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In re Tundo

Superior Court of New Jersey, Appellate Division

November 27, 2013

IN THE MATTER OF CLAUDIO TUNDO, ENTRY LEVEL LAW ENFORCEMENT EXAMINATION (S9999M)

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued telephonically October 17, 2013.

On appeal from the Civil Service Commission, Docket Nos. 2012-0037.

Ryan Lockman argued the cause for appellant Claudio Tundo (Mark B. Frost & Associates, attorneys; Mr. Lockman, on the brief).

Todd A. Wigder, Deputy Attorney General, argued the cause for respondent Civil Service Commission (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Wigder, on the brief).

Before Judges Messano and Rothstadt.

PER CURIAM.

Claudio Tundo is a former Passaic County Corrections Officer and West Paterson (n/k/a Woodland Park) Police Officer. On December 4, 2010, he took the Entry Level Law Enforcement Examination, administered by the New Jersey Civil Service Commission ("Commission"). The exam is meant to determine suitable candidates for the Commission's S9999M eligibility list for law enforcement positions in New Jersey. After taking the exam, all passing candidates are placed in an eligible pool, and their names provided to an appointing authority of a specific jurisdiction or agency for use in its hiring process.

Accordingly, all non-passing candidates are deemed ineligible, though they have the right to appeal their results and, of course, to take the exam again.

The Commission notified Tundo that he failed the exam, and he appealed its determination and asked to review the questions and his alleged incorrect answers. The Commission denied his request for review, in keeping with its blanket policy of nondisclosure of test materials, due to concerns over test security. It also affirmed his test's results, without a hearing, rendering its decision in a single writing, which collectively addressed the appeals of Tundo and three other examinees.[1] Tundo now challenges the Commission's policy of total nondisclosure as a violation of due process.

Tundo also argues that the Commission's decision affirming his results should be reversed because he was not informed of a hearing date, or that his matter had been consolidated with claims brought by others similarly situated.

The Commission argues that its policy against disclosure of test materials does not violate due process but is justified by exceptional security concerns. According to the Commission, because test questions are often re-used, there is a real risk that past examinees would share their knowledge of the exam with future test-takers. Moreover, the Commission and the test's developer invested a significant amount of time and money into the development of the exam. As such, granting full access to the test would impair the Commission's ability to contract with private testing firms in the future because of those companies' concerns about the unauthorized release of their work product. We agree with Tundo that the Commission's blanket refusal to allow him to examine his test results and related materials constituted a violation of his due process rights. As such, the Commissions actions were arbitrary, capricious and unreasonable. See Brady v. Dep't of Pers., 149 N.J. 244, 262 (1997). For that reason we reverse the Commission's determination and direct that it permit Tundo a limited review of his test materials prior to re-filing his appeal from his alleged failure of the subject examination.

We find no merit to Tundo's other arguments, and we leave to the Commission's discretion as to whether Tundo is entitled to a hearing when the Commission reconsiders his appeal, after he has had an ...


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