The Issue Whether Rule 21DD-5.002, Florida Administrative Code, as applied to an application for licensure as a professional geologist without examination, is an invalid exercise of delegated legislative authority, as defined in Section 120.52(8), Florida Statutes.
Findings Of Fact On September 29, 1988, Petitioner Davis made application in proper form to the Board for licensure as a professional geologist without examination, as provided in Section 492.105(2)(c), Florida Statutes. To establish entitlement to licensure without examination, an applicant must meet all of the other requirements of Section 492.105, Florida Statutes, and make application in proper form within one calendar year of October 1, 1987. The only requirement of Section 492.105, Florida Statutes, in dispute in the formal Section 120.57 administrative hearing is whether Petitioner Davis has fulfilled the educational requirements set forth in Section 492.105(1)(d), Florida Statutes, so the Board can qualify him without examination. The parties stipulate that all other statutory licensing criteria have been met by the applicant. Petitioner's application was deemed complete by the Board on June 25, 1990. Rule 21DD-5.003, Florida Administrative Code, describes the requisite geological coursework and fundamental core program of geology accepted by the Board for purposes of fulfilling the requirements of Section 492.105(1)(d)2, Florida Statutes. This rule was enacted on April 22, 1990, over one and one- half years after Petitioner applied for his license. On July 12, 1990, a notice of denial of the application for licensure without examination was issued by the Board. According to the notice, the application committee determined Petitioner's transcripts from the University of Arizona do not show the 30 semester hours of geological courses mandated by Section 492.105(1)(d)2., Florida Statutes. Although the Board did not cite Rule 21DD-5.002, Florida Administrative Code, as a basis for its decision to deny the application, the rule was used to determine if Petitioner satisfied the educational requirements mandated by Section 492.105(1), Florida Statutes. Due to the fact that an application for licensure without examination contains the same educational requirements as an application for examination, the Board extrapolated that the new rule should be applied so as to include those still seeking licensure under the "grandfather clause" in Section 492.105(2)(c). Applications for licensure without examination which were still pending on the effective date of the rule, were evaluated according to the rule criteria.
The Issue The issue for consideration in this case is whether Petitioner should receive additional credit for his answers to questions 121 and/or 222 on the civil/sanitary engineer examination administered on April 18 and 19, 1997.
Findings Of Fact At all times pertinent to the issues herein, the Board of Professional Engineers was the state agency in Florida responsible for the licensing of professional engineers in this state and for the regulation of the engineering profession. Petitioner graduated from the University of South Florida in December 1990, with a degree in geo-technical engineering, a sub-specialty of civil engineering. He is not, nor does he claim to be, a structural engineer. He has practiced in the field of geo-technical engineering since his graduation and has taught soil mechanics at the master’s level at the university. He sat for the professional engineer’s examination administered by the Respondent in April 1997. Thereafter, by grade report dated July 29, 1997, the Department’s Bureau of Testing notified Petitioner that he had earned a score of 69.00 on the examination he had taken. Since a passing score for the examination which Petitioner took is 70.00, Petitioner failed the examination. Petitioner requested a formal hearing to challenge the grading of examination questions numbers 121 and 222, on each of which he earned a score of four. The maximum obtainable score on each question is ten. On question 121, the candidate is given a situation involving a sheet-pile wall section, and is asked to (a) sketch and dimension the earth pressure diagram acting on the wall after the proposed dredging has been completed; and (b) determine the factor of safety against the kick-out after the dredging. Scoring of the Petitioner’s examination was done by the National Council of Examiners for Engineering and Surveying (Council). The Council determined that, with regard to requirement (a), Petitioner’s pressure distribution was of the correct form, but the labeling of the distribution had a major error. Petitioner assumed an incorrect factor which was deemed to be a major error calling for, under the approved scoring plan, a minimum four-point deduction. With regard to requirement (b), Petitioner chose not to solve for the factor of safety as he was required to do. This resulted in a minimum reduction of two additional points. This evaluation was concurred by Mr. Adams, the Board’s expert witness, in his testimony at hearing. Mr. Adams noted that where, as here, the engineer is dealing with soil mechanics, the at-rest conditions are one thing. The active and passive (A and P) conditions are the more dynamic, and here, where the problem calls for removal of soil from in front of a retaining wall, A and P pressures should have been used instead of at-rest pressures. Adams also concluded that Petitioner’s cited authority was not valid in this case. This authority used the at-rest pressure coefficient when all the authorities Mr. Adams could find used the A and P pressure coefficient. Petitioner admits that the coefficients utilized in determining earth pressures are A, P and at-rest (O). In this case, the whole problem must be considered. A tie-back system is presented, and in that case the sheet pile and the tie-back are assumed to hold the soil behind the wall in an at-rest condition so long as the sheet-pile wall does not move or deflect. Petitioner contends that Mr. Adams’ determination that removing the soil would destroy stasis and cause the wall to move is erroneous. In fact, he contends, the sheet-pile wall and the anchor system must move before the Board’s argument holds. He cites an authority in support of his position which was also cited to the Council scorer who, at Petitioner’s request, rescored his answer. The Council official who rescored Petitioner’s answer did not have access to Petitioner’s cited authority but rejected the citation as either incorrectly cited or incorrect in itself. Petitioner’s error called for a four-point reduction in score as to (a). Further, as to requirement (b), Petitioner, though asked to solve for the factor of safety against rotation, chose not to do so. This calls for an additional two-point reduction. Independent review of Petitioner’s answer, including an evaluation of his cited authority, and consideration of the other evidence pertinent to this issue, including his testimony, that of his witness, and the rescoring results by the Council, does not satisfy the undersigned that Petitioner’s answer merits additional credit. The score of four, as awarded, is appropriate. Question 222 deals with a cantilevered retaining wall with a wide foundation and piling in two rows, some in front and some in back, to support it. The candidate is required to determine the total lateral thrust per linear foot acting on the wall in issue; to determine the vertical load on a front row pile; and to explain possible ways that the pile foundation can resist the lateral thrust. According to Mr. Adams, Petitioner incorrectly calculated the lateral load by omitting the proper depth of the wall. With regard to the vertical loading, the Petitioner did not get to the proper vertical load on the front pile but received partial credit for other calculations he performed. As for the last requirement, one part of Petitioner’s answer was incorrect in that he did not explain passive pressures properly. What Petitioner mentioned was incorrect, and he did not mention battering of the piles, which was expected to be noted. According to Mr. Adams, Petitioner got two parts of the question correct, each of which is worth two points. Therefore, he received a score of four points. Petitioner contends that the Board and the Council are being too restrictive in their approach to the problem and not taking into account the whole problem. He claims that though he arrived at the wrong figure in calculating the lateral load, that does not justify his receiving no credit for that segment since the method he used for calculating the thrust was correct. He admits to having erroneously neglected the weight of the soil, but contends that his method of determining the solutions to resist lateral thrust is as good as that of the Board and the Council. Petitioner was given only partial credit for his use of the correct equation to calculate the lateral thrust because he used the wrong depth. His answer to the second part was wrong in that he completely neglected the weight of the soil and calculating the pile load, even though he used the correct figure to multiply the load per foot of the wall. His answer to the third requirement, dealing with lateral resistance of the pile, was insufficient to warrant a full award. Taken together, his answer, in the opinion of the Council’s scorer, merited only an award of four points. Petitioner did not show sufficient basis for increasing this award. The evidence presented by the Board clearly established that both questions in issue provided enough information to allow the candidate to answer them correctly, and both are questions that a candidate for licensure should be able to answer. The scoring plan for these questions was not shown to be inappropriate, and there is no evidence that it was not properly utilized.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Professional Engineers enter a Final Order in this matter denying Petitioner additional credit for his answers to Questions 121 and 222 on the April 1997 Civil Engineer Examination. DONE AND ENTERED this 30th day of April, 1998, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 1998. COPIES FURNISHED: Henri V. Jean 3273 Tanglewood Trail Palm Harbor, Florida 34685 R. Beth Atchison, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame 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, Florida 32399-0792
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.
