(Civil Service Commission, decided September 24, 2008) DISCUSSION

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1 In the Matter of Christopher Gialanella and Fiore Purcell, Police Lieutenant (PM2622G), Newark DOP Docket No (Civil Service Commission, decided September 24, 2008) The appeals of Christopher Gialanella and Fiore Purcell, Police Sergeants, of their disqualification from the promotional examination for Police Lieutenant (PM2622G), Newark, and future Police Lieutenant examinations for a three-year period commencing on February 8, 2006, were heard by Administrative Law Judge J. Howard Solomon (ALJ), who rendered his initial decision on July 15, Exceptions were filed on behalf of the Division of Selection Services and the appellants. Having considered the record and the ALJ s initial decision, and having made an independent evaluation of the record, the Civil Service Commission (Commission), at its meeting on September 10, 2008, accepted and adopted the Findings of Fact as contained in the attached initial decision and the recommendation to dismiss the appellants appeals regarding their disqualification from the promotional examination for Police Lieutenant (PM2622G), Newark. However, the Commission permitted the appellants to sit for the September 25, 2008 Police Lieutenant (PM2539K), Newark, examination. Subsequently, the appellants requested a make-up examination, but at its meeting on September 24, 2008, the Commission denied their request. DISCUSSION David Burgos and Carrie Reed, Police Sergeants, contended that the appellants shared test answers during the administration of the promotional examination for Police Lieutenant (PM2622G), Newark, and thereby disrupted their concentration on the examination. Burgos and Reed failed the examination, and the appellants achieved a passing score. Gialanella ranked 13 th and Purcell ranked 62 nd on the eligible list (PM2622G), which promulgated on February 16, 2006 and expires on February 15, Upon being informed of the allegations, the Division of Selection Services conducted an investigation. In a letter dated May 24, 2006, the Division of Selection Services advised the appellants that the investigation substantiated that they cheated on the examination (PM2622G) and informed them that they were disqualified from the examination and future examinations for a three-year period commencing on February 8, 2006, the date that the PM2622G list was issued. Additionally, the appellants were advised that their names were removed from the eligible list (PM2622G). Burgos and Reed filed appeals to the Merit System Board (Board), 1 requesting that they be retested due to the appellants alleged actions. The appellants also appealed their disqualification to the Board. The matters were consolidated and following a review of 1 On June 30, 2008, Public Law 2008, Chapter 29 was signed into law and took effect, changing the Merit System Board to the Civil Service Commission, abolishing the Department of Personnel and transferring its functions, powers and duties primarily to the Civil Service Commission. In this decision, the former names will be used to refer to actions which took place prior to June 30, 2008.

2 the written record, the Board denied the appeals of Burgos and Reed. However, with regard to the appellants case, the Board found multiple factual disputes. Thus, the Board granted a hearing at the Office of Administrative Law (OAL) in order to resolve the disputes presented in the case. See In the Matter of Police Lieutenant (PM2622G), Newark (MSB, decided May 9, 2007) (copy attached). In the initial decision, the ALJ set forth the testimony of the witnesses. Burgos maintained that the appellants shared answers and Reed corroborated that she heard two male voices talking in the room. Additionally, the test monitor, Wajihah Z. Al- Khudair, testified that she saw the appellants sitting next to each other and talking. She also saw Gialanella slide his answer sheet over to Purcell. As to the investigation, Joseph DeNardo, a Manager with the Division of Selection Services, indicated that based on the test monitor s report and a comparative analysis which he conducted on the appellants test answers, a sufficient basis existed to find that the appellants had cheated. Specifically, DeNardo testified that the appellants had identical answers on the first 10 questions with two correct answers. Moreover, he found that the appellants answered 30 out of the first 35 questions identically. The appellants also had more identical incorrect answers than other candidates. The appellants disputed that they talked during the examination or shared answers. They also denied being socially friendly with one another. As for a possible explanation as to why their answers were identical on 30 out of 35 questions, the appellants responded that they learned the material from the same individuals in the police department. Furthermore, the witnesses for the appellants, who were present during the test, testified that they did not hear anyone talking or see anyone cheating. Upon a review of the testimony presented, the ALJ concluded that the Division of Selection Services had met its burden of proving that the appellants did in fact share answers. It is noted that the ALJ determined that the Division of Selection Services had the burden of proof in the case as opposed to the appellants. Specifically, the ALJ found that Burgos, Al-Khudair, and DeNardo presented credible testimony. The ALJ stated that Burgos was clear and emphatic not only about where appellants were seated, but about their talking during the examination. Additionally, the ALJ found that Al-Khudair s testimony was compelling. The ALJ also found DeNardo s testimony persuasive. As for the appellants witnesses, the ALJ stated that their testimony was not persuasive given that they offered conflicting testimony as to the seat locations of the appellants in the examination room. Therefore, the ALJ concluded that the appellants sat next to each other, shared answers, and were properly disqualified from the examination. The ALJ also stated that it was permitted under Civil Service regulations to disqualify the appellants from future examinations. See N.J.A.C. 4A:4-2.10(c). Accordingly, the ALJ found that it was appropriate under the circumstances to have disqualified the appellants from future examinations for a three-year period commencing on February 8, On June 1, 2008, the Police Lieutenant (PM2539K) examination was announced with a closing date of June 21, The appellants filed for the examination. However, in a letter dated August 6, 2008, the Division of Selection Services denied the

