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Herbert v. State

Decided: September 29, 1978.

WILLIAM P. HERBERT, APPELLANT,
v.
STATE OF NEW JERSEY, CIVIL SERVICE COMMISSION, RESPONDENT



On appeal from final decision of the State of New Jersey, Civil Service Commission.

Halpern, Ard and Antell.

Per Curiam

This is an appeal from a final determination of the Civil Service Commission which reversed the recommendation of the hearing officer and dismissed Mr. Herbert's appeal.

The Department of Civil Service administered two examinations, one written and the other oral, for the position of Supervising Community Program Analyst in the Department of Community Affairs. Appellant passed the written examination and became one of 29 candidates eligible to take the oral examination for the position. The oral examination was administered by five examining teams, each team consisting of a Department examiner and an outside consultant. Although appellant was unable to take the examination on

the scheduled date, the Department allowed him to take a make-up examination which was administered by Leonard Miller and Larry Shanks, one of the original examining teams. Appellant received a failing grade on the oral examination and therefore became ineligible for the position. Thereafter he filed a notice of appeal with the Division of Hearings and Regulations in the Department. A hearing was granted at which two issues were raised:

(1) Whether there was, on the part of Mr. Leonard Miller, the consultant on applicant's oral examination, a conflict of interest of sufficient magnitude to require invalidation of the oral exam, and

(2) Whether the multi-team method of examining candidates in the oral test was contrary to the holding of Rox v. Department of Civil Service , 141 N.J. Super. 463 (App. Div. 1976).

The hearing officer found there was no conflict of interest on the part of Leonard Miller, but also concluded that Rox, supra , mandated a single examining team for all candidates and recommended that the oral examination be invalidated and a new exam be ordered.

The matter was then brought before the Civil Service Commission following the filing of exceptions and cross-exceptions to the report and recommendations of the hearing officer. The Commission found there was no conflict of interest, substantially adopting the hearing officer's findings on this issue, but rejected his conclusion that Rox, supra , mandates that all candidates for an oral examination be examined by the same team.

We agree with the determination of the Commission. Neither issue requires detailed comment. The allegation of a conflict of interest is three-pronged: (1) that Miller failed to sign the consultant certification prior to the examination, thus not disclosing that at the time of the examination he had a contract with the Department of Community Affairs' Division on Aging; (2) that Miller had an acquaintance with Thurman Harrison, who was ultimately appointed to the vacant position, and (3) that Miller was acquainted with

appellant's brother, Michael Herbert. The findings of fact of the hearing officer and the Commission indicate that Miller had performed professional consultation services on a limited basis for the Division on Aging, but the proofs failed to indicate how a conflict of interest resulted from this connection. It was further determined that Miller was only casually acquainted with Harrison and did not know that Harrison had taken the examination since Miller's team had not given Harrison his examination. Additionally, the hearing officer and the Commission found that the fact that Miller casually knew appellant and appellant's brother did not demonstrate any bias or ...


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