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Since an oral examination of language proficiency cannot be wholly objective, a subjective element is insufficient to render the examination and the subsequent determination by the Department invalid.



Petitioner, an employee of the Suffolk County Department of Social Services(Department), applied for the position of Probation Investigator, Spanish Speaking. Pursuant to the Department's guidelines, Petitioner participated in a two-part examination. Having passed the written portion, Petitioner participated in a 15-minute recorded oral examination to determine her proficiency at conversing in Spanish. Using a rating sheet which included various criteria and a ranking scale of one to ten points, the independent examiner determined that Petitioner did not pass the exam.

The Department sent Petitioner a letter informing her that she did not pass the examination and had ten days in which to file an administrative appeal. Petitioner filed such an appeal. The Department denied her appeal, noting that there was no basis on which to find an error in the test or its administration.

Petitioner commenced an article 78 proceeding, claiming that the Department's oral proficiency exam did not meet the requirements of Article V, Section 6 of the New York State Constitution. The Supreme Court dismissed the petition, finding that the administration of the oral examination was not manifestly erroneous. The Appellate Division reversed, finding that the test was overly subjective and gave too much discretion to the administering individual. The Court of Appeals reversed the Appellate Division, finding that the constitutional mandate requiring competitive examinations does not demand total objectivity in evaluation. Qualities such as those tested in the Spanish oral examination (e.g. grammar, pronunciation, and vocabulary) cannot be measured by purely objective standards. The Court refused to second guess the format or methods of the examination as long as the test was competitive.



Whether an oral proficiency examination given to a prospective civil servant employee violates the constitutional requirement of competitiveness when the examination allows for subjective ranking by the examiner.


No. The Constitution mandates that merit and fitness be ascertained by competitive examination. Including some subjective elements in an examination is not a per se violation of this constitutional mandate.


Cases Cited by the Court

  • Matter of Sloat v. Bd. Of Examiners, 274 N.Y. 367 (N.Y. 1937).
  • Matter of Fink v. Finegan, 270 N.Y. 356 (N.Y. 1936).

Other Sources Cited by the Court

  • None


State of the Law Before Merlino

The New York State Constitution requires that "appointments and promotions in the civil service of the state . . . shall be made according to merit and fitness to be ascertained, so far as practicable, by examinations, which, so far as practicable, shall be competitive." N.Y. Const. art. V, § 6. In order for a test to be considered competitive, it must employ an objective standard or measure. See Matter of Fink v. Finegan, 270 N.Y. 356, 361 (N.Y. 1936). However, recognizing that some qualities cannot be measured objectively, the Court decided that some subjectivity is necessary. Id. at 362. In order to utilize a subjective element in a test, the state should show that (1) the quality to be tested is essential for the position; and (2) that no objective standard or measure is available. Id. at 363. The Court later stated that it may be difficult to ascertain which are the essential or desirable qualities for a particular position and, thus, the examiner may be given greater discretion in his or her evaluation. Matter of Sloat v. Bd. of Examiners, 274 N.Y. 367, 373 (N.Y. 1937). Nevertheless, examiners may not act arbitrarily and without application of "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." Matter of Fink v. Finegan, 270 at 362.

Effect of Merlino on Current Law

In Merlino the Court revisited the competitive requirement of Article V, Section 6 of the New York Constitution, which requires that all civil service promotion and appointment examinations be competitive. Merlino at para. 11. The Court found that examinations should employ objective standards as far as practicable. Id. at para. 19. The Court held that, because an oral examination of language proficiency cannot be wholly objective, a subjective element is insufficient to render the examination and the subsequent determination by the Department invalid. Therefore, the Court validated the standard established in Fink, and allowed the Department some subjectivity, provided the examination is sufficiently objective.

Unanswered Questions

When is an examination "sufficiently objective" to pass the New York Constitution's competitiveness standard? Similarly, how much subjectivity is allowed before an examination becomes unacceptable? What guidelines should agencies follow when developing similar examinations?

Survey of the Law in Other Jurisdictions

In accordance with the Merlino court, other jurisdictions allow subjective criteria to be used in oral examinations if they are uniformly applied to all candidates. In Almassy v. Los Angeles County Civil Service Commission, 34 Cal. 2d 387 (1949), the Supreme Court of California ruled that oral civil service examinations testing for personal fitness of a candidate may include subjective ranking factors, as long as those factors are necessary to measure specific qualities that are essential to performing the duties of the position in question.

In Stoor v. City of Seattle, 44 Wash. 2d 405 (1954), candidates in a group oral examination were ranked against each other using identical criteria. Noting the Almassy decision, the Supreme Court of Washington ruled that a group oral examination evaluating personality factors of candidates was competitive despite the inherent subjectivity involved.

In Colorado, oral examinations with subjective criteria are also valid. However, the results of an examination are void when the principle of uniformity is violated. In Civil Service Commission of the City and County of Denver v. Frazzini, 132 Colo. 21 (1955), the Supreme Court of Colorado upheld an oral examination, but voided the results of an administration of the examination in which certain examiners evaluated candidates using arbitrary criteria.

Prepared by:

  • Shannon Steege '00
  • Noel Valdez '00
  • Jason Jones '01
  • Kristen Schledorn '01
  • Kevin Churchill '01