Decision No. 12,863

(December 28, 1992)

SOBOL, Commissioner.--Petitioner appeals from respondent's refusal to award her a required minimum score on an examination entitled "Education Administrator, Senior Curriculum Development and Coordination Instruction Specialist, Levels III and IV," administered in April 1989. The appeal must be sustained in part.

The examination which is the subject of this appeal consisted of several parts: a written examination comprised of two essays in the subject matter, a written examination consisting of 80 short-answer questions in the subject area, an essay rated for written English only, an interview test, an appraisal of record, and a physical and medical test. Only the two essay questions and two of the short-answer questions are at issue here.

Petitioner completed the examination in April 1989, and on or about January 18, 1990, was advised that she had received a weighted average score of 58.93, which was below the required minimum passing weighted average score of 60.0. Petitioner commenced an internal administrative appeal, which raised her score somewhat, but still left it below the minimum required. By a very brief form letter dated May 14, 1991, petitioner was informed that her appeal "was dismissed." This letter gave no specific reason for the dismissal, but advised: "A summary statement of the reasons for the dismissal of your appeal may be requested by you within thirty (30) days from the above date." On or about June 12, 1991, petitioner requested a summary statement and, on or about June 28, 1991, a copy of the requested summary statement was sent to petitioner. Petitioner alleges she received the summary statement on July 5, 1991. This appeal was commenced on August 14, 1991.

Petitioner challenges the grading of short-answer questions numbered 78 and 80, and the grading of essay 1, Parts A, B, and C and essay 2, Parts B and C. Although petitioner's allegations are not clear in some cases, her general claim is that her answers were as good as or better than those contained in the rater's guide or answer key, and that she deserved more credit.

Respondent, in addition to denying petitioner's claims, alleges that the appeal was untimely, because petitioner was notified of the dismissal of her appeal on May 14, 1991, and the appeal was not commenced until August 14, 1991. Respondent also claims that it has acted in good faith, has not committed gross error, nor has it been arbitrary or capricious. Respondent further objects that the petition does not set forth a clear and concise statement of petitioner's claim.

An appeal to the Commissioner must be instituted pursuant to 8 NYCRR '275.16 within 30 days of the making of the decision or the performance of the act complained of. However, the Commissioner may excuse failure to commence an appeal for good cause shown in the petition. In this case, respondent argues that petitioner should have commenced this appeal within 30 days after the notice of dismissal of her internal appeal on May 14, 1991. However, the letter notifying petitioner of her failure to achieve the minimum grade gives no detail whatsoever, and had petitioner attempted to bring an appeal on that basis, without requesting and receiving the summary statement of reasons for dismissal, there would have been no basis to review her appeal. Petitioner further sets forth her efforts to contact the State Education Department about the mechanics of bringing an appeal, and describes in some detail personal hardships she encountered as a result of the death of a close relative and her involvement in a matrimonial action. The record indicates that petitioner did not receive the summary statement from respondent until July 5, 1991, and she commenced this appeal 40 days thereafter, after making two calls to my Office of Counsel. Under these unique circumstances, I will excuse petitioner's failure to timely commence the appeal.

With respect to respondent's claim that the petition does not set forth a clear and concise claim, I find that, although the petition and numerous exhibits are difficult to follow, the claim is sufficiently set forth to provide respondent with notice of petitioner's claims and to merit consideration.

With respect to petitioner's claim that she should have received credit for short-answer questions numbered 78 and 80, I find that petitioner's answers were not as good as or better than those set forth in the rating guide. I agree with respondent in denying her credit for those responses.

Petitioner's claims with respect to the essay questions are necessarily more difficult to resolve. To understand the claims, it is necessary to describe the testing procedures used.

The first essay question asks the examinee to assume the role of an Education Administrator-Senior Curriculum Development and Coordination Instruction Specialist assigned to design a plan for a comprehensive curriculum and recruitment of staff and students for a new magnet junior high school for the dramatic arts. Part A requires the identification of steps in the development of a plan; Part B asks the examinee to describe information to be included in a brochure about the proposed new school; Part C asks for the identification of three (3) major problems to be anticipated and how the examinee would address those problems; and Part D asks for a description of the steps to evaluate the effectiveness of the plan.

Essay question 2 presents a problem in which a superintendent advises the examinee that several schools involved in a funded program are reported to be in non-compliance with federal and state mandates. The question asks that the examinee develop a plan "ensuring that all schools are in compliance with the mandates." Essay question 2 has no designated subparts on the examination paper.

The record contains answer papers to be used for both essays. The answer paper for question 1 contains distinct sections labelled Parts A, B, C, and D, which repeat the instructions and indicate point values. The answer paper for question 2 does not contain any subdivisions but simply states at the top: "A plan to insure [sic] that schools are in compliance. (50 points.)" Also included in the record is a copy of the rating guide or answer key used by those who graded the examination. The model answer for question 1 is set up in the same manner as subdivisions Parts A, B, C, and D on the examination and answer papers and indicates numerous acceptable responses. The model answer for question 2, although that question had no designated subparts on the examination or answer papers, is set up in three parts: (1) survey of problem, maximum credit 16 points; (2) plan to resolve problems, maximum credit 24 points; and (3) evaluation, maximum credit 10 points. The summary statement of reasons for dismissal refers to these subdivisions as question 2, Parts A, B, and C.

The petition contains numerous claims that petitioner's responses deserved more credit than granted by respondent. I have reviewed each of petitioner's claims, and I generally find that respondent has properly granted and denied credit in this matter. However, in several aspects petitioner has been denied a proper review.

With respect to essay question 1, Part A, petitioner's answer identified eleven steps in developing a plan for the project. Petitioner claims that her eleventh step should have been considered a correct answer. The summary statement issued by respondent contains the following statement:

As petitioner points out, nowhere in the examination paper or the answer paper is the examinee advised that he or she can only list ten steps, or that the examiner is only required to read ten steps. Because the examinee was not so advised, it is unfair and indeed arbitrary and capricious to limit the scope of the rating. As a result, respondent should have considered all of petitioner's responses to essay question 1, Part A, including her eleventh response.

I also find that respondent has, in two other instances, attempted to require a certain number of responses where neither the examination question nor the answer sheet indicated any particular minimum. For example, with respect to essay question 2, Part B, the summary statement says that an applicant is required to list eight items; for essay question 2, Part C, the summary statement indicates that the applicant is required to list five items. Such distinct numerical requirements should be stated in the examination paper itself. It does not appear that petitioner lost credit because of any failure on her part to organize her answer in conformity to these unstated numerical requirements. Nevertheless, there should be a reexamination of petitioner's responses to question 2, Parts B and C, to determine whether the substance of her responses conforms to the rating guide, regardless of whether or not they match its organizational structure.

Finally, I have considered the other contentions of the parties and find them without merit. The petition is granted to the extent indicated.

IT IS ORDERED that, within sixty days of its receipt of this decision, respondent's successor, the Office of Recruitment, Personnel Assessment, and Licensing, consider petitioner's eleventh response to essay question 1, Part A; reexamine petitioner's responses to question 2, Parts B and C; and determine what credit to grant for the same, all in accordance with this decision.

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