to the podium and answered questions, but did not make a formal presentation. No other contender was represented at the Board meeting. As far as the evidence shows, each Board member had read all letters of intent carefully: The record is silent on the point. The Board voted to rerank Jammal and Halff first and second, respectively, and directed staff to begin negotiations with Jammal.
Recommendation It is, accordingly, recommended that SJRWMD proceed with negotiations with Jammal, Halff and G & M in that order. RECOMMENDED this 4th day of March, 1992, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 1992. COPIES FURNISHED: William Lon Allworth, Esquire 1301 Gulf Life Drive, Suite 200 Jacksonville, FL 32207 John W. Williams, Esquire P.O. Box 1429 Palatka, FL 32178-1429 Wayne Flowers, Executive Director St. Johns River Water Management District P.O. Box 1429 Palatka, FL 32178-1429 Daniel H. Thompson, General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue Whether, in making a preliminary decision to award a contract for the subject services, the Florida Department of Transportation (Respondent) acted contrary to a governing statute, rule, policy, or project specification; and, if so, whether such misstep(s) was/were clearly erroneous, arbitrary or capricious, or contrary to competition.
Findings Of Fact Respondent is an agency of the State of Florida and is the procuring agency in this proceeding. Petitioner's Notice of Protest and its Amended Petition were timely filed. The services being procured were advertised as the "Continuing Services Contract for Materials Testing and Geotechnical Services Request for Proposals." The procurement sought to secure the services of a prime consultant to support Respondent's District 5 by providing professional services in the fields: soil exploration; geotechnical exploration testing; highway material testing; foundation studies; pavement evaluation; and construction materials sampling, testing, and reporting. Due to the nature of the services to be provided, the RFP contemplated that the prime consultant would have to use sub-consultants for certain services. Each proposer was required to list the sub-consultants it would use and identify the fields of work the sub-consultants would perform. There were no challenges to the specifications of the RFP. Petitioner, Intervenor, and Ellis were the three shortlisted firms and submitted proposals, which included a "Project Related Information Package." All three members of the TEC made an affirmative finding that all three proposers are qualified to perform the required services as the prime consultant. Roger Schmitt, Kathy Gray, and Jeremy Wolcott acted as the TEC, and performed the evaluation and scoring of the technical proposals submitted in response to the RFP. All three are professional engineers. There was no issue as to whether the evaluators were qualified to serve in that capacity. The TEC was charged with evaluating the materials submitted by the three proposers in accordance with the RFP (Joint Exhibit 1) and Procurement Topic 375-030-002-i, styled Acquisition of Professional Services (Joint Exhibit 4). The responses could be awarded a maximum of 100 points. A maximum of 30 points could be awarded under the heading: "Management Plan." A maximum of 15 of those 30 points could be awarded under the subheading: "What is your Management Plan for this Contract." A maximum of 15 of those 30 points could be awarded under the subheading: "Explain your ability to provide services in a timely and effective manner." A maximum of 30 points could be awarded under the heading: "Geotechnical Services." A maximum of five of those 30 points were to be awarded under the subheading: "Describe how you will provide Geotechnical support for Design." A maximum of 25 of those 30 points could be awarded under the subheading: "Describe your approach to providing PDA [pile driver analysis] testing and engineering." A maximum of 40 points could be awarded under the heading: "Construction Materials Testing and Evaluations." A maximum of ten of those 40 points could be awarded under the subheading: "What qualified technicians (including qualified Pre-Stress inspectors) are available for this contract and what Certifications do they currently hold? (See scope of services for qualifications list.)" A maximum of 20 of those 40 points could be awarded under the heading: "What is your plan for staffing, oversight activities, recruitment, and training of VT [verification technician] asphalt plant technicians? How do you plan to manage the program to make sure the asphalt plants are staffed without disruption to construction and to keep costs in check?" A maximum of ten of those 40 points could be awarded under the subheading: "Describe your experience, commitment to turnaround time and internal review process for performing pavement survey evaluations. Describe how you propose to manage the program for Maintenance of Traffic, lane closures, and meeting the Department production for coring." Mr. Barker is a professional engineer and a professional geologist. He is a director and vice president of Petitioner. He was actively involved with preparing the proposal submitted by Petitioner. Mr. Barker is a former employee of Respondent, having served as the District Materials Engineer for Districts 1 and 7 until he moved to Petitioner five years ago. Frank Smith is the consultant project manager for District 5 for Materials Research. Mr. Smith also assigned the performance grade associated with the most recent contract between Petitioner and Respondent for District 5 materials testing. Mr. Smith gave Petitioner a score of 4.7 out of a possible 5 points. Each TEC member scored each proposer pursuant to the terms of the RFP. After the three TEC members scores were compiled, Intervenor had a total score of 263 points (for an average of 87.67), Petitioner had a total score of 262 points (for an average of 87.33), and Ellis had a total score of 257 points (for an average of 85.67). The TEC ranked Intervenor first, Petitioner second, and Ellis third. Respondent's selection committee decided to award the RFP to Intervenor based on the rankings of the TEC. Ms. Gray is a 23-year veteran with Respondent's District 5. She has served on many evaluation committees during her employment with Respondent. She reviewed the RFP before it was issued, and she participated in determining what entities should be shortlisted. Ms. Gray is very familiar with Intervenor and Petitioner. Ms. Gray read all information submitted by the three proposers, with the exception of certain employee resumes, before assigning scores to any response. Her scoring reflects her evaluation of the strength of each response as compared with the other responses. MANAGEMENT PLAN As reflected above, under the subheading "Management Plan for Contract," a proposer could be awarded a maximum of 15 points. For that category, Ms. Gray awarded Intervenor a score of 15, while awarding Petitioner a score of 10. In determining Petitioner's score for "Management Plan for Contract", Ms. Gray made the following notations on the scoring form: Good overall Plan and Project Manager. Since we will only have two CSC Materials and Research contracts in the future, the potential for conflict of interest problems is a bigger concern than in the past. Universal has the highest conflict of interest risk of the three firms. Universal has a preference for maximizing the use of in-house resources even when qualified sub-consultants are available and closer to the job. Their approach would be stronger if the welfare of the project was the highest priority. The Firm only committed to 10% DBE [Disadvantaged Business Enterprise] participation.[3] It was reasonable for Ms. Gray to conclude that Petitioner's response to the RFP stressed its in-house capabilities. Mr. Smith gave advice to the TEC. Prior to the review, Mr. Smith related to the TEC members that Mr. Barker had, in the past, expressed a strong preference on the part of Petitioner to use in-house resources rather than sub-consultants when it could. It was reasonable for Ms. Gray to rely on Mr. Smith's advice, particularly when she was familiar with Petitioner and the way Petitioner operated. It was reasonable for Ms. Gray to consider the three proposers' potential for conflict of interests in scoring their proposals. Petitioner failed to establish that Ms. Gray's scoring for this category, as compared with the other proposals, was arbitrary or capricious. ASSIGNMENT OF SUB-CONSULTANTS The Scope of Services, which is attached to joint exhibit 1 as exhibit A, provides at page nine: The assignment of dynamic pile testing/analyses personnel to projects shall be at the sole discretion of the District Geotechnical Engineer. As noted above, Ms. Gray is the District Geotechnical Engineer. Ms. Gray testified that she has been instructed not to tell prime consultants what sub-consultant to use for any services, including PDA. Mr. Schmitt explained that the foregoing provision is used to provide Respondent the authority to prohibit a prime consultant from using an unqualified sub- consultant. Because of this policy, Ms. Gray could not order the prime consultant to use a sub-consultant instead of using its in-house resources. Mr. Barker testified that Petitioner had been asked by District 5 project managers to use certain sub-consultants for certain work. He further testified that Petitioner has never refused such a request, even if it had to add a sub-consultant to its list of sub-consultants. There was insufficient evidence to establish that