Opinion
DOCKET NO. A-3377-13T2
04-21-2015
IN THE MATTER OF JOHN MAYER, ET AL. POLICE LIEUTENANTS, VARIOUS JURISDICTIONS.
Hector Alvarez, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent Civil Service Commission (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Pamela N. Ullman, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Nugent. On appeal from the New Jersey Civil Service Commission, Docket No. 2014-1076. Hector Alvarez, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent Civil Service Commission (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Pamela N. Ullman, Deputy Attorney General, on the brief). PER CURIAM
Appellant Hector Alvarez, a Paterson police sergeant, sat for a written promotional examination for the position of police lieutenant in 2013. He and others unsuccessfully challenged the nature and content of the exam in administrative proceedings before the Civil Service Commission and Alvarez now appeals, arguing his answer to question 23 was correct and, also, the exam unfairly posed eighty questions instead of what he believes to be a more reasonable seventy questions. In applying our deferential standard of review to both the Commission's factual findings and its expertise, see In re Taylor, 158 N.J. 644, 656-57 (1999); Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980), and after close examination of the record in light of the issues presented, we conclude that Alvarez's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(D) and (E).
Alvarez's claim, as well as claims asserted by other unsuccessful candidates, were considered and rejected by the Civil Service Commission by way of a thorough and well-reasoned written decision on February 12, 2014. This appeal concerns only Alvarez's contentions.
Alvarez bases this latter point on the fact that the exam for the position of captain contains seventy questions.
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We add only that the number of the questions posed in the exam is a matter falling well within the examiner's discretion and expertise and not properly the subject of second-guessing on appeal.
Question 23, of which Alvarez also complains, presented the following factual background:
While monitoring the police radio during routine patrol, you hear Sergeant Smith and Officer Owens report that they are out on Main Street with a person who is the subject of an active arrest warrant for domestic violence. Officer Owens observed the man park his vehicle legally, then exit the vehicle carrying a large paper bag. The top of the bag was rolled closed tightly. The man was then placed under arrest. Upon your
arrival less than a minute later, you observe the man handcuffed and seated in the rear of Officer Owens' patrol vehicle. Sergeant Smith and Officer Owens are discussing the proper procedures for searching the vehicle and the paper bag and they ask for your advice.Candidates were then required to complete the following sentence with the "best" of four choices. The question began: "Regarding the search of the paper bag, you should advise the officers that they should . . . ." According to the examiners, the best choice was: ". . . search the bag immediately incident to the lawful arrest." Alvarez chose: ". . . obtain consent or a warrant, since the arrestee no longer has access to the bag." Alvarez argues his choice was the best and the examiners were mistaken.
It could certainly be argued that Alvarez's choice was a reasonable option, but he was required to provide the "best response," and, as held in State v. Oyenusi, 387 N.J. Super. 146, 156-57 (App. Div. 2006), certif. denied, 189 N.J. 426 (2007), upon which the question was based, the immediate search of the bag incident to arrest was permissible. Consequently, the Commission did not arbitrarily conclude Alvarez's answer was not the "best response."
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION