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Home -> Oliver P. Field -> Civil Service Law -> Chapter VIII

Civil Service Law - Chapter VIII

1. Chapter I

2. Chapter II

3. Chapter III

4. Chapter III continue

5. Chapter IV

6. Chapter IV continue

7. Chapter V

8. Chapter V continue

9. Chapter VI

10. Chapter VI continue

11. Chapter VII

12. Chapter VII continue

13. Chapter VIII

14. Chapter VIII continue

15. Chapter IX

16. Chapter IX continue

17. Chapter X

18. Chapter X continued

19. Chapter XI

20. Chapter XI continued

Chapter VIII


In the preceding chapter the legal problems connected with the career
aspects of the civil service were considered. In this and the following
chapters the legal phases of separation from the service will be discussed.
The general subject of separation from service is often used to cover de-
motion, layoff, abolition of office or position, removal, and retirement on
pension. There is a difference between retirement in accordance with a
fixed schedule, as in a regular pension system, and retirement by way of
removal or layoff. Demotion assumes that the person remains in the
service, but in a lower rank, and usually at a lower rate of compensation.
Retirement on a pension is in a certain sense voluntary; the other types
of separation usually are not, although they may be. That is, it is excep-
tional for them to be voluntary; it is usual rather than rare for retirement
on pension to be voluntary. Each of these types of separation from posi-
tion, class, compensation, or service presents its own legal problems, and
each will be discussed separately.


The civil service laws in and of themselves do not prevent a reduction
in the salary of an employee or officer. They may contain provisions upon
the subject but they often do not, and frequently the rules applicable to
this subject are found in other laws. 1 The reduction of an employee's
salary does not necessarily affect his rank, and unless it does, it is not
covered by the protections found in civil service laws against removal
from position or rank. That is, demotion in position and reduction in pay
are not synonymous. But, of course, reduction in salary may not accom-
plish a demotion without complying with the rules on demotion; this is
important because of the fact that ranks and positions often depend upon
salary rates in the classification system.

An appropriation reciting that a certain sum is allowed for a position
does not as of right entitle the person holding that position to the amount
mentioned. The head of the department may reduce that amount, and his
action in so doing is legally proper so long as it does not reduce the em-

ployee's salary below the figure provided for in the classification. 2 Reduc-
tion in salary is not reviewable by certiorari, if made in good faith and
not contrary to the civil service law, because it is an administrative rather
than a judicial act. 8

During times of depression governmental expenses for personnel may
have to be reduced, and several different methods of accomplishing that
end may be used. A frequent method is granting furloughs without pay.
The statutes usually provide that the head of a department may suspend,
say for thirty days, without pay. Suspensions may not be inflicted success-
ively so as to follow upon the heels of one another, but are proper if given
some time apart. By giving furloughs without pay, and having the em-
ployee receipt for pay not received, some governmental units have re-
duced personnel expenditures. An employee in such a case later began to
wonder about the legality of this procedure, and brought suit for the
compensation for which he had receipted but which he had not received.
He was met with the answer that he had acquiesced in the procedure,
that the city had acted in reliance upon his acquiescence and had failed
to take advantage of alternative methods of reducing expenditures, that
the furlough procedure was valid, and if not valid that he should previ-
ously have appealed to the civil service commission, which had juris-
diction to disallow furloughs, and that "the appellant could not mislead
the city to its injury by his conduct and then hold it liable to him." 4

Some statutes give special remedies against reduction in salary when
the circumstances surrounding the reduction make it seem like a removal.
For example, it has been held that where three persons occupy similar
positions at eighteen hundred dollars per year and one of the positions
is cut to nine hundred dollars, mandamus will be granted to reinstate the
holder of the reduced position under a law granting that remedy to
soldiers who are reduced illegally. 5

Statutes are sometimes phrased in such a way as to cover both removal
and reduction; if this is the case, the same procedure is to be followed in
both situations. A reduction in salary may be a reduction in rank; if so,
it is treated like a removal. This may be the case even though the duties
remain the same. 6

Statutes may vest authority in certain officers or bodies to revise sal-
aries and classifications, in which event salaries and positions may be re-
duced. 7 But if the statute does not so provide and the reduction in salary

is so great that it puts the position in a lower class, the revision constitutes
a removal from the class.