Ms. Gray had ever asked Petitioner to use a particular sub-consultant. APPROACH TO PDA As reflected above, under the subheading "Approach to providing PDA testing and engineering," a proposer could be awarded a maximum of 25 points. For that subheading Ms. Gray awarded Petitioner a score of 20 while awarding Intervenor a score of 25. In determining Petitioner's score for "Approach to providing PDA testing and engineering," Ms. Gray made the following notations on the scoring form: Universal has expressed a strong preference for using in-house PDA resources; however, their small in-house staff does not meet all the scope requirements and is not located in the District. They have reluctantly used sub-consultants in the past, but it is not clear how committed they are to using the most qualified and efficient resources available. Some firms are more cooperative in this area. In scoring this subheading, Ms. Gray considered Petitioner's response, which emphasized its in-house capability to do PDA as required by the RFP. Ms. Gray was concerned that Josh Adams, the person Petitioner identified as the employee responsible for the in-house performance of PDA, was not qualified to perform PDA services. After describing its in- house resources for performing PDA, including equipment, Petitioner's response included the following (at page 3 of Joint Exhibit 2): PDA testing field services and all corresponding analyses/recommendations are performed by our in-house staff (Josh Adams) or by our subconsultants [sic] RS&H, CS, GRL, F&GE of AFT. Our subconsultants [sic] can provide additional equipment and have performed PDA for numerous FDOT projects. Ms. Gray was familiar with three of the proposed sub- consultants and considered the three to be qualified. At the time of the technical evaluation and at the time of the formal hearing, Josh Adams did not have the qualifications to conduct the PDA required by the RFP and could not perform the services for Petitioner on an in-house basis. Mr. Adams had recently joined Petitioner's employment to replace an employee who had previously done the PDA work for Petitioner. Petitioner's proposal did not discuss Petitioner's future plans for Mr. Adams or how it intended to develop in-house capability to perform PDA work. Intervenor's response to the PDA inquiry indicated that in addition to one other sub-consultant (URS), which Ms. Gray considered to be qualified, it would use the three qualified sub-consultants to perform the PDA services identified by Petitioner. Intervenor does not have in-house capability to perform the required PDA services. Ms. Gray deducted points from Petitioner under the subheading "Approach to providing PDA testing and engineering" because of its "reluctance" to use sub-consultants and because it failed to include URS as a sub-consultant. Ms. Gray's use of the term "reluctance" was not supported by the evidence. While there was sufficient evidence to establish that Petitioner had a strong preference to use its in-house resources when it could, there was insufficient evidence to establish Petitioner's "reluctance" to use sub-consultants when necessary. Her testimony explained that her concern was Petitioner's strong preference to use in-house resources, when the use of a sub- consultant would better serve the interests of District 5. She was of the opinion that Petitioner's failure to include URS as a sub-consultant signaled that Petitioner was not as committed as the other proposers to using sub-consultants. Petitioner failed to establish that Ms. Gray's scoring for this category, compared with the other proposers, was arbitrary or capricious. CERTIFICATIONS As reflected above, under the subheading "Qualified technicians and what Certifications do they currently hold," a proposer could be awarded a maximum of 10 points. Ms. Gray awarded Petitioner a score of 8 while awarding Intervenor a score of 10. In determining Petitioner's score for that subheading, Ms. Gray made the following notations on the scoring form: Universal has many qualified technicians. However, it is not clear what they will do for Prestress inspectors. Their Qualified Personnel matrix shows one good sub- consultant we are familiar with, but the other two Prestress technicians listed are based outside the District and we have no experience with them. Petitioner failed to establish that Ms. Gray's scoring of this subheading, compared with the other proposals, was arbitrary or capricious. ASPHALT PLANT TECHNICIANS As reflected above, under the subheading "plan for staffing, oversight activities, recruitment, and training of VT asphalt technicians", a proposer could be awarded a maximum of 20 points. Ms. Gray awarded Petitioner a score of 15 while awarding Intervenor a score of 18. In determining Petitioner's score for that subheading, Ms. Gray made the following notations on the scoring form: Universal has a good group of qualified Asphalt VT technicians. However, it appears supervision of the program is planned to be by the general Contract Manager, who is not Plant Certified. Other firms have a stronger Asphalt Plant VT Quality Assurance oversight plan. Although the RFP did not specifically address "Quality Assurance," the term "oversight activities" is sufficiently broad to encompass "Quality Assurance." There is no requirement for the supervisor to be "Plant Certified." Petitioner failed to establish that it was inappropriate for Ms. Gray to consider whether the supervisor was plant certified in comparing proposals. Petitioner failed to establish that Ms. Gray's scoring of this subheading, compared with the other two proposals, was arbitrary or capricious. BIAS There was no evidence that Ms. Gray was biased in favor of or against any proposer. Ms. Gray based her evaluation of Petitioner on the basis of the criteria established by the RFP using her background and experience dealing with the proposers. There was no evidence that the methodology she employed in weighing the merits of the three proposals was improper. Respondent's selection committee acted reasonably in selecting the consultant (Intervenor) that the TEC ranked first.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order that denies Petitioner's bid protest and upholds the award of the procurement to Intervenor. DONE AND ENTERED this 24th day of October, 2011, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 2011. 1 Two members of the TEC (Ms. Gray and Mr. Wolcott) ranked Intervenor in first place. 2 In its Proposed Recommended Order, Respondent explained that the initial petition was dismissed by Respondent because it did not conform to pleading requirements and there was no bond filed. The Order of Dismissal entered by Respondent gave Petitioner a deadline to file an amended petition and a protest bond. Petitioner thereafter met that deadline, Respondent referred Petitioner's Amended Petition to DOAH, and this proceeding followed. 3 Petitioner's Amended Petition did not raise an issue as to DBE participation. COPIES FURNISHED: Deanna Hurt, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Ananth Prasad, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 57 Tallahassee, Florida 32399-0450 Gerald B. Curington, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 C. Denise Johnson, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399 Thomas H. Justice, III, Esquire Thomas H. Justice III, P.A 1435 Lake Baldwin Lane, Suite A Orlando, Florida 32814 Thornton J. Williams, Esquire Williams, McMillian, P. A. 119 South Monroe Street, Suite 200 Tallahassee, Florida 32399
Findings Of Fact The Respondent is a duly-licensed professional engineer in the State of Florida having been issued License No. PE0035663. The Petitioner is an agency of the State of Florida charged, in pertinent part, with interpreting, enforcing, and regulating concerning the licensure and professional practice standards for professional engineers in the State of Florida embodied in Chapter 471, Florida Statutes. The Respondent practices engineering as Dr. S.K. Nayak & Associates, Regulatory, Environmental and Civil Engineering Consultants. That engineering firm is not licensed as a professional engineering firm in the State of Florida. On September 20, 1988, the permit to the JNC by the Department for its domestic waste-water treatment and disposal system expired. Thereafter, on June 16, 1989, an application to operate such a system was submitted to the Department by Mr. Cordes on behalf of the JNC. The Respondent was the professional engineer of record depicted on that application. On or about July 14, 1989, the Department issued a notice of permit denial concerning that application and cited six deficiencies as the basis for the denial. The notice of permit denial identified the JNC's reclaimed water distribution system as not being designed in accordance with sound engineering principles and practices, as delineated in Rule 17-6.070(1)(a), Florida Administrative Code, and the design as not being provided in the manner required by Rule 17-610.414, Florida Administrative Code. The permit applicant was thus advised by the notice of permit denial that some modifications for the water distribution and storage system would have to be undertaken and completed in order for permitting to be effected. Thereafter, on or about January 30, 1990, the Respondent submitted a design statement for a reclaimed water disposal system to the Department. The design must conform to certain criteria enunciated in Chapter 17-610, Florida Administrative Code. The design for such a system must be accompanied with an engineering report to document