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: 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. 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. 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. 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. 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. On August 6, 2001, Petitioner reviewed her examination in Orlando, Florida. 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. After initially indicating that she would challenge 52 questions, Petitioner came to the hearing to challenge 17 questions. Petitioner challenged questions 21, 35, 53, and 60 on the Fundamentals of Geology examination. At the hearing, Petitioner withdrew her challenge to questions 26, 78, 79, 91, and 98 on the Fundamentals of Geology examination. Petitioner challenged questions 62 and 71 on the Practice of Geology examination. At the hearing, Petitioner withdrew her challenge to questions 15, 26, 31, 53, 57, and 68 on the Practice of Geology examination. 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. 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. 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." 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. 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. 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. 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.” 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.
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
Findings Of Fact Petitioner, Carlos Martinez Mallen, is an applicant for licensure by endorsement to become a professional engineer in the State of Florida. He filed his application for licensure with the Florida Board of Professional Engineers (hereinafter "Board") in January 1988, relying on the facts that he was licensed in Spain approximately 25 years ago and has approximately 30 years of experience as a professional engineer. The Board subsequently determined that he could not be considered for licensure by endorsement. Petitioner has never taken a licensing examination in the United States which is substantially equivalent to the examination required for licensure by Section 471.013, Florida Statutes, and described in Chapter 21H, Florida Administrative Code. Further, Petitioner has never been licensed in any state or territory of the United States, although he does hold a license to practice engineering in Spain. On the other hand, Petitioner's engineering experience record shows that he has considerable experience in the practice of engineering which would meet the additional experience requirements of Section 471.013, Florida Statutes. The Board, having determined that Petitioner does not qualify for licensure by endorsement, performed an analysis of Petitioner's application to determine whether his degree from the University of Madrid was an engineering degree which might qualify him to sit for the 1icensure examination and to ascertain if Petitioner could obtain licensure by that alternative method. An analysis was made by the Board's Education Advisory Committee to determine whether the curriculum for Petitioner's degree from the University of Madrid met the requirements of Rule 21H-20.006, Florida Administrative Code. This analysis was specifically directed to determine whether Petitioner's curriculum conformed to the criteria for accrediting engineering programs set forth by the Engineering Accreditation Commission of the Accreditation Board of Engineering and Technology, Inc., (hereinafter "ABET"). The analysis of Petitioner's degree shows that, when compared with ABET criteria, Petitioner's engineering education was deficient four semester hours in mathematics and included no courses in engineering design, sixteen semester hours of which are required by ABET criteria. Further, Petitioner's education included no computer application of engineering design programs, a mandated requirement by ABET standards. Petitioner has never taken any of these courses subsequent to receiving his degree in Spain. Petitioner's degree, rather than being an engineering degree, is the equivalent of a bachelor's degree in chemistry. Petitioner's degree is significantly deficient in required course areas, so that it does not meet the Board's criteria. Petitioner thus cannot be considered as an applicant for examination since in order to sit for the professional engineer examination in the State of Florida, one must have an engineering degree which meets standards acceptable to the Board. Finally, Petitioner's background was reviewed to determine whether he could be considered for licensure under a different provision for licensure by endorsement. Petitioner has never held a professional engineer registration or license from another State of the United States. The Board has never interpreted the word "state" found in the statutes and rules regulating the licensure of professional engineers in Florida to include foreign counties. Petitioner is not a graduate of the State University System. Petitioner did not notify the Department before July 1, 1984, that he was engaged in engineering work on July 1, 1981, and wished to take advantage of a temporary educational waiver. As a result of the Board's review of all avenues to licensure available to Petitioner, Petitioner's application was denied either to sit for the examination to become a professional engineer or to be licensed by endorsement, unless and until he meets the educational requirements to sit for the professional engineer examination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's application for licensure by endorsement and further finding that Petitioner's educational background does not meet the requirements necessary to take the examination to become licensed in the State of Florida. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of March, 1990. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-5973 Petitioner's proposed paragraphs numbered 0.00, .10, .20, .30, .40, .50, 1.10, 1.20, 2.20, 3.10, 3.20, 3.40, 3.60, 4.10, 4.11, 4.13, 5.00, 5.30, 5.40, 5.41, 5.50, 5.51, 5.52, 6.00, 6.10, 6.20, 6.21, 6.22, 6.23, 6.24, 6.25, 6.26, 7.00, 7.40, and 7.50 have been rejected as not constituting findings of fact but rather as constituting argument or conclusions of law. Petitioner's proposed paragraphs numbered 1.21, 3.00, 4.00, 7.10, 7.20, 730, 7.41, 7.42, and 7.43 have been rejected as being contrary to the weight of the evidence in this cause. Petitioner's proposed paragraphs numbered 1.22 and 2.10 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed paragraphs numbered 3.30, 3.50, 3.70, 4.12, 4.20, 5.10, 5.11, and 5.20 have been rejected as being irrelevant to the issues involved in this proceeding. Respondent's proposed findings of fact numbered 1-8 have been adopted either verbatim or in substance in this Recommended Order. COPIES FURNISHED: John J. Rimes, III, Esquire Office of Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32399-1050 Carlos Martinez Mallen 33C Venetian Way #66 Miami Beach, Florida 33139 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Rex Smith, Executive Director Department of Professional Regulation Board of Professional Engineers 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue is whether Rules 21H-21.002(1) and 21H-21.004(1) are an invalid exercise of delegated legislative authority.
