Ruddy v. Connelie

• Decision Date: 23 February 1978
• Docket Number: No. 1,No. 2,1,2
• Citation: 402 N.Y.S.2d 245,61 A.D.2d 372
• Parties: , 22 Fair Empl.Prac.Cas. (BNA) 599, 17 Empl. Prac. Dec. P 8512 In the Matter of Michael M. RUDDY, on behalf of himself and all others similarly situated, Respondent, v. William G. CONNELIE, as Superintendent of the Division of State Police, et al., Appellants. (Proceeding) Daniel VOGHT et al., Respondents, v. William CONNELIE, as Superintendent of New York State Police, Appellant. (Proceeding)
• Court: New York Supreme Court — Appellate Division

Page 245

402 N.Y.S.2d 245

61 A.D.2d 372, 22 Fair Empl.Prac.Cas. (BNA) 599,

17 Empl. Prac. Dec. P 8512

In the Matter of Michael M. RUDDY, on behalf of himself and

all others similarly situated, Respondent, v. William G. CONNELIE, as Superintendent of the Division of

State Police, et al., Appellants. (Proceeding No. 1.)

Daniel VOGHT et al., Respondents, v. William CONNELIE, as Superintendent of New York State

Police, Appellant. (Proceeding No. 2.)

Supreme Court, Appellate Division, Third Department.

Feb. 23, 1978.

Louis J. Lefkowitz, Atty. Gen., Albany (John Q. Driscoll and Ruth Kessler Toch, Albany, of counsel), for appellants.

Arnold W. Proskin, Albany, for Michael M. Ruddy, respondent.

Parisi, DeLorenzo, Gordon & Pasquariello, Schenectady (Charles R. Harding, Schenectady, of counsel), for Daniel Voght and others, respondents.

Brashich & Finley, New York City (John W. Finley, Jr., and Michael Blinick, New York City, of counsel), for New York City Correctional Officers Lodge No. 4 of the Fraternal Order of Police, amicus curiae.

Before SWEENEY, J. P., and KANE, MAHONEY, MAIN and LARKIN, JJ.

OPINION FOR AFFIRMANCE

KANE, Justice.

It was announced in July of 1975 that a two-part competitive examination would be conducted for the purpose of filling positions as Troopers in the respondent Division of State Police. Those scoring highest on the written portion of the examination, which was assigned a relative weight of 65%, were to undergo a test of their physical performance, given a relative weight of 35%, and an eligible list of successful applicants would then be established from the composite scores thus obtained. Over 22,000 individuals participated in the written test and 4,000 proceeded to take the physical performance test. In June of 1976 some 3,600 candidates were ranked in order of their respective examination scores and were duly placed on a list of those eligible for appointment, but it was not until December of 1976 that budgetary approval was secured to appoint 50 new Troopers. Shortly thereafter, enough federal funding became available for an additional 50 Troopers to police interstate highways and arterials.

However, instead of offering appointments to as many of those ranked highest on the eligible list as would fill this complement of Troopers, respondents proposed to appoint only 75 candidates in that fashion. In order to further an avowed goal of procuring greater representation of certain minorities and women in the State Police, it was decided that the remaining 25 candidates would be obtained by separately appointing the 15 highest ranked "ethnic minority" eligibles and the 10 highest ranked female eligibles without regard to their individual placement among all others so listed. Petitioners, who are on the list but are males belonging to none of the recognized ethnic groupings, objected to this procedure and commenced the instant article 78 proceedings contending that the appointment of 25 Troopers in such a manner would violate constitutional principles. Special Term agreed and gave judgment directing the appointment of Troopers solely on the basis of their ranking on the existing eligible list together with certain related affirmative relief in the event appointments had already been made in the form suggested. This appeal ensued.

