01-000100 Christine Franklin vs. Florida Engineers Management Corporation Status: Closed Recommended Order on Monday, April 16, 2001.

Summary: Applicant failed to demonstrate that her failing score on engineering licensure examination was the product of arbitrary or otherwise improper or erroneous grading.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHRISTINE FRANKLIN , )

)

Petitioner , )

)

vs. ) Case No. 01-0100

)

FLORIDA ENGINEERS MANAGEMENT )

CORPORATION , )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in this case in

accordance with Section 120.57(1), Florida Statutes, on March 6,

2001, by video teleconference at sites in Fort Lauderdale and

Tallahassee, Florida, before Stuart M. Lerner, a duly-designated

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner : Christine Franklin, pro se

4285 Pine Ridge Court

Weston, Florida 33331

For Respondent: Douglas Sunshine, Esquire

Florida Engineers Management Corporation

1308 Hays Street

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

Whether Petitioner is entitled to additional credit for her

solution to Problem 120 on the Principles and Practice of

Engineering portion of the engineering licensure examination

administered on April 14, 2000, by the National Council of

Examiners for Engineers and Surveyors.

PRELIMINARY STATEMENT

By letter dated December 15, 2000, to the Florida Board of

Professional Engineers (Board), Petitioner requested a "formal

hearing" to contest the failing score (68) that she had received

on the April 14, 2000, Principles and Practice of Engineering

portion of the engineering licensure examination administered by

the National Council of Examiners for Engineers and Surveyors.

In her letter, Respondent stated that she was specifically

challenging the score she received on Problem 120, claiming she

should have received at least eight points (out of a possible

ten) for her solution to this problem.

On January 9, 2001, the Board referred the matter to the

Division of Administrative Hearings (Division) for the

" assign[ment of] an Administrative Law Judge to conduct a

hearing pursuant to Section 120.57(1), Florida Statutes."

As noted above, the hearing was held on March 6, 2001. At

the hearing, Petitioner testified on her own behalf, and Frank

Hutchinson, P.E., testified (as an expert) on behalf of

Respondent. No other testimony was presented. In addition to

Petitioner's and Mr. Hutchinson's testimony, a total of ten

exhibits (Petitioner's Exhibit 1 and Respondent's Exhibits 1

through 9) were offered and received into evidence.

At the conclusion of the evidentiary portion of the

hearing, the undersigned announced, on the record, that post-

hearing submittals had to be filed no later than ten days

following the date of the filing of the transcript of the

hearing. The hearing Transcript (consisting of one volume) was

filed on March 30, 2001.

Petitioner and Respondent timely filed their post-hearing

submittals on March 16, 2001, and April 4, 2001, respectively.

These post-hearing submittals have been carefully considered by

the undersigned.

FINDINGS OF FACT

Based upon the evidence adduced at hearing and the record

as a whole, the following findings of fact are made:

1. On April 14, 2000, as part of her effort to obtain a

Florida engineering license, Petitioner sat for the Principles

and Practice of Engineering Examination (Examination). This is

a national examination developed and administered by the

National Council of Examiners for Engineers and Surveyors

(NCEES). Petitioner chose to be tested in civil engineering.

2. Petitioner received a raw score of 46 on the

Examination. For the civil engineering specialization, a raw

score of 46 converts to a score of 68. To pass the Examination,

a converted score of 70 is needed.

3. Petitioner formally requested that her solution to

Problem 120 on the Examination be rescored. Petitioner's

written request was referred to the NCEES.

4. The NCEES's rescoring of Petitioner's solution to

Problem 120 resulted in her receiving no additional points.

5. The Board received the NCEES's rescoring results on or

about December 5, 2000.

6. After receiving a letter from Petitioner (dated

December 14, 2000) requesting a "formal hearing," the Board

referred the matter to the Division.

7. Problem 120 was worth ten raw points.

8. Petitioner received six raw points for her solution to

Problem 120.

9. In her solution to Problem 120, Petitioner failed to

properly take into consideration the height of the water table,

did not compute the factor of safety for load-bearing capacity

in the manner required, and made an arithmetic mistake.

Therefore, in accordance with the requirements and guidelines of

the NCEES's scoring plan for this problem, the highest raw score

that she could have received for her solution to this problem

was a six, which is the score she received.