Findings Of Fact Ronnie F. Taylor, of Post Office Box 697, Cedar Key, Florida, is employed by the engineering firm of Ingley, Campbell, Moses and Associates of Gainesville, Florida, which engages in mechanical, electrical and plumbing engineering. Taylor has been with this engineering firm for four years and is currently a vice president in charge of production of electrical engineering documents. Prior to this employment, Taylor spent 14 years as an electrical engineer with the engineering firm of Reynolds, Smith and Hill of Jacksonville, Florida. When Taylor left Reynolds, Smith and Hill, he was the senior design engineer. Taylor served in the military as an electrician. Upon completing military service in 1967, Taylor entered Florida Junior College. He received an Associate of Science degree in Electrical Engineering Technology in 1970 from that institution. Following that degree, Taylor began employment with Reynolds, Smith and Hill, where his responsibilities included the design of electrical projects for commercial buildings, including writing specifications, making cost estimates and producing a finished product. Taylor has spent his entire career in electrical engineering and has no experience with other specialties of engineering. He has extensive experience in electrical engineering having designed and completed numerous large commercial projects. However, because Taylor is not a licensed professional engineer, a licensed professional engineer must oversee all projects during the course of design and completion and must sign and seal all completed work. Taylor is not a licensed professional engineer because he has failed to pass the Fundamentals of Engineering (FE) portion of the engineering examination. He has failed in fourteen attempts to pass the FE exam. Taylor did pass the Principles and Practices (P & P) portion of the exam in 1982. Licensure requirements specify that both sections must be passed prior to licensure. Taylor became qualified to take the engineering exam in 1977 pursuant to Section 471.21(1)(c), Florida Statutes (1977), which permitted an applicant to take the exam with "a specific record of 10 years or more of active practice in engineering work of a character indicating that the applicant is competent to be placed in responsible charge of such work." This so-called 10 year cycle permitted an applicant to qualify for the exam without the otherwise required 4- year college degree and 4 additional years of experience. In 1979, Section 471.013, Florida Statutes, was enacted, allowing persons in the final year of engineering school to take the FE exam to qualify as an engineer intern. This provision has been in effect since 1979. The FE exam, as required by Rule 21H-21.002(1), which is challenged here, includes questions on the subjects of mathematics, mathematical modeling of engineering systems, nucleonics and wave phenomena, chemistry, statistics, dynamics, mechanics of materials, fluid mechanics, thermodynamics/heat transfer, computer programming, electrical circuits, statics, structure of matter, engineering mechanics, electronics and electrical machinery. While Taylor scored highly on the subjects relating to electrical engineering, he had difficulty with other areas of the exam. The course work completed by Taylor in 1970 did not include some of these areas with which Taylor had difficulty. Taylor has had no course work in computer programming, thermodynamics, statistics, nucleonics and wave phenomena. The subjects tested in the FE exam are updated in order to test applicants on the most current information and knowledge of engineering fundamentals. Herbert A. Ingley is a licensed professional engineer and holds a Bachelors degree in Chemical Engineering, a Masters degree in Mechanical Engineering, and a Ph.D. in Mechanical Engineering with a minor in Environmental-Mathematics. He taught full time on the faculty of the University of Florida in Mechanical Engineering for 11 years. In his opinion, it is more difficult for applicants to pass the FE exam the further they are from their formal education and, therefore, applicants in the 10 year cycle have more difficulty passing the exam. According to Ingley, the requirement that persons such as Taylor wait 10 years before taking the FE exam is not logical. However, Ingley also opined that it is important for a professional engineer to have a fundamental knowledge of engineering and that there is a need to test the fundamental basics of engineering for each person who is going to become a licensed professional engineer. George Edward Rabb is a licensed professional engineer, having been licensed in 1965. He was grandfathered and therefore only had to pass the P & P exam. The FE exam was waived based on specific portions of statute and rule which waived the FE exam for persons with fifteen years experience. The waiver was only available to persons qualifying prior to November, 1970. According to Rabb, an engineer needs to have a working knowledge of fundamentals and to understand the general concepts of engineering. Robert D. Kersten, who has been the Dean of the Department of Engineering at the University of Florida for 20 years, has a Bachelors degree in Mathematics and Chemistry, a Masters degree in Civil Engineering, and a Ph.D. in Civil Engineering, Water Resource/Hydrologic Engineering. Dean Kersten has served in numerous capacities with both state and national professional associations involved in accreditation of engineers and served on the Board of Professional Engineers in Florida and on the National Council of Engineering Examiners. The FE exam is prepared by the National Council of Engineering Examiners and is designed to cover the fundamental areas essential to the basic practice of engineering. The FE exam tests both the common body of knowledge that is essential to practice in the profession and the ability to apply that knowledge. According to Dean Kersten the FE exam tests items which should be within an engineer's basic knowledge and which are necessary to communication between engineers in a design team approach to project design. Dean Kersten acknowledges that the FE exam is more difficult for applicants who lack a degree or who have been out of the academic area for a period of time, but opines that those factors do not excuse an applicant from mastering and retaining the basic fundamentals important to the practice. In fact, the FE exam is designed so that 70 percent of the applicants with-the 4- year college educational background pass the exam. Only 40 percent of the applicants in the 10 year cycle pass the exam.
The Issue Should Petitioner be deemed to have passed the Principles and Practice Chemical Engineering Exam?
Findings Of Fact Petitioner sat for the Principles and Practice of Engineering Examination on April 1O, 1987. The examination consisted of an applicant completing eight problems. On each problem, an applicant could receive from 1 to 10 points. A score of 5 or less was considered "unqualified", a score of 6 or more was considered "qualified". In order to pass the examination, an applicant needed to receive a total raw score of 48 or more, out of a possible score of 80. Petitioner received a raw score of 43 on his examination. Petitioner is challenging the scores for problems 110, 111, and 414. On problem 110, Petitioner received a score of 1. On problems 111 and 414, Petitioner received scores of 4. An Item Specific Scoring Plan (ISSP) was prepared for each examination problem. The ISSP was to be used by the persons grading the exam to assure that all solutions were graded consistently. The ISSP set forth the criteria to be used in grading the solution to a problem and set forth guidelines to be used in determining the points to be given to the solution. In addition to the ISSP, a preferred solution was prepared for each problem. The scores of 4 given for Petitioner's solutions to problems 111 and 414 are consistent with the ISSPs for those problems. The score of 1 given to Petitioner's solution for problems 110 is not consistent with the ISSP and the preferred solution for that problem. In order to receive a score of 8, the ISSP requires that a solution contain the following: ALL CATEGORIES satisfied, errors attributable to misread tables or calculating devices. Errors would be corrected by routine checking. Results reasonable, though not correct. An operable system is presented, containing all the key elements, but calculations may involve minor errors in math or transcribing data. Answers obtained for requirement (b) are reasonable. May have assumed an excessively high, but not obviously unreasonable, exit water temperatures, c.g. 150F. Petitioner's solution to problem 110 presented an operable system containing all key elements. The errors committed by Petitioner were caused by misreading a table and by transcribing the wrong data. Petitioner's solution to problem 110 should have received a score of 8. Petitioner should have received a raw score of 50 on the exam.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent issue a final order giving Petitioner a passing grade on the Principles and Practice Chemical Engineering Examination. DONE and ENTERED this 11th day of May, 1988, in Tallahassee, Florida. JOSE A. DIEZ-ARGUELLES Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4412 Petitioner filed a post-hearing submission consisting of a two page letter containing nine paragraphs. The second to fourth paragraphs are numbered 1., 2. and 3. The findings of fact contained in the letter are addressed below. Paragraph numbers in the Recommended Order are referred to as "RO ." Paragraph in Letter Ruling and Recommended Order Paragraph Number First Not a finding of fact. Second, Third and Fourth Rejected as not supported by the evidence for solution to problems 111 and 414. Accepted for solution to problem 110. RO6-10. Fifth Argument. Sixth First sentence accepted. RO11. Rest of paragraph is irrelevant. Seventh Rejected as argument and contrary to weight of the evidence. Eighth Argument. Ninth Not a finding of fact. COPIES FURNISHED: Edwin K. Middleswart 3805 Dunwoody Drive Pensacola, Florida 32503 John B. Carr, Esquire 320 West Cervantes Pensacola, Florida 32501 Allen R. Smith, Jr. Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue in this case is whether the Petitioner's academic record meets the academic requirements that are prerequisites to taking the Fundamentals of Engineering examination.