geohydrological conditions at the site and to document that a ground water mounding analysis has been performed for the percolation pond systems, in order to verify that the systems will perform satisfactorily under the pertinent provisions of Chapter 17-610, Florida Administrative Code. The Department considered the design submitted by the Respondent to constitute the necessary design for the application for a new operating permit for the JNC. Expert witness Bryant Marshall's testimony establishes clearly that the creation of the design and its submittal to the Department constitutes a specific type of engineering practice and moreover that that sort of design requires a specific type of geotechnical and geohydrological engineering experience. Upon reviewing the design statement submitted by the Respondent, the Department advised Mr. Cordes of numerous items of incompleteness which would need to be addressed before an evaluation of the proposal, including design, could be performed. Mr. Cordes was informed of this by letter from the Department of February 23, 1990, which was copied to the Respondent. See, Exhibit B in evidence. Upon reviewing the design submitted, the Department determined that, because of the limited data and analyses and absence of calculations in that design document, that the Respondent had not demonstrated that he was qualified to perform such geotechnical and hydrogeological engineering, with pertinent calculations and depictions as was required for a project such as that proposed, nor had that type of required engineering work been done. Ultimately, therefore, it filed a complaint against the licensure of the Respondent with the Petitioner licensing agency. On April 9, 1990, the Respondent submitted a signed and sealed withdrawal of the design statement previously submitted to the Department. The Respondent contends that he never intended that the design statement originally submitted should constitute the final "as built" design for the water reclamation facility involved. Rather, he contends that it was intended by the Department, by himself, and by his client to be merely a preliminary or suggested design solely for purposes of negotiation concerning the permit denial and an attempt to work out a satisfactory arrangement with the Department in terms of the Department's conditions and requirements for design and construction, so that the proposed facility could be permitted. The Respondent contends that that was not the practice of engineering but, rather, submittal of a preliminary design statement which he claims the Department required of him. He thus submitted the design statement with the full understanding that it was not intended by him, or by the Department for that matter, to be a feasible final proposal or design and knowing that it was not up to standard or intended to be and knowing that it did not comply with certain applicable rules and regulations, he did not sign or seal it. Mr. Marshall, the expert witness put forward by the Petitioner, opined that the submission of substandard work, merely because another party has requested it for negotiating purposes, or for whatever reason, still is not acceptable practice for a licensed professional engineer. Merely because one is of the intent and opinion that submittal of the work will not be the final work product, by which the facility in question is to be built, is no excuse for not complying with proper standards of professional engineering practice. The Respondent's soil and ground water data was shown by Mr. Marshall to be inadequate because it did not provide for the necessary calculations which could indicate whether the performance of the system will actually meet the design criteria, given the geotechnical soil and hydrogeological conditions prevailing at the site, which were not adequately allowed for by their entry into proper calculations which should have been performed by the Respondent. The Respondent's professional history moreover does not reflect adequate geotechnical or hydrogeological experience and training necessary for a project such as the JNC at issue. It has been established by Mr. Marshall's testimony, which is adopted, that standards of practice were not followed because an appropriate subsurface exploration geotechnical investigation, laboratory soil testing, engineering analysis, and ground water mounding analysis was not performed. Even if the Respondent had adequate training in geotechnical and hydrogeological engineering, he promulgated a deficient engineering document in terms of this design, regardless of whether or not it was signed or sealed, because it constituted the practice of professional engineering and yet he failed to perform and to indicate on his design that the geotechnical and hydrogeological investigations required for such work had been performed. The document was based only on a review of available published information regarding surficial and sub-surficial soil conditions. No test borings were done in accordance with standard practice. The percolation testing performed by the Respondent was shown by Mr. Marshall to be inadequate under the circumstances of the project for which design was being considered. The proper geotechnical exploration, in keeping with standard engineering practice, would require the use of soil test borings to depths of 20 to 30 or perhaps 40 feet below ground surface. This would be necessary to properly characterize the aquifer and subsurface conditions and to evaluate the properties of the soil within that zone to determine what the actual hydraulic characteristics of the subsurface profiles would be. It would then be necessary to perform laboratory permeability testing on the soil samples from the various depths so as to properly characterize the aquifer performance or predicted aquifer performance for the entire depth zone to those significant depths. Just the top 18 or 20 inches of soil is not an adequate investigation. Further, the Respondent provided no documentation for his conclusions regarding established ground water movement, established surface water flow, and confirmed ground water table elevations. According to Mr. Marshall, it is safe to assume that surface water flow might be to the southeast given the site's topography and the fact that the ground slopes downward toward the southeast and generally toward the east, as well. However, the Respondent provided no documentation of any test borings or other site-specific geotechnical investigation work done to verify anything about the direction of ground water flow nor the ground water table elevation. Apparently the Respondent relied upon general information contained in a soil survey of Jefferson County but did not do site-specific investigatory work, in keeping with standard engineering practice, which would allow him to make those types of conclusions in a legitimate fashion. Mr. Marshall thus opined and established that the submission of the work by the Respondent was substandard work and that it is not justifiable engineering practice to submit such substandard engineering work, even if it is done at the request of another party with an understanding between the engineer and the other party and the client that this work is merely to be a preliminary design for purposes of negotiation between the regulator and the client. It is also no excuse for such substandard engineering practice that the Respondent submitted it without it being signed or sealed in his capacity as an engineer. The lack of the signing or sealing does not render it immune from having to comport with standard, acceptable engineering practice. Accordingly, it has been demonstrated that the Respondent was negligent in the practice of engineering in these particulars, with regard to his participation and design concerning the JNC project. Because the Respondent intended that this be a preliminary submittal, solely for the purposes of negotiation between himself, his client, and the regulatory agency and did not intend that it be a final design to be built in an attempt to comply with regulatory requirements, he has not been shown to have intentionally committed misconduct in the practice of engineering.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Board of Professional Engineers finding the Respondent guilty of violating Section 471.033(1)(g), Florida Statutes, to the extent that he is guilty of negligence in the practice of engineering and that he be issued a reprimand and that his licensure be placed in probationary status for a period of one year with reasonable terms to be decided by the Board, including the requirement of continuing professional education in the area of compliance with appropriate professional practice standards. DONE AND ENTERED this 4th day of March, 1994, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-7994 Petitioner's Proposed Findings of Fact 1-23. Accepted, to the extent they are consistent with the findings of fact of the Hearing Officer and otherwise as subordinate to the Hearing Officer's findings of fact. Respondent's Proposed Findings of Fact Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as not being entirely in accordance with the greater weight of the evidence; to some extent, irrelevant; and to some extent, as being legal conclusions and not proposed findings of fact. Rejected, as not being entirely in accordance with the greater weight of the evidence, as constituting an incorrect conclusion of law, and as subordinate to the Hearing Officer's findings of fact on this subject matter. 4-5. Rejected, as not in accordance with the greater weight of the evidence in its entirety, as constituting argument rather than a proposed finding of fact, and being an incorrect conclusion of law. 6. Rejected, as not in accordance with the greater weight of the evidence in its entirety, as constituting argument rather than a proposed finding of fact, as being an incorrect conclusion of law, and to some extent, irrelevant. COPIES FURNISHED: Anthony Cammarata, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Shrinivas K. Nayak 3512 Shirley Drive Tallahassee, Florida 32301 Jack McRay, Esq. General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Angel Gonzalez, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0755
