00-003491 Omar Beckford vs. Florida Engineers Management Corporation Status: Closed Recommended Order on Wednesday, November 15, 2000.

Summary: Candidate for engineer intern license failed to demonstrate that the failing grade he received on licensure examination was the product of improper or erroneous grading.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OMAR BECKFORD, )

)

Petitioner, )

)

vs. ) Case No. 00-3491

)

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 October

25, 2000, in Tallahassee, Florida, before Stuart M. Lerner, a

duly-designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Omar Beckford, pro se

1303 Ocala Road

Tallahassee, Florida 32304

For Respondent: Douglas D. Sunshine, Esquire

Florida Engineers Management

Corporation

1208 Hays Street

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

Whether Petitioner is entitled to credit for his answers to

Questions 34, 65, and 75 on the Fundamentals of Engineering

portion of the engineering licensure examination administered on

the morning of April 15, 2000, by the National Council of

Examiners for Engineers and Surveyors.

PRELIMINARY STATEMENT

By letter dated August 3, 2000, to the Florida Board of

Professional Engineers (Board), Petitioner requested a "formal

review" of the failing (converted) score (69) that he received on

the April 15, 2000, Fundamentals of Engineering Examination

administered by the National Council of Examiners for Engineers

and Surveyors. Attachments to his letter reflected that he was

specifically challenging the grading of his answers to Questions

34, 65, and 75 of the morning session of the examination.

On August 21, 2000, 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 October 25, 2000.

At the hearing, Petitioner testified on his own behalf, and

Michael Peters, Ph.D., testified (as an expert) on behalf of

Respondent. No other testimony was presented. In addition to

the testimony of Petitioner and Dr. Peters, 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, on the record, advised the parties of their

right to file proposed recommended orders and established a

deadline (ten days from the date of the filing of the transcript

of the hearing) for the filing of such post-hearing submittals.

Petitioner indicated that he would not be filing a proposed

recommended order, but instead would rely on his closing

statement at hearing.

The hearing Transcript (consisting of one volume) was filed

on November 8, 2000. On November 13, 2000, Respondent timely

filed a Proposed Recommended Order, which (like Petitioner's

closing statement at hearing) has 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 15, 2000, as part of his effort to obtain a

license to practice as an engineer intern in the State of

Florida, Petitioner sat for the Fundamentals of Engineering

Examination (Examination). This was a national multiple-choice

examination developed and administered by the National Council of

Examiners for Engineers and Surveyors (NCEES).

2. The Examination was divided into two sessions: a

morning session (AM Part), which tested "lower division subjects"

(that is, "the first 90 semester credit hours . . . of

engineering course work for a typical bachelor engineering degree

program"), and an afternoon session (PM Part), which tested

"upper division subjects" (that is, "the remainder of the

engineering course work").

3. Questions on the AM Part were worth one raw point each.

4. Questions on the PM Part were worth two raw points each.

5. The NCEES provided candidates taking the Examination

with a Fundamentals of Engineering, Discipline Specific,

Reference Handbook (Reference Handbook) that they were allowed to

refer to during the Examination. The Reference Handbook, as

noted in its Foreword, "contain[ ed] only reference formulas and

tables; no example problems [we]re included."

6. Petitioner received a total raw score of 104 on the

Examination (54 for the AM Part and 50 for the PM Part).

According to the NCEES's Score Conversion Table, a raw score of

104 converted to a score of 69. To pass the Examination, a

converted score of 70 (or 107-109 raw points) was needed.

Accordingly, Petitioner fell three raw points short of receiving

a passing score.

7. Petitioner has formally requested that the grading of

his answers to Questions 34, 65, and 75 of the AM Part be

reviewed. He received no credit for any of these answers. Had

these answers been deemed correct (and he received one raw point

for each answer), he would have passed the Examination (with a

converted score of 70).

8. Question 34 of the AM Part was a clear and unambiguous

multiple-choice question that covered subject matter (integral

calculus) with which Petitioner and the other candidates should

have been familiar.

9. There was only one correct answer to this question, and

it was among the responses from which the candidates had to

choose.

10. Petitioner chose another answer that was clearly

incorrect because it represented a particular solution or

expression, and not the "general expression" (representing all

solutions) called for by the question.

11. He therefore appropriately received no credit for his

answer.

12. Questions 65 and 75 of the AM Part, like Question 34,

were clear and unambiguous multiple choice questions that covered

subject areas ( centroids and thermodynamics, respectively) with

which Petitioner and the other candidates should have been

familiar. Each of these questions, again like Question 34, had

only one correct answer that was listed among the choices from

which the candidates had to choose. To answer each question

correctly, the candidates had to use a formula that was set forth

in the Reference Handbook (on page 21 in the case of Question 65

and on page 46 in the case of Question 75).

13. Petitioner selected neither the correct answer to

Question 65, nor the correct answer to Question 75, and therefore

was not entitled to any credit for his answers to these

questions.

CONCLUSIONS OF LAW

14. A person seeking to become licensed by the Department

of Business and Professional Regulation (Department) to practice

as an engineer intern in the State of Florida must take and pass

a licensure examination. Sections 471.005(5) and 471.013(1)(b),

Florida Statutes; and Board Rule 61G15-21.001, Florida

Administrative Code.

