285 N.Y. 732 | NY | 1941
Lead Opinion
Order affirmed, with costs; no opinion.
Concur: LEHMAN, Ch. J., LOUGHRAN, RIPPEY, LEWIS and CONWAY, JJ. DESMOND, J., dissents in the following opinion in which FINCH, J., concurs.
Dissenting Opinion
In March, 1938, the Municipal Civil Service Commission of the City of New York published a notice of examination for the position of "Supervisor of Park Operations." The notice stated that the *733 examination would be divided into three parts, to wit: "Subjects and Weights: Experience, weight 3, 70 percent required; duties [written], weight 4, 75 percent required; technical-oral, weight 3, 70 percent required." For reasons not here material the examination was not held at the time announced. Thereafter, the Commission published an amended notice of examination for the position listing the subjects and weights as above except that the per cents required were not stated. The written part of the examination was first conducted, and the applicants, including petitioner, were advised before the examination that, "The thirty (30) highest candidates in the written test who have attained a mark of not less than 75% will be passed in this test. In the event of a tie for the thirtieth place all persons tied will be passed."
The thirtieth highest candidate attained a grade of 77.4 per cent in the written test. Petitioner's grade was 76.9 per cent. Failing to place among the thirty highest candidates, petitioner was not permitted to take part in the technical-oral test and received no rating for his experience.
The courts below have held that the requirement that applicants must place among the thirty highest and attain a grade of 75 per cent in the written test in order to qualify to participate in the rest of the examination was arbitrary, capricious and in conflict with the constitutional provision that an examination to determine merit and fitness so far as practicable shall be competitive.
Although not required by the Civil Service Law (Cons. Laws, ch. 7) or the Rules of the Commission, petitioner was informed before participating in the written test of the standard that he had to reach in that test in order to qualify for admission to the remainder of the examination. The fact that a different standard was originally announced in no way prejudiced him. In Matter ofBrady v. Finegan (
Petitioner does not challenge the subjects of the examination or the relative weights given to each. No one doubts that a civil service commission may use several successive tests for a particular position and ascribe to each a reasonable relative weight (Cf. Matter of Cowen v. Reavy,
The question presented upon this appeal is whether a civil service commission may in advance set as a minimum standard of proficiency the grade to be attained by a certain number of the candidates taking an examination but which grade shall be not less than a fixed per cent.
By the notice given at the time of the written test, the Commission said that the passing grade would be that grade attained by the thirtieth highest candidate, but, in the event that thirty did not attain a grade higher than 75 per cent, then the passing grade would be 75 per cent. Since petitioner's grade was lower than that attained by the thirtieth highest candidate, he failed to meet the minimum standard which prevailed. The courts below have viewed the minimum standard of 75 per cent as the passing grade set by the Commission. Actually the passing grade set by the Commission was 77.4 per cent, the grade attained by the thirtieth highest candidate.
Measurement of merit by relative position is not new. The same method was brought to the attention of this court in Matter ofThomas v. Kern (
Here it was announced in advance that the minimum standard would be the mark reached by a certain number of the group, with the added safeguard that this mark must be not less than 75 per cent. Such a standard is no more destructive of competition than the traditional fixed per cent standard, for it affects all candidates alike and, fixed in advance, cannot be used to discriminate against any candidate. There may be instances where a minimum standard based solely on ranking would be inadequate but the size of the group here examined and the presence of a standard of a fixed per cent below which no one could fall and still qualify for the rest of the examination justify its use in this case.
The order of the Special Term and the order of the Appellate Division should be reversed and the petition denied. *736