Findings Of Fact Gerald M. Swindle was employed by the SFWMD on May 15, 1974 as a Water Resource Technician, and remained employed by SFWMD until he was terminated July 25, 1990. In 1977, Petitioner was counseled regarding his performance of duty needing improvement (Exhibit 11). In 1978, Petitioner violated a verbal order not to become involved in enforcement matters with E. N. Willis. This order was reiterated in Exhibit 13 dated October 24, 1978. In 1981, Petitioner was placed on probation which ended November 15, 1981 (Exhibit 15). During this probationary period, SFWMD continued to receive complaints regarding personal use of the district vehicle assigned to Petitioner (Exhibit 15). In his evaluation report dated 11/23/81, Petitioner was given an overall grade of satisfactory, although he was marked slightly below average on 6 of the 11 items on which rated. In 1988, a reorganization changed the job description of Water Resource Technician to Field Service Technician with a higher pay grade. Petitioner was not reclassified into this position when the other Water Resource Technicians were reclassified because his superiors felt he was deficient in some of the skills required of a Field Service Technician (Exhibit 19). By letter dated November 4, 1988 (Exhibit 17), Petitioner was advised of the need to make improvements in reading and interpreting blueprints, site plans and as-builts; in the production of accurate and timely reports; in basic knowledge of district rules; and in effective communication. By memorandum dated March 15, 1989, William Hartman, Petitioner's supervisor, submitted a memorandum to the Director, Bartow Permitting Department, advising that he, and others, had spent time with Petitioner reviewing and interpreting blueprints, as-builts, aerial maps, etc., that Petitioner had attended workshops, and that some improvement was noted. By memorandum dated April 10, 1989 (Exhibit 19), the Director, Bartow Permitting Department, recommended Swindle not be promoted to Field Services Technician II. In 1989, Petitioner was suspended from duty without pay for two weeks (80 hours) for an incident involving playing cards at a public park for some two hours during working hours and falsifying a log entry to conceal the time so spent (Exhibit 22). In Swindle's evaluation for the first quarter of 1989, his supervisor, William Hartman, gave him an overall evaluation of Effective, although in the narrative he noted that what he observed most about Petitioner is his apparent paranoia over "someone out to get him." The narrative also referred to his weak areas of preparing investigative reports and surveying. In his comments to this report, Petitioner generally denied all of the adverse comments and contended that, if given the proper training, he could do the job in a wholly satisfactory manner. About this time, Petitioner was getting the impression that his present supervisors were looking for grounds to dismiss him. In the April 1990 evaluation of Petitioner (Exhibit 3), he was given an overall evaluation of "Acceptable," but he was marked in the lowest category for meeting minimum requirements in quantity of work, stability, and requiring more than average instructions. Most of the other categories were marked below average. A nominal supervisor at this time, Jim Calandra, was a contributor to the April 1990 evaluation, and in his comments pointed out that considering his time with the Department, the training received, and comments from his superiors over the years, Petitioner should possess "better and more varied technical skills needed for his FST II position." Calandra further concluded that "Gerry will inevitably blame any of his technical deficiencies on lack of training provided by the District or the absence of cooperation from others." The comments of Petitioner's immediate supervisor, Steve Stokes, further noted Petitioner's deficiencies in preparing field investigation reports and in his log keeping. Also the comments of Robert Viertel, Director, Permitting Department, attached to this evaluation, expressed his concern about the lack of initiative, dependability, stability and alertness reflected in the evaluation. To more rapidly gauge the adequacy of Swindle's efforts to improve, Viertel recommended by-monthly evaluations of Petitioner. In his comments to this evaluation (Exhibit 4), Petitioner essentially denied all of the adverse comments made on this evaluation, and blamed the poor evaluation on an "intent ... to upset me, break down my morale and cause me to loose [sic] faith in my ability." In commenting on those factors reflecting poor utilization of his time, Petitioner contended he uses his time better than some others in the Bartow office and specifically alleged that Calandra conducted much personal business on District time, used Department vehicles for personal business and used Petitioner to pick up personal items for Calandra during regular business hours. These comments regarding Calandra led to the memorandum dated 5/15/90 from Stokes to Swindle (Exhibit 8) in which Swindle was directed to be specific as to times and places regarding the allegations. Petitioner's response is a part of Exhibit 8. The charges made by Petitioner against Calandra were investigated, and some of these charges were confirmed in the investigation. Calandra was given an oral reprimand for conducting personal business during District working time and for using District vehicles on personal business. Petitioner apparently contends that his actions in June 1990 in stopping the dredging in a canal in Peace Creek because no permit was issued also affected his dismissal as this constituted "whistle blowing" by him. It was determined by Petitioner's supervisor that no permit was required for this dredging, and no further record or notation of this incident was presented which, in any wise, was shown to be a factor in his dismissal. On the special evaluation of Swindle dated July 20, 1990, Petitioner was marked unsatisfactory in 7 of the 16 categories on which he was rated, and the overall evaluation was "unacceptable." In his comments, Stokes noted that the April evaluation of "acceptable" was based partly on the fact that "Stokes and Viertel had been Swindle's supervisors for only three months, and since Swindle was a longtime employee of the District they decided to rate him marginally satisfactory." Stokes noted no improvement in Swindle's performance during the period between April and July, and cited specific incidents of unsatisfactory performance. In Viertel's comments on this evaluation, he concurred in the evaluation and recommended biweekly evaluations following which, if Petitioner's performance remained unacceptable, that he be terminated. Facing the likelihood of dismissal, Petitioner went on sick leave during July 1990 contending he was under stress. He submitted a letter from Dr. Jones at the Peace River Crisis Center confirming Swindle had been seen for stress-related adjustment (Exhibit 7). During this time, Petitioner, when contacted by District personnel regarding his absence from work, referred to the Jacksonville, Florida, incident in which a disgruntled (and mentally disturbed) employee had entered the workplace with an AK-47 and killed several people. This led the person to whom Petitioner relayed this message to think Petitioner may be contemplating similar action. Petitioner's last day at work was July 25, 1990, after which he took leave. He was dismissed sometime after July 25, 1990. The allegations Petitioner made against Calandra were not a factor in a decision of SWFMD to dismiss Petitioner.
Recommendation It is recommended that a Final Order be entered finding Gerald M. Swindle was dismissed as a Field Services Technician II by SFWMD because of poor performance, and Swindle's allegations made against a fellow employee was not a proximate cause of his dismissal. ENTERED this 28th day of February, 1991, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1991. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact are accepted, except: Rejected. The Peace Creek incident occurred in June 1990, and Petitioner's allegations against a fellow employee (Calandra) were made April 30, 1990. Second sentence rejected. Rejected. Rejected that Swindle lost knowledge of his job responsibilities. 13. Rejected as irrelevant. Proposed findings submitted by Respondent are generally accepted. Those not included herein were deemed unnecessary to he results reached. COPIES FURNISHED: Richard D. Mars, Esquire Post Office Box 1276 Bartow, FL 33830 Joseph W. Carvin, Esquire Post Office Box 1427 Tampa, FL 33601 Catherine D'Andrea, Esquire 2379 Broad Street Brooksville, FL 33609-6899 Peter G. Hubbell Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, FL 34609-6899
The Issue Whether Luis A. Gonzalez earned a passing grade on the Professional Engineer Examination of April 14-15, 1988?