A civil service statute which provided that police officers in the classi-
fied service "shall not be lowered in rank or compensation . . . except
after a full hearing" was held not to be a limitation of the power of a city
council to lower the salary scales. 8 A distinction must be drawn between
cutting the salaries of a class or cutting the scales for the whole service
and cutting the individual salary. It is to the latter that the removal provi-
sions apply, not to the former. One of the cases in which this doctrine was
applied points out that civil service laws are for the protection of indi-
viduals, and are not to strait-jacket municipal finances so that when pe-
riods of financial stress come, the cities may not take appropriate meas-
ures to save themselves; 9 there is, however, authority for the opposite
undesirable rule. 10

When the reduction is not of a class nor for reasons of economy, a re-
duction in salary that amounts to a reduction in rank must be accom-
panied by notice if a removal must be accompanied by notice; 11 so too,
it must be for cause if removal is to be for cause. 12 One court reasoned
that removal must be for cause, that an indefinite suspension amounts to
a removal, and that a demotion is an indirect method of removal or sus-
pension, because by a series of reductions and demotions an employee's
salary and position could be entirely eliminated for all practical pur-
poses. 13

In the absence of statutory provision, a reduction in salary does not
amount to a removal when the person affected is not in a classified posi-
tion. 14 The question of reduction in salary and rank is, of course, a statu-
tory matter if the statutes cover it, 15 but if the statutes do not expressly
apply, the courts generally call demotion a removal in order to extend the
removal protections to the individual. 16

If the protection against demotion applies only to those in the com-
petitive service, it is necessary for a complainant to allege and prove that
the position from which he was ousted was in that service. A mere alle-
gation that competitive tests were given is not sufficient to show classifica-

tion; it should be remembered that competitive tests may be given even
though not required by law. If an employee enters a position when it is
not competitive, but it becomes so later, and if as the incumbent he re-
ceives its benefits, then he receives the protection against demotion to
which others in the competitive classified service are entitled. 17

The purposes of demotion cannot be accomplished by changing duties
if the practical result of the change is to achieve a demotion. 18 Demotion
from above may be used as a method of filling positions that are claimed
to be vacant when in fact the rightful holders of them have been ousted
illegally. Demotion from a higher to a lower rank does not cure the illegal
removal of those in the lower rank. 19 Seniority rights run by ranks, not
between ranks, in such a situation.

When a person contends that he was demoted for reasons other than
those of economy and efficiency, he must bear the burden of showing
that the presumption in favor of legality of official action should not be
applied. In one case in which the number of officers seemed excessive the
court said that "our examination of the testimony . . . does not at all
convince us that this reduction in the number of superior officers would
not make for greater efficiency." 20

The existence of veterans' preference in removals does not require that
in the event of salary reductions, the salaries of all nonveterans shall be
lowered before those of veterans. 21

In an administrative reorganization of the city the usual rules on
notice and hearing, whether for veterans or for others, do not apply to
salary reductions, even though resulting in demotions in rank. When a
statute authorizes such reorganizations, it is presumed that the ordinary
rules of procedure in removal, suspension, and demotion do not apply,
these rules being designed for individual cases and not for the sweeping
changes that accompany general budget revisions or reorganizations of
the service. 22

It is not uncommon to find reserve or special lists upon which may be
placed the names of persons who have been separated from the service
for certain designated reasons, such persons to be preferred in appoint-
ments and reinstatements when vacancies occur and additional positions
are opened up. The exact phraseology of the statutes and civil service

regulations must be noted to ascertain whether a distinction is drawn be-
tween the rights of persons separated and persons demoted. 23

In the field of remedies for alleged wrongful reduction in salary or
rank, it has been held that a statute which gives the courts power to take
appeals involving removals also covers wrongful demotions, and that the
provisions applicable to the one are applicable to the other. 24 The general
rule that administrative remedies should be exhausted before asking for
judicial review applies to petitions for reinstatement to a position from
which the petitioner has been demoted. 25