10. In rescoring Petitioner's solution to this problem,

the NCEES rescorer made the following "comments":

The examinee made three errors. The

solution approved by the Civil Engineering

Exam committee called for a correction in

requirement (a) for the mid height water

table. The examinee ignored this

correction. A two point grade reduction is

called for. The examinee made a numerical

error in evaluating the bearing capacity

equation. This error called for a one point

grade reduction. In evaluating the factor

of safety the examinee added an erroneous

load factor. A two point grade reduction is

called for.

With a total of five grade points lost a

final grade of six is called for.

SCORER'S RECOMMENDATION:

Recommended score = six

There has been no showing that the rescorer's analysis was in

any way flawed.

CONCLUSIONS OF LAW

11. A person seeking to become licensed by the Department

of Business and Professional Regulation (Department) to practice

engineering in the State of Florida must take and pass a

licensure examination (provided that person is not entitled to

licensure by endorsement). Sections 471.013 and 471.015,

Florida Statutes.

12. The required examination is described in the Board's

Rules 61G15-21.001 and 61G15-21.002, Florida Administrative

Code, which provide, in pertinent part, as follows:

61G15- 21.001 Written Examination

Designated; General Requirements.

(1 ) The Florida Board of [Professional]

Engineers hereby determines that a written

examination shall be given and passed prior

to any applicant receiving a license to

practice as a professional engineer . . . .

The examination shall be provided by the

National Council of Examiners for Engineers

and Surveyors ( NCEES). 1/ The examination

consists of two parts, each of eight hours.

Candidates are permitted to bring certain

reference materials, slide rules and certain

calculators. A list of approved reference

materials and calculators will be provided

to all candidates prior to each examination.

All materials including pens and pencils are

to be furnished by the applicant. National

examination security requirements as set

forth by the NCEES shall be followed

throughout the administration of the

examination. . . .

61G15- 21.002 Areas of Competency and

Grading Criteria.

(1 ) The Engineering Fundamentals

Examination shall include all questions and

problems on subjects normally connected with

the basic fundamentals of engineering

education. The topics which will usually be

treated in this section are as follows :

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.

(2 ) Part two of the examination shall be

based on Professional Practice and

Principles and shall be devoted primarily to

the field of the applicant's finding

solutions to problems designed to test the

applicant's ability to apply acceptable

engineering practice to problems which are

representative of his discipline.

Applicants for registration must select one

of the listed specializations in which to be

examined. The Board may also authorize

examinations in other engineering

disciplines when the Board determines that

such disciplines warrant the giving of a

separate examination in terms of cost

effectiveness and acceptability in the

profession of engineering.

(3 ) In Part Two of the examination the

applicant will usually be required to solve

from seven to ten problems which the

applicant may choose from approximately

twenty problems drawn from a test pattern

generally set forth as follows: . . . .

(b ) Civil/Sanitary -- Highway, Structural,

Sanitary Planning, Fluids, Soils, Economics,

Water Control and Resources, Treatment

Facility Design, Fluid Flow Hydraulics,

Planning Analysis, System Design, Chemical-

Bio Problems, Materials Sections, and

Economics. . . .

13. The Board's Rules 61G15-21.003 and 61G15-21.004,

Florida Administrative Code, address the grading of the

licensure examination. These rules provide, in pertinent part,

as follows:

61G15- 21.003 Grading Criteria for the Essay

Portion of Examination.

(1 ) Insofar as the essay portion of the

examination is not machine graded the Board

deems it necessary to set forth the

following guidelines upon which grades for

the essay portion shall be based. Grades on

the essay portion of the examination will be

based upon the application of good

engineering judgment, the selection and

evaluation of pertinent information and the

demonstration of the ability to make

reasonable assumptions when necessary.

Answers may vary due to assumptions made.

Partial credit will normally be given if

correct fundamental engineering principles

are used, even though the answer may be

incorrect. All grading will be done by an

expert committee provided by the national

testing service supplying the examination.

2/

(2 ) An applicant must follow all pertinent

instructions on the examination booklet and

the solution pamphlet. The applicant shall

indicate which problems he has solved and is

submitting for credit in the designated

boxes on the front cover of the solution

pamphlet. If an applicant fails to indicate

which problems he is submitting for credit

in the designated boxes, only the first four

problems worked in said pamphlet shall be

graded.