Findings Of Fact Luis A. Gonzalez took the Professional Engineer Examination administered by the Department of professional Regulation on April 14-15, 1988. By notice dated July 22, 1988, Mr. Gonzalez was informed by the Respondent's Office of Examination Services that he had failed the Professional Engineer Examination. Question 122 on the Principles & Practices of Engineering Examination, Form 8804, involving Civil/Sanitary/Structural engineering, provided the following: SITUATION: An old, large, retirement community apartment complex has reported sewer overflow and plumbing discharge problems. You are an engineer assigned to review the flow and sizing of the one main sanitary sewer exiting and carrying the total flow of the complex, with the objective of correcting the problem. Review with the manager, and inspection of the plans, reveal there are 490 residential units with an estimated continuing residence population of 1,475. Water bills are paid individually. REQUIREMENTS: NOTE: Use and-show equations for calculations. Do not use a nomograph or hydraulic slide rule. Citing your assumptions and sources, calculate the average, maximum, and minimum sanitary wastewater flows expected, in gallons per day, from the total complex. You measure the main sewer from the project and examine the plans and find it is 10" round ID, VCP, with a slope of 0.0045. Inspection leads to an estimate of n 0/015 (fair) because of age. Calculate theoretical full flow capacity and velocity with no surcharge. Calculate depth and velocity of flow for your estimated maximum flow rate, if you can conclude the sewer is not overloaded. Mr. Gonzalez was instructed to include assumptions and citations in support of his answer to Question 122. The citations included by Mr. Gonzalez in answering part (a) of Question 122, although questioned by the grader of Question 122, were adequate. Mr. Gonzalez failed to list assumptions which he should have taken into account in answering part (a) of Question 122, concerning inflow, infiltration or exfiltration. In answering part (a) of Question 122, Mr. Gonzalez determined "estimated flow." In calculating estimated flow, Mr. Gonzalez multiplied the population of the complex (1,475) times an estimated water use per person of 100 gallons per day. In support of Mr. Gonzalez's use of 100 gallons per person water use, Mr. Gonzalez cited the Civil Engineering Reference Manual, Fourth Edition, and the ASCE Manual on Engineering Practice No. 36. Mr. Gonzalez also provided other references at the formal hearing to support his use of 100 gallons per day. The use of 100 gallons a day per person in answering part (a) of Question 122 by Mr. Gonzalez would be correct only if the problem involved a residential community. The citations used by Mr. Gonzalez indicate that 100 gallons per day is generally acceptable for residential communities or "[i]n the absence of any better basis . . . ." Question 122, however, involves an apartment complex and not a residential community. The weight of the evidence presented at the formal hearing indicates that for an apartment complex an estimated water use of 60 to 80 gallons per day per person should be used. Even some of the references provided by Mr. Gonzalez at the formal hearing support this conclusion. For example, Petitioner's exhibit 5 indicates that a wastewater flow of 67 to 79 gallons per person per day should be used for "[m]ultiple-family dwellings (apartments)." Mr. Gonzalez's use of 100 gallons per day in answering part (a) of Question 122 was incorrect. Mr. Gonzalez failed to demonstrate an adequate understanding of flow in answering Question 122. Although Mr. Gonzalez demonstrated an understanding of full flow, he failed to demonstrate an understanding of partial flow. Mr. Gonzalez's answer to part (b) of Question 122 was adequate. Mr. Gonzalez's answer to part (c) of Question 122 was incorrect. Mr. Gonzalez did not dispute this conclusion at the forma1 hearing. Mr. Gonzalez was awarded a score of 4 for his solution of Question 122. Question 122 was graded pursuant to the National Council of Engineering Examiners Standard Scoring Plan Outline (DPR Exhibit #4). This Outling provides that a grade of 4 is to be awarded under the following circumstances: UNQUALIFIED: Applicant has failed to demonstrate adequate knowledge in more than one ASPECT of one CATEGORY. BU. Fails to demonstrate an understanding of flow and velocity calculations for pipes flowing full or partially full; or contains multiple errors; or one part is missing or wrong with other gross or multiple errors; or the record is deficient; or in combination. A grade of 5 was to awarded under circumstances similar to the circumstances for awarding a score of 4, except that a score of 5 is appropriate only if an "[a]pplicant has failed to demonstrate adequate knowledge in [only] one ASPECT of one CATEGORY." The Respondent properly concluded that Mr. Gonzalez is entitled to a score of 4 for his answer to Question 122 and not a score of 5. Mr. Gonzalez failed to "demonstrate an understanding of flow . . . calculations for pipes flowing . . . partially full . . . ." His answer also "contains multiple errors" and at least "one part is . . . wrong." Finally, Mr. Gonzalez's answer to Question 122 "failed to demonstrate adequate knowledge in more than one ASPECT of one CATEGORY" as opposed to "[only] one ASPECT of one CATEGORY." [Emphasis added]. Question 123 of the Principles & Practice of Engineering Examination, Form 8804, involving Civil/Sanitary/Structural engineering, includes parts (a) through (j). Mr. Gonzalez questioned parts (b), (d) and (e) of Question 123. In pertinent part, Question 123 provides the following: SITUATION: In a detailed study of traffic flow on one lane of a 2-lane urban freeway, the following data were collected: Average Distance between the front bumper of successive vehicles 75 feet Space Mean Speed = 33 mph Time Mean Speed = 32 mph REQUIREMENTS: (b) Determine the traffic density. Assuming that the 30th highest hourly volume is to be used for design purposes on this highway, what is a reasonable estimate of the 30th highest hourly volume in one direction on this facility? Briefly justify any assumptions made. Determine the most widely accepted value of the capacity of a freeway lane operating under ideal conditions of uninterrupted flow. Mr. Gonzalez was instructed to include assumptions and citations in support of his answer to Question 123. Mr. Gonzalez answered part (b) of Question 123 by calculating a density of 70.40. The grader of Question 123 circled this answer and wrote "DECIMAL." The Respondent agreed at the formal hearing that the use of decimals by Mr. Gonzalez was insignificant. In answering part (d) of Question 123 Mr. Gonzalez failed to include adequate assumptions. Although the statements made by Mr. Gonzalez in answering part (d) of Question 123 are correct, his equation is wrong. Mr. Gonzalez did not offer adequate proof at the formal hearing that his response to part (d) of Question 123 was correct. In answering part (e) of Question 123 Mr. Gonzalez assumed a capacity of 2,000 cars per hour. The grader of Question 123 indicated that this capacity is an "obsolete value." The Solutions to be used in grading the Professional Engineer Examination and, in particular, Question 123, indicates the following: Based on the 1985 Highway Capacity Manual or other similar sources, the capacity of a multi-lane freeway lane operating under ideal conditions is 2,000 vehicles per hour. ANSWER Although Mr. Gonzalez's answer to part (e) of Question 123 is consistent with this solution, the capacity of a multi-lane freeway lane operating under ideal conditions, based on the 1985 Highway Capacity Manual is actually 2,800 vehicles per hour and not 2,000 vehicles per hour. The answer to part (e) of Question 123 provided in the Solutions used by graders of the Professional Engineer Examination and Mr. Gonzalez's answer are therefore incorrect. The Solutions provided to graders are to be used only to assist graders and are not binding on them. Although Mr. Gonzalez's answer to part (e) of Question 123 is consistent with the Solutions provided, the answer is incorrect. Therefore, the grader properly took into account Mr. Gonzalez's incorrect solution to part (e) of Question 123. Even if Mr. Gonzalez is given credit for his response to part (e) of Question 123, his grade for Question 123 will not change. Mr. Gonzalez correctly answered parts (a)-(c) and (f)-(j) of Question 123. Mr. Gonzalez was awarded a score of 8 points for his answer to Question 123. Question 123 was graded pursuant to a Six Level Item Specific Scoring Plan (155P). The Plan provides that a grade of 8 is to be awarded under the following circumstances: CLEARLY QUALIFIED: All categories satisfied with at least one at a higher than minimum level. Correct approach but a solution with math errors or answers outside allowable tolerances for parts (d), (e), and (h) or An [sic] slightly incomplete solution. The next highest grade which can be awarded for Question 123 is 10 points, the maximum award possible for Question 123. Ten points are to be awarded under the following circumstances: HIGHLY QUALIFIED: All categories satisfied. -Presentation -may lack in completeness or equations, diagrams, orderly steps in solution, etc. Results within allowable tolerance. Correct approach and correct solution within allowable tolerances for parts (d), (e), and (h) and correct interpretation of results. All parts complete. The Respondent properly concluded that Mr. Gonzalez is entitled to a score of 8 for his answer to Question 123 and not a score of 10. Mr. Gonzalez did not satisfy all categories and he failed to arrive at the "correct solution within allowable tolerances for parts (d), [and] (e) . . . " in answering Question 123. Mr. Gonzalez failed to prove that he should have been awarded a score of 10 for Question 123. Mr. Gonzalez failed to prove that he should be awarded an additional point on the Professional Engineer Examination of April 14-15, 1988.