For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. Opposed -- None. The opinion of the court was delivered by Jacobs, J.
The appellants Thomas E. Kelly and Francis Moran, Captains in the Jersey City Police Department, and the appellants William B. Reilly and Henry E. Grossman, Lieutenants in the Jersey City Police Department, appealed to the Appellate Division from rulings of the Department of Civil Service which granted final certifications of examination lists for the positions of Police Inspector and Police Captain. While the appeals were pending in the Appellate Division we certified them on our own motion. See R.R. 1:10-1(a).
In August 1960 the Department of Civil Service published notices of proposed promotional tests for the positions of Police Inspector and Police Captain in the Jersey City Police Department. These notices stated that in order to qualify, the applicants must receive a minimum rating of at least 70% in each of the separate written and oral tests. The written examinations were taken by the appellants in December 1960. Each written examination was a multiple choice test, containing 150 questions. The identity of the candidate was indicated on his answer sheet by a secret
application number and the answers were machine scored to disclose the number of correct answers, known as the "raw score." Apparently following its long established "flexible passing point" system, the Department did not determine in advance what raw score would constitute the passing mark or "cutoff point." Cf. Artaserse v. Dept. of Civil Service, 37 N.J. Super. 98, 105 (App. Div. 1955); R.S. 11:23-4. See McCann, The Flexible Passing Point (1959); Stahl, Public Personnel Administration 111 (4 th ed. 1956); cf. Hymes v. Schechter, 6 N.Y. 2 d 352, 160 N.E. 2 d 627 (1959); Robbins v. Schechter, 7 Misc. 2 d 436, 162 N.Y.S. 2 d 790 (Sup. Ct. 1957), aff'd 3 A.D. 2 d 1010, 165 N.Y.S. 2 d 442 (App. Div. 1957). As McCann, supra, defines the pertinent terms, an absolute passing point is a passing point set at a "specified percentage of the maximum possible score" whereas a flexible passing point can be set at any desired raw score and, when so set, is then "converted to the established passing point." McCann lists the suggested advantages and disadvantages of the flexible passing point system of marking and concludes that the advantages greatly outweigh the disadvantages; he notes that the actual experiences in many states indicate that the flexible system helps solve "the problem of inadequate eligibles without impairing the quality of the public service and without jeopardizing the merit system."
After the raw scores of the candidates were computed, distribution sheets were prepared and submitted to Mr. Farrell, the Department's Chief Examiner and Secretary. See Flanagan v. Civil Service Department, 29 N.J. 1, 7 (1959). These disclosed how many would pass at any designated cutoff point but did not indicate the identities of the candidates. After consulting with the Director of Examinations and without possessing any knowledge as to identities, Mr. Farrell fixed the cutoff point at 90 correct answers. Under a Department policy which permitted it "to go one raw score point lower than the selected point," 89 correct answers would suffice. In explaining why he fixed
a cutoff point lower than 105 (which would have been an arithmetic 70% of the 150 questions) Mr. Farrell testified to the following effect: When he examined the distribution sheets he observed that if 105 were the passing point only 5 (including one who was ill at the time of the examination and was permitted to take a make-up test) of the 17 qualified candidates for inspector and only 3 of the 41 qualified candidates for captain would have passed the written tests. Furthermore, the highest raw score received by any candidate was 119 which was just under 80% of the questions. The foregoing indicated to him that the written tests were too difficult, that the number of eligibles for the later oral examinations would be insufficient, and that a passing point lower than 105 should be fixed. His view as to the difficult nature of the examination questions was confirmed somewhat by the results in Paterson, Plainfield, Lakewood Township, East Orange, Elizabeth and Ewing Township, where the same test for captain was administered contemporaneously with the Jersey City test; only 9 out of 115 candidates in those communities achieved a raw score of 105.
By setting the cutoff point at 90 rather than 105, the number of those eligible to take the oral examination for inspector in the Jersey City Police Department was increased from 5 to 12 and the number of those eligible for the oral examination for captain was increased from 3 to 7. The oral examinations were conducted before a panel consisting of Charles W. Newns and Theodore G. Acchione. Mr. Newns was a member of the Philadelphia Police Force for 30 years before retiring in 1954 as Chief Inspector. He has conducted oral police promotional examinations for the New Jersey Department of Civil Service for approximately 10 years and has averaged about 50 examinations a year. He has also conducted oral police examinations in Connecticut and Pennsylvania. Mr. Acchione is a personnel technician on the staff of the Department. He is a graduate of the Wharton School of Business and the Law School of
the University of Pennsylvania and has had approximately six years' experience in conducting oral examinations.
The oral examinations of the appellants were in the form of interviews conducted by Mr. Newns in the presence of Mr. Acchione and recorded on tape recorders. The formal instructions issued by the Department stated that the candidates were to be given an overall grade and that in determining this grade, consideration should be given to (1) appearance and speaking ability, (2) manner, (3) comprehension and presentation of ideas, (4) maturity of judgment, (5) interest in law enforcement and allied fields, (6) evidence of supervisory and administrative ability and (7) overall evaluation. Mr. Newns recorded his rating of each candidate and Mr. Acchione placed his initials alongside Mr. Newns' signature. None of the appellants received a passing grade of 70% in the oral examination. After they were advised that they had failed, the appellants requested that the Civil Service Commission review their oral grades. In due course, the Commission directed that Mr. Farrell examine the tapes and report to the Commission. Mr. Farrell reviewed not only the appellants' tapes but the tapes of all of the other candidates. He recommended that there should be no changes in the grading and on April 25, 1961 the Commission approved his recommendation.
The Legislature has not sought to prescribe minimum passing grades or precise marking systems but has properly left those matters to the expert judgment of the Commission to be exercised within broad standards embodied in the act. See R.S. 11:3-1; N.J.S.A. 11:6-2; R.S. 11:9-2; R.S. 11:9-3; R.S. 11:21-3; R.S. 11:23-4; R.S. 11:23-6. The Commission is, of course, not precluded from availing itself of modern testing techniques consistent with the underlying objective of competitive selection based on merit and fitness. See N.J. Const. art. 7, § 1, par. 2; R.S. 11:21-3; cf. Dowling v. ...