In the Matter of Albert Salina, Etc.
CourtNew Jersey Superior Court Appellate Division
Date FiledNovember 2, 2026
DocketA-1201-24
StatusUnpublished
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Full 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NOT FOR PUBLICATION WITHOUT THE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-1201-24
IN THE MATTER OF ALBERT
SALINA, BATTALION FIRE
CHIEF (PM3390C), PATERSON.
_____________________________
Argued October 13, 2026 – Decided November 2, 2026
Before Judges Gummer and DeAngelis.
On appeal from the New Jersey Civil Service
Commission, Docket No. 2024-1422.
Frederick L. Rubenstein argued the cause for appellant
Albert Salina, Battalion Fire Chief (Shah & Rubenstein,
LLC, attorneys; Frederick L. Rubenstein, on the briefs).
Levi M. Klinger-Christiansen, Deputy Attorney
General, argued the cause for respondent Civil Service
Commission (Jennifer Davenport, Attorney General,
attorney; Sookie Bae-Park, Assistant Attorney General,
of counsel; Levi M. Klinger-Christiansen, on the brief).
PER CURIAM
Albert Salina appeals from a December 18, 2024 final decision of the Civil
Service Commission (Commission) denying his motion for reconsideration of a
prior Commission decision denying his appeal of his score on the May 23, 2022
Battalion Chief promotional examination. For the reasons that follow, we
affirm.
I.
Salina sat for the May 23, 2022 Battalion Chief promotional examination.
The examination consisted of a multiple-choice section and an oral examination
section. After receiving his score, Salina appealed the score to the Commission.
Salina contended he had not received proper credit for his performance on the
examination's oral communication component of the supervision scenario and
on the technical component of the incident command scenario.
In its December 20, 2023 decision denying Salina's appeal of his score,
the Commission addressed these arguments in detail. As to the incident
command scenario, Salina was marked down for failing to identify the required
response of ordering an emergency evacuation. Salina argued that his directive
for an "orderly withdrawal, everybody out," together with the sounding of
evacuation tones, satisfied that requirement.
The Commission cited prior decisions holding that a call for an orderly
withdrawal is not equivalent to an evacuation order. The Commission also relied
on N.J.A.C. 5:75-2.7(c), which provides:
Whenever an emergency evacuation signal is being
sounded, there shall also be a radio message transmitted
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either from the incident scene or from the designated
fire department dispatch center announcing the
evacuation order. To the extent possible, the radio
message should be coordinated with the sounding of the
evacuation signal to insure the radio messages are
heard.
Based on this record, the Commission concluded that the scoring decision
was thoroughly supported by the record and that Salina had failed to meet his
burden of proof.
After his appeal was denied, Salina filed a reconsideration application
with the Commission. In denying reconsideration, the Commission relied on
N.J.A.C. 4A:2-1.6(b), which provides that a petition for reconsideration must
show new evidence that would change the original outcome or "[t]hat a clear
material error ha[d] occurred."
The December 18, 2024 reconsideration decision specifically addressed
Salina's purported new evidence relating to the incident command scenario.
Salina's alleged new evidence consisted of source material from Vincent Dunn
published in 2010 and 2015. The Commission noted that the 2010 publication
was considered in its original decision and was not new evidence. The
Commission held the 2015 publication, "while new, is in no way inconsistent
with the other Dunn source material, and, as indicated, was sufficiently
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considered in the Commission's original decision." The Commission reviewed
the evidence and again concluded that the score reduction was proper.
II.
On this appeal, Salina challenges the December 18, 2024 decision denying
his application for reconsideration solely with respect to his incident command
scenario score.1 Under our limited scope of review, we conclude the
Commission's denial of reconsideration was not arbitrary, capricious, or
unreasonable. See Allstars Auto Grp., Inc. v. N.J. Motor Vehicle Comm'n, 234
N.J. 150, 157 (2018) (citing Russo v. Bd. of Trs., Police & Firemen's Ret. Sys.,
206 N.J. 14, 27 (2011)). We therefore affirm the Commission's December 18,
2024 reconsideration decision.