Findings Of Fact The Petitioner submitted an application for approval to take the Fundamentals of Engineering examination. The Petitioner studied engineering at the Tongji University in the People's Republic of China from 1991 to 1995. He majored in Building Engineering and was awarded the degree of Bachelor of Engineering on July 10, 1995. Beginning in September of 1995, the Petitioner studied engineering at the graduate level at Tongji University. His graduate studies lasted until April of 1998, at which time he was awarded the degree of Master of Engineering with a major in Structural Engineering. During the course of his graduate studies at Tongji University from September of 1995 until April of 1998, the Petitioner completed a total of 38 semester credit hours. Those semester credit hours included the following courses with their indicated semester credit hours: Applied Statistics 2 credit hours Numerical Analysis 3 credit hours The courses titled Applied Statistics and Numerical Analysis are both higher mathematics courses. In the fall of 2000, the Petitioner began further graduate studies in engineering at Auburn University. He studied at Auburn University through the spring of 2002. The courses taken by the Petitioner at Auburn University included the following, with the indicated number of semester credit hours: Advanced Structural Analysis 3 credit hours Advanced Stress Analysis 3 credit hours Structural Dynamics I 3 credit hours Finite Element Methods in Structural Mechanics 3 credit hours The course titled Finite Element Methods in Structural Mechanics is a higher mathematics class. The other three Auburn courses listed immediately above, if not pure mathematics courses, are certainly courses which involve the application of advanced principles of mathematics. To successfully complete such courses, a person would have to be well-grounded in higher mathematics. In the fall of 2002, the Petitioner transferred to the University of Florida where he continued his graduate studies in engineering. On December 20, 2003, the University of Florida awarded the Petitioner the degree of Master of Engineering with a major in Civil Engineering. Pursuant to Florida Administrative Code Rule 61G15- 20.007 the Petitioner submitted his educational credentials to an educational evaluator approved by the Board. The evaluator selected by the Petitioner was Josef Silny & Associates, Inc. (Silny). Following its evaluation of the Petitioner's educational credentials, Silny prepared a Report of Evaluation of Educational Credentials (Silny Report) dated June 15, 2005. The Silny Report reached the conclusion that the Petitioner's undergraduate education at Tongji University was not the equivalent of a degree in engineering earned from a program approved by ABET. Silny was of the view that the Petitioner's undergraduate course of study at Tongji University was not equivalent because his curriculum was deficient five semester credit hours in higher mathematics and basic sciences and was deficient one semester credit hour in humanities and social sciences.1 The conclusions reached in the Silny Report were based on an evaluation of the Petitioner's undergraduate course work at Tongji University from 1991 to 1995. The Silny Report did not take into consideration any of the courses taken by the Petitioner during his graduate studies at Tongji University from 1995 to 1998, during his graduate studies at Auburn University from 2000 to 2002, or during his graduate studies at the University of Florida from 2002 to 2003. During his undergraduate engineering studies at Tongji University, the Petitioner completed 36 semester hour credits of course work in the areas of higher mathematics and basic sciences. Silny is of the opinion that semester credit hours completed at Tongji University represent less study than semester credit hours completed at an accredited engineering school in a university in the United States of America. Specifically, Silny is of the opinion that semester credit hours completed at Tongji University are the equivalent of only 75 percent of semester credit hours earned in accredited engineering programs in the United States of America. Accordingly, when Silny evaluated the Petitioner's undergraduate education credentials, Silny multiplied the 36 semester credit hours the Petitioner had completed at Tongji University in the areas of higher mathematics and basic sciences by a factor of 0.75, and concluded that those 36 semester credit hours were equivalent to only 27 semester credit hours at an accredited engineering program in the United States of America.2 Florida Administrative Code Rule 61G15-20.007 includes the following requirements regarding applicants with degrees from foreign institutions: Applicants having degrees from foreign institutions shall be required to document “substantial equivalency” to the 2002 ABET Accreditation Yearbook for Accreditation Cycle Ended September 30, 2002 engineering criteria. This document is hereby incorporated by reference. In order to document “substantial equivalency” to an ABET accredited engineering program, the applicant must demonstrate: 32 college credit hours of higher mathematics and basic sciences. The hours of mathematics must be beyond algebra and trigonometry and must emphasize mathematical concepts and principles rather than computation. Courses in probability and statistics, differential calculus, integral calculus, and differential equations are required. Additional courses may include linear algebra, numerical analysis, and advanced calculus. As for the hours in basic sciences, courses in general chemistry and calculus-based general physics are required, with at least a two semester (or equivalent) sequence of study in either area. Additional basic sciences courses may include life sciences (biology), earth sciences (geology), and advanced chemistry or physics. Computer skills and/or programming courses cannot be used to satisfy mathematics or basic science requirements. 16 college credit hours in humanities and social sciences. Examples of traditional courses in this area are philosophy, religion, history, literature, fine arts, sociology, psychology, political science, anthropology, economics, and no more than 6 credit hours of languages other than English or other than the applicant’s native language. Courses in technology and human affairs, history of technology, professional ethics and social responsibility are also acceptable. Courses such as accounting, industrial management, finance, personnel administration, engineering economics and military training are not acceptable. Courses which instill cultural values are acceptable, while routine exercises of personal craft are not. 48 college credit hours of engineering science and engineering design. Courses in this area have their roots in mathematics and basic sciences but carry knowledge further toward creative application. Examples of traditional engineering science courses are mechanics, thermodynamics, electrical and electronic circuits, materials science, transport phenomena, and computer science (other than computer programming skills). Courses in engineering design stress the establishment of objectives and criteria, synthesis, analysis, construction, testing, and evaluation. In order to promote breadth, at least one engineering course outside the major disciplinary area is required. In addition, evidence of attainment of appropriate laboratory experience, competency in English, and understanding of the ethical, social, economic and safety considerations of engineering practice must be presented. As for competency in English, transcripts of course work completed, course content syllabi, testimonials from employers, college level advanced placement tests, Test of English as a Foreign Language (TOEFL) scores of at least 550 in the paper- based version, or 213 in the computer-based version, will be accepted as satisfactory evidence.
Recommendation On the basis of the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be issued concluding that the Petitioner has met the requirements of Florida Administrative Code Rule 61G15-20.007, and is eligible to take the Fundamentals of Engineering examination. DONE AND ENTERED this 29th day of March, 2006, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH 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 29th day of March, 2006.
The Issue The basic issue in this case is whether the Petitioner, Maria I. Galarza, is eligible to take the dental mannequin exam. The Board proposes to deny the Petitioner's application to take the exam on the grounds that the Petitioner's dental degree from the Universidad Central del Este in the Dominican Republic is not the equivalent of four academic years of dental education. The Petitioner contends her degree is equivalent and meets the criteria for taking the dental mannequin exam.
