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In the Matter of Joseph Rigano

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 10, 2012

IN THE MATTER OF JOSEPH RIGANO, FIRE FIGHTER (M9999M).

On appeal from the Civil Service Commission, CSC Docket No. 2011-169.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 9, 2012

Before Judges Alvarez and Grall.

Joseph Rigano, an applicant for an entry-level firefighter position, appeals from a final decision of the Civil Service Commission denying his request for an accommodation of his learning disability on one portion of the test for firefighter. He acknowledges that he was afforded an accommodation, additional time, on another segment of the test.

The component of the test at issue is known as the FireTEAM video test. The video depicts separate "realistic" scenarios "related to working with people" in "vivid detail," and it is shown to the entire group taking the test. After each scenario, a narrator reads questions and the multiple possible answers from which the applicant must select the one that is "the best course of action" in the situation. The applicants are given ten seconds to select each answer.

Prior to the test date, applicants are given materials explaining the FireTEAM test along with access to a practice test, which they may take at home. In those materials, applicants are advised that they will be expected to "use common sense and make quick judgments about how to handle various situations related to working with people." The purpose of the test is explained as follows:

On the job, you will have to make many important decisions on a daily basis. No two situations you face will be the same. You will have to decide what you want to achieve. You will have to weigh the pros and cons of various things that you could do.

On appeal Rigano presents these issues:

I. THE COMMISSION ACTED IN AN ARBITRARY, CAPRICIOUS, AND UNREASONABLE MANNER BY DENYING PETITIONER JOSEPH RIGANO'S APPLICATION FOR INTERIM RELIEF AND APPEAL.

A. THE COMMISSION'S DECISION TO DENY PETITIONER RIGANO A REASONABLE ACCOMMODATION UNDER THE AMERICAN WITH DISABILITIES ACT FOR THE VIDEO TEAMWORK PORTION OF THE FIREFIGHTER EXAMINATION WAS ARBITRARY, UNREASONABLE AND CAPRICIOUS.

B. THE COMMISSION ACTED IN AN ARBITRARY, CAPRICIOUS, AND UNREASONABLE MANNER BY DENYING PETITIONER JOSEPH RIGANO A WAIVER FOR THE VIDEO TEAMWORK PORTION OF THE FIREFIGHTER EXAMINATION.

Our constitution recognizes that effective public service depends on employees "selected on the basis of proper standards and qualifications[.]" Falcey v. Civil Serv. Comm'n, 16 N.J. 117, 122 (1954); N.J. Const. art. VII, § 1, ¶ 2. To that end, the Legislature has given the Department of Personnel and the Civil Service Commission responsibility "to implement the most effective and efficient procedure to assure public hiring and promotion based on merit." Brady v. Dep't of Pers., 149 N.J. 244, 259 (1997). "'Courts have only a limited role to play'" in connection with this selection process, and "'intervene only in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or other state policy.'" Id. at 256 (quoting In re Musick, 143 N.J. 206, 216 (1996)).

For example, our courts have intervened where the civil service system has been administered in a manner that unlawfully discriminates or violates laws that protect against such discrimination. Terry v. Mercer Cnty. Bd. of Chosen Freeholders, 86 N.J. 141, 150-52 (1981). Consistent with the agency's obligation to administer the civil service system in conformity with laws requiring reasonable accommodation, a regulation permits granting a waiver of a portion of a test to a person with a "disability which makes it physically or psychologically not practicable to undergo the testing procedure for a particular title, but does not prevent satisfactory performance of the title's responsibilities under conditions of actual service." N.J.A.C. 4A:4-2.14(b).

In essence, Rigano urges us to substitute our judgment for that of the Commission on the importance of the FireTEAM test's time limitation to measuring the skills a firefighter needs. There are many reasons why our courts take a limited and deferential approach when reviewing such determinations. One is our recognition that development and administration of an appropriate test requires special expertise and knowledge about public service jobs and the skills they require, as well as technical knowledge necessary to "devis[e] suitable examination questions which will demonstrate as accurately as possible whether an applicant possesses those requirements sufficiently to qualify for the position." Zicherman v. Dep't of Civil Serv., 40 N.J. 347, 350-51 (1963); see Brady, supra, 149 N.J. at 257 (quoting Zicherman).

Based on our review of the record and the Commission's final decision, we conclude that none of Rigano's arguments have sufficient merit to warrant discussion in a written opinion.

R. 2:11-3(e)(1)(E). We affirm substantially for the reasons stated in the Commission's final decision on Rigano's examination appeal, which was issued on September 20, 2010.

Affirmed.

20120210

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