IN THE MATTER OF CLAUDIO TUNDO ENTRY LEVEL LAW ENFORCEMENT EXAMINATION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF CLAUDIO TUNDO,

ENTRY LEVEL LAW ENFORCEMENT

EXAMINATION (S9999M)

_________________________________________

November 27, 2013

Argued telephonically October 17, 2013 Decided

 

Before Judges Messano and Rothstadt.

 

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).

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 non-disclosure 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 non-disclosure 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 opportunity to conduct a limited review of his test materials.

I.

Our review of the Commission's final decision is limited. In keeping with well-settled principles of appellate review, we defer to State agencies in their expertise and exercise of their legislatively-delegated responsibilities, see In re Carter, 191 N.J. 474, 482-83 (2007) (citing Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)), and have shown such deference in reviewing previous decisions of the Commission, and its predecessor agencies, see, e.g., In re Sheriff's Officer, 226 N.J. Super. 17, 21-22 (App. Div. 1988) (affirming Department of Personnel's decision making certain titles eligible to take a promotional exam for sheriff's officer sergeant position, as part of its "uniquely administrative function," the implementation of which "was neither arbitrary, capricious, or unreasonable"). We must uphold an agency's determination if there is substantial, credible evidence in the record to support it, Greenwood, supra, 127 N.J. at 513, and we generally do not set aside such action absent "a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record," In re Herrmann, 192 N.J. 19, 27-28 (2007).

Therefore, we must defer to the Commission's expertise in the promulgation and administration of civil service examinations, including its responsibility for adopting measures to ensure the security of its examinations as required by the Civil Service Act (the "Act"). N.J.S.A. 11A:4-1(c) ("The commission shall provide for . . . [t]he security of the examination process and appropriate sanctions for a breach of security"). Accordingly, the Commission has promulgated regulations requiring the retention of examination records and materials, and limiting their availability for public inspection, N.J.A.C. 4A:4-2.16; and governing examinees' access to test materials, and granting the Commission discretion to determine the appropriate level of access "[i]n order to maintain the security of the examination process," N.J.A.C. 4A:4-6.4. This grant of power is in keeping with the Act's general policy of encouraging fairness in the State employee selection system. N.J.S.A. 11A:1-2(c).

In recognition of the Commission's authority over the administration and protection of civil service exams, courts will only interfere with the Commission's actions if there is a clear showing of abuse of discretion. Zicherman v. Dep't of Civil Serv., 40 N.J. 347, 351 (1963). An abusive action is one that is "arbitrary, capricious or unreasonable, or . . . lack[ing in] fair support in the evidence, or . . . violat[ive of] legislative policies expressed or implicit in the civil service act," Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963), or violative of State policy, In re Musick, 143 N.J. 206, 216 (1996). In determining whether the Commission s action is "abusive," the court must recognize its own limited authority and competence with respect to administrative matters, see Greenwood, supra, 127 N.J. at 513 ("Appellate courts must defer to an agency's expertise and superior knowledge of a particular field."), particularly with respect to civil service examinations:

The preparation and administration of civil service examinations is an administrative function delegated most liberally to the authorized examiners of the Department [of Civil Service] by the Legislature. The fulfillment of that function is a matter requiring special expertise, involving as it does the determination of what job knowledge, skills and abilities are necessary or desirable in a candidate for a particular position, and the highly technical problem of devising suitable examination questions which will demonstrate as accurately as possible whether an applicant possesses those requirements sufficiently to qualify for the position. In view of the above, the courts cannot intervene to nullify a civil service examination unless it is clearly shown that the Department has abused its discretion.

 

[Zicherman, supra, 40 N.J. at 350-51.]

 

It would therefore be inappropriate for a court to grant broad judicial review of examination results. Brady, supra, 149 N.J. at 258.

Nevertheless, however broad its powers may be, the Commission's discretion is not limitless. For example, we are not bound by its interpretation of the law, as we are to its determination of facts. Thus, questions of due process with respect to civil service procedures are well within the purview of the Court. Greenwood, supra, 127 N.J. at 513 ("Agencies . . . have no superior ability to resolve purely legal questions, and that a court is not bound by an agency's determination of a legal issue is well established."). Courts have invalidated agency scoring on a showing that the scoring process was arbitrary, see, e.g., Rox v. Dep't of Civil Serv., 141 N.J. Super. 463 (App. Div. 1976); and have reviewed a Commission's decision over alleged discriminatory practices, Kiss v. Dep't of Cmty Affairs, 171 N.J. Super. 193, 195 (App. Div. 1979); and upheld the limited disclosure of exam materials, in the interest of procedural fairness, Brady, supra, 149 N.J. at 262.

