SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5187-16T2

IN THE MATTER OF ERIC GRACE,

FIRE CAPTAIN (PM0457U),

MARGATE.

________________________________

Submitted May 21, 2019 – Decided July 5, 2019

Before Judges Rothstadt and Gilson.

On appeal from the New Jersey Civil Service 

Commission, Docket Nos. 2017-2823 and 2018-0259.

Levin Weinstock Levin, attorneys for appellant Eric 

Grace (Oded M. Weinstock, of counsel and on the 

brief).

Gurbir S. Grewal, Attorney General, attorney for 

respondent Civil Service Commission (Melissa Dutton 

Schaffer, Assistant Attorney General, of counsel; 

Debra A. Allen, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Eric Grace appeals from a June 26, 2017 final administrative 

agency decision of the Civil Service Commission (Commission), which denied 

his appeal of certain scores he had received on an examination for the position 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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of second-level fire captain. In its decision, the Commission also reduced 

appellant's scores on two portions of the oral examination, resulting in him 

failing the test. Appellant also appeals from an April 2, 2018 decision denying 

his petition for reconsideration. Appellant contends that he was entitled to an 

evidentiary hearing in the Office of Administrative Law (OAL) and that the

Commission's decision was arbitrary and capricious. We disagree and affirm.

I.

We discern the facts and procedural history from the administrative 

record. On May 19, 2016, appellant took an examination for the position of 

second-level fire captain. The examination consisted of two parts: a written 

multiple-choice test and an oral examination. The oral examination was divided 

into three exercises: (1) a fire scenario simulation measuring a candidate's 

ability to assess risk factors and implement strategies in fireground command 

(Evolving Scenario); (2) a simulation evaluating a candidate's ability to 

implement and administrate programs (Administration Scenario); and (3) a fire 

scenario simulation assessing a candidate's ability to recognize risk factors and 

implement strategies when a potentially hazardous material is involved (Arrival 

Scenario).
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Candidates' responses to the three scenarios were scored based on their 

technical knowledge and oral communication abilities. The scoring was 

conducted on a five-point scale, with five as the optimal response, four as a more 

than acceptable passing response, three as a minimally acceptable passing 

response, two as a less than acceptable response, and one as a much less than 

acceptable response. To pass the oral examination, a candidate had to achieve 

a minimum average score of two-and-one-half on both technical knowledge and 

oral communication ability, and a technical knowledge score of three or higher 

on at least two of the exercises.

The same three panels scored each candidate who took the examination. 

Each panel consisted of two individuals: a fire service officer, who held or had 

held the title of second-level fire supervisor or higher, and an oral assessor, who 

was trained in scoring oral communication abilities. The panels rated a 

candidate's overall performance on each exercise, and assigned the candidate a 

score for technical knowledge and a score for oral communication ability. 

Thereafter, the Commission converted the raw scores into standardized scores.

Appellant received an overall examination score of 89.07 and ranked 

second on the eligibility list for the second-level fire captain position. On the 

oral examination, appellant earned the following raw scores: Evolving 
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Scenario: four for technical knowledge and one for oral communication ability; 

Administration Scenario: five for technical knowledge and four for oral 

communication ability; and Arrival Scenario: five for technical knowledge and 

three for oral communication ability.

Appellant filed an appeal with the Commission challenging his 

examination scores. Specifically, he challenged his technical knowledge score 

for the Evolving Scenario, and his oral communication ability scores for all three 

scenarios.

After reviewing appellant's test materials, including audio and video 

recordings of his oral presentations, the Commission issued a June 26, 2017 final 

administrative agency decision denying the appeal. On the Evolving Scenario, 

the Commission concluded appellant's scores of four for technical knowledge 

and one for oral communication ability were correct. On the oral 

communication ability scores for the Administration and Arrival Scenarios, the 

Commission determined appellant deserved lower scores than originally 

awarded and reduced his score on the Administration Scenario from four to three 

and his score on the Arrival Scenario from three to two. Consequently, 

appellant's average raw score fell below the required two-and-one-half and he 

was deemed to have failed the test.
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In a letter dated July 24, 2017, appellant requested the Commission to 

reconsider its June 26, 2017 decision. Specifically, appellant requested that the 

Commission either reinstate his original scores and eligibility for the secondlevel fire captain position, or forward the matter to the OAL for a hearing.

