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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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 A-1201-24 2 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 A-1201-24 3 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. A-1201-24 4 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 A-1201-24 5 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 A-1201-24 6 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. A-1201-24 7