In the Matter of Brian S. Morton, Etc.

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0803-24

IN THE MATTER OF BRIAN S. MORTON, FIRE OFFICER 1 (PM2390C), NORTH HUDSON FIRE AND RESCUE. _________________________

Submitted May 12, 2026 – Decided July 21, 2026

Before Judges Gooden Brown and Torregrossa- O'Connor.

On appeal from the New Jersey Civil Service Commission, Docket No. 2023-2283.

Brian S. Morton, self-represented appellant.

Jennifer Davenport, Attorney General, attorney for respondent New Jersey Civil Service Commission (Sookie Bae-Park, Assistant Attorney General, of counsel; Craig S. Keiser, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Brian S. Morton appeals from a September 25, 2024 Final

Administrative Action of the New Jersey Civil Service Commission (Commission or CSC) denying his appeal of the scoring of his promotional

examination for the position of Fire Officer 1. Morton challenges the

substantive evaluation of his answers and the procedural fairness of the appeal

process. Having reviewed the record in light of applicable legal principles, we

affirm.

I.

The CSC administers written and oral examinations to determine the

ranking of candidates on a promotion list for State employment job openings.

In 2022, Morton completed the promotional examination for Fire Officer 1,

which consisted of a written and oral examination. Morton passed with a

combined score of 87.680, ranking thirty-first on the promotion list.

After attending a review of the examination on April 3, 2023, Morton

administratively appealed his results.1 He was permitted to submit written

arguments challenging the scoring and criteria and evidence in support of his

claims. On September 25, 2024, the Commission issued its written decision

1 Morton's appeal concerned seven questions of the written examination. Upon review, the CSC overturned three of the seven in appellant's favor. The results of Morton's written examination are not before us on appeal. A-0803-24 2 determining the scoring decision was amply supported and Morton failed to

meet his burden of proof in challenging the results.2

In pertinent part, Morton argued he received an erroneous score of two on

the technical component of the "evolving scenario" section of the oral

examination. By way of brief summary, the evolving scenario, designed to

measure knowledge of safe rescue tactics and procedures, concerned a

hypothetical fire on the second floor of a college dormitory with the candidate

serving as the first-level supervisor of the first arriving engine company,

"Engine 4." In the scenario, "Engine 5" is seven minutes away, and the fire was

reported ten minutes earlier. The sprinklers are functioning, and there are two

unaccounted students on the second floor. The candidate's engine company is

ordered to establish a primary water supply and attack the fire as "Ladder 2"

conducts a primary search. "Engine 5" will be responsible for a secondary water

supply.

Question one required the candidate to explain the appropriate commands

the supervisor would give the crew to execute the incident commander's orders.

2 In Morton's appendix, he includes an email exchange wherein he requests a transcript from the Commission's review of his appeal. In response to Morton's email, the Commission stated it "does not record or transcribe Commission meetings." A-0803-24 3 Question two asked what the supervisor would do if the crew approached the

"seat of the fire" to find two unconscious students in the hallway, while "Ladder

2" is by the elevator on the second floor.

Candidates' responses were graded by subject matter experts (SMEs), who

determined scoring criteria using generally approved fire command and

firefighting practices and various reference materials. Scoring decisions were

based on SME-approved possible courses of action (PCAs) to resolve the issue

as presented. Candidates were scored on a five-point scale: five being an

optimal response, four, a more-than-acceptable response, three, a minimally

acceptable passing response, two, a less-than-acceptable response, and one, a

much-less-than-acceptable response.

Morton's evolving scenario response scored a two on the technical

component, a four on the supervision component, and a five on the oral

communication component. Morton challenged only his score of two on the

technical component of the evolving scenario.

The SME awarded Morton a two for "fail[ing] to perform the mandatory

action of ordering the fire department connection (FDC) standpipe/sprinklers to

be fed and miss[ing] a number of additional opportunities, including, in part, the

opportunity to ensure fire doors are properly controlled."

A-0803-24 4 In challenging his score, Morton disputed the validity of "requiring the

first due engine to always feed the FDC as a mandatory response." In support,

Morton relied on a textbook, John Norman, Fire Officer's Handbook of Tactics

(4th ed. 2012) [hereinafter Norman], which was "suggested reading" included in

the Commission's "2021 1st Level Fire Supervisor Orientation Guide." Morton

cited Norman, which states, "One of the first-arriving engine companies should

be assigned the duty of supplying the sprinkler." Id. at 125. Morton argued

Norman does not compel in all instances the first engine to supply the sprinklers,

and because the scenario prompt did not have the incident commander assign

the candidate/supervisor the duty of supplying sprinklers, it should not have

been considered a mandatory response for the candidate/supervisor.

Morton also relied on Norman to suggest that connecting the sprinkler

system and "handlines" to the same hydrant would cause the pressure in the

sprinkler system to drop, which could allow the fire to overwhelm the sprinkler

system. Morton further cited Norman for the proposition that using the sprinkler

system would reduce the survival chances for unaccounted individuals as

sprinklers would push gases to the floor and pose a danger to fire personnel

because sudden operation of sprinklers could cause steam and hot water to

descend on fire personnel, forcing them to retreat. Finally, Morton claimed it

A-0803-24 5 would be wrong to assume the first engine would be required to feed the FDC

because the incident commander never ordered the standpipe or sprinkler to be

fed, and "there is no literature" that supports such a proposition.

