On appeal from a Final Decision of the Merit System Board, 2006-3120.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 10, 2007
Before Judges Lintner and Parrillo.
Petitioner, Todd Healy, an employee of the Clifton Fire Department, appeals from two final decisions of the Merit System Board (the Board), the first rendered on July 28, 2005, and the second on May 11, 2006. In its first decision, the Board denied petitioner's challenge to the administration of a written multiple-choice portion of an examination for Fire Lieutenant taken by petitioner on November 30, 2004. In its second decision, the Board rejected petitioner's claim that the scoring of his oral examination, taken in January 2006, was inaccurate, thus adversely affecting his ranking with other candidates that achieved passing scores on the exam. In yet a third opinion, the Board, on May 19, 2006, determined that petitioner's attempt through counsel to reargue his claim respecting the administration of the written portion of the examination was untimely.
Petitioner raises the following points:
THIS MERIT BOARD ERRED IN THAT THE TEST CONDITIONS WERE ADVERSE AND UNREASONABLE TO APPELLANT.
THE MERIT BOARD ERRED AS APPELLANT WAS NOT GIVEN CREDIT IN HIS ORAL PRESENTATION.
The General Examination Orientation Guide provided to examination candidates prior to the written examination indicated that they "should bring their Notification Card, two forms of identification, two pencils, two pens and a highlighter with them to the examination center." Petitioner took the written examination in Room D at Paramus Catholic High School. The test monitor would not allow the individuals in Room D to use a highlighter. In a letter dated December 3, 2005, asserting that he had recently learned that candidates in the other rooms were allowed to use highlighters, petitioner claimed that the administration of the written examination was unfair.
Denying petitioner's appeal, the Board found the failure to permit use of a highlighter did not disadvantage the candidates taking the test in Room D. In reaching its decision, the Board reviewed the examination booklet and found that "the questions could all be answered without marking in the test booklet, i.e., there were no unique questions which would disadvantage a candidate without a highlighter (such as a chart or calendar, math questions, or a subtest requiring extensive analysis of data)." In addition to finding that "the questions could all be answered without marking in the test booklet," the Board noted that "although highlighters were prohibited, other highlighting methods, such as underlining, could have been used."
The Board also reviewed a statistical comparison between the groups of candidates who used highlighters and those prohibited from using highlighters and concluded "that there was no significant difference between the exam scores for candidates in Room D at the Paramus test center and all other candidates." In its July 28, 2005, order denying petitioner's appeal, the Board wrote: "This is the final administrative determination in this matter. Any further review should be pursued in a judicial forum." Petitioner did not file a motion for reconsideration or a notice of appeal with the Appellate Division.
Petitioner passed the oral examination with a final score of 89.010, giving him a ranking of fifteenth on the eligibility list. Following a review by him of his oral examination on January 30, 2006, petitioner filed an appeal asserting "he was penalized for not covering information that was, in fact, addressed by him during his oral presentation." He claimed that, contrary to his examination score, he completely covered the elimination of ...