3 appellants admittance to the examination, as the three-year disqualification period was still in effect. In its exceptions, the Division of Selection Services indicated that the ALJ erred in finding that it had the burden of proof in the matter. It contended that, pursuant to N.J.A.C. 4A:2-1.4 and N.J.A.C. 4A:4-6.3, in examination disqualification appeals, the burden of proof is on the appellant. In their exceptions, the appellants submit that the Division of Selection Services failed to meet its burden of proof as the testimony of its witnesses was not credible. They argued that the testimony was inconsistent and biased. Moreover, the appellants submitted that they were disadvantaged because the Division of Selection Services did not produce Janet Hoesly, a Personnel and Labor Analyst 3 with the Division of Merit System Practices and Labor Relations (MSPLR), as a witness. The appellants indicated that Hoesly had also investigated the matter. Moreover, they questioned the thoroughness of DeNardo s investigation and the accuracy of his findings. Additionally, the appellants asserted that the three-year ban from future examinations was an excessive penalty. Therefore, the appellants contended that the ALJ s decision was in error. Upon its de novo review, at its meeting on September 10, 2008, the Commission agreed with the ALJ s Findings of Fact and credibility determinations and found that the appellants had shared answers and were properly disqualified from the Police Lieutenant (PM2622G), Newark, examination. However, the Commission permitted the appellants to sit for the September 25, 2008 Police Lieutenant (PM2539K), Newark, examination. The Commission also corrected the ALJ s determination that the Division of Selection Services had the burden of proof in the case. N.J.A.C. 4A:4-6.3(b) clearly provides that appellants shall have the burden of proof in examination and selection disqualification appeals, except for medical or psychological disqualification appeals. Thus, the Commission concluded that the appellants bore the burden of proof and the ALJ s determination in this regard was in error. Accordingly, the Commission found, for the reasons stated below, that the appellants had not met their burden of proof. With respect to the ALJ s credibility determinations, the Commission acknowledged that the ALJ, who has the benefit of hearing and seeing the witnesses, is generally in a better position to determine the credibility and veracity of the witnesses. See Matter of J.W.D., 149 N.J. 108 (1997). [T]rial courts credibility findings... are often influenced by matters such as observations of the character and demeanor of the witnesses and common human experience that are not transmitted by the record. See In re Taylor, 158 N.J. 644 (1999) (quoting State v. Locurto, 157 N.J. 463, 474 (1999)). Additionally, such credibility findings need not be explicitly enunciated if the record as a whole makes the findings clear. Id. at 659 (citing Locurto, supra). The Commission appropriately gives due deference to such determinations. However, in its de novo review of the record, the Commission has the authority to reverse or modify an ALJ s decision if it is not supported by sufficient credible evidence or was otherwise arbitrary. See also N.J.A.C. 1:1-18.6(c); Cavalieri v. Public Employees Retirement System, 368 N.J. Super. 527 (App. Div. 2004). Nevertheless, upon review, the Commission found

