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Brady v. Department of Personnel

May 22, 1997

JAMES T. BRADY, APPELLANT-RESPONDENT,
v.
DEPARTMENT OF PERSONNEL, RESPONDENT-APPELLANT.



On certification to the Superior Court, Appellate Division, whose opinion is reported at: 289 N.J. Super. 557 (1996).

The opinion of the Court was delivered by Handler, J. Chief Justice Poritz and Justices Pollock, O'hern, Garibaldi and Coleman join in Justice HANDLER's opinion. Justice Stein filed a separate opinion, Dissenting in part and Concurring in part.

The opinion of the court was delivered by: Handler

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

James T. Brady v. Department of Personnel (A-103-96)

Argued February 4, 1997 -- Decided May 22, 1997

HANDLER, J., writing for a majority of the Court.

In this appeal, the Court addresses the extent of access to test materials and grading scales given a civil-service candidate in the review of his test scores.

In October 1992, James Brady, who is currently a police sergeant in the Atlantic City Police Department, took a civil-service exam to attain the rank of captain. The exam was administered by the Department of Personnel ("DOP") and is designed to test a candidate's ability to respond to specific situations that may arise in the course of duty. The exam consists of both a written and oral part, both of which evaluate various categories of behavioral characteristic or "dimensions." Brady's overall score, although passing, reduced his relative eligibility for promotion.

Brady, who was unhappy with his overall score, appealed through the DOP's administrative channels. He was permitted to review a portion of his written test materials, including his answers, brief summaries of the questions, brief comments by the grader, and an explanation of the scoring process. He also received an audio tape of the oral component of his exam. Pursuant to its internal policy, however, the DOP had placed significant limitations on Brady's ability to review those materials. Specifically, Brady was allowed only one hour to review all the materials provided and could not copy any of the materials. He was not given access to the actual test questions or to the answer key, which identified several "possible courses of actions" ("PCAs") upon which the grading was based.

Based on his review of the materials, Brady wrote to the DOP Selection Appeals Unit, expressing his disagreement with his scores and requesting that the exam be regraded. Nine months later, a supervisor in the Selection Appeals Unit replied to Brady's request with an analysis of his score. In that analysis, the supervisor addressed the concerns that Brady had raised and broke down his score for each dimension. She further concluded that Brady's assigned scores were accurate and appropriate.

After expressing her Conclusion, the supervisor informed Brady that he could appeal the decision to the Merit System Board ("the Board"), but that the Board would only consider the proofs, arguments and issues presented at the previous level of appeal. Apparently relying on that information, Brady appealed to the Board but did not advance any new arguments, including his belief that the supervisor erroneously had relied on information to which plaintiff had not been given access (i.e., the PCAs). The Board subsequently denied Brady's appeal, noting that he had provided no arguments, submissions or issues in support of his appeal, other than those raised and already considered in the appeal below.

Brady appealed the Board's determination to the Appellate Division, which ordered production of all test materials. The court based its decision on the need of both a court reviewing and a party challenging an administrative determination to have access to the record upon which the agency has acted. The Appellate Division subsequently refused to stay its order, thus allowing Brady immediate access to the materials, subject to a protective order.

The Supreme Court granted the DOP's petition for review.

HELD: The DOP's provision for partial or limited access to civil-service examination materials is a valid exercise of the agency's regulatory authority and represents a reasonable balance between its interest in the confidentiality of the exam process and an examinee's interest in reviewing the grading of examinations.

1. This case's technical mootness is not a bar to the Court's exercise of jurisdiction. (p. 8)

2. In keeping with the New Jersey Civil Service Act's general policy of encouraging employment that focuses on merit, the Act vests the DOP with the authority to devise a fair, secure, merit-based testing process by which candidates are selected for employment and promotion. (pp. 9-11)

3. Brady's contention that he was entitled to greater access to his exam materials must be considered against the standard of review of whether the DOP's limitation of access was arbitrary, capricious, or unreasonable. (pp. 11-12)

4. An agency decision may not be based on undisclosed evidence. (pp. 12-13)

5. Courts may not routinely review the contents of civil-service examinations and answers and determine whether the questions were well or poorly answered, as such an inspection and review would involve a challenge to the substantive validity of the examination. (pp. 13-15)

6. The DOP has not abused its discretion in deciding to recycle test questions or in making a determination to limit access to test materials in order to ensure confidentiality and security. (pp.15-17)

7. Given the general prohibition against judicial regrading of examination, full disclosure would confer little or no administrative or litigational benefit on the examinee. (pp. 17-20)

8. To the extent that Martin v. Educational Testing Service suggests a requirement of full disclosure of civil-service examinations without regard to security and confidentiality concerns, it is overruled. (p. 20)

9. A candidate may be able to make a prima facie showing of arbitrariness or discrimination in grading that is so obvious and rises to such a high level that the full exam materials must be produced. (pp 20-24)

10. The supervisor's potentially erroneous statement that the Board would not consider new arguments was harmless and provides no basis for a reversal of the Board's denial of Brady's appeal.