On August 3, 2017, before the Commission acted on the request for 

reconsideration, appellant filed a notice of appeal with us. Thereafter, the 

parties agreed to a remand to allow the Commission to consider appellant's 

petition for reconsideration. Accordingly, we remanded the matter to the 

Commission for reconsideration of its June 26, 2017 decision, but we also 

retained jurisdiction.

On April 2, 2018, the Commission issued its new final administrative 

agency decision, which denied appellant's request for reconsideration. 

Appellant now appeals from both the June 26, 2017 and April 2, 2018 decisions 

of the Commission.

II.

Appellant raises two issues on this appeal. First, he argues the 

Commission should have transferred his matter to the OAL for a hearing. 

Second, he contends the Commission's scoring and re-scoring processes were 
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arbitrary and capricious. Neither the law nor facts support either of these 

arguments.

Our review of a final administrative agency decision is limited. Stein v. 

Dep't of Law & Pub. Safety, 458 N.J. Super. 91, 99 (App. Div. 2019) (citing In 

re Stallworth, 208 N.J. 182, 194 (2011)). We will uphold an agency's decision 

"unless there is a clear showing that it is arbitrary, capricious, or unreasonable, 

or that it lacks fair support in the record." J.B. v. N.J. State Parole Bd., 229 N.J. 

21, 43 (2017) (quoting In re Herrmann, 192 N.J. 19, 27-28 (2007)). In 

evaluating whether a decision was arbitrary, capricious, or unreasonable, we 

examine:

(1) whether the agency's action violates express or 

implied legislative policies, that is, did the agency 

follow the law; (2) whether the record contains 

substantial evidence to support the findings on which 

the agency based its action; and (3) whether in applying 

the legislative policies to the facts, the agency clearly 

erred in reaching a conclusion that could not reasonably 

have been made on a showing of the relevant factors.

[In re Stallworth, 208 N.J. at 194 (quoting In re Carter, 

191 N.J. 474, 482-83 (2007)).]

Moreover, a court is "obliged to give due deference to the view of those charged 

with the responsibility of implementing legislative programs." In re 

Reallocation of Prob. Officer, 441 N.J. Super. 434, 444 (App. Div. 2015) 
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(quoting In re N.J. Pinelands Comm'n Resolution PC4–00–89, 356 N.J. Super.

363, 372 (App. Div. 2003)).

A. The Request for a Hearing in the OAL

Appeals of examinations administered by the Commission are generally 

decided on the written record, without a hearing. See N.J.S.A. 11A:2-6(b); 

N.J.A.C. 4A:4-6.4(f); N.J.A.C. 4A:2-1.1(d). Specifically, N.J.A.C. 4A:2-1.1(d) 

provides that "an appeal will be reviewed on a written record," "[e]xcept where 

a hearing is required by law, this chapter[,] N.J.A.C. 4A:8 [(which addresses the 

layoff of public employees)], or . . . [the] 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 does not require a hearing when a candidate appeals his or 

her examination results.

Thus, the Commission had the authority to determine whether there exists 

a "material and controlling dispute of fact" that requires a hearing. In re 

Wiggins, 242 N.J. Super. 342, 345 (App. Div. 1990) (quoting N.J.A.C. 4A:2-

1.1(d)). We review the Commission's decision to grant or deny a hearing under 

an abuse of discretion standard. Ibid. "The determination [of] whether [a 

material and controlling dispute of fact] exists is one committed to the discretion 

of the [Commission], and its decision will be affirmed unless it goes beyond the 
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range of sound judgment." Ibid. Courts are especially reluctant to interfere with 

the examination process, as it is a legislatively-delegated responsibility of the 

Commission. See N.J.S.A. 11A:4-1; Brady v. Dep't of Pers., 149 N.J. 244, 256-

57 (1997).

Here, appellant argues that he was entitled to a hearing before the OAL 

because a factual dispute exists as to the methodology and criteria used in the 

scoring and re-scoring of his examination. In that regard, he contends that the 

"the record is completely devoid of any reference to the grading methodology 

or criteria of grading utilized by the [individuals] who originally scored [his] 

examination or those utilized by persons who re-graded the examination." He 

also maintains that the record is silent as to the identity and qualifications of the 

individuals who scored and re-scored his examination.