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Engineers issue a final order concluding that Luis A. Gonzalez's grade on the Professional Engineer Examination of April 14- 15, 1988, was a failing grade. DONE and ENTERED this 6th day of April, 1989, in Tallahassee, Florida. LARRY J. SARTIN 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 6th day of April, 1989. APPENDIX Case Number 88-6056 Mr. Gonzalez has submitted a letter dated March 21, 1989, containing proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Respondent did not file a proposed recommended order. Mr. Gonzalez's Proposed Findings of Fact Paragraph Number in Recommended Order of Acceptance or Reason for Rejection Paragraphs 1-2, 6 Not proposed findings of fact. Paragraph 3 The first sentence is a statement of the issue concerning Question 122. The second and third sentences are not supported by the weight of the evidence. The Florida Department of Environmental Regulation established water per day usage is for regulatory purposes and not necessarily consistent with the engineering principles to be used in answering questions on the Professional Engineer Examination. References which should have been used in answering Question 122 indicate that a water use rate of 67 to 79 gallons per day should have been used for apartments. The letter referred to was not accepted into evidence and can not form any basis for a finding of fact. Paragraph 4 The first and fifth sentences are accepted in findings of fact 20 and 21. The second and fourth sentences are not relevant to this proceeding. The third sentence is based upon a letter apparently received after the formal hearing. It cannot be taken into account in this proceeding. The sixth sentence is not supported by the weight of the evidence. The grader used the correct information and not "personal conviction." Although it is true that Mr. Gonzalez used the most recent data he was aware of concerning vehicles per hour, the fact remains that the value he used at the time of the examination was incorrect. Paragraph 5 Not supported by the weight of the evidence. Mr. Gonzalez included two references with his letter of March 21, 1989, which were not offered at the formal hearing. Those references cannot be relied upon in this case and have played no part in making the findings of fact and conclusions of law in this Recommended Order. COPIES FURNISHED: H. Reynolds Sampson Deputy General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Luis A Gonzalez 7419 Sandy Bluff Drive Jacksonville, Florida 32211 Kenneth Easley General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Allen R. Smith, Jr. Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue presented for decision herein is whether or not the Petitioner successfully completed the answers posed on the April, 1987 professional engineer's examination.
Findings Of Fact Petitioner took the April, 1987 professional engineering examination and was advised that he failed the principles and practice portion of the examine. His raw score was 45 points and the parties stipulated that he needed a minimum raw score of 48 points to pass the examination. In his request for hearing, Petitioner challenged questions 120, 123 and 420. However, during the hearing, he only presented testimony and challenged question 420. Question 420 is worth 10 points and is set forth in its entirety in Petitioner's Exhibit Number 1. For reasons of test security, the exhibit has been sealed. Question 420 requires the examinee to explore the area regarding "braced excavations" and explores the principles involved in such excavations. Question 420 requires the examinee to calculate the safety factor for a braced excavation including the depth of excavation which would cause failure by "bottom heaving". Petitioner, in calculating the safety factor, made a mathematical error when he incorporated the B-prime value calculation which was inserted into the equation in making his calculations. Question 420 does not direct the applicant to apply the calculations to either a square excavation or to a rectangular excavation. Petitioner assumed the shape of the excavation to be square and calculated the factor of safety according to that assumption. In assuming the square excavation, Petitioner did not make the more conservative calculation that will be required in making the safety factor calculation for a rectangular excavation. In this regard, an examination of Petitioner's work sheet indicates that he referenced the correct calculation on his work sheet but the calculation was not transferred to or utilized in the equation. Respondent utilizes the standard scoring plan outline, which is more commonly known as the Items Specific Scoring Plan (ISSP) which is used by the scorers in grading the exam. The ISSP provides a scoring breakdown for each question so that certain uniform criteria are met by all applicants. For example, four points are given for a correct solution on a specific question regardless of the scorer. This criteria is supplied by the person or persons who prepared the exam. The criteria indicates "in problem-specific terms, the types of deficiencies that would lead to scoring at each of the eleven (0-10) points on the scale". The ISSP awards six points on question 420 when the applicants meets the following standards: "all categories satisfied, applicant demonstrate minimally adequate knowledge in all relevant aspect of the item." ISSP awards seven points on question 420 when the applicant's answer meets the following standard: "all categories satisfied, obtains solution, but chooses less than optimum approach. Solution is awkward but reasonable". The ISSP awards eight points on question 420 when the applicant's answer meets the following standards: "all categories satisfied. Errors attributable to misread tables or calculating devices. Errors would be corrected by routine checking. Results reasonable, though not correct". The ISSP awards nine points on question 420 when the applicant's answer meets the following standard: "all categories satisfied, correct solution but excessively conservative in choice of working values; or presentation lacking in completeness of equations, diagrams, orderly steps in solution, etc." The ISSP criteria for awarding nine points as to question 420 clearly requires that the Petitioner calculate the correct solution without mathematical errors. The Petitioner's answer was not correct regardless of the assumption as to the shape of the excavation since he made a mathematical error. The ISSP criteria for awarding eight points as to question 420 allows Petitioner to calculate the answer with mathematical errors with the requirements that the results are reasonable. Petitioner made a mathematical error although his result was reasonable. His answer fits the criteria for the award of eight points in conformity with the ISSP criteria. Petitioner received six points for his answer to question 420 whereas he is entitled to an award of eight points.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Respondent enter a Final Order determining that Petitioner failed the principles and practice portion of the April, 1987 engineering examination. RECOMMENDED this 30th day of June 1988, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 1988. COPIES FURNISHED: Glen E. Wichinsky, Esquire 900 Glades Road, 5th Floor Boca Raton, Florida 33431 Michael A. Mone', Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Allen R. Smith, Jr. Executive Director Department of Professional Regulation, Board of Professional Engineers 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
Findings Of Fact David F. Ramsey, Respondent, is a registered professional engineer holding registration No. 15307 and a registered land surveyor holding registration No. 2545 and at all times relevant hereto he was so registered. In April 1974 Respondent was President and qualifying professional engineer for Ramsey and Associates, Inc. , the engineering firm retained to prepare plans and specifications for a mobile home park known as Heritage Village. Approved financing for this project was near expiration date and the plans had not been approved by Indian River County officials. Before the plans for the sewage treatment plant and percolation pond associated therewith could he approved, a subsoil percolation test was required. On April 24, 1974, Respondent, in company with Larry Brown, General Manager of Brown Testing Laboratory, a wholly owned subsidiary of Ramsey and Associates, Inc., proceeded to the site of the Heritage Village project. There five test holes were dug to obtain subsoil conditions and prepare Subdivision Analysis Form (Exhibit l) for submission to Indian River County so the plans could be approved. No hole was dug deeper than 3.2 feet. Brown testified only a posthole digger was available for digging while Respondent recalled a hand auger also being available. Since Brown did the digging, his memory may be the better. During the procedure, Respondent took notes as the holes were excavated. Hardpan was found 2-1/2 to 3 feet below the surface, but the thickness of this hardpan was not ascertained. No water was put in the holes to ascertain the percolation rate for the subsoil. After the testing was completed, Respondent and Brown retired to the Holiday Inn for lunch where Respondent prepared page 4 of Exhibit 1, which is titled "Survey of Subsoil Conditions". Thereon for the 5 holes reported he included the percolation time for water in the test holes to drop one inch. These figures were estimated by Respondent based upon the type of soil observed in the holes. These figures were certified by Respondent to be representative of existing subsoil conditions at the time the test was made. It is this certification, which was submitted to Indian River County to get the plans approved, which forms the basis for the charge here under consideration. While Respondent was under investigation, and after being fully advised of his rights, he told an investigator that he had estimated the percolation rates because no water was available in the vicinity and submission of the subsoil report was urgent due to the financing deadline. In his defense, Respondent did not deny the percolation figures submitted on Exhibit 1 were estimates rather than the measurements they purported to be, but contended that the percolation rates and subsoil conditions shown on Exhibit 1 accurately represent conditions as they existed. Evidence to support this position was included in the tests conducted and reported in Exhibit 3. Standard procedure for taking percolation tests is to fill the hole with water and observe the time it takes the water level to drop three inches. It is also standard to dig a 6-foot deep hole. Here it was testified that hardpan prevented the hole depth from exceeding 3.2 feet. However, when a proper test was made shortly before the hearing, no difficulty was encountered getting to a depth of 6 feet using a hand auger. It is difficult to dig deeper than about 3 feet with a posthole digger.