61G15- 21.004 Passing Grade. . . .

(2 ) A passing grade on Part Two of the

examination is defined as a grade of 70 or

better. The grades are determined by a

group of knowledgeable professional

engineers, who are familiar with engineering

practice and with what is required for an

applicable engineering practice and with

what is required for an applicable

engineering task. These professional

engineers will establish a minimum passing

score on each individual test item (i.e.,

examination problem). An Item Specific

Scoring Plan (ISSP) will be prepared for

each examination item based upon the NCEES

standard scoring plan outline form. An ISSP

will be developed by persons who are

familiar with each discipline including the

item author, the item scorer, and other

NCEES experts. On a scale of 0-10, six (6)

will be a minimum passing standard and

scores between six (6) and ten (10) will be

considered to be passing scores for each

examination item. A score of five (5) or

lower will be considered an unsatisfactory

score for that item and the examinee will be

considered to have failed that item. To

pass, an examinee must average six (6) or

greater on his/her choice of eight (8) exam

items, that is, the raw score must be forty-

eight (48) or greater based on a scale of

eighty (80). This raw score is then

converted to a base 100 on which, as is

noted above, a passing grade will be seventy

(70).

14. The Board's Rule 61G15-21.006, Florida Administrative

Code, provides that "[e ]xam review procedures are governed by

rule 61-11.017, F.A.C." and that "[a]ll reviews of answers,

questions, papers, grades, and grading key shall be at a

mutually convenient time and subject to national testing

security requirements in order to insure the integrity of the

examination."

15. Rule 61-11.017, Florida Administrative Code, is a

Department rule which provides, in pertinent part, that

"[r ]eview of examinations developed by or for a national

council, association, society (herein after referred as national

organization) shall be conducted in accordance with national

examination security guidelines."

16. In the instant case, after receiving a failing score

on the Principles and Practice of Engineering portion of the

NCEES-administered and graded engineering licensure examination

and not receiving any additional points upon subsequent review

and rescoring, Petitioner requested a "formal hearing" to

contest her failing score.

17. The Board (acting through the Florida Engineers

Management Corporation, a Florida not-for-profit corporation

created pursuant to Section 471.038, Florida Statutes, "to

provide administrative, investigative, and prosecutorial

services" to the Board) granted Petitioner's request for a

hearing and referred the matter to the Division for hearing.

18. In those instances where a State of Florida licensing

board or agency is empowered to alter a candidate's failing

examination score, the candidate is entitled to a hearing,

pursuant to Chapter 120, Florida Statutes, to contest his or her

failing score. At the hearing, the candidate bears the burden

of establishing, by a preponderance of the evidence, that his or

her failing score was the product of arbitrary or otherwise

improper or erroneous grading. See Harac v. Department of

Professional Regulation, Board of Architecture , 484 So. 2d 1333,

1338 (Fla. 3d DCA 1986)("Ordinaril y one who fails a licensure

examination would shoulder a heavy burden in proving that a

subjective evaluation by an expert is arbitrary."); Florida

Department of Health and Rehabilitative Services v. Career

Service Commission , 289 So. 2d 412, 414 (Fla. 4th

DCA 1974)("[T ]he burden of proof is on the party asserting the

affirmative on an issue before an administrative

tribunal. . . . 'As a general rule the comparative degree of

proof by which a case must be established is the same before an

administrative tribunal as in a judicial proceeding--that is,

[a] preponderance of the evidence. It is not satisfied by proof

creating an equipoise, but it does not require proof beyond a

reasonable doubt.'"); and Section 120.57(1)(j), Florida Statutes

("Findings of fact shall be based upon a preponderance of the

evidence, except in penal or licensure disciplinary proceedings

or except as otherwise provided by statute, and shall be based

exclusively on the evidence of record and on matters officially

recognized.").

19. Petitioner failed to submit such proof in the instant

case.

20. According to Petitioner, the two-point deduction that

was made for the manner in which she evaluated the factor of

safety for load-bearing capacity in her solution to Problem 120

was unwarranted and she should have received a raw score of

eight, instead of six, for her solution to the problem (which

would have given her a passing score on the Examination).

21. In support of her allegation, Petitioner presented her

own testimony (which she was free to do notwithstanding her

interest in the outcome of the case). See Martuccio v.