Applying the above standards, we hold that the Commission's policy of total non-disclosure of exam results and scoring in this case violated Tundo s due process rights and therefore constituted an arbitrary, capricious and unreasonable act, as the Commission's concerns over test security did not outweigh Tundo's right to at least a limited disclosure of the requested materials. See Brady v. Dep't of Pers., supra, 149 N.J. at 262 (holding that the Department of Personnel's provision for limited or partial access to exam materials struck a "reasonable balance" between its interest in test security and examinees' interest in review).

The subject examination is the Law Enforcement Aptitude Battery ("LEAB") and was developed by the private vendor EB Jacobs, LLC. ("EB"). The exam consists of three component parts all multiple choice to be answered within three hours: (1) the Ability Test, (2) the Work Styles Questionnaire, and (3) the Life Experience Survey. The exam is the product of a "job analysis" meant to identify the knowledge areas, skills, and abilities deemed most important to success within the targeted positions. As part of the analysis, EB gathered information through interviews, surveys, and observations of permanent employees' activities. The collected information was then used to identify the relevant knowledge, skills, and abilities, and then rate them in terms of importance. Questions on the LEAB therefore relate to those qualities deemed to be the most critical. Further, according to the Commission, "the LEAB ha[s] been validated by EB using appropriate psychometric concepts consistent with the federal EEOC Uniform Guidelines on Employee Selection Procedures." Thus, scores on the LEAB

[R]eflect[] the degree of overlap between the candidate's responses and a profile of individuals who have demonstrated success on the job as law enforcement officers. The higher the score on the LEAB, the closer the match between those results and those of individuals who tend to be successful in this type of job.

 

Answers to all three component parts are considered in a single, combined score. A very low score on any single component could result in low performance or failure of the entire LEAB examination even if the candidate received a moderate or high score on the other components.

Tundo's initial "Notification of Ineligibility" simply stated that he had failed due to a "below minimum rating in written part 1."2 However, the Commission later disclosed during this appeal that Tundo had specifically failed the Ability Test component. In keeping with its policy of total non-disclosure, the Commission did not provide passing points or furnish failing candidates with a breakdown of their component scores.3

The Commission expressed its reasoning for its non-disclosure policy in its July 12, 2012 Final Administrative Action ("Final Action") regarding Tundo's appeal:

Regarding examination review, candidates were not permitted to review the examination or the answer key. . . . Such a review cannot be permitted in order to maintain test security and ensure that the test could be used again. This examination was purchased from a vendor, who also scored the responses. Precluding test review is crucial under the special circumstances of this matter. The vendor has invested significant amounts of time and money in producing this test. If the test questions and answers become known to candidates, it will render the test useless. In view of the large number of appellants, there is a real risk that some of these individuals would share information about the test with other candidates, or would use such information themselves the next time the test is given.

 

In short, candidates could not review their scores, questions and/or answers, due to concerns over exam security, the re-use of test questions, and in light of the time and money invested in developing the exam.4

Similarly, in Brady, supra, the New Jersey Supreme Court reviewed a disclosure policy by the Department of Personnel ("Department") (a predecessor to the Civil Service Commission). Brady, supra, 149 N.J. 244. In that case too, an officer appealed his results from a promotional civil service examination, and requested permission to review his test materials. Id. at 251. But unlike in the instant matter, the policy challenged in Brady did not completely bar the officer s review of his test materials. Ibid. Rather, the officer was granted limited access to his materials. For example, he was given just one hour to review the materials but he could not review the actual test questions, or answer key. Also, he could not copy any of the materials, though he could take notes. Id. at 251. The Department's review policy was also justified by concerns over test security and costs. Id. at 255.