15. "The engineer intern [licensure] examination is defined

to be Part One of the written examination provided by the NCEES

1/ as set forth in Paragraph 61G15-21.002(1), and graded

pursuant to Rule 61G15-21.004(1)." Board Rule 61G15-21.005,

Florida Administrative Code.

16. Rule 61G15-21.002(1), Florida Administrative Code,

describes the Examination. It provides, in pertinent part, as

follows:

The Engineering Fundamentals Examination

shall include all questions and problems on

subjects normally connected with the basic

fundamentals of engineering education. The

Fundamentals of the Engineering Examination

is an eight-hour supplied reference

examination: 120 one-point questions in the

four hour morning session and 60 two-point

questions in the four-hour afternoon session.

The morning session is common to all

disciplines, and examinees shall work all

questions in this session. Listed below are

the topics that the examination will cover

and the percentage of questions.

Morning Session Percentage of

Disciplines Questions

Chemistry 9%

Computers 6%

Dynamics 7%

Electrical Circuits 10%

Engineering Economics 4%

Ethics 4%

Fluid Mechanics 7%

Materials Science/

Structure of Matter 7%

Mathematics 20%

Mechanics of Materials 7%

Statics 10%

Thermodynamics 9%

The afternoon session is administered for

five disciplines with a general engineering

section for all remaining disciplines. . . .

See also Board Rule 61G15-21.001(1), Florida Administrative Code,

which provides the following additional information regarding the

administration of "the written examination provided by the

NCEES":

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.

17. Board's Rule 61G15-21.004(1), Florida Administrative

Code, explains how the Examination is graded. It provides as

follows:

The criteria for determining the minimum

score necessary for passing the Engineering

Fundamentals Examination shall be developed

through the collective judgment of qualified

experts appointed by NCEES to set the raw

score that represents the minimum amount of

knowledge necessary to pass the examination.

The judges shall use a Modified Angoff Method

in determining the minimally acceptable raw

score necessary to pass the Fundamentals of

Engineering Examination. Using the above

mentioned Modified Angoff Method, the judges

will indicate the probability that a

minimally knowledgeable Fundamentals of

Engineering examinee would answer any

specific questions correctly. The

probability of a correct response is then

assigned to each question. Each judge will

then make an estimate of the percentage of

minimally knowledgeable examinees who would

know the answer to each question. The totals

of each of the judges is added together and

divided by the number of judges to determine

the overall estimate of the minimum standards

necessary. The minimum number of correct

answers required to achieve a passing score

will take into account the relative

difficulty of each examination through

scaling and equating each examination to the

base examination. The raw score necessary to

show competence shall be deemed to be a 70 on

a scale of 100.

18. 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.

19. 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."

20. In the instant case, after receiving a failing score on

the Fundamentals of Engineering portion of the NCEES-administered

and graded engineering licensure examination, Petitioner, by

letter dated August 3, 2000 (with attachments), requested a

"formal review" by the Board of his failing score. The

attachments to the letter revealed that Petitioner was

specifically challenging the scoring of his answers to Questions

34, 65, and 75 of the AM Part.

21. 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) referred Petitioner's challenge to the

Division for hearing.

22. 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)("Ordinarily 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)(1974)("[T]he burden of pr oof 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.").

23. Petitioner failed to submit such proof in the instant

case.

24. In attempting to demonstrate that he answered the

questions in dispute correctly and therefore should have received

credit for his answers, Petitioner relied exclusively on his own

testimony, which he was free to do notwithstanding his interest

in the outcome of the case. 2/ See Martuccio v. Department of

Professional Regulation , 622 So. 2d 607, 609-10 (Fla. 1st DCA

1993).

25. Respondent countered Petitioner's testimony with the

testimony of an independent expert witness, Michael Peters, Ph.D.

Dr. Peters is chairperson of the Florida A & M University-Florida

State University College of Engineering's Department of Chemical

Engineering, and he has been teaching at the university level

since 1981. Given Dr. Peters' impressive credentials and

qualifications, and his apparent candor and lack of bias, the

undersigned has credited his expert testimony and determined that

Petitioner did not answer Questions 34, 65, and 75 of the AM Part

correctly and therefore did not deserve to receive any credit for

these answers.

26. Moreover, even if Petitioner had demonstrated that his

answers to these questions were correct, the undersigned would

still not recommend that the Board change the score Petitioner

received from the NCEES on the Examination. 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.").

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

NCEES' scoring of his answers to Questions 34, 65, and 75 of the

AM Part of the 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 he received from the

NCEES on the Fundamentals of Engineering portion of the April 15,

2000, engineering licensure examination.

DONE AND ENTERED this 15th day of November, 2000, 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

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 15th day of November, 2000.

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/ On cross-examination, Petitioner reconsidered his position

concerning the grading of his answer to Question 65 and

acknowledged that his answer to the question was not correct.

COPIES FURNISHED:

Omar Beckford

1303 Ocala Road

Tallahassee, Florida 32304

Douglas D. Sunshine, Esquire

Florida Engineers Management Corporation

1208 Hays Street

Tallahassee, Florida 32301

Natalie Lowe, Executive Director

Florida Board of Professional Engineers

1208 Hays Street

Tallahassee, Florida 32301

Barbara D. Auger, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

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

this recommended order should be filed with the agency that will

issue the final order in this case.