Despite the relatively low ranking of some of the petitioners on the eligible list, and the correspondingly remote likelihood of their eventual appointment should the present judgment be upheld, we note that each possessed standing to maintain these proceedings (Matter of Burke v. Sugarman, 35 N.Y.2d 39, 358 N.Y.S.2d 715, 315 N.E.2d 772). Moreover, the record demonstrates that petitioner Ruddy could reasonably expect to be offered an appointment in the event of an affirmance. The instant judgment is not clearly phrased in terms of class relief, but since stare decisis would undoubtedly apply to appointments made from the existing eligible list, we need not discuss this procedural ambiguity and proceed to a consideration of the merits.

Although power to appoint members of the New York State Police is expressly granted to the Superintendent of State Police (Executive Law, § 215, subd. 3), it is firmly established that he can exercise that authority only through the process of competitive examination in conformity with section 6 of article V of the New York State Constitution which states, in relevant part, that such appointments " * * * 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" (Matter of Andresen v. Rice, 277 N.Y. 271, 14 N.E.2d 65). It is also well settled, however, that examination scores need not always constitute the sole basis for determining fitness and that some leeway must be accorded to the appointing authority in making final selections (Matter of Cassidy v. Municipal Civ. Serv. Comm. of City of New Rochelle, 37 N.Y.2d 526, 375 N.Y.S.2d 300, 337 N.E.2d 752; see People ex rel. Balcom v. Mosher, 163 N.Y. 32, 57 N.E. 88). Since Matter of Andresen v. Rice (supra ) stands for the proposition that it is practicable to measure the fitness of potential Troopers by competitive examination, and none dispute that point, the narrow question is whether respondents may constitutionally depart from the apparent results of an examination to the extent of making appointments that allow a preference to ethnic minorities and females. The answer is no.

There has been no suggestion that the two-part examination procedure was inherently unfair or disadvantageous to ethnic minorities or women, and there has been no claim that such minorities or females are more fit than others to perform the duties generally assigned to a Trooper. They may, as respondents say, be particularly useful in certain types of police work, but then others might also possess individualized characteristics beneficial to the furtherance of designated tasks and yet no special effort was made to identify and measure such desirable qualities in the examination as conducted. Consequently, there can be no assertion that the proposed appointment device is meant to rectify errors in the testing mechanism or to recognize superior talents previously overlooked. It follows that respondents' decision cannot be attributed to any belated design to further refine an evaluation of merit and fitness. Whatever the motivation, therefore, the instant proposal falls beyond those topics to which consideration is constitutionally limited by section 6 of article V of the New York State Constitution and must be enjoined (Matter of Roske v. Keyes, 46 A.D.2d 366, 363 N.Y.S.2d 21).

The parties have stressed concepts of equal protection under the terms of "affirmative action" and "reverse discrimination," and we are not unmindful of authorities that touch upon the permissibility of entertaining racial factors in hiring practices (see e. g., Matter of Council of Supervisory Assns. of Public Schools of N. Y. City v. Board of Educ. of City of N. Y., 23 N.Y.2d 458, 207 N.Y.S.2d 547, 245 N.E.2d 204, mod. 24 N.Y.2d 1029, 302 N.Y.S.2d 850, 250 N.E.2d 251; Matter of Jackson v. Poston, 40 A.D.2d 19, 337 N.Y.S.2d 108). Nevertheless, our decision does not reach the subsidiary issue of whether the means chosen by respondents to effect the goal of enhanced minority and female representation offends against equal protection principles. That question would be germane only if the proposed course of conduct did not so plainly exceed the standard requiring that fitness alone be conclusive.

The distinction drawn by the minority also merits brief comment. Respondents have not purported to limit certification from the eligible list to one sex in reliance on subdivision 2 of section 60 of the Civil Service Law; in fact, they have affirmatively pleaded that the Civil Service Law has no applicati to their decisions insofar as appointments are concerned. Had respondents believed the nature of the work as a Trooper required selection based on sex, the precondition for bringing that statute into play, it can scarcely be doubted that there would be any point in testing an individual who lacked such a basic sexual qualification. Here both males and females took part in the examination on an equal footing. Thus, respond...