We discern no abuse of discretion in the Commission's decision to deny 

appellant a hearing in the OAL. Appellant has presented no evidence of a 

material fact in dispute. Instead, he claims a hearing is needed due to 

uncertainties and missing information in the record. Identifying where a record 

is incomplete does not establish a dispute over a material fact. See J.D. ex rel. 

D.D.H. v. N.J. Div. of Developmental Disabilities, 329 N.J. Super. 516, 525 

(App. Div. 2000) (finding a petitioner's "bald allegations" and "naked 
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conclusions" insufficient to require an agency to transfer a matter to the OAL). 

Furthermore, appellant does not certify, or even assert, that he requested and 

was denied access to the information that he argues is missing from the record.

In addition, the substantial, credible evidence in the record undercuts

appellant's assertions. In the "Candidate Feedback Report" dated October 26, 

2016, which was provided to appellant after the initial scoring, the Commission 

provided a thorough explanation of its scoring process. In that regard, the report 

explains, "[e]ach candidate was scored by three different two person teams of 

assessors" and "[a]ll candidates from each different jurisdiction were scored by 

the same three teams of assessors." The report then details the type of 

individuals who comprised the teams of assessors. Namely, each team had one 

fire service officer who was or had previously been a second-level fire 

supervisor and one oral assessor trained in scoring oral communication ability.

The Commission further detailed its scoring methodology in its June 26, 

2017 and April 2, 2018 decisions. Concerning the technical knowledge scores, 

the Commission explained that "[p]rior to the administration of the exam, a 

panel of Subject Matter Experts (SMEs) determined the scoring criteria, using 

generally approved fire command practices, fire fighting practices, and 

reference materials." The assessors then based their scoring on the "SME-
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approved possible courses of action." Likewise, the oral communication ability 

scoring was based on the assessors' application of predefined "weaknesses."

Concerning the review process on appeal, the Commission explained that 

the reviewers watched and listened to recordings of the candidate's oral 

presentation "multiple times" to ensure that they understood the candidate's 

responses. The reviewers then re-scored the candidate using the same criteria 

as the initial assessors. The Commission further explained that the candidates 

were notified that their "scores may go up or down as a result of an appeal." 

Finally, regarding the scoring and re-scoring of appellant's examination, the 

Commission's June 26, 2017 decision recites at length the initial assessors' 

reasons for awarding the scores appellant was challenging and the reviewers' 

reasons for either affirming or reducing those scores.

In short, appellant has presented no evidence showing the Commission 

abused its discretion in denying his request for a hearing before the OAL.

B. The Commission's Scoring and Re-Scoring Processes

"[C]ourts 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." Brady, 149 N.J. at 258. To show a clear abuse of discretion, a 

candidate needs to demonstrate affirmatively "that the scoring method was 
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arbitrary." Id. at 257. We do not routinely review the contents of civil service 

examinations and answers to determine if the questions were answered well; 

instead, courts "conduct only a limited review of the reasonableness of a grading 

system and determine simply whether the testing and grading were clearly 

arbitrary." Id. at 258; accord In re Police Sergeant (PM3776V), 176 N.J. 49, 59-

60 (2003). The burden is on the appellant when challenging the scoring of an

examination. N.J.A.C. 4A:4-6.3(a)(1), (b).

In this case, appellant challenges his oral examination scores. Oral 

examinations are permissible testing techniques under the Civil Service Act, 

N.J.S.A. 11A:1-1 to 12-6. See N.J.S.A. 11A:4-1(a); N.J.A.C. 4A:4-2.2(a)(2). 

See also Herbert v. Civil Serv. Comm'n, 162 N.J. Super. 449, 454 (App. Div. 

1978). Indeed, our Supreme Court has recognized that oral examinations "have 

great value when properly administered," however, they also "carry with them 

patent dangers of abuse and error." Kelly v. Civil Serv. Comm'n, 37 N.J. 450, 

459 (1962). Accordingly, "the Commission must conscientiously take special 

care and precautions to insure the goal of selections based exclusively on merit 

and fitness[.]" Rox v. Dep't of Civil Serv., 141 N.J. Super. 463, 468 (App. Div. 

1976) (quoting Kelly, 37 N.J. at 459). Courts will find an oral examination 

unreasonable if an appellant demonstrates an "overwhelming probability" that 
12 A-5187-16T2

the Commission failed to uniformly evaluate each candidate. Herbert, 162 N.J. 

Super. at 453.

