|3. Appeal by Plaintiffs
Legal Brief by
Non-Minority Suffolk County Officers to Appeals Court
I. STATEMENT OF THE
SUBJECT MATTER AND APPELLATE JURISDICTION
| This civil action
was commenced by Plaintiffs-Appellants on May 17, 2000 in the Supreme Court of the State
of New York, County of Suffolk, as a proceeding pursuant to New York Civil Practice Law
and Rules Article 78, challenging the selection device (civil service examination)
utilized by Suffolk County in 1999 for filling police officer positions within the County.
On that date, Justice Robert Lifson granted an application by Plaintiffs-Appellants
brought on by Order to Show Cause, seeking a Temporary Restraining Order, prohibiting the
County of Suffolk from hiring any police officers from a list of applicants compiled as a
result of the Suffolk County 1999 civil service examination, and ordered a hearing for May
|Suffolk County Case Index
On May 19, 2000, Defendants-Appellees, Alan Schneider and Suffolk County, filed a Notice
of Removal in the United States District Court, Eastern District to remove the action from
state court to federal court. On May 22, 2000, said Notice of Removal was filed in state
court. On June 7, 2000, Defendants-Appellees, Alan Schneider and Suffolk County, filed a
Verified Answer. On June 19, 2000, Plaintiffs-Appellants formally moved to remand the
action to state court.
On June 27, 2000, Plaintiffs-Appellants filed an Amended and Supplemental Petition in
District Court. On June 20, 2000, the United States of America intervened as a party
defendant. On June 29, 2000, Defendants-Appellees, Alan Schneider and Suffolk County,
filed a motion to vacate the Temporary Restraining Order. By Order dated July, 28, 2000,
the United States District Court denied Plaintiffs-Appellants' motion to remand and found
moot Appellees' motion to vacate the Temporary Restraining Order.
On August 25, 2000, Defendants-Appellees filed a joint motion, pursuant to Rule 12(b)(6)
of the Federal Rules of Civil Procedure, to dismiss the Amended and Supplemental Petition.
By Memorandum and Order dated September 19, 2000, the United States District Court granted
Defendants-Appellees joint motion to dismiss the Amended and Supplemental Petition. A
Judgment in favor of Defendant-Appellees dismissing said Amended and Supplemental Petition
was signed by the Clerk of the District Court on September 26, 2000 and entered on
September 27, 2000. Notice of Entry of the Memorandum and Order, dated September 19, 2000,
was served upon counsel for Plaintiffs-Appellants via regular mail on October 5, 2000.
As the Memorandum and Order, together with the Judgment, formed a final disposition of
this matter, Plaintiffs-Appellants filed a Notice of Appeal with the District Court on
October 19, 2000, as of right and within the time limitations set forth in Rule 3 of the
Federal Rules of Appellate Procedure.
II. STATEMENT OF
THE ISSUES PRESENTED FOR REVIEW
1. Whether there is any
enforceable standard of merit and fitness under a Title VII job qualification standard?
2. Whether the Amended
Petition Alleged Violations of Article V, Section 6 of the New York State Constitution,
Section 50(6) of the New York Civil Service Law, or the Suffolk County Code standards of
merit and fitness?
3. Whether New York State
standards of merit and fitness purport to require or permit discriminatory employment
practices, as defined in federal law, so as to preclude a hearing, as to whether the
selection device employed by the County of Suffolk for police officer positions is
"unduly abstract" and/or non-predictive of job qualifications?
4. Should a hearing have
been ordered prior to the decision on the underlying motion as to whether the
non-cognitive selection methods utilized by Defendants-Appellees were "unduly
abstract", or failed to be proper indicia of job qualification or proper predictors
of job performance?
5. Whether the use of
"unduly abstract" questions, forming the basis for ranking of job applicants,
raises a triable issue under federal, state and local law?
6. Whether combat era
veteran preferences merits the type of protection extended under the Privileges and
Immunities Clause, as rights that are "essential attributes of national
7. Whether there is a level
of danger to the public safety under the Tenth Amendment created by the use of
"unduly abstract" selection devices for law enforcement positions?