Accordingly, the Brady court weighed the Department's interests of security and costs against the officer's due process rights, and held that the limited disclosure policy struck "a reasonable balance between [the Department's] interest in the confidentiality of the examination process and [the officer's] interest in reviewing the grading of examinations." Id. at 262. The officer was thus "entitled to obtain only such evidence that reasonably may enable an examinee to assess the correctness of his or her answers and to demonstrate that the [Department's] grading of his or her examination constituted an abuse of discretion," Id. at 257; see Martin v. Educ. Testing Serv. Inc., 179 N.J. Super. 317, 326 (Ch. Div. 1981) ("[P]laintiff has a substantive right to be tested fairly and accurately, i.e., to see that the examinations are graded properly and that the . . . grading key is correct."). This is in keeping with the principle that due process requires an agency to disclose the evidence which forms the basis for its opinion, thereby allowing an aggrieved party to review, explain and/or rebut such evidence, see High Horizons Dev. Co. v. Dep't of Transport., 120 N.J. 40, 53 (1990) ("One of the core values of judicial review of administrative action is the furtherance of accountability.").

The "flipside" of the Brady court's holding was that policies of total non-disclosure were presumptively invalid:

If the [Department] were, in the name of confidentiality and security, to deny examinees all access to testing materials, such a decision almost surely would be arbitrary, capricious, or unreasonable because it would allow the [Department] to conduct the testing and grading process without any accountability and would foreclose any opportunity on the part of an examinee to demonstrate the unreasonableness or unfairness of his or her examination.

 

[Brady, supra, 149 N.J. at 262.]

The instant matter presents a near-identical situation to that in Brady, supra, as the Commission's concerns over test security and costs must be properly weighed against Tundo's due process rights. Its policy of total non-disclosure is therefore invalid, because it forecloses any opportunity by Tundo to support his appeal of his exam results.

Still, the limited review to which he is entitled must strike "a reasonable balance" between the Commission's security and cost concerns, and Tundo's interest in reviewing the grading of his exam. Thus, Tundo's review may be subject to any reasonable limitations (as determined by the Commission) which are necessary to secure the test's integrity, without preventing Tundo's access insofar as is required to ensure that his exam was graded properly. At minimum, this requires that Tundo be allowed to review the Ability Test component materials, including the questions, his answers, the correct answers, a brief summary of any graders' comments, and an explanation of the scoring process. For its part, the Commission may impose certain limitations on that review e.g., the Commission may limit the time in which examinees are allowed to review the materials; limit the disclosure of the actual test questions or answer key; and/or prohibit the copying of the materials, but permit examinees to take notes. Id. at 251.5

II.

Tundo further argues that the Commission s failure to provide him notice of a hearing date, or the consolidation of his matter, also violated his due process rights. After receiving his Notification of Ineligibility dated June 9, 2011, Tundo appealed his results by letter dated June 29, 2011. In the letter, Tundo cited his prior experience as a Correction Officer in Passaic County, and as a Police Officer in West Paterson, in addition to his successful performance on prior civil service examinations. Thereafter, the Commission's first and only responsive communication to his appeal was the decision itself its Final Action dated July 12, 2012.

The Final Action is captioned "In the Matter of Claudio Tundo, et al., Entry Level Law Enforcement Examination (S9999M)," and refers to three other individuals who appealed their scores on the Entry Level Law Enforcement Examination (S9999M). It also noted that the appellants failed the examination and that their appeals were consolidated due to common issues. It then provided general details about the LEAB's format, the scoring process, and the above-discussed non-disclosure policy for test materials. The Commission also addressed issues specific to individual examinees.

