Desmond v. Bahou

Appeal from a judgment of the Supreme Court at Special Term, entered July 7,1980 in Albany County, dismissing the petition in a proceeding pursuant to CPLR article 78. The petitioners seek to annul a determination of the Civil Service Commission to withdraw 15 questions from the grading of a written competitive examination held on December 9, 1978 for the titles of Senior Employment Security Manager and Employment Security Manager and to certify an eligible list based on answers to those remaining questions. Subsequent to the examination, the Civil Service Department learned that 15 of the 90 questions used in the examination were equivalent to questions used in a training session attended by some 18 of the 500 candidates taking the exam. The testing staff ascertained that those who took the training session and had preparation in the 15 questions scored higher in the exam than other candidates. It was recommended to the Civil Service Commission that the questions be deleted. This recommendation was approved by the Civil Service Commission and the answer papers were rescored, reflecting the new scores. Petitioners, all of whom had taken the exam and none of whom had participated in the training session, failed the exam. They contend that they were denied the benefit of their answers to the 15 deleted questions and that the respondent abused its authority in arbitrarily withdrawing questions from what was a competitive examination. It is undisputed that the Civil Service Commission has wide latitude in deciding the competitiveness of a given examination (Matter of Katz v Hoberman, 28 NY2d 530). Judicial review is limited to an inquiry as to whether there was a rational basis for the commission’s action (Matter of Banko v Bahou, 69 AD2d 933). Although we might question the necessity for the instant action in circumstances where candidates, through their industry, fortuitously prepare for test questions which ultimately find their way into the exam, we cannot say that the commission’s decision is without rational basis. The remaining questions constitute a fair test of the exam and 924 the commission’s action was taken to safeguard the competitive integrity of the examination. The action was reasonable and, therefore, it was a valid exercise of the discretion vested in the Department of Civil Service (Matter of Sherman v Department of Civ. Serv., 77 AD2d 719). Judgment affirmed, without costs. Greenblott, J. P., Main and Mikoll, JJ., concur.