III. STATEMENT OF
Plaintiffs-Appellants brought this action in the Supreme Court of the State of New York,
alleging that the 1999 Suffolk County Police Examination was neither prepared,
administered or graded in accord with Article V, Section 6 of the New York State
Constitution, Section 50(6) of the New York State Civil Service Law, and the Suffolk
a. The selection device
designed, implemented and graded by S.H.L. Landy Jacobs, Inc., a private testing company,
for the hire of police officers in Suffolk County contained "unduly abstract"
questions which failed to provide a valid measure of applicants relative ability to
discharge the duties of the service into which they seek to be appointed;
b. The grading lists were
altered when it was determined that, after the inclusion of a substantial number of
cognitive questions in the examination, small numbers of minority candidates were found in
the top levels.
c. The weight given to
answers of "unduly abstract" questions was increased over and against answers to
cognitive answers, after it was determined that the grading list contained small numbers
of minority candidates in the top levels;
d. State and County civil service
laws were specifically waived by the Consent Order of 1987 (A. 39) with respect to the
County's interim use of the Richardson Bellows Henry ("RBH") selection device
only, and not with respect to the selection device in question; and
e. Alan Schneider,
Personnel Officer of the County of Suffolk, has failed to employ his power to correct,
amend or revoke the eligible list in accordance with the Suffolk County Code.
f. The District Court erred
in dismissing the Amended Verified Petition absent allowing the parties any discovery or
having a proper hearing on the merits.
IV. STATEMENT OF FACTS
The underlying proceeding was brought by Plaintiffs-Appellants based on their contention
that Appellees are in violation of various sections of the New York State Constitution,
New York Civil Service Law and Suffolk County Code. Plaintiffs-Appellants allege that: (1)
Appellees have failed to certify that the 1999 Suffolk County civil service examination
for police officers, as graded, was either practical in its character and related to those
matters which fairly test capacity and fitness of the persons examined to discharge the
duties of that service into which they sought to be appointed, or whether it was not such
a merit based and graded examination; (2) the 1999 Suffolk County civil service exam for
police officers is not competitive under statutory measure, not constitutional and not
valid under standards for use of non-cognitive data in employee selection; and (3)
Appellees manipulated the 1999 Suffolk County civil service exam for police officers test
questions and answers to achieve specific results, disregarding mandatory State
constitutional and statutory merit and fitness requirements for police officer positions,
endangering public safety, and violating Plaintiffs-Appellants' rights to a competitive
civil service examination.
Plaintiffs-Appellants are individuals who took the 1999 Suffolk County Civil Service
Examination for Police Officers, after having paid a $100 mandatory fee to Suffolk County
Department of Civil Service. (A. 71-72). In many cases, Plaintiffs-Appellants purchased
materials or paid to attend courses to prepare for the examination. The examination was
designed and graded by S.H.L. Landy Jacobs, Inc., a private testing company. (A. 87, 134).
It originally included many cognitive questions, as well as various "unduly
abstract" psychological questions. (A. 71-81).
Test results were mailed to Plaintiffs-Appellants in March 2000. Of the approximately
27,000 individuals who took said examination, none of the Plaintiffs-Appellants scored in
the first band or in the upper part of the second band and have not been selected to
advance to the secondary level of screening. A majority of Plaintiffs-Appellants are
presently law enforcement officers, many serving as police officers, detectives, sergeants
and lieutenants in the New York City Police Department, as Deputy Sheriffs in the Suffolk
County Sheriff's Department or as Town or Village Police Officers. These are experienced,
highly regarded law enforcement officers, many of whom are college educated, and
recipients of commendations. They have universally obtained extremely high scores on
previous civil service examinations. (A. 71-81).
It is alleged by Plaintiffs-Appellants, that Appellees engaged in the manipulation of the
testing, rating and scoring of the 1999 Selection Device. It is further alleged that such
actions violate the Constitution of the State of New York, New York Civil Service Law,
Suffolk County Code, the Consent Decrees of this Court (A. 39-70).
V. OVERVIEW OF
The Second Circuit stated in Kirkland v. New York State Department of Correctional
Services., 520 F.2d 420, 428-29 (2d Cir. 1975) that an attack on civil service
examinations heralds future confrontations between the advocates of equal opportunities
and the supporters of our civil service system. This Court indicated that:
"...the judiciary should act
with great reluctance in undermining traditional civil service concepts; and, if a
decision is to be made to subordinate the social purposes of civil service to those of
equal employment opportunity, that decision should be made by the people speaking through
Kirkland, supra, 520 F.2d at 429. Federalism concerns make it appropriate for Congress to
speak clearly when it regulates state action. Kimel v. Florida Board of Regents, 528 U.S.
62, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000). In Kimel, 528 U.S. at 94-95, Justice Stevens
indicated that: "Congress can use its broad range of flexible legislative tools to
approach the delicate issue of how to balance local and national interests in the most
responsive and careful manner."
Moreover, in a concurring opinion in Rutan v Republican Party of Illinois, 497 U.S. 62,
80, 110 S.Ct. 2729, 2740, 111 L.Ed.2d 52 (1990), Justice Stevens reiterated a point he had
first made as a Circuit Judge:
"Neither this court nor any
other may impose a civil service system upon the State of Illinois. The General Assembly
has provided an elaborate system regulating the appointment to specified positions solely
on the basis of merit and fitness....A federal court has no power to establish any such
Appellees, herein, in a misguided effort to enforce Title VII, have indeed imposed a
national civil service system upon Suffolk County and disregarded New York State's merit
and fitness requirements as a basis for hiring. Such adverse behavior was specifically
addressed by Senators Case and Clifford in 1964, co-managers of the Senate bill on Title
VII, who stated:
"Title VII expressly
protects the employer's right to insist that any prospective applicant, Negro or white,
must meet the applicable job qualifications. Indeed, the very purpose of Title VII is to
promote hiring on the basis of job qualifications, rather than on the basis of race or
110 Congressional Record 7213, 7247 (1964); quoted in Price Waterhouse v. Hopkins, 490
U.S. 228, 243, 109 S.Ct. 1775, 1787, 104 L.Ed.2d 268 (1989); cited in Taxman v. Board of
Education of Township of Piscataway, 91 F.3d 1547 (3rd Cir. 1996), 519 U.S. 1089, cert.
granted, 117 S.Ct. 763), cert. denied, 522 U.S. 1010, 118 S.Ct. 595. Nevertheless, the
United States Justice Department has taken it upon itself, through imposition of
unsupervised "consent decrees" with municipalities, to abolish the protections
of civil service in over two hundred municipalities across the country. The instant appeal
speaks to harm which has ensued throughout the country, and specifically Suffolk County,
and which should be redressed by the courts. This includes the violation of state
constitutional law, state Civil Service Law, County Code Civil Service protections,
violations of veterans rights to preference on open and competitive civil service exams,
the danger to the public safety under the Tenth Amendment and the violation of state
consumer law by deceptive advertising which purports to announce open and competitive
civil service examinations for selection devices, which are, in fact, nothing more than
lotteries implemented to defray allegations of discriminatory intent or impact.
The instant Suffolk County police officer "selection device" purportedly
guaranteed equality for all candidates. However, in reality the examination did not test
the skills and qualifications necessary for the position of police officer. This, the
Supreme Court found, is contrary to Congress' intent. Griggs v. Duke Power Co., 401 U.S.
424, 430, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971). The courts have long recognized the
risk to public safety of hiring incompetent firefighters or police officers. Zamlen v.
City of Cleveland, 906 F.2d 209 (6th Cir. 1990), cert. denied, 499 U.S. 936, 111 S.Ct.
1388, 113 L.Ed.2d 444 (1991). As Judge Sofaer found twenty years ago, petitioners have a
right to prove to the court that a selection device such as this will be meaningless in
ascertaining cognitive abilities and job qualification. Vulcan Society of Westchester
County, Inc. v. Fire Department of White Plains, 505 F.Supp. 955, 964 (S.D.N.Y. 1981).
However, the District Court herein utterly refused to permit an examination of the Suffolk
County selection device, abdicating all oversight to the Department of Justice.
Essentially, the judiciary has conferred its enforcement powers upon a body appointed by
the executive branch. This violates the doctrine of separation of powers and should be
In this case, the Appellees have now used this device for ranking and hiring. The
examination has not been demonstrated in any court to be valid as even a qualifying
standard, much less a ranking device. At a hearing, the instant selection device would
never survive the scrutiny given open and competitive civil service examinations for use
as a ranking mechanism. How, then, are the Appellees able to rank candidates on the basis
of this selection device, abolishing civil service protections without subjecting their
mechanism to court scrutiny of its efficacy? This Appeal raises these issues.