Generally, we disturb an agency's adjudicatory decision only if it is
determined the decision is "arbitrary, capricious or unreasonable" or is
unsupported by substantial credible evidence in the record. M.R. v. N.J. Dep't
1
At oral argument, Salina raised concerns about the subjective nature of
different examiners scoring the oral examination for different candidates, but he
did not raise this issue in his notice of appeal or merits brief. Appellate courts
deem an issue not briefed on appeal as waived or abandoned. See Drinker Biddle
& Reath LLP v. N.J. Dep't of Law & Pub. Safety, Div. of Law, 421 N.J. Super.
489, 496 n.5 (App. Div. 2011) (failing to brief issue regarding dismissal of
complaint was deemed a waived issue). Thus, we deem waived any arguments
about the subjective nature of different examiners scoring the examination for
different candidates because Salina did not raise them in his merits brief.
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of Corr., 261 N.J. 322, 337 (2025). The challenger bears the burden of proving
an agency action is arbitrary, capricious, or unreasonable. Parsells v. Bd. of
Educ. of Borough of Somerville, 472 N.J. Super. 369, 376 (App. Div. 2022).
"Thus, 'an appellate court ordinarily should not disturb an administrative
agency's determinations or findings unless there is a clear showing that (1) the
agency did not follow the law; (2) the decision was arbitrary, capricious, or
unreasonable; or (3) the decision was not supported by substantial evidence. '"
In re Young, 471 N.J. Super. 169, 176-77 (App. Div. 2022) (quoting In re Virtua-
West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 422
(2008)). "When an agency's decision meets those criteria, then a court owes
substantial deference to the agency's expertise and superior knowledge of a
particular field." Ibid. (quoting In re Herrmann, 192 N.J. 19, 28 (2007)).
"[C]ourts will 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." Brady v. Dep't of Pers., 149 N.J. 244, 258 (1997). To show a clear
abuse of discretion, a candidate needs to demonstrate affirmatively "that the
scoring method was arbitrary." Id. at 257. We do not routinely review the
contents of civil service examinations and answers to determine if the questions
were answered well; instead, courts "conduct only a limited review of the
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reasonableness of a grading system and determine simply whether the testing
and grading were clearly arbitrary." Id. at 258; accord In re Police Sergeant
(PM3776V) City of Paterson, 176 N.J. 49, 59-60 (2003). The burden is on the
appellant when challenging the scoring of an examination. N.J.A.C. 4A:4-
6.3(a)(1), (b).
We affirm because Salina did not establish the Commission's decision
denying his reconsideration motion was arbitrary, capricious, or unreasonable.
The Commission set forth the scoring criteria for the promotional examination
in its December 20, 2023 decision denying Salina's appeal. The Commission
explained in detail why Salina's response to the incident command scenario was
properly scored and provided specific reference to the materials used to
determine that Salina's response was not entitled to full credit.
In the December 18, 2024 reconsideration decision, the Commission
found that the claimed new evidence, the 2015 Dunn publication, was not new,
but still reviewed all the evidence submitted by Salina and concluded that the
information in this evidence was sufficiently considered by the Commission in
its original decision. As the Commission noted, the 2015 Dunn publication fully
supported its determination because the publication explained "[t]here is a
difference between withdrawing firefighters and calling for an emergency
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evacuation of firefighters." The reconsideration decision likewise recognized
that the Commission had clearly and correctly explained the distinction between
Salina's response and the response required to receive full credit.
Nothing in the record supports a conclusion that the reconsideration
decision was arbitrary, capricious, or unreasonable or lacked the support of
substantial credible evidence. See M.R., 261 N.J. at 337.
Therefore, we affirm the Commission's December 18, 2024 decision
denying reconsideration.
Affirmed.
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