Findings Of Fact Facts stipulated to by all parties Petitioner sought approval of the Board to take the manual skills (mannequin) examination as an avenue toward being certified for licensure as a dentist in Florida with an application dated September 17, 1991. 1/ With her application, Petitioner submitted sufficient evidence to establish that she graduated from high school in Puerto Rico; received a bachelor of arts degree from a college in Puerto Rico; graduated with a "titulo" or degree in dentistry from the Universidad Central del Este (UCE) in the Dominican Republic; has attained an age of more than 18 years; and had completed the National Dental Board Examination with passing scores within the ten years preceding her application. UCE is not a dental school accredited by the Commission on Accreditation of the American Dental Association or its successor agency or any other nationally recognized accrediting agency. UCE is a foreign dental school located in the Dominican Republic. It is a member of the Asociacion Latinoamericana de Facultades y Escuelas de Odontologia (ALAFO). Pursuant to statute and rules of the Board, Petitioner submitted her educational credentials to ECE for a determination as to whether she had completed the equivalent of five academic years of post secondary education including four years of dental education. The Board of Dentistry requires that all graduates of foreign dental schools have their degrees evaluated for equivalency to U.S. degrees by Educational Credential Evaluators, Inc. (hereafter ECE). ECE is headed by Dr. James Frey. ECE has evaluated numerous dental degrees for graduates of Universidad Central del Este. In August 1990 ECE changed its opinion of the degree. ECE believes its previous evaluations finding the degree equivalent are erroneous. The Petitioner attended the UCE dental program from September 1979 to September 30 ,1982. UCE awarded Petitioner credit for previously completed course work and did not require Petitioner to take or complete the following courses in UCE's dental curriculum: Mathematics (4 credits) Literature (9 credits) Philosophy (undetermined credits) Sociology (undetermined credits) Physics (8 credits) Biology (4 credits) UCE has a dental program consisting of three academic semesters per calendar year. Dr. Frey testified that a four year dental degree requires a minimum of 120 semester hour credits. He determined that Ms. Galarza achieved the equivalent of 101.5 semester hours of credit at Universidad Central del Este. Dr. Frey also determined that UCE granted her the equivalent of fourteen additional semester hours of credit for course work already taken at the University of Puerto Rico. The University of Florida has the only accredited dental program in the State of Florida. At the University of Florida, dental students attend courses for three academic semesters per calendar year and the dental curriculum lasts for 3.66 calendar years and a total of eleven semesters. The Board, based upon its review of the Petitioner's credentials and the report from ECE determined the Petitioner has not completed four academic years of post secondary dental education. The Petitioner disagrees with the Board's determination. Facts based on evidence submitted at hearing The dental mannequin examination is an examination given to graduates of dental schools that are not accredited by the American Dental Association. Successful completion of the dental mannequin examination is a statutory prerequisite to taking the licensure examination. The dental education program at UCE is planned as an eleven semester program and consists of approximately 63 courses, for which the university awards a total of approximately 230 credits. 2/ Eleven of the courses are described as being part of the "Curso Comina" the so-called "common courses." The eleven courses that comprise the so-called "common courses" are high school level pre-dentistry courses.3/ These pre-dentistry courses are planned as part of the first two semesters, but in actual practice are taken at random times during the program, sometimes as late as the last semester. The eleven courses that make up the so-called common courses" represent a total of approximately 39 credits 4/ as follows: Mathematics 011 (or 101) 4 Literature 011 (or 101) 5 Phylosophy [sic] 2 Sociology 2 Physics 011 (or 101) 4 Biology 4 Literature 102 4 Dom. Soc. History 2 Mathematics 012 (or 102) 4 General Chemistry 4 Physics 012 (or 102) 4 Total "common course" credits 39 The Universidad Central del Este awarded the Petitioner a total of approximately 233 credits, including the credits that were awarded for either successful completion of, or for exemption from, the so-called "common courses." When the credits for the so-called "common courses" (which as noted above are pre-dentistry courses) are subtracted from the total credits awarded, the Petitioner's transcript reflects a total of approximately 194 credits of dental education. One credit at the dental education program at UCE represents the equivalent of approximately one-half of a semester hour credit at a dental education program in the United States. Accordingly, the Petitioner's 194 credits of dental education at UCE are the equivalent of approximately 97 semester hours at a dental education program in the United States. 5/ A full four-year dental program in the United States consists of a minimum of 120 semester hours of credit, and usually consists of 128 semester hours of credit. The standard length of a semester in a United States dental education program consists of 15 or 16 teaching weeks. The standard length of a semester at the University of Florida dental program is 16 teaching weeks. The length of the typical semester at the Universidad Central del Este consists of 13 or 13.5 teaching weeks. The Petitioner completed all of her course work at UCE during a period of eight consecutive semesters. During her eighth semester the Petitioner began work on her thesis. During that same semester her transcript reflects that she was also taking at least eleven courses totaling 44 hours of credit. 6/ During her ninth semester at UCE, the Petitioner did not take any classes, but spent all of her time working on her thesis. Educational Credential Evaluators, Incorporated, is the only agency approved by the Board of Dentistry to review foreign educational credentials. No other agency has ever been denied approval by the Board. Although the Board's rules permit other organizations to be approved, no other entity has ever requested to be approved by the Board. Educational Credential Evaluators, Incorporated, provides an evaluation of credentials to determine the quantity of education obtained at a foreign school in terms of the United States educational system. At one time Educational Credential Evaluators, Incorporated, was of the opinion that the dental education program at the Universidad Central del Este was equivalent to four years of dental education in the United States. The educational credentials of one of the Petitioner's classmates who also graduated from the UCE dental program in 1982 were earlier evaluated by Educational Credential Evaluators, Incorporated, and determined to be equivalent to four years of dental education. In 1990, following receipt and review of additional information about the dental program at UCE, Educational Credential Evaluators, Incorporated, concluded that its prior opinion was incorrect. The additional information that formed the primary basis for the change of opinion was that UCE was regularly waiving the so-called "common courses" on the basis of students' prior high school work and that UCE semesters were comprised of only thirteen or thirteen and a half teaching weeks. Educational Credential Evaluators, Incorporated, is now of the opinion that the dental program at UCE is the equivalent of only 3.66 years of dental education. 7/ Upon review of the Petitioner's educational credentials from UCE, Educational Credential Evaluators, Incorporated, concluded that she had actually completed the equivalent of only three and one-quarter years of dental education. 8/ This conclusion did not allow any credit for courses that were waived by UCE based on courses taken by the Petitioner at the University of Puerto Rico. The Board of Dentistry has a Credentials Committee that evaluates all applications to take the dental licensure examination, the dental hygiene licensure examination and the dental mannequin examination. The Credentials Committee reviews the educational credentials of applicants who have graduated from foreign dental schools. In its evaluation of foreign credentials, the Board of Dentistry does not accept as part of the statutorily required dental education any credit for course work completed at an undergraduate institution. Since 1987, the Board of Dentistry has relied upon reports from Educational Credential Evaluators, Incorporated, along with its own review of dental school transcripts, licensure applications, and national board examination scores, to determine the eligibility of applicants to take the dental mannequin examination. The Board has always accepted the recommendation of Educational Credential Evaluators, Incorporated, as to the equivalency of dental education. Prior to 1990, the Board of Dentistry generally accepted a dental education from the Universidad Central del Este as meeting the requirement for dental education set forth in the statutes. In 1990, based upon a report from Educational Credential Evaluators, Incorporated, which tended to confirm some of the Board's suspicions regarding the dental program offered at UCE, the Board changed its position regarding the equivalency of a UCE dental education.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be entered in this case concluding that the Petitioner has failed to prove by a preponderance of the evidence that she has received the equivalent of four academic years of dental education, concluding that the Petitioner is not eligible to take the dental mannequin examination, and dismissing the petition in this case. DONE AND ENTERED at Tallahassee, Leon County, Florida, this 31st of March, 1992. MICHAEL M. PARRISH, 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 31st day of March, 1992.
