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April 1, 2021

Requiring fluency in a particular language other than English for appointment to a position in the public service

In this CPLR Article 78 action the petitioner [Plaintiff] challenged the New York State Department of Civil Service created a new position in the State Department of Corrections and Community Services* [DOCCS] Correction Sergeant (Spanish Language) at DOCCS' request. The duties of this title were identical in all aspects to those required in the established position of Correction Sergeant, with the additional requirement that applicants for the new position be fluent in Spanish.

Ultimately two separate promotion eligibility lists were established, one for Correction Sergeant and the other for Correction Sergeant (Spanish Language).

Plaintiffs in the action allege that the creation of this new position was arbitrary, capricious and unlawful, that it violated their state and federal constitutional equal protection and due process rights and that DOCCS violated Article V, §6, the Merit and Fitness Clause, of the New York State's Constitution. Additionally, petitioners sought certification to proceed as a class action. DOCCS moved to dismiss the action, asserting objections in point of law. Supreme Court dismissed Plaintiffs' petition and Plaintiffs appealed.

The Appellate Division, citing Cove v Sise, 71 NY2d 910, observed "Administrative determinations concerning position classifications are of course subject to only limited judicial review, and will not be disturbed in the absence of a showing that they are wholly arbitrary or without any rational basis" and rejected Plaintiffs' argument that DOCCS failed to present evidence of the need for this new position classification.

As to Plaintiff's contention that the establishment of positions of Correction Sergeant (Spanish Language) violated Article V, §6 of Constitution, the court noted that two eligible lists were established, one for Correction Sergeant and a separate list Correction Sergeant (Spanish Language). The court observed that it might be troublesome were there but one list of eligibles established for appointment to the Correction Sergeant and to the Correction Sergeant (Spanish Language) titles, here there were two eligible lists established and both lists the lists remain separate and distinct.

Addressing Plaintiffs' argument that their due process rights under the United States and New York State Constitutions as their property interests in promotion were adversely  affected as the result of the establishment of the two titles by the Department of Civil Service at DOCCS' request, the Appellate Division, citing Matter of Andriola v Ortiz, 82 NY2d 320, explained "a person successfully passing a competitive [c]ivil [s]ervice examination does not acquire any legally protectable interest in an appointment to the position for which the examination was given, nor thereby gain a vested right to appointment to the position" and thus Plaintiffs' "contention is meritless."

Petitioners also advance the argument that "respondents violated their equal protection rights by conferring greater benefits on less qualified candidates who are proficient in speaking Spanish." Noting that for equal protection purposes, the appropriate standard for judicial review of a regulation is that it be sustained unless it bears no rational relation to a legitimate government interest, the Appellate Division said that the basis of the classification was proficiency in speaking Spanish, "which was required to effectively communicate with the Spanish-speaking inmate population and aid in the efficient and safe operations of DOCCS's facilities." Agreeing with the Supreme Court that the "differential treatment of Spanish-speaking and non-Spanish speaking employees was rationally related to a legitimate government interest," the Appellate Division held that the respondents "did not violate [the Plaintiffs'] equal protection rights under the NY or US Constitution."

* Although this is how DOCCS was named in the petition, the Appellate Division noted that DOCCS's correct name is Department of Corrections and Community Supervision.

Click HERE to access the text of the Appellate Division's decision.


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