McGowan v. Burstein, 71 N.Y.2d 729 (1988)

The New York State Constitution does not impose a blanket prohibition on the use of zone scoring in competitive civil service examinations, as the constitutional goal is merit selection, with competitive examinations being the preferred, but not exclusive, means of achieving that goal.

Summary

This case addresses whether zone scoring, a grading method that assigns a single grade to a range of raw scores on civil service exams, violates the New York State Constitution’s requirement that appointments and promotions be based on merit and fitness ascertained by competitive examination. Public employees challenged zone scoring as inherently non-competitive. The Court of Appeals held that a blanket prohibition on zone scoring is not constitutionally required, as merit selection is the ultimate goal, and competitive exams are the preferred, but not exclusive, means to achieve it. The Court emphasized that competitiveness is not an end in itself and should not override other relevant considerations for merit and fitness.

Facts

Plaintiffs, representing public employees, challenged the use of zone scoring on civil service examinations, arguing it violates the constitutional mandate for merit-based appointments. They did not challenge any specific exam or allege favoritism. The plaintiffs sought a declaration that zone scoring is per se unconstitutional and requested a permanent injunction against its use.

Procedural History

The Supreme Court denied cross-motions for summary judgment but granted a preliminary injunction, requiring court approval or plaintiff consent before using zone scoring. The Appellate Division modified, granting summary judgment to the plaintiffs and declaring zone scoring unconstitutional. The Court of Appeals reversed the Appellate Division’s ruling.

Issue(s)

1. Whether Article V, § 6 of the New York Constitution requires a blanket prohibition on the use of zone scoring in competitive civil service examinations.
2. Whether the use of zone scoring violates the defendant’s own requirement that “the relative order of scores [be] maintained” (4 NYCRR 67.1(b), (c)).

Holding

1. No, because Article V, § 6 of the New York Constitution does not mandate a blanket prohibition of zone scoring; merit selection is the overarching goal, and competitive examinations are the preferred but not exclusive means.
2. No, because the defendants interpret their regulations as allowing for zone scoring, and this interpretation is neither irrational nor arbitrary.

Court’s Reasoning

The Court acknowledged the potential threat zone scoring poses to the competitive examination process and the merit system. However, it emphasized that the plaintiffs’ challenge was a facial one, requiring them to demonstrate that zone scoring would be unconstitutional in any degree and every conceivable application. The Court found they failed to meet this burden.

The Court noted that the Civil Service Department has the responsibility to implement the merit system and considerable judicial deference is given to the Commission’s assessment of how merit and fitness should be measured. The Court agreed with the Department that the Constitution does not mandate an absolute prohibition of zone scoring. The court emphasized that strict rank ordering of exam scores to maximize competitiveness should not override considerations relevant to merit and fitness. The court reasoned it would be “perverse to sanctify rank ordering of exam scores in a quest to maximize competitiveness if, as a result, other considerations relevant to merit and fitness are discounted or swept aside”.

The Court found that the constitutional preference for competitive examinations “commends a middle ground which incorporates both competitive testing and consideration of untestable attributes, where both are necessary for a complete evaluation of merit and fitness”. Therefore, the Court held that Article V, § 6 of the New York Constitution does not require a blanket prohibition of zone scoring. Regarding the defendant’s regulations, the Court deferred to the defendant’s interpretation that the regulations allow for zone scoring.