4 that the ALJ s determinations in this respect were proper and that this strict standard was not met. Therefore, the Commission determined that the appellants exceptions were unpersuasive. Further, they did not find that the investigation in the matter was lacking. Moreover, the Commission noted that the appellants argument that they were disadvantaged by the Division of Selection Services failure to produce Hoesly as a witness was without merit. The appellants could have called Hoesly as their witness. It was the appellants burden of proof to make their case and not the Division of Selection Services. Turning to the September 25, 2008 Police Lieutenant (PM2539K), Newark, examination, the Commission found that if the appellants were precluded from taking the examination, they would not be able to be considered for a promotion for essentially six years from the February 8, 2006 date. The Police Lieutenant (PM2539K) eligible list is scheduled to promulgate in January or February 2009 with an expiration date three years later in The Commission found that this penalty was excessive. Thus, it permitted the appellants to sit for the PM2539K examination. After the September 10, 2008 Commission meeting but before a written decision was adopted by the Commission, staff of MSPLR advised the appellants that their disqualification from the Police Lieutenant (PM2539K), Newark, examination had been rescinded. After receiving this notice, the appellants requested make-up examinations, complaining that there was not a sufficient amount of time to study. Gialanella indicated that he did not own the books on supervision which were suggested by the Division of Selection Services to study from and did not take a review course because he was barred from the PM2539K examination. Purcell also stated that he did not study or prepare for the examination because of his disqualification. Thus, they submitted that it would be unfair for them to take the PM2539K examination on September 25, By letter dated September 13, 2008, staff of MSPLR informed the appellants that their request was denied as they did not meet the regulatory criteria for a make-up examination pursuant to N.J.A.C. 4A:4-2.9(c). The letter also noted that since the appellants had filed for the PM2539K examination and appealed their disqualification from Police Lieutenant examinations until 2009, there was a reasonable expectation that the appellants would have been admitted to the PM2539K examination and should have already commenced their studies. On appeal to the Commission, the appellants essentially reiterate the inequity of making them take the PM2539K examination given the insufficient amount of time to study. They maintain that they were denied admittance by the Division of Selection Services on August 6, 2008 and their application fee was returned to them. Thus, they argue that there was no basis for them to have purchased study materials or study for the examination. Gialanella notes that when he attempted to purchase the books on supervision, he learned that the books were out of stock and would take at least one week to 10 days for the books to be restocked. Moreover, Purcell argues that the determination of the Division of Selection Services to deny admittance to the PM2539K examination was in error as his appeal was still pending. As such, he maintains that he met the regulatory standard of N.J.A.C. 4A:4-2.9(c) as there was Error by the

5 Department of Personnel. Therefore, the appellants request that they be permitted to take a make-up examination, which would be administered at the next regularly scheduled examination for Police Lieutenant, which is tentatively scheduled for the Fall of N.J.A.C. 4A:4-2.9(c) states that for police, fire, correction officer, sheriff s officer, juvenile detention officer and other public safety open competitive and promotional examinations, make-ups may be authorized only in cases of: 1. Death in the candidate s immediate family; 2. Error by the Department of Personnel or the appointing authority; or 3. A catastrophic health condition or injury. The Commission permitted the appellants to sit for the upcoming Police Lieutenant (PM2539K), Newark, examination so as not to preclude them from consideration for promotion for six years. The Commission did not find that the Division of Selection Services erred in disqualifying them. In August 2008, the three-year ban was still in effect. Further, it is an appellant s responsibility to acquire the necessary study materials. Failure to obtain the materials is not a basis for a make-up examination. Moreover, the PM2539K examination was announced on June 1, 2008 and closed on June 21, The appellants filed for this examination and the letter from the Division of Selection Services denying them admittance was not issued until August 6, The appellants could have studied in the interim. Additionally, they appealed their penalty of disqualification from Police Lieutenant examinations until As such, there was a possibility that this penalty would be reversed. Given that they filed for the examination and had pending appeals, the appellants had sufficient notice of the September 25, 2008 PM2539K examination. Therefore, the appellants have not met the regulatory criteria for granting a make-up examination. Accordingly, their request is denied. ORDER The Commission finds that the disqualification of Christopher Gialanella and Fiore Purcell from the promotional examination for Police Lieutenant (PM2622G), Newark, was justified and dismisses their appeals. However, the appellants are permitted to sit for the Police Lieutenant (PM2539K), Newark, examination. The Commission denies the appellants request for make-up examinations. This is the final administrative determination in this matter. Any further review should be pursued in a judicial forum.