Because of the fact that the courts hesitate to convert the writ of certi-
orari into a declaratory judgment, they refuse to issue the writ to test the
refusal of the civil service commission to certify for payment the names
of demoted officers. Mandamus, not certiorari, is the method of testing
the legality of the demotion action. 26

A vacancy is not created in a position from which a person has been
demoted while he is appealing his demotion. Nor is it a wrongful demo-
tion to oust from a position the person who was placed in it during the
period of the litigation. 27

The liability of a superior officer for wrongfully demoting a subor-
dinate is established in a Massachusetts case; the injury is a tortious one,
with damages accordingly. The wrong is committed by the officer making
the order of demotion, but if a successor comes into the superior's office
and the demoted person makes the proper demand for a correction of the
erroneous order and the succeeding officer fails to correct it, then he is
liable. 28 The damages may include the salary lost if the amount of that
loss can be determined; in some instances this is not easy because some
discretion in changing the subordinate's compensation may be vested in
the successor to the superior office.


The abolition of positions has given rise to much friction and disputa-
tion in the administrative process because of the difficulty of determining
whether an abolition is made in the cause of economy or constitutes an
evasion of the civil service rules governing status, career, and tenure.

A position may be abolished by the officer or body having the power

to abolish it, and the abolition may be for reasons of economy or efficiency
or because of the nature of the work involved. That is, if the position has
been created for the performance of temporary work, and it is abolished
after the fulfillment of its function, no question can arise as to the legality
of the abolition. 29 Of course, whether the officer who abolished the posi-
tion was the one having legal power to do so is always an open question,
even in such a situation. 80

For example, if an administrative officer abolishes a position, and it
turns out that he must secure the board's approval for the abolition, his
action taken alone may not be effectual. A distinction should be drawn
between abolition of a position and action dispensing with the services of
one holding a position. 31

The importance of the position is not the test of whether it can be
abolished legally. The fact that a position may seem to be of the greatest
importance to the effective functioning of a governmental unit is not
determinative. 82 Whether there is legal power to abolish the position and
whether the abolition is in good faith, and not for the purpose of accom-
plishing an otherwise prohibited removal, are the pertinent questions in
abolition cases. 38

The presumption is that abolition has been in good faith, and it must
be shown by pertinent facts that the contrary is the case before the aboli-
tion will be treated as not in good faith. 34

The removal provisions of most civil service laws do not prevent aboli-
tion of positions for purposes of economy. It is a general rule that the
power which creates a position has the power to abolish it, unless the law
provides to the contrary. 35 Thus an office that is created by ordinance may
be abolished by ordinance, even in the case of an officer "appointed for a
definite term, or by special statutory provision, or one who cannot be
removed except for cause after a full hearing." 38

Some laws provide for a procedure involving notice and hearing and
a written statement of the circumstances before a position is abolished;
of course, in such an instance, the requirements of the law must be fol-
lowed in the abolition.

Whether an abolition is in good faith and is not a removal is a question
for the court to decide in each instance in which it is properly raised, on
the basis of the particular circumstances involved. 38 One case suggests
that the question whether the duties of a position are in reality being per-
formed by another is a question of fact to be decided by the jury. 39

The civil service commission may be given the power to hear appeals
of employees whose positions have been abolished on the basis of its
power to hear such appeals in cases of removal. This is in order to give
the commission an opportunity to determine whether the abolition is a
removal. 40 It has been held that when the incumbent stands ready to serve
at the lower salary attached to the position, the promotion of a subordinate
to perform the duties formerly performed by the plaintiff constitutes a
removal and not an abolition of the position. 41

Abolition and discharge are not synonymous terms, however, and in
each case it is necessary to determine into which of the two categories the
particular case falls. If the case is one of discharge, the civil service com-
mission may have jurisdiction to take an appeal. If it is one of abolition,
the commission may have no such jurisdiction. The only way to settle a
dispute as to which it is, of course, is to take it to court. 42 The fact that
some of the duties of the abolished position are given to a position and
person in the exempt class is not necessarily fatal. 43

A veterans' preference law that provides for preference in appointment
and for special protection in removal does not mean that veterans may
not be properly ousted from the service if the positions they hold are
abolished in good faith. 44 Abolition may come about through a reduction
in the number of positions in a department, in which event the question
borders on the subject of layoffs. 45 The veteran has a preference in this
situation only in case of express provision.