VERIFIED PETITION AND AMENDED AND SUPPLEMENTAL VERIFIED PETITION CONTAIN ALLEGATIONS, THAT
IF PROVEN TO BE TRUE, WOULD VIOLATE FEDERAL, STATE, AND LOCAL LAW, AS WELL AS THE CONSENT
The standard for dismissing a party's claims was set forth by this Court in Dangler v. New
York City Off Track Betting Corp., 193 F.3d 130, 138 (2nd Cir. 1999), which held:
"We review these contentions
under the familiar principles governing motions to dismiss pursuant to Fed. R. Civ. P.
12(b)(6) for failure to state a claim on which relief can be granted. Such a dismissal is
not warranted "unless it appears beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to relief." Conley v. Gibson,
355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). In ruling on such a motion, the
court is to look only to the allegations of the complaint and any documents attached to or
incorporated by reference in the complaint, see, e.g., Newman & Schwartz v. Asplundh
Tree Expert Co., 102 F.3d 660, 662 (2d Cir. 1996), to assume all well-pleaded factual
allegations to be true, and to view all reasonable inferences that can be drawn from such
allegations and documents in the light most favorable to the plaintiff, see, e.g.,
Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996). Applying these principles to the
complaint at issue here, we conclude that Dangler's First Amendment claims should not have
been dismissed for failure to state a claim on which relief can be granted."
The District Court erred in finding that the Amended Petition herein does not allege facts
supporting claims that would constitute a violation of federal, state, and local law, as
well as the Consent Decree. In so ruling, the Court ignored the fact that the Petition
alleges an illegal and fraudulent manipulation of test questions, and perhaps more
importantly, test answers, to achieve specific results, disregarding mandatory merit and
fitness requirements for the position of police officer.
During the course of this litigation, Appellees have conceded that if these allegations of
manipulation and fraud were true, such actions would violate the Consent Decree. The
District Court, however, indicated that:
"Even if defendants, in a
memorandum previously submitted to this Court, did suggest that the facts alleged, if
true, might violate the Consent Decree, defendants most recent submission as well as the
plain language of the Consent Decree itself lay to rest any doubt as to whether the
current test violates the Consent Decree." (A. 169).
What the lower Court fails to recognize is that an intentional manipulation of test
answers, which favors minority groups, by making the majority of their responses the
correct answer to subjective questions, results in both disparate intent and impact. This
would constitute a violation of the Consent Decree, as well as Title VII. Unlike in Hayden
v. County of Nassau, 180 F.3d 42 (2nd Cir. 1999), Appellants specifically allege the
alteration or manipulation of examination answers after the initial grading of same.
The Court has also failed to perceive that if the Appellees graded the examination in an
outright fraudulent manner, as alleged in the Petition, surely this action would facially
constitute a violation of the Consent Decree. (A. 43-44). But the Court has ruled that the
Petition does not allege facts supporting this claim. In so ruling, it ignores the fact
that the aforementioned allegations, if contained within the four-corners of the pleading,
must be taken as true for the purpose of the motion. See, Still v. DeBuno, 101 F.3d 888,
891 (2d Cir. 1996). It cannot be said that Plaintiffs-Appellants are not entitled to
relief under any state of facts which could be proved in support of this specific claim.
Thus, Plaintiffs-Appellants' allegation should have sufficed to defeat Appellees' motion.
See, Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).
Additionally, the District Court found that discovery was not necessary as the Petition
did not allege sufficient facts. By so ruling, it again ignored the specific allegation
that the test answers (as well as questions) had been intentionally manipulated so as to
cause the desired groups answers to be deemed the correct answers. (A. 25 at ¶ 10, A. 29
at ¶ 21). This factual allegation, if proved to be true, would certainly constitute a
violation of the Consent Decree as well as Title VII. Only through discovery could the
truth of these allegations be uncovered. It is significant to note that during the course
of this litigation, Appellees have never denied these allegations. In the absence of a
denial of the allegations supported by at least some factual proof, discovery should have
been ordered by the District Court, in order for it to determine the validity of
FAILED TO COMPLY WITH CONSTITUTIONAL AND STATUTORY GUIDELINES FOR THE DESIGN AND GRADING
OF THE CHALLENGE SELECTION DEVICE
In Guardians Association of New York v. Civil Service Commission, 630 F.2d 79, 100-101
(2nd Ct. 1980), cert. denied, 452 U.S. 940, 101 S.Ct. 3083, 69 L.Ed.2d 954 (1981), the
Second Circuit stated, "Permissible use of rank ordering requires a demonstration of
such substantial test validity that it is reasonable to expect one or two point
differences in scores to reflect differences in job performance." Discussion of that
standard is absent from the District Court's opinion. It is submitted that this matter
should be returned to the District Court for a full hearing on whether the selection
device can be shown to bear a demonstrable relationship to successful performance of the
job of Suffolk County Police Officer or qualification for the position.