Findings Of Fact Petitioner sat for the Civil/Sanitary Engineer Examination on April 15, 1988. He received a failing grade with an original score of 41 raw points. Since that time, he has been awarded an additional 3 raw points and has a score of 44 raw points. A passing grade is 48 raw points and is, therefore, 4 raw points from passage. Petitioner contests the score given him on three of the problems on the examination. They are problems 120, 122, and 421. He did not have the test booklet he used at the examination available to him at the hearing. Though he recognizes that the grader who assessed his scores was not allowed to look at his test booklet during the scoring process, many of his calculations for problems 120 and 122 were made in it. Problem 120 requires the examinee to compute 6 stations and the coordinates of the 6 points of the two involved curves on a railroad spur line. Petitioner computed the six points to what he considers an acceptable tolerance and had also started to compute the coordinates as required by Requirement (b). His solution page for Requirement (a) of this problem reflects only the six points, of which 5 are marked incorrectly, and bears the grader comment, "show computations." The second page, relating to Requirement (b), on which the first 3 calculations are marked as incorrect, reflects only cursory calculations and bears the grader comment, "Incomplete." Petitioner was awarded a score of "4" for his solution to problem 120. According to the National Council of Engineering Examiners Standard Scoring Plan Outline, the guideline relating to "4", "BORDERLINE UNQUALIFIED", reads: Applicant has failed to demonstrate adequate knowledge in one or more categories. For example, approach may be correct but the solution is unreasonable. Significant constraints may have been overlooked. Solution is unacceptable but marginally so. The scorer's remarks concerning Petitioner's solution state: A solution which fails to demonstrate an adequate understanding of horizontal curve geometry as a result of logic errors, math errors, and failure to complete several parts. According to Petitioner, he used the Civil Engineering Reference Manual in his calculations. He also contends that Requirement (a) is far more important to the problem than is Requirement (b). Once the former is achieved, it is easy to achieve the latter. Admittedly, Petitioner did not complete Requirement (b) and, therefore, does not expect credit for it. However, he contends that having completed Requirement (a) correctly, he should have been awarded more than 40% credit. Petitioner also contends that the use of the term, "Not To Scale" in the test problem was deliberately deceptive which was not necessary to test engineers at this level of achievement. In this case, Petitioner contends the lack of availability of the examination test booklet in which he did many of his calculations hinders him in demonstrating the correctness of his solution. These computations, he contends, would show his computations in Requirement (a) were "close enough" to be graded correctly and without these computations, the scorer would not know if he did them or merely copied the answers. He would not, also, have any way of knowing if Petitioner has knowledge of horizontal curve geometry. Mr. Lippert, a licensed registered engineer testifying on behalf of Petitioner, believed that the answers to the problems to be more important than the computations. In a practical application he may be correct. However, in the instant case Petitioner is a candidate for certification as a Professional Engineer and was being examined on his qualifications for that status. In such a situation, it is not at all unreasonable to expect the candidate to demonstrate his method of arriving at his solution to demonstrate his understanding of the concept sufficiently to indicate his answer was neither copied nor a fluke. Since the candidate is seeking a higher degree of recognition, a requirement that he demonstrate a higher degree of professional skill is not unreasonable. Under the fact situation demonstrated here, the award of a "4" as a grade for Petitioner's solution to this problem is appropriate. In Problem 122, the candidate was required to use and show equations for his calculations of (a), the average maximum and minimum sanitary wastewater flows expected, in gallons per day, for the total complex in issue; (b), the theoretical full flow capacity and velocity with no surcharge; and (c), depth and velocity of flow for the estimated maximum flow rate. The candidate was instructed to conclude, if possible, that the sewer is not overloaded. The problem deals with a troublesome wastewater disposal system for a retirement community of 490 units with a population of 1,475. Here, Petitioner was awarded an a score of "8" and feels he should have received more. As to (a), Petitioner cited in his answer the reference manual he was using, a manual used by many engineers and one accepted in the profession, yet the grader apparently felt that the use of only the title was insufficient. He wanted the author's name, publisher, date of publication, and other salient information. Petitioner felt this was unnecessary in light of the well known status of the book. In (b), the problem calls for 10" UCP pipe. All pipe, depending upon the material from which constructed, has a different diameter. Petitioner's solution was marked at least partially incorrect because he assumed the interior diameter of the pipe as .83' when the problem stated the interior diameter was 10". Petitioner contends that even with that unnecessary calculation based on an incorrect assumption, his solution of 2.295 feet/second velocity was sufficiently close to the grader's solution of 2.35 feet/second to be marked correct. Similarly, Petitioner contends his velocity in (c) was within a "tolerable" margin and that his conclusions is "OK". While the grader considered his method in this section as "OK", he marked the calculation almost entirely wrong. This may be related to the formula used by Petitioner in (b) which, he admits, is wrong. He contends he must have brought the wrong number over from his calculations which he accomplished in his test booklet. This booklet is not now available, but, in any case, would not have been seen by the scorer. Petitioner also claims that the gallons per capita per day figure of 100 is the standard "everyone uses" to calculate problems involving sewage. Here, because he was taking an examination, he used a figure of 112.5 gallons per day, a compromise between 100 and 125, which he took from the reference manual without citing page number from which taken. Consequently, he contends the grader's comment that his figure is too high is in error but even if it was too high, he ran the calculations correctly and should be given full credit. It is his position that in a case like this, error on this high side, which would give greater capacity, is better than being short. Being correct would be even better, and Petitioner's solutions was not correct. In the scoring plan outline for this problem, an "8" is described as: QUALIFIED; All categories satisfied, errors attributable to misread tables or calculating devices. Errors would be corrected by routine checking, Results reasonable though not correct. and a "9" is described as: QUALIFIED: All categories satisfied, correct solutions but excessively conservative in choice of working values; or presentation lacking in completeness of equations, diagrams, orderly steps in solution, etc. The scorer's comments were: CQ. Fundamentals are correct. Solutions are basically correct and complete but contain math, unit, or tolerance errors making answers unacceptable; or the record is different, or in combination. Here, Petitioner contends that his ultimate solution, only .05 feet/second off in velocity is so close that the error is insignificant. It is close but the difference between an "8" and a "9" lies in the correctness of the ultimate solutions. "Close" is not "correct" and Petitioner's errors are not attributable to misread equations or devices but to his own improper assumptions. Because his calculations were done in a test booklet which is not now available it cannot be determined where the error originates which caused (c) to be marked as it was. Under the circumstances shown here, the score of "8" awarded is not inappropriate. Problem 421 calls for the candidate to find the required volume in cubic feet of on site storage so that post development flows on the parcel of land in question do not exceed the pre-development flows to the existing stream for the 25 year frequency rainfall. Petitioner determined the pre and post development numbers correctly but did the retention area in the old fashioned way resulting in his solution equating to 1/2 of the correct solution. The grader indicated that Petitioner's "procedures [sic] [were] in error here." Petitioner has a one page solution to the problem and got credit for his answer of "4.22" to the first stage of the problem as well as his answer to the second part. He admits, however, that his third step was wrong and that threw the problem answer off. He contends, however, that he was undergraded when awarded a "4" and while he admits to not deserving a "6", feels he should have received a "5". Grades for this problem were awarded on a 2-4-6-8-10 point scale. A "5" was not an authorized score. The scoring plan for this problem describes a "4" as: BORDERLINE UNQUALIFIED; Applicant has failed to demonstrate adequate knowledge in one or more categories. For example, approach may be correct but the solution is unreasonable. Significant constraints may have been overlooked. Solution is unacceptable but marginally so. A grade of "6" is described as: MINIMALLY QUALIFIED: All categories satisfied at a minimally adequate level. Here the scorer indicated: Pre and post calculation OK. An attempt at detention calculation made but no significant progress toward conclusion. Fails to demonstrate knowledge necessary to calculate detention as existing. Detention calculations fail to demonstrate knowledge of hydrograph [sic] nature of storage calculations. Only one data point obtained. The comments of the grader on the Petitioner's answer sheet clearly indicate that the answer given was incorrect and that the Petitioner failed to demonstrate adequate knowledge of the procedures in issue. Since there is no provision made to award any grade between "4" and "6", and since Petitioner's answer clearly, and by his own admission, does not qualify for a "6", the awarded score of "4" is appropriate. Based on the above, it is found that Petitioner has failed to demonstrate that the scores given him on the problems in issue were incorrect, unsupported, or inappropriate.