As to controlling the fire doors, Morton asserted the scenario's written

materials and diagram did not indicate the location of any fire doors. He argued

that if the fire doors were the stairwell doors, they would have to be open for

firefighters to attack the fire. He further contended other candidates failed to

mention the fire doors in their responses but were not penalized for it.

The Commission addressed Morton's appeal at a hearing and allowed

candidates to listen by phone and later issued its written determination. In

affirming Morton's test results, the Commission stated it based its analysis on

the findings of the Division of Test Development, Analytics and Administration

(TDAA), which is comprised of a panel of SMEs. The Commission found

deficient Morton's claim that feeding the FDC should not be a mandatory

response noting, the prompt stated "the sprinkler system is functioning,"

signaling it would have been functioning upon arrival at the scene, negating

Morton's claim that feeding the FDC would risk a hazardous condition, and

finding Morton "misconstrue[d] Norman" because, contrary to Morton's

A-0803-24 6 assertion, Norman "repeatedly emphasizes the importance of utilizing sprinkler

systems to combat working fires."

The Commission cited several passages from Norman for the proposition

that "connecting the FDC" is proper because it would aid, rather than

overwhelm, the sprinkler system in getting water to the "seat of the fire,"

clarifying that Norman merely identifies potential issues rather than advising

non-use of the FDC. It also explained feeding the FDC would not cause water

pressure to decrease in the sprinkler system because such systems contain

certain valves to ensure the sprinkler system "will not fall below what's being

fed into the system from the main supply line." The Commission further

maintained, because the prompt explicitly stated, "Engine 5 will be responsible

for securing a secondary water supply," any concern about water pressure on

scene lacked merit.

As to the fire doors, the Commission explained the candidate was required

to "[e]nsure fire doors [we]re properly controlled (propped open, managed)."

Acknowledging there was no requirement that fire doors in a specific location

be addressed, the Commission noted it was expected that fire doors needed for

operations would stay open while other doors necessary to contain the fire

remained closed. Thus, the Commission concluded the absence of designated

A-0803-24 7 fire doors in the written materials or diagram was "immaterial" to Morton's

failure to address fire doors in his response.

Addressing Morton's additional claim other applicants received no

deduction for failing to identify fire doors, the Commission indicated applicants

are "not necessarily given an exhaustive list of every PCA they missed in their

responses." According to the Commission, simply because other applicants

were not told they failed to identify the fire doors does not mean they were not

marked down for any such failure. Thus, the Commission concluded Morton

failed to "meet his burden of proof" and affirmed his score of two on the

After the Commission's decision, Morton contacted the Attorney

General's Office seeking to obtain a scoring sheet Morton claims was "utilized"

by the evaluator to assess his performance on the evolving scenario component

of the oral examination. In response, a Deputy Attorney General explained that

he did not have the document Morton requested.

On appeal, Morton argues the Commission's decision was arbitrary and

capricious, asserting the answers he provided in his oral examination were

"aligned with established firefighting tactics." He further contends the

Commission deprived him of due process by denying him the ability to

A-0803-24 8 "adequately present [his] case" during the hearing affording candidates only the

ability to "call in to listen to the hearing." He argues the Commission improperly

withheld a hearing transcript or scoring sheet and unduly delayed releasing his

scores, impeding his ability to fully and fairly prepare and present his case.

II.

The scope of judicial review of a final agency determination is very

narrow. See Allstars Auto Grp., Inc. v. N.J. Motor Vehicle Comm'n, 234 N.J.

150, 157 (2018); see also In re Carter, 191 N.J. 474, 482 (2007). Our review

inquires:

(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 Hermann, 192 N.J. 19, 28 (2007) (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).]

Further, "a court owes substantial deference to the agency's expertise and

superior knowledge of a particular field." Ibid.

The New Jersey Constitution and the New Jersey Civil Service Act,

N.J.S.A. 11A:1-1 to 12-6, espouse the general maxim that state employees be

A-0803-24 9 selected based on merit. N.J. Const. art VII, § 1, ¶ 2; N.J.S.A. 11A:1-2(c). In

furtherance of this goal, the Commission is empowered to select and retain state

employees. N.J.S.A. 11A:2-6.

Relevant here, N.J.S.A. 11A:4-1 imparts to the Commission the power to

"administer examinations" to test "skills and abilities," grade examinations,

secure the examination process, and select "special examiners to act as subject

matter specialists or provide other assistance." Regarding the Commission's

administration and grading of civil service examinations,

[t]he fulfillment of that function is a matter requiring special expertise, involving as it does the determination of what job knowledge, skills and abilities are necessary or desirable in a candidate for a particular position, and the highly technical problem of devising suitable examination questions which will demonstrate as accurately as possible whether an applicant possesses those requirements sufficiently to qualify for the position.