The rule against abolition except in the interests of economy or effi-
ciency and within the legal power of the abolishing authority does not
prevent layoffs. A layoff may be in effect an abolition of a position. 46

The burden of proving bad faith or a lack of the economy plea or any
other factor justifying court review of the administrative action in aboli-
tion cases rests with him who asserts that his position was illegally abol-

ished. 47 But there may be special situations in which this general rule is
not applied. For example, a person who had been granted leave of ab-
sence to serve in the military forces in time of war, and whose name was
omitted from the blank space in the appropriations for the city personnel
budget, was not under the burden of showing that the city had not abol-
ished the position; rather the city was under the necessity of showing that
it had abolished the position. 48 The mere fact of omission under such cir-
cumstances did not amount to an abolition of the position.

The courts will look to the motives rather than to the form of the
action in a given case. Abolishing an office and creating one or two new
positions with different titles, but with the exact duties of the one abol-
ished, is not sufficient to convince the court that economy was the reason
for the abolition. 49 If the duties of the new positions are substantially the
same as those of the abolished position, the courts will not let the abolition
stand. 50 The fact that the efficiency rating of a person in an abolished
position was higher than that of a person left in a position in the same
office, but in a different class, was not taken as proof that the abolition
was in bad faith and not made for economy and improvement of the
service. 61

Some statutes recite specifically that a board may have power to dis-
pense with the services of "unnecessary employees," and when the work-
ers are really laid off, for lack of work, for example, the law is satisfied. 52

The effective date of the resolution of a city council providing for the
abolition of an office is the date of its passage, under the rules of law
governing the enactment of laws or resolutions by the abolishing body.
If the office is abolished before the civil service law goes into effect, the
fact that the incumbent is not informed until after the civil service law
is in effect is not fatal. 53

If, as sometimes happens, the courts are doubtful about the facts in an
abolition case, they usually sustain an action of the administrator that has
been sanctioned by the civil service commission. 54 The fact that another
person was hired nine months later to do the same work that was in-
volved in the abolished position looks suspicious, but is not sufficient to
enlist judicial interference.

To discharge a person on the ground that his position has been abol-
ished and to retain one who is his junior in the service to do the same
work under a different title is not legal, and the person so ousted is en-
titled to back salary. The salary claim cannot be made dependent upon
the time when he claimed the new position, unless the law so provides;
and if the law does not so provide, a civil service regulation cannot re-
quire it. 56

One employed on a per diem basis cannot recover for work not done,
according to the New York rule, and this seems logical; however, such a
rule may encourage evasion of the tenure principle in practice. 57 And a
position may be abolished even though the work formerly performed in
the position is given to a private organization to do. 58

The fact that the civil service commission consents to a change that is
claimed to be a reclassification or an abolition of a position is not conclu-
sive that the action is in fact not a removal. 59 But distributing the work
of a position among other positions makes the action seem more like an
abolition than a removal and aids in the claim that economy was the basic
motive for the action. 60

When the service being performed by the employee is one in which
an instrument or vehicle is used, the question may arise whether the con-
tinued use of the vehicle in the service of the city is evidence that the
position, of chauffeur, for example, has not been abolished, 61

A civil servant cannot complain that only a portion of the duties he
was performing have been assigned to another office if the abolition was
in good faith and the abolition action fair on its face. 62 This "fair on its
face" test is borrowed from other fields of the law, and probably serves no
useful purpose other than to express the court's opinion that in view of all
the facts presented the action was legal. In situations of the type involved
in abolition cases the phrase is not a test but a conclusion. 63

