Brady v. Department of Personnel
| Decision Date | 22 May 1997 |
| Citation | 149 N.J. 244,693 A.2d 466 |
| Parties | James T. BRADY, Appellant-Respondent, v. DEPARTMENT OF PERSONNEL, Respondent-Appellant. |
| Court | New Jersey Supreme Court |
June K. Forrest, Senior Deputy Attorney General, argued the cause for appellant (Peter Verniero, Attorney General of New Jersey, attorney; Mary C. Jacobson, Assistant Attorney General, of counsel).
D. William Subin, Northfield, argued the cause for respondent (Mr. Subin, attorney; Mr. Subin and Steven P. Scheffler, on the briefs).
Paul L. Kleinbaum, Newark, argued the cause for amicus curiae New Jersey State Policemen's Benevolent Association (Zazzali, Zazzali, Fagella & Nowak, attorneys).
Dennis J. Alessi, Livingston, submitted a brief on behalf of amici curiae New Jersey State Firemen's Mutual Benevolent Association and Newark Firefighters Union (Fox and Fox, attorneys).
The opinion of the Court was delivered by
In this case, a municipal police sergeant, seeking to attain the rank of captain, took a State promotional civil-service examination. His examination score reduced his chances of promotion. The officer challenges the results of his examination, claiming that in order to determine the accuracy of his score, he must have complete access to his testing materials, including the actual exam questions and the standards used to grade his answers. He contends that without full discovery of the examination materials, he will not be able to obtain meaningful administrative and judicial review. The State allowed the officer only limited access to the materials. It based this limitation on the need to preserve the integrity of the civil-service examination process and the security and confidentiality of civil-service examinations, which it believed would be compromised by permitting full access to the materials.
In October 1992, plaintiff James Brady, who is currently a police sergeant in the Atlantic City Police Department, took a civil-service examination to attain the rank of captain. The examination is administered by the Department of Personnel ("DOP") and is designed to test a candidate's ability to respond to specific situations that may arise in the course of duty. It consists of two parts, a written component, known as the "in-basket" exercise, and an oral component based on a video exercise. Candidates first take the written portion, which lasts for three hours, and those who exceed a particular score then qualify to take the oral portion, although scoring highly enough on the written part to proceed to the oral part does not guarantee that the examinee has performed exceptionally on the written portion.
The written portion, consisting of ten questions, is designed to evaluate candidates based on nine behavioral characteristics or "dimensions." The dimensions include analysis, judgment, decisiveness, ability to delegate, community sensitivity, leadership, planning and organizational ability, management capability, and written-communication skills. These characteristics are not tested in isolation; instead, each of the ten questions tests multiple characteristics.
Although written answers respond to issues raised in the context of each of the ten questions, the actual grading of the written portion does not proceed question by question, but rather dimension by dimension, with each dimension receiving a score ranging from one (lowest) to five (highest). In assessing each dimension, graders compare examinee responses to a list of "possible courses of actions" ("PCAs"), crediting responses for the PCAs that examinees recognize and marking off for the PCAs that they miss.
The oral portion of the examination tests six categories: analytic ability, judgment, decisiveness, leadership ability, community sensitivity, and oral-communication skills. Like the written portion, the oral portion employs a grading system of one (lowest) to five (highest).
Once a candidate has taken both parts of the examination, he or she receives an overall score that ranks the examinee among all exam-takers. This ranking determines a candidate's relative eligibility for promotion.
Plaintiff performed sufficiently well on the written portion of the examination to proceed to the oral component, but his written score was not outstanding. 1 In contrast, he excelled on the oral portion. 2 His overall score, although passing, reflected his lackluster written performance, thus reducing his promotion opportunities.
Unhappy with his overall score and with his written score in particular, plaintiff appealed through the DOP's administrative channels. He was permitted, approximately one year after he had taken the test, to review a portion of his written test materials, including his answers, a very brief summary of each question, brief comments by the grader about the PCAs that plaintiff had missed, an Orientation Background Guide (which he previously had received), and an explanation of the scoring process. He also received an audio tape of the oral component of his examination.
Pursuant to its internal policy, however, the DOP placed significant limitations on plaintiff's ability to review the test materials. First, he received only one hour to review them, which was actually fifteen minutes longer than DOP guidelines provided. Second, he did not gain access to the actual test questions or the answer key containing all potential PCAs. Finally, he could not copy any of the materials, although he could take notes. Those restrictions apparently derive from the DOP's "Examination Review Policy for the Police Promotional Assessment Process," issued in Fall 1992, which allows examinees "to review their own responses to the examination (written/tape), the examination instructions and the scores they achieved on each dimension for each examination exercise, along with a brief descriptive statement of their performance on each dimension" and which provides for a forty-five-minute review period.
Based on his brief review of the limited materials, plaintiff wrote a letter to the DOP Selection Appeals Unit on September 13, 1993, in which he expressed his disagreement with his scores on several of the written dimensions and requested that the examination be regraded. Nine months later, Anita Mathes, a supervisor in the Selection Appeals Unit, replied by letter, dated May 31, 1994, with an analysis of plaintiff's score. In the analysis, she addressed the concerns that he had raised and broke down his score for each dimension. She also noted many of the PCAs that he had missed on the written component. Mathes then concluded In reply to your appeal of the scoring of your in-basket examination, a review of your in-basket dimension scores revealed that in each case, significant opportunities to demonstrate behaviors associated with specific dimensions were missed. As stated previously, these possible courses of action were generated by a panel of subject matter experts consisting of senior command personnel from police departments. After reviewing your responses in light of the guidelines and parameters established, we conclude that your assigned scores are accurate.
After expressing this conclusion, the letter informed plaintiff that he could appeal the decision to the Merit System Board ("the Board"). The letter, however, contained the caveat that Apparently relying on that advice, plaintiff appealed to the Board but did not advance any new arguments, including his belief that the supervisor erroneously had relied on information (i.e., the complete list of PCAs) to which plaintiff had not had access. The Board subsequently denied his appeal, noting that "Mr. Brady provides no arguments, submissions or issues in support of his appeal, but relies on proofs and arguments presented below" and concluding that because the supervisor had "addressed all arguments and contentions raised by appellant[,] ... [t]he present record fails to provide a basis to disturb [the Supervisor's] decision."
Plaintiff then appealed the Board's determination to the Appellate Division, which ordered production of all test materials, 289 N.J.Super. 557, 674 A.2d 616 (1996), concluding that "procedural fairness requires that a person who is entitled to appeal from the grade awarded him or her on a written civil service examination must be furnished with a copy of the questions and of his or her answers." Id. at 565, 674 A.2d 616. The court based its decision on the need of both a court reviewing and a party challenging an administrative determination to have access to the record upon which the agency has acted:
The limited disclosure afforded [plaintiff] was not sufficient to satisfy the due process requirement that all of the evidence on which an agency bases its decision must be revealed to the appellant. Without custody of the questions and answers, he was not in a position to obtain the advice of an attorney or of an expert on the subject matter of the examination. Without that advice and some reasonably complete explanation of the basis for the grader's evaluation of his answers, he is not able to intelligently dispute or acquiesce in the grade he was awarded.
The Appellate Division recognized that its "appellate duties [did] not include grading civil service examination questions," ibid., but nevertheless reasoned that
after we have accorded the utmost deference to the Department of Personnel and to its technical expertise, ... [we must] judge whether there is a reasonable basis for its determinations.... We cannot perform that review function without the questions, the answers, and some expert explanation to tell us in what respects the questions were well or poorly answered.
[Id. at 563-64, 674 A.2d 616.]
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