Joseph S. Ragno, Esq. Assistant Corporation Counsel City of Mount Vernon

This is in reply to the request for an informal opinion from the Attorney General on the following question:

"Does a selection procedure for the entry-level position of firefighter which consists of a qualifying written examination and a ranked physical agility examination comply with the requirements of the State Constitution and laws insofar as they mandate that a selection procedure be competitive and test the candidates' relative merit and fitness?"

Article V, section 6 of the New York State Constitution provides in pertinent part as follows:

"§ 6. Appointments and promotions in the civil service of the state and all of the civil divisions thereof, including cities and villages, shall be made according to merit and fitness to be ascertained, as far as practicable, by examination which, as far as practicable, shall be competitive; * * *."

The Legislature in Civil Service Law, § 50, has delegated to the State Civil Service Department and to the municipal commission having jurisdiction, authority to determine the merit and fitness of applicants for positions classified in the competitive class by such examinations as they may prescribe. In addition, subdivision 6 of section 50 provides that the examination shall be practical in character and relate to those matters which will fairly test the relative capacity and fitness of the persons examined to discharge the duties of the position they seek.

Within those parameters, it falls within the expertise and discretion of the State Civil Service Department or appropriate municipal commission to determine the appropriate selection device. When it has been determined that a competitive test is practicable, that test may be a written test, an oral or performance or physical test, or any combination thereof, so long as some part of the test can be scored and the candidates ranked on the basis of their scores. Beyond that, all that is necessary is that the test selected be objective in nature and the scoring procedures reviewable (Altman v Lang, 44 Misc.2d 751, affd 23 A.D.2d 820, affd17 N.Y.2d 464 [1964]; Bobrowich v Poston, 52 A.D.2d 976 [3d Dept, 1976];Young v Trussel, 42 Misc.2d 108 [Sup Ct, New York Co., 1964]).

Accordingly, in my view, your question may be answered in the affirmative. A selection procedure for the position of firefighter consisting of a qualifying written examination and a ranked (i.e., competitive) physical agility test complies with the constitutional and statutory requirements for a competitive examination of merit and fitness.