Oral examinations often rely on subjective components to assess a 

candidate's supervisory abilities. Rox, 141 N.J. Super. at 467 (quoting Kelly, 

37 N.J. 460). The existence of such subjective elements is not fatal to the 

validity of the test. Ibid. (quoting Kelly, 37 N.J. at 460). Instead, the key for 

courts reviewing the scoring of an oral examination is whether "the Commission 

fell short of its goal of fair and impartial treatment for all." Herbert, 162 N.J. 

Super. at 453.

Here, neither the initial scoring nor the re-scoring were arbitrary, 

capricious, or unreasonable. As previously discussed, during the initial scoring 

process, every candidate was scored by the same three panels, who based their 

scoring determinations on pre-established criteria for both the technical 

knowledge and oral communication ability components. Indeed, the 

circumstances underlying the instant appeal are comparable to those in Kelly, 

wherein the Court approved the Commission's use of the same two-person panel 

to administer a uniform oral examination to all candidates. See 37 N.J. at 456, 

460-61.
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As to the Commission's re-scoring methods, appellant maintains they were 

arbitrary and capricious because only his examination was re-scored and it is 

unclear who conducted that re-scoring and what criteria was applied. Appellant 

further contends it was arbitrary and capricious for the Commission to reduce 

his scores to such a degree as to alter his eligibility status for the position.

As an initial matter, the Commission has the discretion to raise or reduce 

an examination score when reviewing a challenge to that score. See N.J.S.A. 

11A:4-1; N.J.A.C. 4A:4-6.3; Artaserse v. Dep't of Civil Serv., 37 N.J. Super. 98, 

105 (App. Div. 1955). Thus, appellant's argument that it was per se arbitrary 

and capricious to lower his score is meritless.

Next, appellant has not demonstrated an "overwhelming probability" that 

the reviewers applied a different standard than the initial assessors or that the 

re-scoring process was otherwise "manifestly corrupt, arbitrary, capricious, or 

conspicuously unreasonable." Herbert, 162 N.J. Super. at 453-54 (quoting Rox, 

141 N.J. Super. at 467). The Commission explained that the reviewers used the 

same scoring criteria and point system as the initial assessors. See id. at 454 

(affirming Commission's scoring of an oral examination by different examining 

teams where "[t]he nature of the questions and the controlled method of 

analyzing the answers and assigning values to them established a degree of 
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uniformity which could be applied by all of the examining teams"); DiGiovanna

v. Dep't Civil Serv., 166 N.J. Super. 280, 283 (App. Div. 1979) (requiring 

appellant to show an "overwhelming probability" that certain examiners 

"applied the evaluative guidelines and graded the candidates on a more stringent 

basis" than other examiners).

Moreover, appellant's speculation concerning who conducted the review 

and re-scoring is insufficient to satisfy his burden of proof. See N.J.A.C. 4A:4-

6.3(b); Brady, 149 N.J. at 257-58; Artaserse, 37 N.J. Super. at 105. There is no 

requirement that the reviewers be the same individuals who conducted the initial 

assessment. As there is no evidence demonstrating the reviewers were 

unqualified to score the examination, their unknown identity does not undercut 

the validity of the re-scoring.

Finally, that only appellant's examination was re-scored does not create 

an overwhelming probability that he was subjected to a more stringent grading 

process. Indeed, the record reveals only one difference between the re-scoring 

process and the initial scoring process. Namely, the reviewers reached their 

scoring decisions after repeatedly listening to and watching the recording of 

appellant's oral presentations. During the initial scoring, the assessors scored 

the candidates immediately after the in-person presentations; thus, the initial 
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assessors could not replay the presentations before scoring the candidate. That 

difference alone, however, does not demonstrate that the appellate reviewers 

applied different standards or more stringently reviewed the examination. 

Rather, the record supports a finding that the reviewers applied the same scoring 

criteria and point system as the initial assessors.

Accordingly, appellant has failed to affirmatively demonstrate that the 

scoring or re-scoring of his oral examination "was patently arbitrary, capricious, 

corrupt or otherwise illegal." Herbert, 162 N.J. Super. at 454 (first citing 

Zicherman v. Dep't Civil Serv., 40 N.J. 347, 351 (1963); then citing Flanagan v. 

Dep't of Civil Serv., 29 N.J. 1, 12 (1959); and then citing Artaserse, 37 N.J. 

Super. at 105).

Affirmed.