Recommendation Based on the foregoing Findings of Fact and conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered affirming the score awarded to Petitioner on questions 120, 122, and 421, respectively, of the Civil/Sanitary Engineer Examination administered to him on April 15, 1988. RECOMMENDED this 4th day of April, 1989 at Tallahassee, Florida. ARNOLD H. POLLOCK 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 4th day of April, 1989. COPIES FURNISHED: Leonard A. Smally Longboat Key, Incorporated 501 Bay Isles Road Longboat Key, Florida 33548 H. Reynolds Sampson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Allen R. Smith, Jr. Executive Director Board of Professional Engineers 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether Respondent knowingly submitted an inaccurate timesheet for April 4, 2018, as charged in the agency action letter dated May 11, 2018.
Findings Of Fact ECUA is a public utility that provides water, wastewater, and sanitation services to customers in Escambia and Santa Rosa counties. ECUA’s mission statement specifies that the Board and employees of ECUA “are committed to providing the highest quality service” and that “ECUA will always provide cost- effective services.” The Manual sets forth the terms and conditions of employment with ECUA. The Manual specifies that: Overtime work should be for emergency or unforeseen situations and to solve problems which are not a part of the daily activities. Supervisors are expected to use overtime work sparingly and employees should respond when called upon. Overtime and compensatory time authorization will be established by the supervisor with the approval of the department director. During the relevant time period, ECUA employed Mr. Boyd as an Industrial Plant Mechanic I. On June 26, 2012, Mr. Boyd signed a document acknowledging that a copy of the Manual was available to him in his supervisor’s office, via ECUA’s intranet, in ECUA’s Human Resources Department, and via compact disc upon request. Mr. Boyd also acknowledged on June 26, 2012, that it was his “responsibility to read the entire Manual/Handbook and to comply with the plans, guidelines, directives, and procedures contained in the Manual/Handbook and any revisions to it.” As an Industrial Plant Mechanic I, Mr. Boyd works under the supervision of a senior mechanic. He normally begins his workday by reporting to the Central Wastewater Reclamation Facility (“CWRF”) at 7:00 a.m. and is dispatched to assigned worksites. He uses an ECUA truck to travel to and from those sites. Mr. Boyd has a 30-minute lunch break for which he is not compensated. He is also allowed one 15-minute break in the morning and another in the afternoon. Mr. Boyd’s typical workday ends at 3:30 p.m. With a 30-minute lunch break, that amounts to an eight-hour workday. In April of 2018, ECUA needed to replace all of the diffusers at its Bayou Marcus Water Reclamation Facility (“the BMWRF”). Mack H. Weeks, ECUA’s Plant Maintenance Manager at the time, had supervisory authority over Mr. Boyd. Shortly before April 4, 2018, Mr. Boyd mentioned to Mr. Weeks that he wanted to stop at the BMWRF on April 4, 2018, prior to reporting to the CWRF, in order to see if the water level had decreased to a point where the diffusers in question were visible. According to Mr. Boyd, that information would enable him and the three other members of his four-person work crew to ascertain what parts they needed to complete the repair. However, there was no benefit for Mr. Boyd to stop at the BMWRF prior to reporting to the CWRF.3/ At 6:32 a.m. on April 4, 2018, ECUA’s security system recorded Mr. Boyd passing through a gate at the BMWRF. Mr. Boyd took a picture of a portion of the BMWRF a few minutes later. The security system at the CWRF recorded Mr. Boyd entering the facility at 7:13 a.m. on April 4, 2018. Mr. Boyd traveled back to the BMWRF with Kevin Spinks, an ECUA co-worker, in an ECUA work truck that had been assigned to Mr. Spinks. Carl Ayliffe and another ECUA employee were the remainder of the four-person work crew assigned to that job, and they traveled to the BMWRF in a separate ECUA truck. The tank at the BMWRF was on-line by 3:00 p.m. on April 4, 2018. Every ECUA truck has a global positioning system that enables ECUA to know precisely where each truck is at virtually any given point in time. The GPS on Mr. Spinks’ truck was not functioning because the antenna had been disconnected. However, the GPS on Mr. Ayliffe’s truck was functioning and recorded that he was done working at 4:29 p.m., on April 4, 2018.4/ Rather than returning his truck to the CWRF, Mr. Ayliffe drove the truck to his home because he was on call that night. A camera at the back gate of the CWRF recorded Mr. Spinks returning his truck at 5:07 p.m. on April 4, 2018. ECUA’s security system recorded Mr. Boyd using his employee badge to enter the CWRF through the southeast shop door at 5:09 p.m. on April 4, 2018. In consideration of a need to gather any belongings and/or complete paperwork, Mr. Boyd’s work on April 4, 2018, should have ended at approximately 5:30 p.m. on April 4, 2018. On April 16, 2018, Mr. Boyd, Mr. Spinks, and Mr. Ayliffe submitted timesheets indicating that they each worked eight regular hours and three overtime hours on April 4, 2018. Ultimate Findings The greater weight of the evidence demonstrates that there was no benefit to Mr. Boyd stopping at the BMWRF on April 4, 2018, prior to reporting for work at the CWRF. The greater weight of the evidence also demonstrates that his stop at the BMWRF was unauthorized by anyone who supervised Mr. Boyd. As a result, Mr. Boyd’s stop at the BMWRF on April 4, 2018, was an attempt to accumulate unnecessary overtime pay. The undisputed evidence demonstrates that Mr. Boyd began his workday at 7:13 a.m. on April 4, 2018, and his workday should have ended at approximately 5:30 p.m. after he reported back to the CWRF at 5:09 p.m. Given that Mr. Boyd was entitled to a 30-minute, unpaid lunch break, the undisputed evidence indicates that he worked 9.75 hours on April 4, 2018, rather than the 11 hours indicated on his timesheet.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Executive Director of the Emerald Coast Utilities Authority find that Robert D. Boyd, II, violated Section B-3, attendance records; Section B-13 A (4), conduct unbecoming an ECUA employee; Section B-13 A (13), falsification of records; and Section B-13 A (33), violation of ECUA rules or guidelines or state or federal law. DONE AND ENTERED this 17th day of September, 2018, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of September, 2018.
