On appeal from The Civil Service Commission.
Lora, Antell and Pressler. The opinion of the court was delivered by Lora, P.J.A.D.
This is an appeal from a denial by the Civil Service Commission of a motion of the Passaic County Prosecutor to intervene in a matter brought before the Commission by Norbert White, a candidate for the position of Deputy Police Chief of the City of Paterson.
The record shows that on October 20, 1977 the oral portion of the Civil Service examination for the position of Deputy Police Chief for the City of Paterson was administered at the Department of Civil Service office in Newark to six eligible candidates from the Paterson Police Department. The test results were announced on December 29, 1977 and certified on January 19, 1978.
On February 11, 1978 Milton A. Lane (Lane) and Robert C. Mohl (Mohl), who had scored first and second, respectively, were appointed deputy police chiefs. These appointments were subsequently approved by the Department of Civil Service on February 23, 1978.
Following the October 20, 1977 examination, Captain Norbert White (White), one of the candidates, filed an appeal with the Civil Service Commission concerning an incident which allegedly took place on the evening of the examination. White contended that candidates William Dolan and Mohl communicated with each other during the course of the examination, in violation of N.J.A.C. 4:1-8.19.
On May 18, 1978 the matter was heard by a hearing officer who subsequently rendered his report and recommendation on June 26, 1978 in which he concluded that White had not proved that Dolan and Mohl had discussed or otherwise communicated with each other about the examination during the time they were alone together. However, he found that they did communicate with each other at a time when Dolan had been examined and Mohl had not, thereby creating "doubts and possibilities" in the minds of third-party observers and as a result tainting the examination and rendering its integrity suspect. He recommended
that the Commission invalidate the results of the examination.
On October 5, 1978, by a mailgram, the Mayor of Paterson requested the Commission to delay its decision on candidate White's appeal until such time as the City of Paterson could be heard concerning the Commission's decision. On October 13, 1978 the Civil Service Commission advised the mayor it had voted at its meeting of September 8, 1978 to reject the hearing officer's report and recommendations and had remanded the matter to the departmental staff for the preparation of a decision letter with new findings of fact articulating the Commission's determination that Captains Mohl and Dolan should be excluded from the examination. It further advised that these materials had not yet been presented to the Commission for the issuance of a final determination. In any event, the Commission granted the City of Paterson leave to appear and to file its statement on notice to all parties.
On November 6, 1978 appellant notified the Commission of his intention to apply for leave to intervene in this matter. Subsequently, on November 20, 1978 appellant filed a petition to intervene with the Commission.
On November 21, 1978 the Commission, on its own motion, ordered that the hearing be reopened to allow all candidates an opportunity to be heard on the issues of whether Dolan and Mohl communicated with each other during the oral examination, whether they should be removed from this list only or should be precluded from taking future Civil Service examinations, and whether the results of the examination should be invalidated. However, it noted that the petition to intervene submitted by the Passaic County Prosecutor was not considered in making the determination, and further directed that all intervention by the prosecutor be denied.
The Acting Chief Examiner and Secretary of the Department of Civil Service advised appellant on ...