Underlying Tundo's arguments is the incorrect presumption that he was entitled to a hearing in the first place. He was not. In fact, there is no language in the Commission s final decision to suggest that a hearing, or any other formal proceeding, was even held. Under the Act, a hearing is not required unless expressly mandated by statute or regulation, or "where the Civil Service Commission finds that a material and controlling dispute of fact exists that can only be resolved by a hearing." N.J.A.C. 4A:2-1.1(d). If not mandated by the Act, a hearing may still be required when the agency's proposed action is of a quasi-judicial nature, as opposed to an action of a legislative or executive (sometimes called ministerial) nature. Jersey City v. Dep't of Civil Serv., 57 N.J. Super. 13, 45 (App. Div. 1959). Not every exercise of judgment or discretion is an exercise of judicial power; but a hearing is required "[w]here the administrative tribunal is under a duty to consider evidence and apply the law to the facts as found." Handlon v. Belleville, 4 N.J. 99, 105 (1950); see Pa. R.R. Co. v. N.J. State Aviation Comm'n, 2 N.J. 64, 70 (1949) ("The 'hearing' is the hearing of evidence and argument."). All other appeals are reviewed "on a written record." Ibid. For this reason, the Commission addresses appeals from examination results "on the written record or [by] such other proceeding as the [Commission] deems appropriate" in accordance with its regulations. N.J.A.C. 4A:4-6.4(e). As applied to the instant matter, the re-scoring or re-evaluation of exam results does not involve the application of law to facts, and therefore does not require a hearing. Therefore Tundo was not entitled to a hearing or, as it follows, notice of a hearing.

As to the consolidation of Tundo's matter with other examinees' appeals, we note again the Commission's broad discretionary authority over civil service employee selection: the Commission "[s]hall establish and supervise the selection process and employee performance evaluation procedures," and "[s]hall set standards and procedures for review" under the Act. N.J.S.A. 11A:2-11(f), (h). Thus, pursuant to its regulations, the Commission "shall decide any appeal on the written record or such other proceeding as the [Commission] deems appropriate." N.J.A.C. 4A:4-6.4. Accordingly, we again review the Commission's actions as to the consolidation for abuse of discretion. See Flanagan v. Dep't of Civil Serv., 29 N.J. 1, 9 (1959) ("In the field of civil service employment, administrative agents who are authorized to make decisions of this type are invested with a broad discretion and the courts will not interfere with their actions unless they are clearly arbitrary and unreasonable.").

In the instant matter, the Commission's Final Action provides, "These appeals have been consolidated due to common issues." But the Commission's Final Action is not in any sense a "consolidation" of claims as a practical matter, it is impossible to consider the grading of individual examinations as a collective whole. Rather, the examinees' appeals were consolidated in form, not in substance: the Final Action provides general details about the LEAB, while addressing specific issues pertaining to individual examinees.

Thus, pursuant to its discretionary powers under N.J.A.C. 4A:4-6.4, the Commission simply chose to render its decision on multiple claims in a single writing. In so doing, they did not deprive Tundo of a fair opportunity to present his arguments, as would implicate the required notice under due process. Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950) ("An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections."). Therefore, the Commission's lack of notice for "consolidation" was neither arbitrary, unreasonable, nor capricious.

III.

In sum, the Commission s denial of Tundo's appeal is vacated. The Commission is to provide Tundo with a limited review of the "Ability Test" component materials under circumstances and conditions it deems reasonable and necessary, as well as consistent with our opinion. Tundo may then supplement his appeal with any new information garnered from his review of the test materials. The Commission shall then re-consider his appeal, after considering Tundo's additional submissions, if any.

Reversed and remanded. We do not retain jurisdiction of this matter.

 

 

1 The three other examinees have not filed an appeal to this court from the Commission s final determination.

2 In its July 12, 2012 Final Action, the Commission explained that "below minimum rating in written part 1" is an automated response "for any candidate who fails a written multiple-choice examination." Therefore, it does not refer to any particular portion of the exam.

3 EB is responsible for grading the examinations. To ensure reliability, grade sheets are electronically scanned twice. If the scanner flags a sheet for having a multiple or missing response (typically the result of an erasure or lightly-colored response), the individual sheet is hand-scored by EB Jacobs staff. EB then chooses a sample of answer sheets to hand-score, to better ensure accuracy.

4 There are no facts in the record to support the Commission's assertions.

5 Tundo's limited review is restricted to the Ability Test component of the exam, which was designed to test for those cognitive abilities deemed most important to the success of an entry-level law enforcement officer: specifically, written expression, written comprehension, problem sensitivity, deductive reasoning, inductive reasoning, and information ordering. The Ability Test has objectively right or wrong answers. In contrast, the remaining two components the Work Styles Questionnaire and the Life Experience Survey require subjective, experience of opinion-based responses, and have no right or wrong answers. There is no meaningful distinction between the Ability Test component challenged herein, and that of the subject exam in Brady, supra, 149 N.J. at 249-50.