The Issue The issue for consideration in this matter is whether Respondent's license as a clinical laboratory supervisor should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein the Petitioner, Board of Clinical Laboratory Personnel, was the state agency in Florida responsible for the licensing of clinical laboratory personnel and the regulation of the clinical laboratory profession in this state. Respondent was licensed by Petitioner as a clinical laboratory supervisor holding license number JC 10663. Respondent came to Florida in 1973. He held a bachelor’s degree at that time and immediately took the test for licensure as a laboratory technician, which he passed. A year later, he also took the test for licensure as a laboratory supervisor and passed that test as well. His licenses require that he take 24 continuing education course hours in his specialty every two years. During the course of a routine departmental audit of the continuing education requirements for the biennium of July 1, 1996 to June 30, 1998, Respondent was asked for evidence of his completion of the required continuing education courses. He went through his personal continuing education file and extracted the records on file for the required period. In doing so, Respondent claims he found evidence of a course in chemistry he had completed and sent in to the provider, Anderson Continuing Education, for grading and completion certification, but he received no certificate of his completion of this course. Respondent is adamant that he mailed the completed course materials to Anderson on June 14, 1998. He claims he also sent the Board copies of what he sent in, along with other information he had. Records at the Board reflect Respondent submitted certificates reflecting completion of 25 continuing education hours. However, 12 of those hours, those for chemistry, were not shown to have been completed during the biennium. Mr. Moore was advised of this by the Board. The records available reflect that on July 30, 1996, Respondent was granted a completion certificate for three continuing education hours for advanced troubleshooting (Course CC-0019741); on May 14, 1998, a certificate for completing one hour for Course CC-0021660 and two hours in Advances on the AIDS Horizon: 1998; and on June 2, 1998, a certificate for seven hours in Clinical Application of Laboratory Data. The certificate of completion for the 12-hour course in Clinical Chemistry; Theory, Analysis, Correlation, Section 1, reflected the completion date of January 13, 1999. Respondent contends he completed the course materials and sent them in to Anderson for grading within the required biennium, and the answer sheet submitted by Respondent at the hearing reflects on the top of the first page thereof Respondent’s hand-written notation that it was sent to Anderson on June 12, 1998. This contradicts the notation by Anderson that the required material was not submitted for certification until January 13, 1999, well after the completion of the pertinent biennium. Respondent contends he is aware of what is required and when the deadlines are. He is also aware of how long it generally takes Anderson to grade the submitted materials. Though he contends he submitted the 12-hour chemistry course materials in June 1998, he claims he didn’t realize Anderson had not received it or graded it. It was not until the audit, he contends, when he found he had not received a completion certificate, that he sent the answer sheet in again. Respondent asked Anderson if the Board would backdate the certificate for the 12-hour chemistry course to reflect it was completed during the biennium. Respondent claims it was not his idea to do so, but he did it at the request of the Board auditors who asked him to get a statement from Anderson that they could not backdate certificates. When Respondent was notified of the audit, he wrote to the Board and indicated the out-of-biennium date on the chemistry certificate was inaccurate. Based on that claim, a representative of the Board made a courtesy call to Anderson to advise the Board of the problem. Anderson did not admit that a mistake had been made. If Anderson had admitted a mistake, Respondent would have received credit for the course. Respondent contends he was selected for this audit of his continuing education as retaliation because he requested to take the test for licensure in microbiology. He indicates he requested the test on December 18, 1998, and called the Department frequently thereafter when he did not hear anything. It was shortly thereafter that he was notified that he was being audited. According to Sharon L. Knight, a program administrator in continuing education and education audit for two of the Department’s regulatory Boards, of which one is the Petitioner herein, usually 10 percent of the licensed practitioners in a profession are subjected to an audit of their continuing education each cycle. Audits are usually conducted within four to six months after the end of a biennium. The list of those selected is computer-generated. Respondent was identified by the computer for audit. Based on the evidence presented, it is found there is no evidence the audit of Respondent’s continuing education record was in any way retaliation for his request to take the microbiology examination, or based on any other improper foundation. Respondent is adamant that he completed the required chemistry course material and submitted it to Anderson for certification within the biennium. However, he admits he did not check with Anderson when he did not receive a timely certificate of completion, but he attributes this to the fact that at that time his mother moved in with him. Absent any indication of irregularity in Anderson’s grading process, it is found that the chemistry course, accounting for 12 hours of continuing education, was not completed by Respondent and submitted for grading within the biennium in issue. Any gratuitous comments which may have been made to Respondent by the Department’s investigator regarding the seriousness of the allegations are irrelevant and not considered herein.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent pay an administrative fine of $250.00 and that he be reprimanded. DONE AND ENTERED this 6th day of April, 2000, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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 6th day of April, 2000. COPIES FURNISHED: Lawrence F. Kranert, Jr., Esquire Agency for Health Care Administration Post Office Box 14229 Mail Station 3 Tallahassee, Florida 32317 Steven Moore 1735 Michigan Avenue Northeast St. Petersburg, Florida 33703 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1703 Pete Petersen, General Counsel Department of Health 2020 Capital Circle Southeast Tallahassee, Florida 32399-1701 Eric G. Walker, Executive Director Board of Clinical Laboratory Personnel Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether respondent, an assistant professor at Miami-Dade Community College, should be dismissed on grounds of willful neglect of duty, gross insubordination, and incompetency as alleged.
Findings Of Fact Respondent, Joan Humphries, earned a bachelor's degree from the University of Miami, a master's degree in counseling and guidance from Florida State University, and a Doctorate of Philosophy in experimental psychology from Louisiana State University. (Testimony of Humphries.) Before coming to Miami-Dade Community College, she worked as a psychological consultant at Louisiana State Hospital and taught at the University of Miami. She has been employed by the College for approximately 15 years--since October, 1966. (Testimony of Humphries.) First employed by the College as a part-time instructor, she soon became a full-time instructor of introductory psychology courses. She is now a tenured assistant professor and was granted a continuing teaching contract by the College. (Testimony of Humphries.) During her years at the College, she received annual performance evaluations from the chairperson of her department--now named the Department of Behavioral Studies. Until 1978, she was evaluated as a competent instructor. Her 1970 evaluation stated: Dr. Humphries continues to do an excellent job of teaching PSY 207. She has been most helpful in orienting new faculty members [and] is a most dependable and valuable member of the psychology faculty. (P-75.) In 1971, David Powers, her new department chairperson, recommended her for promotion and gave her this evaluation: Joan Humphries possesses excellent knowledge of her subject field. Her course is extremely well planned out and organized. She is quite fair in her grading techniques, . . . (P-78.) In 1972, she was rated as "outstanding" in professional status, growth, and development; "competent" in her performance as a faculty member; and as giving "more than most" in ancillary services to the College. In 1973, Dr. Powers again rated her as competent and described her professional strengths and goals: Professional Strengths: Joan displays an in-depth knowledge of behavioristic psychology. Joan is competent in utilization of audiovisual materials and psychological equipment. She is conscientious in meeting her office hours. She has originated several ideas for obtaining both community involvement and enrollment in future psychological courses. Joan involves her students in community activities by requiring a ten hour out-of-class service project. Professional Goals: In order to maintain larger retention rate, Joan should develop a diversity of instructional strategies including greater enthusiasm in teacher presentation. She should place less emphasis on objective testing and involve more subjective methods for student evaluations, [i]ncluding student feedback on course activities and evaluative tools should be meaningful for her students. This summer she will be acting chairman of a committee for a parental education course to be offered in the fall. (P-82.) In 1974, Dr. Powers again rated her as a "competent" faculty member and "outstanding" in professional status, growth, and development. He recommended her for promotion and described her professional strengths: Professional Strengths: Joan is showing even more enthusiasm [sic] toward the college this year than last year. She has developed many innovative ideas including a proposed psychology laboratory, courses associated with the county judges and for the education of elderly citizens within the community, and a rationale for a four day college work week. Joan helped increase the fall term departmental productivity figure by conducting a large section of 100 Psychology 211 students. She has incorporated a formal student evaluation system into her course. She not only participates in community betterment but requires her students to spend at least 15 hours working on a community project. In determining the student's grade, this year, she has placed greater emphasis upon student involvement