Appellants (12 lieutenants employed by the Newark Police Department) appeal from a determination of the State Civil Service Commission (Commission) which affirmed the results of the oral portion of a promotional examination conducted by the Department of Civil Service for the position of police captain in the City of Newark, New Jersey. Appellants first appealed to the Division of Examinations pursuant to N.J.A.C. 4:1-8.15. The appeal challenged the "validity, substance, conduct and results" of the oral examination held on August 14, 1974. The appeal was subsequently dismissed and a further appeal was made to the Hearings and Regulation Section of the Department of Civil Service which was also dismissed.
An understanding of the factual background of this appeal is essential. The written promotional examination for police captain for the City of Newark and several nearby municipalities was announced by the Commission on February 28, 1974. It was administered on May 18, 1974 and results were published on or about July 31, 1974. It was then announced that an oral examination would also be administered. The oral examination appears to represent a departure in policy and, although the record is not clear, apparently had not been
utilized for a number of years. Sixteen of the 29 individuals employed as captains in the Newark Police Department as of August 1, 1974 had not been tested orally during their promotional examinations. It is a fact that after the oral examination which is the subject of this litigation the Commission announced that oral examinations will no longer be administered for the title of police captain.
On August 14, 1974 the oral examinations were administered to 61 Newark police lieutenants. The identical oral examination had been administered to candidates from other neighboring municipalities on prior dates. No attempt was made by the Commission to keep the questions secret. Unquestionably candidates in Newark were in a position to be privy to the questions prior to their examination.
In Newark the 61 candidates were divided among seven boards of examiners (each hereinafter referred to as the "team"). Each team consisted of two interviewers, a Civil Service employee and a police consultant; their function was to interview and grade each applicant assigned to their team. Presumably each team tested eight or nine of the 61 candidates. In an attempt to standardize administration of the examination the teams were briefed and given formal instructions with respect to the questions to be asked, expected answers and standards to be applied in determining the applicant's score. All candidates were asked identical questions; however, each answer was not given an individual grade or mark. The formal instructions stated the candidates were to receive one overall grade, to be based on a subjective analysis of the following characteristics: (1) interpersonal relations, (2) leadership qualities, (3) contribution of ideas, (4) judgment and (5) effectiveness of presentation.
The results of the oral tests reveal substantial inconsistencies. There were three failures. Two of the failures were tested by the same team (hereinafter team A). Appellant Tenpenny, one of the candidates failed by team A, had the highest score in the written examination. Excluding the
two failures, the average score given by team A was 75. The average score given by the remaining six teams, excluding the third failure, was 81.6. Seventeen candidates achieved scores of 75 or less. Five of these were tested by team A. Twenty-seven individuals attained scores of 81 or more; none of these were tested by team A.
The primary question before us is whether the examination as held was so subjective as to have been noncompetitive and illegal. We recognize our duty to approach questions of this nature with suitable restraint. As stated in Artaserse v. Dept. of Civil Service , 37 N.J. Super. 98 (App. Div. 1955):
Our Legislature, in N.J.S.A. 11:9-3, has expressly approved oral examinations as an appropriate testing technique, and pursuant thereto the Civil Service rules [ N.J.A.C. 4:1-8.9(a)(2)] provide that competitive examinations may consist of oral tests. The Supreme Court has acknowledged that "subjective elements would appear to be inherent in all oral examinations seeking supervisory and personality traits, and their presence may not be reasonably viewed as fatal," and has upheld the validity and recognized the value of oral examinations, where properly administered. Kelly v. Civil Service Comm'n , 37 N.J. 450, 460 (1962).
The requirement that each team evaluate the answer to each question, consider the answer in relation to the five characteristics, and then translate all the answers into one overall grade ...