Cognitive ability tests have been demonstrated to be excellent predictors of performance
for police and detectives in public service. Hirsch, Northrop & Schmidt,
"Validity Generalization Results for Law Enforcement Occupations", Personnel
Psychology (1986)(cited in Findings of Fact and Conclusion of Law for United States of
America v. The City of Torrance, No. CV 93-4142 (C.D. Cal. September 18, 1996)( USDJ
Pfaelzer). Examinations which test cognitive skills measure reading, writing and reasoning
abilities and are reliable and valid predictors of performance in law enforcement
The New York State Constitution, Article V, Section 6; (1)
Section 50(6) of the New York Civil Service Law; (2) and Section 580-1 of the
Suffolk County Code (3), were enacted to ensure that civil service positions were to be filled,
as far as practicable, using merit and fitness standards determined by open and
competitive examinations. Rather than follow these standards, the Justice Department has
endeavored to ignore merit based test scores, which would have accurately assessed
Appellants' ability to perform the duties required of a police officer. Thus, rather than
waiting for the people to speak through their legislators to abolish competitive civil
service testing, the Justice Department has done it for them. Unfortunately, the District
Court has rubber stamped this dubious direction for determining who is best qualified to
be a Suffolk County police officer, by its unwillingness to enforce standards of job
qualification or predicted job performance in the selection device, despite the clear
intent of Congress.
The District Court, in its opinion below, stated that the only type of allegations that
would violate the Consent Decree are those that involve treating applicants differently on
the basis of race or gender. (A. 171). Initially, the Plaintiffs-Appellants are and were
prepared to demonstrate that the administration of the examination did just that. The
District Court ignored this challenge by dismissing the Amended Petition without any
hearing on the merits. Moreover, if one is to take the District Court's reasoning
literally, then a lottery for these law enforcement positions is acceptable under the
Consent Decree. This is inconsistent with the Second Circuit's standard that an
examination must be "shown to bear a demonstrable relationship to successful
performance of the jobs for which it is used." Vulcan Society of the New York City
Fire Department Inc. v. Civil Service Commission, 490 F.2d 387 (2d. Cir. 1973).
The District Court's opinion is also inconsistent with the Uniform Guidelines 28 C.F.R.
50.14(4)(E) ("...selection procedures under such programs should be based upon
the ability or relative ability to do the work."). In contrast to the District
Court's opinion, the Circuit Court's Opinion in Vulcan, supra, and the Uniform Guidelines
are each consistent with the New York Constitution, New York Civil Service Law and the
Suffolk County Code, each mandating merit and fitness based hiring. These standards
obviously have value in ensuring that law enforcement is conducted fairly and capably.
Plaintiffs-Appellants raise the issue herein as to whether any standards of merit and
fitness in hiring remain to be enforced by the courts. The decision below infers that
lotteries are acceptable to the court so long as their social purpose is acceptable to the
Justice Department. The selection device in issue has eliminated cognitive function
measures from the substantive grading of the device. What particular measure of feelings
or attitudes is reflected in the grading of the instant selection device is a mystery to
but Appellees and S.H.L. Landy Jacobs, since no testimony was adduced by the Court below.
