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In re Healy


September 20, 2007


On appeal from a Final Decision of the Merit System Board, 2006-3120.

Per curiam.


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:





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 ignition sources on the Evolving Scenario, and the direction of units approaching from the south in the Arrival Scenario.

In a letter from counsel dated February 16, 2006, petitioner claimed that the written multiple choice examination was administered unfairly because petitioner "was taught by an 'approved school' to use the highlighter as part of [the] process" and the "monitor[] did not follow the required procedures." Counsel also questioned the validity of the statistical data by asking:

What data was actually reviewed and by who? Were these organizational and industrial psychologists who reviewed this data? What would be the determining factor that led them to the conclusion that there were no significant differences in the scores of those who used a highlighter versus those who did not? Was this data reviewed by experts in the field and if so, who and what was the process?

Counsel also reprised petitioner's claim that he was penalized in the oral examination for not covering material that he, in fact, did cover in his presentation. He claimed that a review of the videotape of petitioner's oral examination would validate petitioner's position. Regarding the written examination, petitioner sought re-testing with the use of a highlighter or the addition of a statistical increase in score. Concerning the oral test, petitioner requested a review of the videotape "for the inconsistencies conveyed [t]herein."

On May 11, 2006, the Board rendered its decision. It noted that the oral responses of a candidate are viewed by two Subject Matter Experts (SMEs) who are persons currently holding the title of Fire Lieutenant or higher. If the two SMEs differ in their scoring by one point, they are required to confer with each other until there is an agreement. The Board noted that in the Evolving Scenario petitioner scored a minimal passing score of three for the technical component and a maximum passing score of five for the oral communication component. In the Arrival Scenario, petitioner scored fives on both components.

Reviewing the videotape, the Board indicated that although petitioner's responses covered the mandatory areas required to eliminate all ignition sources, thus qualifying for a score of 3, he did not specifically indicate the mandatory response that he would eliminate all ignition sources and credit is not given for information that is implied or assumed. It also found from its review that, although not mandatory, the directing of responding firefighters to approach from the south is an additional expected action and because petitioner "did not state this action in his response, and he cannot receive credit for implying it." The Board concluded that his score of 3 was correct.

In its decision of May 19, the Board rejected petitioner's attempt to reargue its prior decision regarding the written examination, noting that both the 45-day appeal and 30-day extension period had run. Citing In re Hill, 241 N.J. Super. 367 (App. Div. 1990), the Board also noted the same time constraints for seeking reconsideration of its opinion had also run.

Claiming that the Board's decision that all the questions could be answered without marking the test "is purely [an] uncorroborated opinion" and the Board's review of the statistical "data is not sufficient in terms of explanation," petitioner asserts that the written examination "was manifestly corrupt, arbitrary, capricious, or conspicuously unreasonable." He maintains that the Board failed to offer proof that the non- use of a highlighter would not adversely affect petitioner's score. Petitioner also claims he was unaware of the appeal time. Petitioner maintains that a review of the videotape would fully vindicate his position, by indicating that he covered the areas comprising all the ignition sources as well as the necessity to approach from the south. It is noteworthy that petitioner does not indicate that he actually stated that it was necessary to eliminate all ignition sources or approach from the south.

The Board argues that the examination instructions cautioned candidates (1) to "be as specific as possible," (2) not to "assume or take for granted that general actions will contribute to your score" and (3) that "credit is not given for information that is implied or assumed." At oral argument on appeal, the State pointed out, in response to our question, that it is necessary to provide a specific response, even though an action is generally covered by a candidate's response, because commands must be given in succinct language.

We are satisfied from our review of the record that petitioner's legal and factual contentions are devoid of merit and do not warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E). Nevertheless, we add the following brief comments.

The general principles are well settled. An appellate court must accord a strong presumption of reasonableness to the decision of an administrative agency. Smith v. Ricci, 89 N.J. 514, 525 (1982); City of Newark v. Natural Res. Council, Dept. of Envtl. Prot., 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S.Ct. 400, 66 L.Ed. 2d 245 (1980). Determinations of the administrative agencies must be given great deference. In re Distrib. of Liquid Assets, 116 N.J. 1, 10-11 (2001). While courts are not to act simply as a rubber stamp of an agency's decision, such a decision should only be reversed when "arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); Marro v. Dep't of Civil Serv., 57 N.J. Super. 335, 346 (App. Div. 1959).

The burden is on the petitioner, not the Board, when challenging the administration and scoring of examinations. See N.J.A.C. 4A:6.3(b). When reviewing examinations, the Board "shall decide any appeal on the written record or such other proceeding as the Board deems appropriate." N.J.A.C. 4A:4-6.4(f). "'[T]he judiciary is not disposed . . . to exercise an appellate review of the scoring of the answers. . . .'" Brady v. Dep't of Pers., 149 N.J. 244, 257 (1997) (quoting Artaserse v. Dep't of Civil Serv., 37 N.J. Super. 98, 105 (App. Div. 1955)). Our "courts will defer to an agency's grading of a civil-service examination except in the most exceptional of circumstances that disclose a clear abuse of discretion." Id. at 258. We do not "routinely review the contents of civil service examinations . . . [to] determine whether the questions were 'well or poorly answered.'" Ibid (quoting Lavash v. Kountze, 604 F.2d 103, 105 (1st Cir. 1979)). We "may conduct only a limited review of the reasonableness of a grading system and determine simply whether the testing and grading were clearly arbitrary." Ibid.

Applying these principles, we are satisfied that the Board's decision was not arbitrary, capricious, or unreasonable. Petitioner failed to meet his burden to establish a prima facie case that there was a clear abuse of discretion in the scoring of his examination. In reaching its decision, the Board reviewed the videotape as requested and made its findings. Petitioner has not presented a prima facie showing that the examination process was arbitrary and such a clear abuse of process to support a review of the videotape so as to second-guess the Board's decision regarding his grade on the oral examination. See Brady, supra, 149 N.J. at 265.

Moreover, petitioner's attempt to have the Board reconsider its prior decision regarding the written examination was simply out of time. In its July 28 order the Board expressly advised that its decision was final and any further action would require judicial review. "A reconsideration motion cannot resurrect an appeal that is already time-barred." In re Hill, supra, 241 N.J. Super. at 371. Petitioner has failed to meet that standard. Moreover, where an issue is not briefed beyond conclusory statements by the brief writer, we will not consider it. Miller v. Reis, 189 N.J. Super. 437, 441 (App. Div. 1983). Beyond that, the Board's reasoning and conclusions, based in part on a review of statistical data, were beyond reproach.



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