[In re Police Sergeant (PM3776V), 176 N.J. 49, 59 (2003) (quoting Brady v. Dep't of Pers., 149 N.J. 244, 257 (1997)).]

Therefore, we will not "engage in a critical supervisory examination of

the composition of the questions to be propounded to candidates" or review the

contents of the examination to determine "whether the questions were 'well or

poorly answered.'" Brady, 149 N.J. at 258 (quoting Brady v. Dep't of Pers., 289

A-0803-24 10 N.J. Super. 557, 564 (App. Div. 1996)). Accordingly, "the mere possibility of

erroneous scoring" is insufficient to warrant our intervention. Id. at 263.

Against this backdrop, we first address and reject Morton's challenge to

the scoring. Morton claims that his response was supported by "best practices,"

relying on Norman for the proposition that requiring the first arriving engine to

feed the FDC should not be mandatory. However, we are satisfied the

Commission anchored its decision in the record and adequately explained its

findings, and we discern no error.

The Commission's written Final Administrative Action was supported by

its reliance on a panel of SMEs and excerpts from Norman, which was both a

"suggested reading" resource for fire supervisor candidates, and relied upon by

Morton himself. Specifically, the Commission cited to Norman's actually

advocating for the "prompt" use of sprinkler systems to fight fires, and

"connecting the FDC," rather than relying entirely on manual firefighting

efforts. Further, as to Morton's claim that he should have received credit even

though he failed to address the fire doors, the Commission reasonably relied on

responses prepared by the TDAA concluding Morton failed to adequately

consider the fire doors in his response. Therefore, we conclude the Commission

A-0803-24 11 acted within its broad discretion to administer and score examinations for State

employees.

Turning to Morton's due process claims, we recognize "[a]dministrative

hearings in contested cases must 'operate fairly and conform with due process

principles.'" In re Kallen, 92 N.J. 14, 25 (1983) (quoting Laba v. Newark Bd.

of Educ., 23 N.J. 364, 382 (1957)). However, such hearings "may conform to

procedural due process standards that are less restrictive than those imposed in

court proceedings." Id. at 26. "As long as principles of basic fairness are

observed and adequate procedural protections afforded, the requirements of

administrative due process have been met." Kelly v. Sterr, 62 N.J. 105, 107

(1973). Due process generally requires "notice and an opportunity to be heard."

Cano v. Cnty. Concrete Corp., 483 N.J. Super. 459, 484 (App. Div. 2026). As

it pertains to administrative appeals before the Commission, N.J.A.C. 4A:2-

1.1(d) states, "Except where a hearing is required by law, this chapter or

N.J.A.C. 4A:8, or where the Civil Service Commission finds that a material and

controlling dispute of fact exists that can only be resolved by a hearing, an

appeal will be reviewed on a written record."

Here, Morton was provided with the "Commission Comment/Appeal

Form," which outlined the requirements for a valid appeal. He was permitted to

A-0803-24 12 present his written argument and any supporting evidence he elected to submit,

which he did. The Commission then addressed all Morton's arguments,

including his citations to Norman in support of his argument, and detailed its

findings and reasoning. We discern no due process violation in the

Commission's not entertaining oral argument.

Regarding Morton's claim the Commission impaired his ability to advance

his appeal by unfairly withholding the grading sheet used to score his oral exam,

we are similarly unpersuaded. It is squarely within the Commission's authority

to ensure the "security of the examination process." N.J.S.A. 11A:4-1. This

includes keeping confidential "examination papers and scoring keys," N.J.A.C.

4A:4-2.16, and requiring candidates to make an appointment to review an

examination, but prohibiting the copying of any of the questions or answers.

N.J.A.C. 4A4-6.4(b).

Brady is instructive here. The Court in Brady balanced examination

security with candidates' rights to challenge their scores. Brady, 149 N.J. at

260-61. It determined permitting a candidate to "review a portion of his written

test materials, including his answers, a very brief summary of each question,

brief comments by the grader about the PCAs that plaintiff had missed , . . . and

an explanation of the scoring process" sufficiently allowed the candidate to

A-0803-24 13 fairly pursue his appeal, despite the Commission's restricting any access to test

questions and answer keys. Id. at 251, 260. In so holding, the Court noted full

disclosure of examination materials "would confer little or no administrative or

litigational benefit on the examinee, given the general prohibition against

judicial regrading of examinations." Id. at 261.

Here, Morton does not dispute he had the ability to review his oral

examination. Additionally, both Morton's merits brief and the Commission's

written decision refer extensively to Morton's responses and the PCAs he

missed. We perceive no basis to conclude Morton was denied adequate

opportunity to review his oral examination results prior to his appeal.

Nor do we agree with Morton's assertion "[t]he timeline of events

surrounding the current testing cycle administered by the [Commission]

demonstrates an unreasonable and excusable delay, evidencing negligence in the

handling of the examination and appeal process." Generally, to warrant our

intervention, an agency's failure to act requires showing "gross indifference,

inexcusable neglect or bad faith." See Klusaritz v. Cape May Cnty., 387 N.J.

Super. 305, 314 (App. Div. 2006). This record raises no such concern.

Affirmed.

A-0803-24 14