Department of Professional Regulation , 622 So. 2d 607, 609-10

(Fla. 1st DCA 1993).

22. Respondent countered Petitioner's testimony with the

testimony of an independent expert witness, Frank Hutchinson,

P.E., a knowledgeable Florida-licensed engineer with

considerable engineering experience and impressive credentials.

23. Having carefully reviewed Problem 120, Petitioner's

solution to the problem, and the requirements and guidelines of

the NCEES's scoring plan for the problem, the undersigned agrees

with Mr. Hutchinson that Petitioner failed to calculate the

factor of safety for load-bearing capacity in the manner

required by the problem and that therefore the two-point

deduction about which Petitioner complains was justified.

24. Moreover, even if Petitioner had persuaded the

undersigned that she should have received a higher score from

the NCEES for her solution to Problem 120, the undersigned would

still not recommend that the Board grant Petitioner the relief

she is seeking in this case. This is because the Examination is

"an examination developed by or for a national board, council,

association, or society," within the meaning of the Department's

Rule 61-11.012(1), Florida Administrative Code, and, pursuant to

that rule provision, the Board must "accept the development and

grading of such [an] examination without modification." See

also Department Rule 61-11.010(1)(a), Florida Administrative

Code ("National Examinations shall be graded solely and

exclusively by the National examination provider or its

designee. National examinations shall include those developed

by or for national boards, councils, associations or

societies."); and Board Rule 61G15-21.003(1), Florida

Administrative Code ("All grading will be done by an expert

committee provided by the national testing service supplying the

examination.").

25. In view of the foregoing, Petitioner's challenge to

the score she received from the NCEES for her solution to

Problems 120 of the Principles and Practice of Engineering

portion of the April 14, 2000, engineering licensure examination

should be rejected.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered rejecting

Petitioner's challenge to the failing score she received from

the NCEES on the Principles and Practice of Engineering portion

of the April 14, 2000, engineering licensure examination.

DONE AND ENTERED this 16th day of April, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

STUART M. LERNER

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 [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of April, 2001.

ENDNOTES

1/ A licensing board within the Department of Business and

Professional Regulation, such as the Board of Professional

Engineers, is authorized by Section 455.217(1)(d), Florida

Statutes, to "approve by rule the use of any national

examination which the department has certified as meeting

requirements of national examinations and generally accepted

testing standards pursuant to department rules." A "national

examination," as that term is used in Section 455.217, Florida

Statutes, is defined in Rule 61-11.015, Florida Administrative

Code, as follows:

(1) . . . . To ensure compliance, the

following definition of a national

examination shall be applied when using a

national examination.

(2 ) A national examination is an

examination developed by or for a national

professional association, board, council or

society (hereinafter referred to as

organization) and administered for the

purpose of assessing entry level skills

necessary to protect the health, safety and

welfare of the public from incompetent

practice.

(a ) The purpose of the examination shall be

to establish entry level standards of

practice that shall be common to all

practitioners.

(b ) The practice of the profession at the

national level must be defined through an

occupational survey with a representative

sample of all practitioners and professional

practices.

(c ) The examination for licensure must

assess the scope of practice and the entry

skills defined by the national occupational

survey.

(3 ) The national organization must be

generally recognized by practitioners across

the nation in the form of representatives

from the State Boards or shall have

membership representing a substantial number

of the nation's practitioners who have been

licensed through the national organization

examination.

(4 ) The national organization shall be the

responsible body for overseeing the

development and scoring of the national

examination.

(5 ) The national organization shall provide

security guidelines for the development and

grading of the national examination and

shall oversee the enforcement of these

guidelines.

2/ Pursuant to the Department's Rule 61-11.010(1)(a), Florida

Administrative Code, "National Examinations shall be graded

solely and exclusively by the National examination provider or

its designee."

COPIES FURNISHED:

Christine Franklin

4285 Pine Ridge Court

Weston, Florida 33331

Douglas Sunshine, Esquire

Florida Engineers Management Corporation

1208 Hays Street

Tallahassee, Florida 32301

Natalie A. Lowe, Executive Director

Florida Engineers Management Corporation

1208 Hays Street

Tallahassee, Florida 32301

Hardy L. Roberts III, General Counsel

Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-2202

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions

to this recommended order should be filed with the agency that

will issue the final order in this case.