Appellees use of the Consent Decree as a means to design and implement any type of
examination they wish, without any scrutiny by the court or the public, has resulted in
turning the Consent Decree into "an instrument of wrong." Agostini v. Felton,
521 U.S. 203, 215, 117 S.Ct. 1997, 2006, 138 L.Ed.2d. 391, 409 (1997). Appellees' entities
have in effect "purchased from a court of equity a continuing injunction"
substantively abolishing state merit and fitness standards, while depending upon the
indifference of the federal court to shelter the entirely subjective nature of their
"selection device". System Federation No. 91 v. Wright, 364 U.S. 642, 651, 81
S.Ct. 368, 373, 5 L.Ed.2d. 349, 355 (1961). This oversight furnished to the Department of
Justice should be deemed as a violation of the doctrine of separation of powers.
Thus, this entire matter should be remanded to the District Court for a full and formal
hearing on the matter of the testing device that was designed, implemented, administered
and graded by Appellees.
SELECTION DEVICE VIOLATES THE TENTH AMENDMENT AND ENDANGERS THE PUBLIC SAFETY
In Suffolk County, the police officer is the first responder to all emergency calls. The
Suffolk Police District is serviced by volunteer ambulance companies rather than a paid
municipal service such as New York City Fire/EMS. The judgments made by the arriving
police officer are crucial to the survival of individuals in need of medical attention.
Often, these decisions have to be made in the interplay of emotions which accompany
tragedy or violence. Plaintiffs-Appellants have argued herein that the cognitive abilities
of the police applicant should be measured to ascertain their level of competence in
dealing with complex factual situations.
In the decision below, the court indicated that "...this assertion, that there is a
necessary correlation between the minimization of cognitive factors and competent police
officers is questionable, at best." (A. 173). The lower court further opined that
"...the Court fails to see how action taken by a defendant to remedy that (disparate)
impact, including the use of the testing scheme presently at issue, can violate the Tenth
Amendment." (A. 172-73). This logic is faulty. It is akin to saying that no public
safety issue is raised by firing wildly with a shotgun if one perceives it will remedy the
ringing doorbell. A hearing may well have revealed to the court the dangerous potential of
this lottery device for law enforcement selection. Instead, the court limited itself to a
discussion of how Guardians, supra, "resolved" the argument. (A. 172). To the
contrary, Guardians, supra, reinforced the need for a hearing on whether this selection
device can be shown to have demonstrable relationship to successful performance of the
job. In failing to conduct such a hearing, the court has failed to examine these
allegations. The officer selected by this non-competitive device, much like the student in
a failing school, may well be unable to function effectively when faced with both ordinary
and crisis situations. Just by reading the newspapers one is well apprized of the numerous
instances of alleged police misconduct in both Suffolk and Nassau Counties, as well as the
Town of Wallkill, New York. Significantly, many jurisdictions are now utilizing similar
examinations at a time when these and other police departments are undergoing tremendous
scrutiny and criticism. The continuing imposition of this type of examination by the
Department of Justice upon local police departments poses a serious and continuing danger
to all citizens of this country, as there is a greater likelihood that police departments
will hire incompetent police officers, who may abuse their authority. This will only
further perpetuate community distrust of local law enforcement.
SELECTION DEVICE DISREGARDED NEW YORK CIVIL SERVICE LAW WHICH IMPOSES STANDARDS OF MERIT
AND FITNESS FOR MUNICIPAL JOB SELECTION
"Noncompetitive examinations may readily be manipulated by the unscrupulous, with
little likelihood of detection." Merlino v. Alan Schneider as Personnel Officer of
the Suffolk County Department of Civil Service, 93 N.Y.2d 477, 693 N.Y.S.2d 71 (1999). The
clear language of the Merlino court mandates that civil service examinations test
abilities relevant to job qualification, or be predictive of job performance, and that
they withstand meaningful scrutiny. The court's decision below is, therefore, inconsistent
with the Court of Appeals decision in Merlino, and ignores New York States statutory and
constitutional standards for design, implementation and grading for such examinations. The
Court of Appeals has warned against such judicial indolence when it advised that without
full disclosure and independent review, "the integrity of the entire civil service
system is at risk." Mena v. D'Ambrose, 44 N.Y.2d 428, 433, 406 N.Y.S.2d 22, 24
The provisions of the State Constitution, statutes and rules requiring that appointments
be made from among qualified people pursuant to competitive examination are intended to
limit the group from which selection may be made to those who are qualified. Professional
Clerical Technical Employees Association v. Buffalo Board of Education, 90 N.Y.2d 364, 660
N.Y.S.2d 827 (1999). The Court of Appeals addressing the concern that cronyism, rather
than competence could determine who will fills civil service positions, held, "[t]he
competitive examination is favored by the Constitution because it provides, presumably,
and objective and verifiable measurement of the candidates' merit..." McGowan v.
