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In re Police Sergeant (PM3776V) City of Paterson

April 16, 2003

IN THE MATTER OF POLICE SERGEANT (PM3776V) CITY OF PATERSON.


On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

This appeal involves a civil service examination administered by the Department of Personnel (DOP) for promotional consideration for nine sergeant positions in the City of Paterson Police Department. The Court considers whether the DOP's practice of administering identical exams to original and make-up candidates in the same testing cycle is a per se violation of a candidate's state constitutional right to a fair and competitive civil service examination. The Court further considers whether the make-up exams, as administered, violate the State Constitution when there is evidence that unknown persons disseminated test questions and answers throughout the Paterson Police Department immediately following the original exam and before the make-up exam, but no evidence that any make-up candidates had advance knowledge of the test's content.

In October 1997, the DOP administered a statewide civil service promotional exam for the position of police sergeant. A total of 182 candidates from the City of Paterson Police Department took the exam. One hundred thirty- five of those candidates were successful. Petitioners, consisting of numerous candidates for the position, claimed that immediately following the exam, candidates congregated outside of the testing area and discussed the content of the exam with one another. In addition, there was evidence that questions appearing on the exam, along with answers to them, were later typed out by some of the candidates who sat for the exam and distributed them within the police department. Furthermo re, petitioners claimed that various unidentified members of the police department discussed the October exam, making its content "common knowledge" throughout the Department prior to the administration of any make-up exams.

Shortly after the exam, petitioners filed a petition with the DOP requesting that it prohibit any candidate from taking a make-up exam for the October 1997 test, claiming that they had been disadvantaged by the dissemination of information contained on the exam. In support of their request, petitioners provided the DOP with copies of a substantial portion of the questions and answers from the October 1997 exam as proof that exam security had been breached. The make-up exam nevertheless was administered to three candidates on different occasions after the candidates signed a "Security Pledge" certifying that they had no knowledge of the contents of the original exam.

In total, eight officers in the Paterson Police Department were promoted to sergeant: five out of the 135 candidates who passed the original exam and three out of the three candidates who took a make-up exam. In July 1998, petitioners filed a petition with the DOP and the Merit System Board (Board) asserting that the DOP's practice of administering identical exams to original and make-up candidates violated their right to a fair and competitive civil service examination under the New Jersey Constitution. Petitioners also sought the removal of two of the three successful make-up candidates (Durkin and Catania), alleging that they had advance knowledge of the exam's content. Again, petitioners provided copies of questions and answers to the October 1997 exam, which they found at roll call in the Paterson Police Department shortly after the original exam but before the make-up exams.

The Board rejected the petitioners' constitutional challenges to the DOP's practice of administering identical exams to original and make-up candidates. Rather, the Board viewed the practice as the only mechanism it had to provide candidates with a fair and competitive examination and to provide the statistically valid means to compare the performance of the original candidates and the make-up candidates fairly and accurately. The Board referred the petitioners' specific allegations against Durkin and Catania to the Office of Administrative Law for a hearing to determine whether they had knowledge of the exam's content prior to their make-up exams.

In July 2000, an administrative law judge granted Catania's and Durkin's motion for summary judgment, concluding that there was no evidence that they had advance knowledge of the contents of the exam. Petitioners appealed the ALJ's decision, and the Board affirmed in October 2000.

In an unreported per curiam opinion, the Appellate Division affirmed the Board's decision, rejecting petitioners' general challenge to the DOP's practice of using identical questions on original and make-up exams and affirming the Board's finding that there was no evidence to support the conclusion that the exam, as held, was unfair.

The Supreme Court granted the petitioners' petition for certification.

HELD: Although the Department of Personnel's practice of administering identical exams to original and make-up candidates in the same testing cycle was not a per se violation of a candidate's constitutional right to a fair and competitive civil service examination, in light of the undisputed evidence of a breach in security following the original exam but before the administration of the make-up exam and the DOP's failure to make adjustments to the make-up exams to address that breach, the make-up exams as administered in Paterson, violated the New Jersey State Constitution.

