McGowan v. Burstein

• Decision Date: 02 June 1988
• Citation: 71 N.Y.2d 729,525 N.E.2d 710,530 N.Y.S.2d 64
• Parties: , 525 N.E.2d 710 William L. McGOWAN et al., Respondents, v. Karen S. BURSTEIN et al., Constituting the Civil Service Commission of the State of New York, Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 64

530 N.Y.S.2d 64

71 N.Y.2d 729, 525 N.E.2d 710

William L. McGOWAN et al., Respondents, v. Karen S. BURSTEIN et al., Constituting the Civil Service

Commission of the State of New York, Appellants.

Court of Appeals of New York.

June 2, 1988.

Robert Abrams, Atty. Gen., (O. Peter Sherwood, Peter H. Schiff and Daniel M. Smirlock, New York City, of counsel), for appellants.

Jeffrey R. Armstrong and Marjorie E. Karowe, Troy, for respondents.

Peter L. Zimroth, Corp. Counsel (Elizabeth Dvorkin and Edward F.X. Hart, New York City, of counsel), for City of New York, amicus curiae.

OPINION OF THE COURT

WACHTLER, Chief Judge.

Article V, § 6 of our State Constitution requires that, as far as practicable, the merit and fitness of candidates for appointments and promotions in the civil service be ascertained by competitive examination. The primary question presented by this appeal is whether, consistent with this constitutional requirement, such examinations may be subject to zone scoring, a grading method which assigns a single grade to a range of raw scores. The letter grades A-F or a pass/fail grading system are familiar, but extreme, illustrations. A more subtle example is the practice of rounding scores in the range from 88.6% to 88.9%, for instance, up to 89%.

Plaintiffs, representatives of a large number of the State's public employees, claim that the practice renders examinations scored in such a manner noncompetitive and therefore unconstitutional. We note at the outset, because it is critical to our analysis, that the attack is a facial one.

Supreme Court denied the parties' cross motions for summary judgment, but granted plaintiffs' alternative request for a preliminary injunction. The court concluded that defendants had apparently employed zone scoring in a manner that allowed subjective factors other than merit and fitness to enter the selection process, in violation of the Constitution. The court therefore enjoined defendants from using the technique without prior court approval or consent of the plaintiffs, together with a demonstration of the justification for its use.

The Appellate Division, with two Justices dissenting, found the practice "presumptively unconstitutional" and modified by granting summary judgment in plaintiffs' favor and declaring that zone scoring violates the State Constitution and certain of defendants' regulations (130 A.D.2d 123, 127, 518 N.Y.S.2d 247). We now reverse.

Preliminarily, we note our agreement with the courts below that zone scoring poses a threat to the competitive examination process that serves as the foundation of the merit system. The use of overly broad zones could negate the competitiveness of the test, allow too much room for the subjective judgments of appointing authorities and invite personal and political influence into the selection process. Any practice with such potential must be approached with skepticism.

However, the broadside nature of plaintiffs' challenge bears emphasis. Plaintiffs are not challenging zone scoring as applied to any particular civil service examination; nor do they limit their challenge to the use of overbroad zones or allege a specific instance of favoritism resulting from the practice. Instead, they seek a declaration that zone scoring is per se violative of the State Constitution and ask that the practice be permanently enjoined. To sustain their challenge, as so framed, plaintiffs must demonstrate that zone scoring in any degree and in every conceivable application would be unconstitutional. They have not carried this burden.

Article V, § 6, the constitutional basis for the challenge, provides as follows: "Appointments and promotions in the civil service of the state * * * 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". New York was the first State to constitutionalize the merit and fitness requirement, a reflection of our citizens' insistence that competence, rather than cronyism, should determine civil service appointments ( see, Hale v. Worstell, 185 N.Y. 247, 251, 77 N.E. 1177; see also, Matter of Montero v. Lum, 68 N.Y.2d 253, 258, 508 N.Y.S.2d 397, 501 N.E.2d 5).

The Department of Civil Service, which the defendant Commissioners oversee, is the agency charged with the task of implementing the merit system (Civil Service Law §§ 5, 6). The Department must determine what knowledge, skills and abilities are required for a given position, assess whether the relevant attributes can be measured by a competitive examination and, if so, develop, administer and grade a test from which those characteristics may be discerned. In addition, as defendants point out, care must be taken that success on the examination does not depend on factors that are unrelated to the candidate's fitness for the position, not only because fitness is the object of the merit system, but also because such factors may discriminate among equally qualified candidates along ethnic, racial or sexual lines, in violation of the State Human Rights Law (Executive Law § 296) and the Federal Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.). The complex, highly technical, and sometimes even competing nature of these functions justifies considerable judicial deference to the Commission's greater ability to assess whether, to what extent, and in what manner merit and fitness should be measured by competitive examinations ( see, Matter of Grossman v. Rankin, 43 N.Y.2d 493, 402 N.Y.S.2d...