in projects, experiments, and oral presentations. In her classes Joan includes recent relevant research findings in order to clarify psychological concepts. She has devoted many hours toward coordinating the senior citizens program and the parent education course. She is an active sponsor of Phi Lambda Pi and continually invites guest speakers into her classes. Joan actively engages in scientific research and she has recently written an article for the Journal of Parapsychology. Joan is recommended for promotion to Associate Professor, Senior. Professional Goals: Joan should be a good resource coordinator for utilization of the new Alpha Theta Cyborg. This coming year the department could use her for teaching a couple sections of Psychology 212. Her ideas for meeting the community's needs are practical and worth implementing. Joan should perhaps develop a written syllabus in outline form to give to all of her students at the beginning of the course. Joan would like to initiate and teach a course in recent psychological developments, i.e., biofeedback, hypnosis, and brain research. (P-89.) She was not promoted, however, because she had not yet completed the required three years in grade. She appealed the College's failure to promote her. Although she subsequently satisfied the three-year requirement, she has not been promoted. She attributes this to discrimination by the College because of her earlier appeal. In 1975 and 1976, she was rated "competent" but given specific suggestions for improved performance (P-119.) In 1977, she was rated as a "competent" faculty member who contributed "more than most" in ancillary services to the College, and recommended for promotion. But, "some reservation" was indicated concerning her professional status, growth, and development. (P- 235.) In 1978, her new department chairperson, Gerald L. Sicard, rated her as "competent;" described her as a dedicated psychologist who gave enthusiastic lectures; and noted that evaluations by her students were generally positive. (P-315.) She was rated "unsatisfactory" by the evaluations completed in 1979, 1980, and 1981. The Charges: Eleven Specific Allegations of Misconduct The College's charges against respondent--willful neglect of duty, gross insubordination, and incompetency--rest on eleven specific allegations of misconduct. The findings of fact which follow are organized under the pertinent allegation. Alleged: Over a period of years, the respondent has demonstrated belligerence toward those in authority. Respondent has not demonstrated a pattern of belligerence or hostility toward her College superiors. Her supervising department chairperson, Mr. Sicard, had difficulty defining the term at hearing. When pressed, he gave as examples her desire to tape record conversations when meeting with a supervisor, her writing of memoranda when an issue could be easily resolved by an office conference, and her refusal to sign a performance evaluation form because she did not agree with it. Such conduct illustrates her distrust of her supervisors and the persistence with which she advocated her views; they do not demonstrate belligerence. Neither, according to her students, did she exhibit belligerence toward her supervisors in the classroom environment. 7 College administrators became irritated with her obvious distrust, her persistence, and her unwillingness to compromise; two examples: (1) When her fellow faculty members selected a common course textbook for use in introductory psychology, she resisted and stubbornly advocated another choice. (2) During 1978, Mr. Sicard learned that respondent was offering extra grade points to students who campaigned for enactment of the Equal Rights Amendment ("ERA") to the U.S. Constitution. Students who desired to campaign against the ERA were not, however, equally rewarded. Mr. Sicard questioned her about the fairness of this practice and its relevance to introductory psychology. She explained that prejudice against women was a disease, that to give students points for campaigning against the ERA would be supporting a disease. Mr. Sicard, still unconvinced, instructed her by memorandum on November 6, 1978, to discontinue the awarding of points to students for pro-ERA or any other political activity. (P-359.) One week later she explained, in writing, that she had been promoting good mental health, not partisan politics, and cited various publications by psychologists in support of her view that discrimination against women was detrimental to human welfare; and that, in the past, her students had worked for legislation benefiting autistic children and migrant workers and the College had supported such action. She ended by asking Mr. Sicard if advocacy of human rights and legislation supporting human rights would be considered engaging in partisan politics. But, although she disagreed with her supervisor, she complied with his directive and discontinued the practice. (Testimony of Sicard, Tikofsky, Hansen, Signorelli, Humphries.) Alleged: On numerous occasions, the respondent willfully and deliberately failed to comply with directives from College administrators relative to her classes of instructions. In connection with respondent's 1978 performance evaluation, Mr. Sicard and respondent negotiated and agreed upon goals and objectives for the coming year. The College contends that several of the goals were not met. Some of these items were tasks which Mr. Sicard thought were important at the time, others originated with the respondent. The effect to be given these goals is ambiguous. Mr. Sicard now considers some of them to be mandatory or directory in nature; others not. In any case, during the ensuing year, respondent satisfied most of the goals and objectives specified in the 1978 evaluation. In 1978, as already mentioned, respondent's department decided to select a common text for introductory psychology courses. Respondent resisted the consensus selection; she advocated an alternative and wrote memoranda to Mr. Sicard expressing her views. He responded with this memorandum: Instead of replying to the above-memos, it would probably be mutually beneficial to discuss your problems during my office hours. This way we can move from adversary roles to the cooperative model existing with the other departmental faculty. In doing this, I hope we can work together to achieve your and the department's goals. Please advise me in this matter. (P-334.) Thereafter, respondent did not go to Mr. Sicard's office to discuss the issue further. But the nature of his memorandum is, by its terms, non-directory, even conciliatory in nature. Respondent's failure to accept the invitation cannot fairly be translated into willful failure to comply with an administrator's directive. On December 4, 1978, Mr. Sicard recommended that respondent's employment be terminated for various "acts of insubordination." (P-368, P-369.) He asserted that she violated regulations by utilizing the psychology laboratory for hypnosis and biofeedback treatment for students with smoking and overweight problems; that her earlier awarding of grade points to students who worked for ERA violated a 1976 directive of David Powers, the previous department chairperson; and that she continued to refer students to Robert Courier, an alleged psychic and hypnosis counselor, despite the fact that Mr. Courier had been prohibited from instructing students in her classes. Her alleged failure to comply with laboratory regulations, even if true, does not constitute willful violation of an administrator's directive relative to her classroom instruction; and Mr. Sicard acknowledges that her referral of students to Mr. Courier "do[es] not violate previous directives" to respondent. (P-368.) This leaves only the alleged violation of Mr. Powers' 1976 directive. In that directive, Mr. Powers directed Respondent to obtain prior clearance from the departmental chairperson for "[a] 11 off-campus activities which affect the student's grade[s]." (P-147.) In 1977, however, Mr. Power's successor chairperson, Bess Fleckman, effectively countermanded or negated the effect of Mr. Powers' directive. By a memorandum dated March 21, 1977, she asked respondent to take full responsibility for assignments to students, stating that this should not "be a concern of a chairperson." (P-261, P-262, P- 263.) Thus, respondent's subsequent assignments concerning off-campus ERA activities did not violate a directive from her supervising administrator. By memorandum dated April 3, 1979, Mr. Sicard suggested that respondent improve her teaching techniques by accepting the assistance of Ms. Fleckman--a qualified and experienced classroom instructional specialist. (P- 388.) Respondent replied with a memorandum stating that she did not wish to work with Ms. Fleckman because she did not feel Ms. Fleckman "would be objective in evaluating my performance. (P-391.) Mr. Sicard replied on April 17, 1979, converting his suggestion into a clear directive that respondent work with and accept the assistance of Ms. Fleckman. Although clearly unhappy with the arrangement, respondent complied. (P-404.) The College has not shown that respondent ever refused or willfully and deliberately failed to comply with an administrator's directive which was phrased in clear and mandatory terms. Administrators, understandably, preferred to give suggestions to respondent, not orders or directives. But, failure to agree with or follow a suggestion does not amount to willful violation of a directive. (Testimony of Humphries, Fleckman, Sicard.) Alleged: Respondent . . . repeatedly refused to follow directives from college administrators, which has distracted from the objectives of her department, division, and campus. This charge is similar to the preceding allegation; no additional evidence was offered to substantiate it. Consequently, it is similarly concluded that no showing has been made that respondent repeatedly refused to follow directives from college administrators. (Testimony of Humphries, Fleckman, Sicard.) Alleged: Respondent deliberately failed or refused to perform assigned duties within the parameters established by her department chairperson. This charge may overlap with charges contained in paragraphs B and C above. The only additional incident of any significance offered by the College in substantiation involves respondent's purported attempt to use the psychology laboratory for therapy purposes. In June, 1978, respondent served as coordinator of the department's psychology laboratory with the assignment to expand its uses. On June 22, 1978, she circulated a memorandum to faculty members announcing a new laboratory program called "Positive Personal Programming," which would be carried out by Kenneth Forrest; she believed he was a student in an honors-level psychology course taught by Dr. Cecil B. Nichols. The program involved treating subjects with weight control or smoking habits by means of hypnosis and biofeedback techniques. Since regulations allegedly precluded use of the laboratory for therapy purposes, Mr. Sicard instructed respondent that this proposed program could not be implemented. Although she protested that the proposed program would be beneficial and should be allowed, she complied with his directive and immediately cancelled the program. The program was never implemented. Mr. Sicard testified that he did not know whether the program described in respondent's memorandum to faculty was ever implemented, but he "assumed" it was. (Tr.160.) He considered respondent's memorandum as an act of insubordination justifying her termination. (P-368.) The evidence does not establish that the proposed use would violate applicable regulations. 