1. The New Jersey Constitution and the New Jersey Civil Service Act require appointments and promotions in the civil service of the State to be based on considerations of merit and relative knowledge, skill, and ability. To implement those constitutional and statutory requirements, the Legislature has vested the DOP, the Board, and the DOP Commissioner with broad power to devise a fair, secure, merit-based testing process by which candidates are selected for employment and promotion. Among other things, the Commissioner must provide for the security of the examination process and appropriate sanctions for breach of security. (pp. 9-10)

2. In the past, the Court has sanctioned the DOP's practice of reusing a substantial number of exam questions from test to test, in identical or similar form, recognizing that the DOP's decision to reuse exam questions was clearly within the range of responsibilities that the Legislature has delegated to the DOP to implement the most effective and efficient procedure to assure public hiring and promotion based on merit. (pp. 10-12)

3. Noting its limited role in reviewing the DOP's administration of the civil-service system and its determination regarding civil-service testing processes, the Court declines to bar outright the DOP's practice of administering identical exams in the same testing cycle. (pp. 12-14)

4. To effectuate the goal of devising a fair, secure, merit-based testing process by which candidates are selected for employment and promotion, the DOP Commissioner must provide for the security of the examination process and appropriate sanctions for breach of security. To that end, the Board specifically prohibits copying, recording, or transcribing any examination question or answer, and/or the removal from any exam room of any question sheet, answer sheet, notes, or other papers or materials related to the content of an examination. (pp. 15-18)

5. Other jurisdictions also have recognized the importance of a fair, secure, and competitive civil service examination process. (pp. 18-19)

6. Although there is no evidence indicating that any of the three make-up candidates had access to exam materials prior to sitting for their make-up exams, it is undisputed that exam security was breached prior to the administration of the make-up exams. Once the DOP discovered that breach in exam security, the make-up exams should have been cancelled and an appropriate remedy fashioned to ensure all candidates a fair and competitive exam. Its failure to do so undermined the integrity of the examination process and impaired the candidates' ability to demonstrate their relative merit and fitness. Thus, the make-up exams, as administered in Paterson, violated article VII, section 1, paragraph 2 of the State Constitution. (pp. 19-20)

7. Although security can and must be improved, it may be that no procedural safeguards can prevent the type of irregularities that occurred in this appeal, where identical exams were given to both original and make-up candidates. Therefore, going forward, the DOP and the Board should administer make-up exams that contain substantially different or entirely different questions from those used in the original examination. Moreover, exam participants must honor their legal and ethical obligations. (pp. 21-23)

8. Since the Court is voiding the results of the make-up exam and thereby prohibiting any permanent appointments to police sergeant from those candidates who sat for the make-up exams, three police sergeant positions, currently held by Officers Catania, Durkin, and Mejia, are open. Until a new annual exam is given, the Court leaves to the discretion of the DOP the question of who, if anyone, should fill the open sergeant positions, as well as the procedures for those appointments. This remedy is confined to the October 1997 sergeant's exam administered to the members of the Paterson Police Department. (pp. 23-24)

Judgment of the Appellate Division is AFFIRMED in part in respect of its holding that identical exams for original and make-up candidates is not per se unconstitutional, REVERSED in part in respect of its holding that the make-up exams as administered were fair and competitive, and REMANDED for appropriate relief consistent with the Court's decision.

CHIEF JUSTICE PORITZ and JUSTICES COLEMAN, LONG, VERNIERO, LaVECCHIA, and ALBIN join in JUSTICE ZAZZALI's opinion.

The opinion of the court was delivered by: Zazzali, J.

Argued February 3, 2003

This appeal involves a civil service examination administered by the New Jersey Department of Personnel (DOP) for promotional consideration for nine sergeant positions in the City of Paterson Police Department. We must determine whether the DOP's practice of administering identical exams to original and make-up candidates in the same testing cycle is a per se violation of a candidate's right to a fair and competitive civil service examination under article VII, section 1, paragraph 2 of the New Jersey Constitution. We also must determine whether the make-up exams as administered violate the State Constitution when there is evidence that unknown persons disseminated test questions and answers throughout the Paterson Police Department immediately following the original exam and before the make-up exams, but no evidence that any make-up candidates had advance knowledge of the test's content.

The DOP, an administrative law judge and the Merit System Board (Board) each concluded that the make-up exams as conducted did not violate the State Constitution. The Appellate Division affirmed. It also held that the DOP's practice of administering identical exams to original and make-up candidates in the same testing cycle is not per se unconstitutional.

Although we have serious reservations regarding the DOP's practice of administering identical exams to original and make- up candidates in the same testing cycle, we agree with the Appellate Division that that practice is not per se unconstitutional. We disagree, however, with the Appellate Division's finding that the make-up exams as administered did not violate petitioners' right to a fair and competitive examination under our State Constitution. Allowing candidates to take a make-up exam, despite direct evidence that virtually all of the questions from the original exam had been disseminated throughout the police department, undermined the integrity of the examination ...


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