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Dowling v. Brennan

Supreme Court of New York, Appellate Division

June 21, 1954

In the Matter of ELEANOR DOWLING, Respondent,
v.
PAUL P. BRENNAN et al., Constituting the Municipal Civil Service Commission of the City of New York, Appellants.

Page 564

APPEAL from an order of the Supreme Court at Special Term (MCNALLY, J.), entered March 31, 1954, in New York County, in a proceeding under article 78 of the Civil Practice Act to review a determination of the Municipal Civil Service Commission of the City of New York that all candidates in a promotion examination for Stenographer, Grade 4, who failed to attain 70% on part I of the written examination should be failed in the entire written test. The order directed the commission to rate part II of the written examination and combine the two ratings into one. The order also denied the alternative relief requested by petitioner, that the examination be cancelled and a new one held.

COUNSEL

Sidney P. Nadel of counsel (Seymour B. Quel and Victor J. Herwitz with him on the brief; Adrian P. Burke, Corporation Counsel), for appellants.

A. Mark Levien for respondent.

Page 565

BREITEL, J.

Petitioner is an unsuccessful applicant in a promotion examination given by the municipal civil service commission. She is employed as a stenographer in the Triborough Bridge and Tunnel Authority. The examination was for promotion to stenographer, grade 4. She objected to the manner in which the written examination had been rated. The written examination was assigned a weight of thirty and the balance of the weight was allocated for record and seniority and to await a performance test. The objections to the written examination were sustained at Special Term.

These objections are two in number. The first is that the candidate was required to pass Part I of the written examination, and unless this 'hurdle' was overcome, Part II would not be rated. There was no advance announcement of this 'hurdle' as part of the examination nor was it promulgated until after the examination was taken. The second objection is that the passing mark for Part I of the written examination was determined after the taking of the examination and before the identities of the candidates had been disclosed. This was done to permit making the passing mark one based upon a comparative percentile rather than an absolute percentage. The percentile in turn was concededly influenced by the availability of candidates and the needs of the service. This procedure with respect to the comparative passing mark, it is claimed, was also done without any announcement in advance of the taking of the examination.

The civil service commission appeals from the order of Special Term requiring the commission to rate Part II of petitioner's written examination and to pass her if she attains a 70% mark on both parts taken together. The alternative relief requested by the petition at Special Term to set aside the examination and require the giving of a new one was denied. However, no cross appeal has been taken by the petitioner.

It may be that the petitioner would be entitled to broader relief than she obtained at Special Term but in the absence of a cross appeal this court is limited to considering the relief granted at Special Term. Because of the procedure followed by the civil service commission the order should be affirmed.

The candidates for the examination had no advance notice that the passing of Part I of the written examination was prerequisite to having the balance of the written examination rated and considered in the aggregate mark. While as between Part I and Part II of the written examination a weight of twenty-five

Page 566

was assigned to Part I and a weight of only five was assigned to Part II, this did not necessarily suggest that Part I was a compulsory 'hurdle'. Nor were the instructions that were given with the examination suggesting that the bulk of the time should be devoted to Part I adequate to inform the candidates that Part I was a 'hurdle'. The commission has offered no reason or explanation why advance notice was not given. There was no suggestion that it was not possible or that it was impracticable to do so. It is speculative whether a candidate would have acted differently if he or she had known that Part I was a 'hurdle'. But in the absence of any reason why that information was not given in advance the candidate should be given the benefit of the doubt. Moreover, there is a sound public policy served in requiring the civil service commission to provide as much information in advance concerning the procedure affecting an examination as is consistent with sound and practical administration. This principle, without reference to this specific detail, is incorporated in the very rules of the commission (rule V, § IV, subd. 8, par [b]). In the past when the 'hurdle' aspect of a civil service examination has been approved there was such advance notice (e.g., Matter of Davier v. Reavy, 179 Misc. 425). Accordingly, the failure to give advance notice in this instance was a material defect in procedure which, in the absence of any showing that it was not possible or that it was impracticable to give such advance notice, requires the relief granted at Special Term.

The second objection to the manner of determining the passing mark involves more serious considerations. In this instance there was notice, we hold, to the candidates. That notice was provided under the rules which state: 'The required passing rating in any test, subject or part of an examination shall be fixed by the Director of Examination prior to the disclosure of the identities of the candidates therein.' (Rule V, § V, subd. 4.) This suggested that the commission proposed to use some comparative method for determining the passing mark. In this instance the commission used a comparative percentile based on the distribution of absolute percentages attained by the candidates in the examination. There is no quarrel with the use of a comparative percentile passing mark. It is a modern and scientific way of determining a reasonable passing mark considering the variableness of ...


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