The fact that by a distribution of work the relator was in effect ousted
from his position is not sufficient to convert an abolition into a removal.
In such cases it is less the motive than the outward evidences of it that
the court attends to, though the phraseology of the opinion is often in
terms of motive. If the relator has no preferential rights, he has no stand-
ing in such a case. 6 * But if the work formerly done continues to be done

by another, instead of being distributed, that may be taken as evidence
that the action was one of removal rather than of abolition. 65

One factor that often makes the court suspicious of a disguised re-
moval is any action preliminary to abolition which looks as though it
might be preliminary to discharge. For example, if an employee receives
a notice of intended discharge, which is later changed to notice of aboli-
tion of the position, that factor, while not always conclusive, is neverthe-
less a very important one in determining whether abolition or removal is
intended. 66

It is illegal to discharge a truck driver and fill his place with a laborer
because the work of the position is continued and continued merely by
recruiting a person from a different classification. 67 Nor can the work be
given to a deputy, whether his position is newly created or not; and this
is the more true when the position abolished was in the classified serv-
ice and the newly created "deputy commissioner" is in the exempt class. 68
To do so would run contrary both to the removal provisions and also to
the provision that if a position is abolished, the incumbent is entitled to
appointment to any similar vacant position. 69 However, as noticed earlier,
the fact that the new appointee is in the exempt class taken alone is not
conclusive. 70 A policeman cannot be discharged under the guise of aboli-
tion of his position if a detective who is appointed in his stead performs
the work of a policeman rather than of a detective. 71

During periods of depression the problem of abolition becomes an
acute one, just as do those of demotion and layoff. Statutes in the New
York economy legislation of 1934 provided that certain offices and po-
sitions could be abolished, consolidated, or merged; further, that "any
action taken under the provisions of this act shall be subject to and in
accordance with the civil service law." Another section stated that "no
person shall be employed from any emergency relief rolls to perform the
duties of any employee whose office shall have been eliminated or who
shall have been discharged or suspended from employment pursuant to
the provisions of this act." In the case of a nurse who was notified that
her position had been abolished, but who was able to show that her work
was being performed by relief workers, the action of the administrator
was held illegal. Whether she could be reinstated would depend upon
whether the position was really abolished and whether an appropriation

was available, but to employ the relief workers to do her work was
illegal. 72

In one case an employee was discharged and subsequently reinstated.
Thereupon his position was abolished. The court, taking a cue from this
series of events, looked into the situation and found that the work was
being done by another, therefore that the case was one of removal rather
than of abolition of position. 73 There had been a change of title, but this
of course was not sufficient.

In some instances removal procedure is followed when the proper pro-
cedure is abolition of office. For example, the reorganization of an ad-
ministrative system may involve transfer of funds and work from one
department to another and the elimination of some positions. When the
appropriations are taken away, the office may in effect be abolished. If
that has happened, the person to be let go should be dealt with as if his
position had been abolished and should not be notified, charged, and dis-
missed as in removal. 74

If, as sometimes happens, a position is abolished illegally and later a
legal abolishment of the position takes place, the petitioner may be en-
titled to his back salary for the period of his wrongful removal, but he
may not be reinstated, because there is then no position in which he may
be reinstated. 75

In the national government a court will not ordinarily give mandamus
to reinstate a person in a position. For that reason there is no really effec-
tive manner in which to test the question whether an abolition in effect
constituted a removal contrary to the laws or regulations. Suit for dam-
ages can be brought in the court of claims, apparently, if the petitioner is
not defeated by the doctrine of laches. 76 This defect, which is one of the
serious flaws in the national civil service law, results partially from the
lack of a proper statutory basis for the law and partly from a defective
remedial system in the national judiciary.

Of course, the fact that an employee is under suspension from a posi-
tion which is abolished is not conclusive evidence that it is abolished as a
method of obtaining his discharge. It may be that the abolition is not only
authorized but strictly within the legal requirements for valid abolition. 77

Not only may a person from a lower position not be promoted to per-
form the work of the supposedly abolished position, but neither may a

person from a higher position be reduced to the supposedly abolished
position to carry on its duties under some other title.

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