January 14, 2011

Make-up examination

Make-up examination
Alves v NYC Dept. of Citywide Administrative Services, Supreme Court, New York County, Justice Weissberg, [Not selected for publication in the Official Reports]

The New York City Department of Citywide Administrative Services [DCAS] held the written test for fire lieutenant on Saturday, September 27, 1997. 3,627 firefighters took the test. Those unable to take the test on the 27th could take a special test if the reason why they could not appear is on an enumerated list, which includes religious observances and military duties.

A special examination was taken by two firefighters who were Sabbath observers on Friday, September 26. On October 8, 1997, a make-up examination was administered to thirteen firefighters who were unable to appear on September 27. The questions on all three tests were the same, but the order in which they were presented was different.

On October 7, 1997, DCAS received an anonymous complaint alleging that a copy of the September 27 examination was seen in a Brooklyn firehouse on the evening of September 26 and that copies of the examination were, after September 27, seen in firehouses throughout the City. The October 8 make-up test was held as scheduled.

The City’s Department of Investigation (DOI) investigated the alleged breach in the integrity of the test. It found that that copies of the September 27 examination were widely available between September 27 and October 8; that many of the firefighters who took the October 8 examination admitted that they had seen a copy of the September 27 examination and discussed it with other firefighters before they took their test. DOI also reported that the test scores for the applicants who took the October 8 examination were higher than the scores for those who took the September 27 test. DOI concluded that the integrity of the October 8 make-up examination had been compromised and recommended that the results of that examination be nullified. DOI also concluded that there was no evidence that the integrity of the September 27 examination had been compromised.

Based on these DOI findings and conclusions, DCAS nullified the results of the October 8 examination. Four of the candidates who took the October 8 make-up test sued, contending that never saw a copy of the September 27 examination or discussed the questions on the examination prior to taking the October 8 make-up exam. They also contended that there was no specific finding that any individual petitioner cheated on the examination or otherwise engaged in fraud or deception.

The decision notes that one applicant, John Spillane, who was on military duty on September 27 was appointed as a provisional Fire Lieutenant on the basis of his test score as part of the settlement of a complaint he filed with the United States Department of Labor.

After properly nullifying the October 8 examination, DCAS decided that a second, separate make-up examination was impracticable because of the time and effort necessary to prepare and administer such a test and only 13 candidates were affected. It decided that the make-up for the October 8 examination would be the next scheduled general test for promotion to Lieutenant which, as petitioners point out, will likely not be conducted until at least the year 2001,

Justice Franklin R. Weissberg was not impressed by this and ruled that [i]n view of the fact that the respondents have conceded that the petitioners did not engage in any acts of misconduct, they should offer a viable and fair alternative thereto, such as they did for Mr. Spillane in agreeing to use his scores from the October 8 examination [to qualify him for provisional promotion] until ... the next scheduled examination....

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