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Representing himself, Winters fought the July 31, 2008 decision that denied his appeal, after he made what initially appeared to be the correct pick on one of several multiple-choice questions on the 81-question exam. The change dropped his score from 90 to 89.7, sliding him down the promotional list for battalion chief.
Question #40 came from a group that provided a written description and diagrams of one of a dozen “fire emergency scenarios.”
“Based on the information contained in the written description and diagram, you will select the best response
from the four choices provided for each test item,” the test said.
The question in question:
“You are a recently promoted Battalion Chief. You have been dispatched to a report of a fire in a vacant warehouse. Police have reported smoke coming from the building.
“The structure is 100′ X 100′ and of mill construction. It is 6:00 a.m. with a temperature of 67 degrees Fahrenheit and a wind speed of 10 – 15 mph accompanied by gusts of up to 25 mph blowing from the east to the west.
“Weather channel reports an imminent storm approaching.
From pre-planning, you know that homeless persons sometimes occupy the building.
“The general collapse characteristic of a building of this type is:
(a) an early roof collapse.
(b) a parapet wall collapse near roof.
(c) a bearing wall collapse with instant floor collapse.
(d) a steel support beam separating from the main girder at the connection.”
Winters chose (c), which was deemed correct by the experts who prepared the exam for the state Department of Personnel.
However, 30 people who took the same exam appealed, challenging the correct answers to 38 different questions — including question #40.
After consolidating the appeals, the state Merit System Board issued a lengthy decision on Aug. 17, 2007. It rejected challenges to 36 questions while changing only two.
One of those two: Question #40.
The board changed the answer to “(a) early roof collapse….[which] can occur with a large open area and peaked truss roof, such as this warehouse.”
Winters and fellow applicant Michael Curtin appealed. Curtin even submitted a letter from John W. Norman himself, author of “Fire Officer’s Handbook of Tactics,” who pegged (c) as the correct answer.
Northeast mills, constructed in the 1800s, were built of brick bearing walls and 12-by-12-inch wooden columns made of heavy timber spaced twenty feet apart in all directions, Norman wrote.
As a result, he said, “these buildings are quite stable.”
Early collapses are “not a characteristic of mill construction,” Norman concluded. Rather, the collapses “are often large-scale ones, with both walls and floors being affected.”
Even though Norman wrote the manual, the board disagreed with him, arguing that the structure in Question #40 “is not a typical mill building.” Curtin’s appeal was rejected on Dec. 7, 2007.
Winters later was rejected by the Civil Service Commission, which cited the Curtin ruling.
“While it is true that this type of collapse is consistent
with mill construction, the layout of the diagram and description is such that this building could also be construed as a large warehouse,” the commission wrote.
A state appeals court will reverse such administrative decisions only if “it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole,” according to the appellate court judges who reviewed Winters’ case.
And that is exactly what the judges found.
“The Department of Personnel’s own subject-matter experts who devised the firefighter’s promotional examination designated (c) as the correct answer to the question,” they wrote.
What’s more, the judges said, the board itself cited “ambiguity between the description and the diagram.”
Given that, the board should have “either disregarded the answer to question 40 entirely in scoring the promotional examination or else ‘double-keyed’ the answer,” the judges ruled.
“[W]e reverse the Commission’s denial of Winters’s appeal and remand the matter to the Commission to determine whether to disregard or double-key the answer to question 40 and to take other appropriate action to implement this decision.”
The third-largest fire department in New Jersey, North Hudson Regional protects more than 200,000 residents, as well as the tens of thousands of others who travel through the area every day. The 10-square-mile region includes four miles of Hudson River shoreline and averages 36,000 people per square mile, making it the most densely populated area in the nation.
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