Blumenthal v. Morton

Peck, P. J. The Municipal Civil Service Commission conducted the written promotion examination in question for the position of sergeant of the New York City Police Department. About 7,000 candidates took the examination, including the 111 petitioners and the 117 intervening defendants. The examination consisted of ninety “ multiple choice ” questions. Four possible answers to each question were submitted for the candidates’ consideration, with the instruction to select “ the best one of the four choices. ’ ’ After the exámination, the commission, in accordance with its usual practice, published tentative key answers in the City Record and announced that protests could be filed. The tentative key answers so published included two or more answers to four out of the ninety questions. About one thousand protests were filed including protests from several of petitioners. After considering the protests, the commission published final key answers accepting two or more answers to five additional questions, resulting in two or more answers being-accepted as “ best ” to nine of the ninety questions on the examination. The examination papers were rated in accordance with the final key. Petitioners moved at Special Term for an order canceling the examination or directing defendants to eliminate from the examination the nine questions or to revise and rerate the examination in accordance with the instructions. Petitioners’ contention is that the examination was conducted on the premise that there was one “ best ” answer to each question and that only one answer should be accepted as “ best ” to any question. If a question does not lend itself to competitive rating on the basis of a “ best ” answer, petitioners contend that question should be eliminated from the examination. The commission contends that, as its good faith is not questioned, its exercise of discretion should not be disturbed. The court at Special Term held that by accepting two, three or four answers to some questions, the commission departed from the standard it had set and the instruction it had given to the candidates taking the examination. The court directed the commission to conform to that standard and instruction by selecting one best answer to each question. While the Civil Service Commission is vested with wide discretion in preparing and grading examinations for civil service positions (Matter of Allen v. Finegan, 254 App. Div. 858; Matter of Immediato v. Kern, 278 N. Y. 680; Matter of Brady v. Finegan, 269 N. Y. 571), the action of the commission must conform with legal standards which stem from the eonstitu [500] tional provision that appointments and promotions in the civil service shall be made according to merit ascertained by examinations which shall be competitive. “ A test or examination, to be competitive, must employ an objective standard or measure. Where the standard or measure is wholly subjective to the examiners it differs in effect in no respect from' an uncontrolled opinion of the examiners and cannot be classed as competitive. * * * An examination cannot be classed as competitive unless it conforms to measures or standards which are sufficiently objective to be capable of being challenged and reviewed, when necessary, by other examiners of equal ability and experience.” (Fink v. Finegan, 270 N. Y. 356, 361-362.) The examination and grading must be objectively fair and calculated by objective standards to test the relative merit of the examinees. The instructions are an integral part of the examination and constitute a predicate of both the candidates’ and commission’s action, and necessarily the questions must be capable of answers which may be objectively graded. The instructions here assumed, or at least would be understood by those taking the examination to assume, that there was one best answer to each question. Although the commission defends, on entirely sound grounds, this type of examination, which is calculated to test judgment rather than mere knowledge, it does not suggest that there was any artifice in the instructions or the examination, or that the questions were prepared with the thought or intention of allowing more than one best answer to any question. We need not consider, therefore, but might even assume, the propriety of an examination, under fair instructions, which allowed more than one acceptable answer to a question. It is altogether clear here that this examination was set up and conducted on the basis of there being one best answer to each question, and the subsequent departure of the commission from that base standard, first by accepting multiple answers as best for four questions and then adding five more questions to the list in which multiple answers would be accepted as best, including the acceptance of diametrically opposite answers to one question and all four answers to another question, was the result of mistakes in preparing the examination questions. A “ best ” answer is something different from an acceptable answer. It is a relative matter and assumes, by the very employment of the word “ best ”, that there are alternatives of relative merit, of which one is the best. As a civil service examination is intended to test relative merit, the kind of exami [501] nation employed here, calculated to determine and test the discernment and judgment of the candidates in making a selection of the best of several alternatives, is peculiarly appropriate. The entire virtue of such an examination, however, lies in the existence of an objectively best answer. It is obvious that if more than one answer to a question is accepted as best, an action which is antithetical, there is a denial of a rating based on relative merit. It can hardly be argued, therefore, that if a question is susceptible of a single best answer it is permissible to accept as best other answers which are not relatively as good. To give the commission discretion to do so would be to tolerate a subjective standard or measure which is not permitted. The commission should certainly be expected and required, therefore, to select the single best answer wherever it is objectively possible to do so. It is quite clear that in the case of most of the nine questions in dispute on this examination it can do so. The trouble is that some of the questions are so inadequately or indefinitely framed that it is difficult to determine the best answer, and in some cases it is impossible to give any answer. While one or two questions might legitimately be regarded as permitting of more than one equally good answer, any difficulty in settling upon a “ best ” answer to the questions involved is not due to problems or differences of judgment but due to inadequacies or deficiencies in the questions. The adjustments the commission felt necessary to make in the key and the multiplication of answers it decided to accept were not so much an allowance for differences in judgment as ■ an attempt to compensate for deficiencies in the questions. Assuming that something of the kind might be done within limits, and that an error, oversight or miscalculation in preparing an examination is not fatal or beyond repair, we are of the opinion that the miscarriages here, involving 10% of the questions, as dealt with by the commission, would render the examination substantially noncompetitive and defeat the purpose for which examinations are held. The decision of the learned justice at Special Term is more in accord with the requirements of the occasion than the action of the commission. In principle, at least, it is sound in requiring the commission to determine the “ best ” answer to each question. We may readily observe that despite the difficulties all but two or three of the questions lend themselves to a single best answer. Only by insisting that the commission act accordingly will the spirit of the examination be kept and its purpose fulfilled. [502] The objection to Special Term’s direction is that a few questions, because of their deficiencies, are not capable of a best answer or any satisfactory answer. The commission should not be required in those instances to make what would be an arbitrary selection of an answer. That would be quite as unfair as the commission’s compromise of approving multiple answers. It would seem that such questions should be eliminated from the examination altogether. That can be done with no prejudice to the examination or harm to anyone. The only consequence would be to require a slight credit adjustment for the remaining questions. It is fairer and better that such questions be so eliminated than that they be counted on some arbitrary or compromised basis. To require the commission to select a single best answer in the case of every question in which that may be done, and to eliminate the question where that cannot be done, is not to interfere with any legitimate discretion of the commission or to substitute the court’s judgment for the commission’s judgment, but merely to require the commission to proceed in accordance with its own examination and the law. The order appealed from should be modified to permit the commission to eliminate from the examination such questions as it deems incapable of a best answer, making the necessary readjustment in the credit to be given on each of the remaining questions, and otherwise affirmed.