Judgment of the Appellate Division is REVERSED.

JUSTICE STEIN filed a separate opinion, Dissenting in part and Concurring in part. Justice Stein did not disagree with the Court's determination that the Appellate Division erred in holding that all persons challenging their test scores must be provided with copies of the questions, their answers, and the grading standards. However, he believed that the Court's opinion tipped the balance too far toward the interests of confidentiality when it precluded disclosure of relevant test materials to the reviewing court and applicant, unless the applicant makes a prima facie showing that the test results are arbitrary. Rather, he believed that the Court could strike a more fair balance by requiring the DOP to furnish the reviewing court, in camera, with the complete materials to enable it to make a preliminary assessment of arbitrariness and determine whether further disclosure or other relief may be appropriate.

CHIEF JUSTICE PORITZ and JUSTICES POLLOCK, O'HERN, GARIBALDI and COLEMAN join in JUSTICE HANDLER's opinion. JUSTICE STEIN filed a separate opinion, Dissenting in part and Concurring in part.

The opinion of the Court was delivered by

HANDLER, J.

In this case, a municipal police sergeant, seeking to attain the rank of captain, took a State promotional civil-service examination. His examination score reduced his chances of promotion. The officer challenges the results of his examination, claiming that in order to determine the accuracy of his score, he must have complete access to his testing materials, including the actual exam questions and the standards used to grade his answers. He contends that without full discovery of the examination materials, he will not be able to obtain meaningful administrative and judicial review. The State allowed the officer only limited access to the materials. It based this limitation on the need to preserve the integrity of the civil-service examination process and the security and confidentiality of civil-service examinations, which it believed would be compromised by permitting full access to the materials.

I

In October 1992, plaintiff James Brady, who is currently a police sergeant in the Atlantic City Police Department, took a civil-service examination to attain the rank of captain. The examination is administered by the Department of Personnel ("DOP") and is designed to test a candidate's ability to respond to specific situations that may arise in the course of duty. It consists of two parts, a written component, known as the "in-basket" exercise, and an oral component based on a video exercise. Candidates first take the written portion, which lasts for three hours, and those who exceed a particular score then qualify to take the oral portion, although scoring highly enough on the written part to proceed to the oral part does not guarantee that the examinee has performed exceptionally on the written portion.

The written portion, consisting of ten questions, is designed to evaluate candidates based on nine behavioral characteristics or "dimensions." The dimensions include analysis, judgment, decisiveness, ability to delegate, community sensitivity, leadership, planning and organizational ability, management capability, and written-communication skills. These characteristics are not tested in isolation; instead, each of the ten questions tests multiple characteristics.

Although written answers respond to issues raised in the context of each of the ten questions, the actual grading of the written portion does not proceed question by question, but rather dimension by dimension, with each dimension receiving a score ranging from one (lowest) to five (highest). In assessing each dimension, graders compare examinee responses to a list of "possible courses of actions" ("PCAs"), crediting responses for the PCAs that examinees recognize and marking off for the PCAs that they miss.

The oral portion of the examination tests six categories: analytic ability, judgment, decisiveness, leadership ability, community sensitivity, and oral-communication skills. Like the written portion, the oral portion employs a grading system of one (lowest) to five (highest).

Once a candidate has taken both parts of the examination, he or she receives an overall score that ranks the examinee among all exam-takers. This ranking determines a candidate's relative eligibility for promotion.

Plaintiff performed sufficiently well on the written portion of the examination to proceed to the oral component, but his written score was not outstanding. *fn1 In contrast, he excelled on the oral portion. *fn2 His overall score, although passing, reflected his lackluster written performance, thus reducing his promotion opportunities.

Unhappy with his overall score and with his written score in particular, plaintiff appealed through the DOP's administrative channels. He was permitted, approximately one year after he had taken the test, to review a portion of his written test materials, including his answers, a very brief summary of each question, brief comments by the grader about the PCAs that plaintiff had missed, an Orientation Background Guide (which he previously had received), and an explanation of the scoring process. He also received an audio tape of the oral component of his examination.

Pursuant to its internal policy, however, the DOP placed significant limitations on plaintiff's ability to review the test materials. First, he received only one hour to review them, which was actually fifteen minutes longer than DOP guidelines provided. Second, he did not gain access to the actual test questions or the answer key containing all potential PCAs. Finally, he could not copy any of the materials, although he could take notes. Those restrictions apparently derive from the DOP's "Examination Review Policy for the Police Promotional Assessment Process," issued in Fall 1992, which allows examinees "to review their own responses to the examination (written/tape), the examination instructions and the scores they achieved ...


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