| SUPREME COURT INVALIDATES In an extraordinary ruling, the New Jersey Supreme Court invalidated the 1997 Police Sergeant’s "make-up exam" in the City of Paterson. In this case, titled, In the Matter of Police Sergeant (PM3776V), City of Paterson, decided on April 16, 2003, the Supreme Court took the unprecedented step of literally "demoting" three police sergeants who had taken the make-up exam. Justice Zazzali, writing for a unanimous Court, addressed two critical issues related to New Jersey Department of Personnel (DOP) practices. First, whether the DOP’s "practice of administering identical exams to original and make-up candidates in the same testing cycle is a per se violation of a candidate’s right to a fair and competitive civil service examination under article VII, section 1, paragraph 2 of the New Jersey Constitution." And second, whether the make-up exam actually administered violated the State Constitution, where, as here, there is evidence that unknown persons discussed and may have disseminated test questions to make-up exam candidates at some point following the original exam but before the make-up exams were given. Although the Court emphasized that it had "serious reservations regarding the DOP’s practice of administering identical exams to original and makeup candidates in the same testing cycle", it declined to rule that the practice is, on its face, per se unconstitutional. The Court did hold, however, that the actual make-up exams "as administered" did violate the rights of the other 182 police sergeant’s rank candidates who took the original exam, and specifically, their right to a "fair and competitive examination" under the New Jersey Constitution. The sergeant’s exam, administered in October 1997, consisted of 71 evenly weighted, multiple-choice questions. Those successful sergeant’s rank candidates were placed on the eligible list for nine available sergeant positions in the Paterson Police Department. The DOP ranked the candidates in descending order according to a final average score. Immediately following the examination, some exam candidates discussed and/or shared the content of many of the exam questions with persons who did not take the original exam due to alleged "medical reasons." Three particular officers requested make-up administrations of the sergeant’s exam, and each of these officers submitted a doctor’s certification, which indicated that each suffered from physical conditions that precluded participation in the original administration of the test. The DOP granted their requests. Thereafter, the DOP conducted separate administrations of the make-up exam for each of the three candidates. Consistent with its procedure for administering make-up exams, the DOP provided the candidates with exams identical to the October 1997 test. Obviously, each of these officers did well on the make-up exam, and the DOP inserted their scores into the original distribution of scores, and ranked them accordingly on the eligibility list. Even though the DOP was aware that the officers taking the make-up exam may have had access to exam question content, the DOP took no action to create a make-up exam that was different in content from the original exam. In total, eight officers in the Paterson Police Department were promoted to sergeant: five out of the 135 candidates who passed the original exam, and three out of the three candidates who took the make-up exam. In deciding this case, the Supreme Court observed that prior to 1988, it was standard practice to utilize different tests for police make-up examinations. In July 1988, however, the Merit System Board discontinued the use of different tests based on a perceived absence of statistical evidence establishing a need for the use of a different examination for make-up candidates. Regarding the first "broad constitutional" issue under review, the Court preliminarily observed: "The New Jersey Constitution provides that ‘[a]ppointments and promotions in the civil service of the State . . . shall be made according to merit and fitness to be ascertained, as far as practicable, by examination, which, as far as practicable, shall be competitive[.]’ " N.J. Const. art. VII, Section 1, para. 2. In addition, the New Jersey Civil Service Act requires that the selection and advancement of public employees should be dependent on "considerations of merit, and on the basis of relative knowledge, skill, and ability." Regarding the use and re-use of test questions for promotional exam, the Court in Brady v. N.J. Department of Personnel upheld the DOP’s practice reusing "a substantial number of exam questions from test to test, in identical or similar form" from year to year, to maintain consistency among exams and similar degrees of difficulty. The challenge in the present case, however, is to the DOP’s "practice of administering identical exams to original and makeup candidates in the same testing cycle." Although the Court would not hold that the DOP’s practice of providing identical exams to original and make-up candidates in the same testing cycle is per se unconstitutional, it did declare that the DOP must employ sufficient "security measures" to protect the integrity of the make-up exams actually administered. When the DOP discovered that breaches in exam security had occurred, "the make-up exams should have been cancelled and an appropriate remedy fashioned to ensure all candidates a fair and competitive exam." Accordingly, the Court held that the "make-up exams as administered in Paterson violated the New Jersey Constitution. For the future, the Court recommended that make-up examinations should be administered either with better security measures (if the identical exam is to be administered), or, "regardless of the deterrent measures imposed," the Court urged that the DOP should discontinue the practice of providing identical exams to original and make-up candidates in the same testing cycle. Indeed, a recently proposed legislative bill that would bar the DOP from administering make-up exams containing the same questions as the original exam echoes the Court’s concerns regarding the deficiencies of that practice. See a-3374 (2-27-03). "Going forward," said the Court, the "DOP should administer make-up exams that contain substantially different or entirely different questions from those used in the original examination. For the officers involved in this case, the Court voided the results of the make-up examinations administered to the three officers and prohibited any permanent appointment to police sergeant from those candidates who sat for the make-up exam. Consequently, there are now three open police sergeant positions in the department. Moreover, the Court directed that "all currently eligible candidates from the Paterson Police Department, including those who sat for the October 1997 sergeant’s exam as well as the three make-up exam candidates, may compete for the open Paterson sergeant positions" on the "next sergeant’s examination in the fall of 2003." |
