Merlino v. Schneider, 1 N.Y.3d 475 (2004)

Oral civil service examinations must employ objective standards as far as practicable, and where completely objective examinations are not possible, the exam should demonstrate that it tests merit and fitness without relying on the unfettered preferences of the examiners.

Summary

Merlino, an employee of the Suffolk County Department of Social Services, challenged the validity of an oral Spanish proficiency exam required for the position of Probation Investigator, Spanish Speaking. She argued the exam failed to meet the constitutional requirement of being “competitive.” The New York Court of Appeals reversed the Appellate Division’s decision, holding that the oral exam met the constitutional requirements because it employed objective standards as far as practicable, with pre-existing factors for evaluation, and the ability for review by other examiners. The Court emphasized that a completely objective standard is not always possible or required, particularly when evaluating language proficiency.

Facts

Merlino took a written exam for the position of Probation Investigator, Spanish Speaking, and passed. The second part of the exam was an oral Spanish proficiency test consisting of a 15-minute conversation with an examiner. The examiner assessed candidates on grammar, pronunciation, and vocabulary, using a rating sheet with a scale of 1 to 10. Merlino received failing scores. She was informed of her right to appeal and was later provided a tape of the exam. Merlino hired an independent consultant who gave her a passing grade.

Procedural History

Merlino commenced a CPLR Article 78 proceeding challenging the Department’s determination, arguing the oral exam violated the New York State Constitution. The Supreme Court dismissed the petition. The Appellate Division reversed, finding a lack of objective standards. The Court of Appeals granted leave to appeal.

Issue(s)

Whether the oral Spanish proficiency exam met the constitutional requirement of a “competitive” examination for civil service positions, considering the inherent subjectivity in evaluating language skills.

Holding

No, because the exam used pre-existing factors to evaluate the candidates, and the standards used to evaluate candidates, the abilities for which candidates would be tested and the substance, form and method of the oral exam were all clearly delineated.

Court’s Reasoning

The Court relied on previous cases, Matter of Fink v. Finegan and Matter of Sloat v. Board of Examiners, which established the standard for competitive civil service exams. It clarified that oral exams should employ objective standards as far as practicable. The Court distinguished the instant case from Matter of Fink, where the examiners lacked objective standards and simply offered conclusions about the candidate’s imponderable and undefined qualities. Here, the examiners used pre-existing factors (grammar, pronunciation, and vocabulary) and a rating sheet. The Court also noted that Merlino hired another linguist to review the exam, demonstrating that the exam was capable of being challenged and reviewed by other qualified examiners. The court acknowledged the impossibility of formulating a standard by which language skills may be defined or measured with entire objectivity, quoting Matter of Sloat: “The mandate of the Constitution for the ascertainment of merit and fitness, so far as practicable, by competitive examination, may not be transformed into an interdict against the examinations which are best adapted for the demonstration of fitness.” The Court concluded that the Constitution does not require rigid adherence to unrealistic principles of objectivity. Finally, the Court rejected Merlino’s argument that the Department erred by not allowing her access to the tape during her initial administrative appeal, noting that she failed to file a timely notice of error regarding the administration of the exam.