2/ In any case, it has not been shown how a program which was never instituted could violate any limitations on use of the psychology laboratory. The College has not shown any deliberate failure or refusal by respondent to perform her duties within the parameters established by her department chairperson. (Testimony of Sicard, Humphries.) Alleged: Respondent failed to satisfy established criteria for the performance of assigned duties. No objective criteria have been promulgated to assess the performance of College faculty members. In the absence of such criteria announced prospectively, the College seeks to establish by expert testing that respondent did not cover the material required in an introductory psychology course; that she placed undue emphasis on biofeedback techniques; and that the grading system she used was inadequate. Although there is conflicting testimony on these matters, the testimony of Ronald F. Tikofsky is accepted as persuasive. Now a departmental chairperson at the University of Wisconsin, he obtained a master's degree in psychology, and took a minor in psychology for his doctorate. He taught in the Department of Psychology at the University of Michigan, where he became a full professor, and later served as chairperson of the Department of Psychology at Florida International University from 1971 through 1979. He has participated in the development of college curriculum, helped college instructors develop teaching techniques, and evaluated the performance of faculty members. His academic credentials are impressive, his testimony was objective, forthright, and credible. (Tr. 967-1017; R-48.) His opinions are accorded great weight. He opined that, in his profession, there is no consensus on any set number of concepts which should be taught in college level introductory psychology courses, that this properly follows within the discretion of the individual instructor. His review of the topics respondent covered during the fall and winter semesters of 1980 led him to conclude that she covered the basic materials of an introductory psychology course, and that the time she devoted to biofeedback theory and demonstrations was appropriate. After reviewing respondent's grading records, he concluded that her grading method was not unusual or unacceptable. Development of grading curves is an art, not a science; it involves the interplay of several variables and the subjective judgment of the instructor. Generally, respondent would take the class average, note the distribution, establish cutoff points for various grade levels, apply them to the data, and then apply a subjective factor. Mr. Tikofsky testified that the number of credit points assigned for completing outside projects was neither excessive nor inappropriate. These opinions of Mr. Tikofsky are expressly adopted. The College has not shown that respondent failed to satisfy any meaningful performance standard, announced either prospectively or retroactively. (Testimony of Tikofsky, Sicard, Humphries.) Alleged:. Respondent failed to comply with directives for required improvements that were set forth in her yearly personnel evaluations. As already mentioned above, the yearly personnel evaluations contained "goals and objectives," not "directives." These goals and objectives were the product of discussion and negotiation between the department chairperson and instructor; some were considered mandatory, others not. Those that originated with the instructor lacked mandatory effect. The three goals and objectives concerning biofeedback--contained on respondent's 1979 personnel evaluation form--originated with the respondent. She made a good faith effort to complete or completed each of those biofeedback goals. The remaining six goals and objectives were satisfied by respondent. As to the 1978 personnel evaluation, most, if not all, of the listed goals and objectives were satisfied. Her next evaluation--where she was rated unsatisfactory--does not fault her for failing to meet any 1978 goal or objective. The evidence does not show that respondent failed to satisfy any goal or objective which was listed on her evaluation and clearly understood--at the time--to be a directive, rather than an end toward which effort should be directed. (Testimony of Sicard, Humphries; P-315, P-474.) Alleged: The level of instruction in respondent's classes was below reasonable minimum standards. This charge overlaps with paragraph E above, and H below. The College has not established or published any objective minimum standards to measure an instructor's performance. Respondent used a standard approach to teaching introductory psychology: she used a vocabulary or concept list for each chapter of the textbook and gave frequent objective tests. Her classes were structured and well-disciplined. Her students were generally satisfied with her performance and compared her favorably to other instructors at the College. Those who went on to take more advanced psychology courses made grades similar to or better than those they received from respondent. Ms. Fleckman helped her to improve her teaching techniques. When Ms. Fleckman observed her teaching in 1979, she could offer only a few suggestions and rated her 8 on a 10-point performance scale. Videotapes of respondent teaching her classes were viewed at hearing. After reviewing the tapes, Mr. Tikofsky opined that respondent was an adequate and competent classroom instructor. His opinion is accepted as persuasive. The videotapes demonstrate convincingly that respondent delivers lectures in an organized, methodical fashion and that she has the attention of her students. The tapes further show that she takes her teaching responsibilities seriously, is genuinely interested in the subject matter, and that she tries to relate and respond to her students. In light of the above, and the findings contained in paragraph E above, it is concluded that respondent's level of instruction in her classes did not fall below reasonable minimum standards, either announced prospectively or applied retroactively. (Testimony of Humphries, Tikofsky, Fleckman, Signorelli.) Alleged: Students in respondent's classes were deprived of required course material. This charge overlaps charges contained in paragraphs E and G above, and the findings relating to those charges also apply here. During the fall and winter of 1980, Mr. Tikofsky opined that respondent covered the topics appropriate to a college level introductory psychology course. His opinion is accepted as persuasive. The topics which should be covered are left up to the individual psychology instructor. The College does not specify the topics and materials that must be covered. When respondent was suspended near the end of the 1980 winter quarter, she had covered the material which--according to her own class syllabus-- should have been covered at that time. The charge that her students were deprived of required course material is unsubstantiated by the evidence. (Testimony of Humphries, Tikofsky; P-2.) Alleged: Respondent's classes were unstructured. As already mentioned, respondent's classes were structured and well disciplined. Ms. Fleckman conceded that her classes were structured. Students took copious notes and were able to organize her lectures into outline form (see paragraph G above). This charge is unsubstantiated by the evidence. (Testimony of Humphries, Signorelli, Stipulated testimony of Students.) Alleged: Respondent maintained little control over students. Respondent conducted her classes in a no-nonsense, businesslike manner. She welcomed questions from students, but she did not tolerate disruption. She was a disciplinarian and was respected by her students. This charge is unsupported by the evidence. (Testimony of Humphries, Classroom Videotapes, Signorelli, Stipulated testimony of Students.) Alleged: Respondent failed to maintain enrollment and completion rates at acceptable levels. The College has not established, prospectively, criteria to determine acceptable student attrition rates. Never before has a College instructor been recommended for termination because of an unacceptable attrition rate. Respondent's 1979, 1980, and 1981 evaluations--where she was rated unsatisfactory--concluded that she failed to "maintain enrollment and course completion at acceptable levels." (P-380, P-474.) Although she repeatedly asked Mr. Sicard for a specific attrition figure which she should meet, no figure was ever supplied. Mr. Sicard concluded that her attrition rate was "too high in relation to her peers." That conclusion is unsubstantiated. Her completion rate, over the years, was 51.7 percent, a figure which compares favorably with her fellow instructors: Alan Winet (56.3); James Killride (50.6); Margaret Casey (54.3); Dorothy O'Conner (44.4); Peter Diehl (44.4); Royal Grumbach (51.5); Lawrence Chernoff (45.2); Ronnie Fisher (42.5); and Harold Andrews (47). Moreover, between 1978 and 1980, her attrition rate was improving, sometimes exceeding 60 percent. It is concluded that, when compared with her peers, respondent maintained an acceptable student course-completion rate. (Testimony of Hansen, McCabe.) Respondent's Relationship with College Administrators Respondent was frequently at odds with College administrators. She petitioned the College for a four-day work week and a female professor's bill of rights. She appealed the College's failure to promote her and repeatedly accused the College of sexual discrimination. She was an outspoken critic, questioning and challenging the actions of College administrators. (Testimony of Sicard, Humphries.) Her relationship with administrators was marked by mutual distrust and became adversarial in nature. To avoid misunderstandings, she resorted to tape- recording her meetings with supervisors; her communications with administrators were increasingly reduced to writing. (Testimony of Sicard, Humphries.)
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent be reinstated as a continuing contract employee at Miami- Dade Community College with full back pay for the period of time of her suspension. DONE AND RECOMMENDED this 1st day of June, 1982, in Tallahassee, Florida. R. L. Caleen, Jr. Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1982.
