On November 4, 2009, the Appellate Division decided In the Matter of Michael Curtin, Battalion Fire Chief (PM3593G), Elizabeth, Docket No.: A-4861-07T2. In the case, Michael Curtin appealed from the decision of the former Merit System Board (“Board”), now the New Jersey Civil Service Commission (“Commission”), denying his appeal of the scoring of his promotional examination as well as the Commission’s decision again denying the appeal following remand for consideration of supplemental information.

Curtin is employed by the Elizabeth Fire Department with the rank of captain. He took the Department of Personnel’s examination for the position of battalion fire chief, and received an overall score of 89.270. He was ranked third on the eligible list. He appealed the scoring of the oral portions of the examination to the Board. In a five-page decision dated October 11, 2007, the Board denied the appeal.

Curtis appealed to the Appellate Division. On April 14, 2009, in response to Curtin’s motion to supplement the record, the Appellate Division remanded the matter temporarily to the Commission, which had replaced the Board as of June 30, 2008, for consideration of the arguments raised in Curtin’s motion. Following its review of Curtin’s additional arguments and documents, the Commission issued its remand decision on August 20, 2009, again denying the appeal. As a result, the Court permitted Curtin to supplement his brief on appeal.

The Appellate Division noted that the burden is on a petitioner, not the Commission, when challenging the administration and scoring of examination. Moreover, when reviewing examinations, the Commission shall decide any appeal on the written record or such other proceeding as the Board deems appropriate. Finally, the Court indicated that courts should 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.

Applying these principles, the Court was satisfied that the Commission’s decision on the remand was not arbitrary, capricious, or unreasonable. The Commission duly re-evaluated the Board’s original decision in light of Curtin’s additional arguments and explained its reasons for disagreeing with his position. Moreover, the Court noted that it was not its role to second-guess the Commission with respect to the scoring of civil service examination and this case does not present “the most exceptional of circumstances that disclose a clear abuse of discretion” warranting such interference.

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Photo of Donald C. Barbati Donald C. Barbati

Donald C. Barbati is a shareholder of Crivelli, Barbati & DeRose, L.L.C. His primary practice revolves around the representation of numerous public employee labor unions in various capacities to include contract negotiation, unfair labor practice litigation, contract grievance arbitration, and other diverse issues…

Donald C. Barbati is a shareholder of Crivelli, Barbati & DeRose, L.L.C. His primary practice revolves around the representation of numerous public employee labor unions in various capacities to include contract negotiation, unfair labor practice litigation, contract grievance arbitration, and other diverse issues litigated before the courts and administrative tribunals throughout the State of New Jersey. In addition, Mr. Barbati also routinely represents individuals in various types of public pension appeals, real estate transactions, and general litigation matters. He is a frequent contributor to the New Jersey Public Safety Officers Law Blog, a free legal publication designed to keep New Jersey public safety officers up-to-date and informed about legal issues pertinent to their profession. During his years of practice, Mr. Barbati has established a reputation for achieving favorable results for his clients in a cost-efficient manner.

Mr. Barbati has also handled numerous novel legal issues while representing New Jersey Public Safety Officers. Most notably, he served as lead counsel for the Appellants in the published case In re Rodriguez, 423 N.J. Super. 440 (App. Div. 2011). In that case, Mr. Barbati successfully argued on behalf of the Appellants, thereby overturning the Attorney General’s denial of counsel to two prison guards in a civil rights suit arising from an inmate assault. In the process, the Court clarified the standard to be utilized by the Attorney General in assessing whether a public employee is entitled to legal representation and mandated that reliance must be placed on up-to-date information.

Prior to becoming a practicing attorney, Mr. Barbati served as a judicial law clerk to the Honorable Linda R. Feinberg, Assignment Judge of the Superior Court of New Jersey, Mercer Vicinage. During his clerkship Mr. Barbati handled numerous complex and novel substantive and procedural issues arising from complaints in lieu of prerogative writs, orders to show cause, and motion practice. These include appeals from decisions by planning and zoning boards and local government bodies, bidding challenges under the Local Public Contract Law, Open Public Records Act requests, the taking of private property under the eminent domain statute, and election law disputes. In addition, Mr. Barbati, as a certified mediator, mediated many small claims disputes in the Special Civil Part.

Mr. Barbati received a Bachelor of Arts degree in history, magna cum laude, from Rider University in Lawrenceville, New Jersey. Upon graduating, Mr. Barbati attended Widener University School of Law in Wilmington, Delaware. In 2007, he received his juris doctorate, magna cum laude, graduating in the top five percent of his class. During law school, Mr. Barbati interned for the Honorable Joseph E. Irenas, Senior United States District Court Judge for the District of New Jersey in Camden, New Jersey, assisting on various constitutional, employment, and Third Circuit Court of Appeals litigation, including numerous civil rights, social security, and immigration cases.