Burstein, 71 N.Y.2d 729, 733, 530 N.Y.S.2d 64, 66 (1988)(citations omitted). While the
court in McGowan, permitted some degree of flexibility in testing candidates for civil
service positions, the court's opinion cannot be construed as permitting an entirely
subjective, non-cognitive selection device as the one in question.
When the federal district court, as it did here, deferred entirely to the Executive Branch
for oversight of a consent decree that waived state constitutional law as to a specific
selection device, the risk in terms of allowing for adverse hiring procedures implemented
by the agency is tremendous. In failing to safeguard state constitutional requirements,
there is an abdication of the role of the federal courts to monitor possible overreaching
by the Executive Branch.
The opinion below in effect states that lowest common denominator ability is sufficient
for civil service hiring. The New York State Constitution, New York Civil Service Law,
Suffolk County Code, and the New York State Court of Appeals are to the contrary. The New
York Supreme Court was prepared to review these matters in a hearing scheduled following
the issuance of the temporary restraining order. After the Appellees removed the matter to
the federal court, the federal court abdicated its role in ensuring that the civil service
process was conducted fairly and legally.
SELECTION DEVICE VIOLATES THE PRIVILEGES AND IMMUNITIES CLAUSE
preferences rights are essential attributes of national citizenship. The Supreme Court has
upheld the rights of indigent citizens to state benefits based upon their rights as
national citizens under the privileges and immunities clause. Plaintiffs-Appellants
contend that the government Appellees, by changing the standard for law enforcement
selection from civil service based merit and fitness tests to a private corporation's
random lottery selection device, have violated the rights of the combat era veterans
(including Plaintiffs-Appellants Evans and Lloyd). The combat era veterans are entitled to
five (5) preference points on a merit and fitness open and competitive examination under
Section 50(6) of the New York Civil Service Law.
|Suffolk County Case Index
The Appellees have made that right meaningless by changing the selection device to a
lottery system. The federal courts must be constantly mindful of the special delicacy of
the adjustment to be preserved between federal equitable power and State administration of
its own law. Rizzo v. Goode, 423 U.S. 362, 378, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976). As
indicated above with regard to the separation of powers, a single federal administration's
efforts to reduce the recognized value of combat military service by discarding state
civil service laws honoring that combat service should be closely monitored and reviewed
by the federal courts.
The refusal of the courts to safeguard those rights calls into question the covenant
between the nation and the citizen soldier. The refusal of the federal court to even
follow the lead of the state court and schedule a hearing on the matter mandates reversal
and direction to the court below to conduct meaningful review as to how and why these
rights are being discarded.
The District Court's decision in dismissing each and every one of Plaintiffs-Appellants'
claims was premature as the court failed to conduct a full hearing on the merits of
Plaintiff-Appellants' contentions. Thus, this Court should vacate the judgment of the
District Court and the matter should be remanded for further proceedings, including
appropriate discovery and a full hearing on all of Plaintiff-Appellants' claims.
1. New York State Constitution, Article V, Section 6,
provides, "Appointments and promotions in the civil service of the state and all of
the civil divisions thereof, including cities and villages, 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..." [Return to main text]
2. Section 50(6) of the New York Civil Service Law,
provides, "Scope of examinations. Examinations shall be practical in their character
and shall relate to those matters which will fairly test the relative capacity and fitness
of the persons examined to discharge the duties of that service into which they seek to be
appointed..." [Return to main text]
3. Section 580-1(A) of the Suffolk County Code, provides,
"The purpose of these rules is to provide an orderly and uniform system for the
administration of civil service in the County of Suffolk on the basis of merit and fitness
as provided in Article V, Section 6 of the New York State Constitution, the Suffolk County
Charter and the Civil Service Law of the State of New York...." [Return to main text]
Additional Background and Info:
Uniform Guidelines on Employee Selection Procedures (Recommended)
Derails Hiring of Cops in Suffolk County (05/19/00)
The Role of Minority / Quota Consultant
SHL Landy Jacobs
END Case 21:
(3) Suffolk County - Appeal by