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

Civil Service Law - Chapter IX

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 IX

The law governing suspension and removal of civil servants who are
under a merit system is a branch of the general law of public officers, but
inasmuch as civil service laws often contain rules regulating both the
power to suspend and remove and the procedure that is to be followed in
the exercise of these powers, it is necessary to (liMin^uisli between the
rules that apply under civil service laws and those that apply under other
laws. These rules may be alike for both the political and the civil service
at some points, but at others they differ considerably. Statutes may apply
some of the rules to the political service that normally apply particularly
in civil services, but these applications are only fragmentary and do not
represent an effort to systematize by statute, charter, ordinance, or ad-
ministrative regulation the principles and rules that should govern the
suspension or removal of an officer or employee from the public service.
The common law background of the law governing suspension and
removal is important in civil service law, but not quite as important as in
the general law of officers. 1


The power to suspend an officer or employee may be given by statute
in express terms, but if it is not mentioned the question arises whether
the officer having authority to remove has, as incidental to it, the power
to suspend. The courts differ upon this question, both in the general law
of officers and in civil service law. Of course, it makes a difference whether
the suspension is with or without pay. If it is without pay, the courts often
treat it as a removal; in this case, if the removing officer has power to
remove, he may have the power to suspend, providing that all the ele-
ments required to make the removal valid are present in the suspension.
In a New York case 2 the plaintiff, an officer, was suspended without pay
from time to time, and finally entered into an agreement that he might
be suspended without pay for short periods. He later brought an action
to recover salary for the periods of suspension, claiming that he might be
removed, but not suspended without pay, since the statute provided only
for removal. The court permitted recovery for the periods of suspension
prior to his agreement, pointing out that he could not be suspended with-
out pay under a removal law. The tests used by the courts to determine
whether one is an officer or employee for purposes of suspension or re-
moval are those common to the law governing public officers generally.

In the national government it has been held that the power to remove,
"in the absence of statutory provision to the contrary," includes the power
to suspend. 8

The power to suspend is sometimes used as synonymous with the
power to lay off employees for lack of work or of funds. When this is the
nature of the power, it is governed, not by the usual rules governing re-
moval or suspension, but by the rules that apply particularly to layoffs.
This branch of the subject has been dealt with elsewhere in this book. 4

A suspension is a removal, so far as the courts are concerned, if it is
without pay, and the same tests are applied to it that are applied to re-
moval. 5 The courts apply the rules governing removal, if nothing is said
about suspension, whenever the suspension is without pay. 6 In a federal
case it was said that the power to suspend without pay for a definite
period, for example, thirty days, is in effect a partial dismissal; the pro-
cedure that is prescribed for removals must be followed in the suspension.

A statute gave to a civil service commission the authority to make rules
to "regulate the selection of persons to fill appointive positions." Under
this law the commission made a rule that "with the consent of the
commission, upon good cause shown, an appointing officer may reinstate
in the same position or in a position in the same class and grade any per-
son who has been separated from the service." Several employees were
suspended from the police department, and when their period of suspen-
sion had expired, were reinstated without any consultation with the civil
service commission. The court held that the reinstatement must have the
consent of the civil service commission to be valid since the suspension
had in effect been a "separation" from the service, that is, a removal.
Therefore the reinstatement constituted a "selection," and selection could
be made only with commission consent. 7

A director of public safety suspended a policeman for eighteen days
and subsequently for an indefinite period. No charges were preferred

against him. A written statement of reasons was required in cases of dis-
charge. The policeman asked for salary for the period of suspension,
claiming that the suspension was illegal. "Nothing herein contained shall
limit the power of any superior officer to suspend a subordinate for a rea-
sonable period, not exceeding thirty days, pending hearing and decision."
The court held that the thirty-day limit applied to all suspensions, and
that to suspend for an indefinite period constituted a removal. 8

uWhen the power of suspension for disciplinary purposes is granted to
an administrator, and likewise the power to remove, but subject to a re-
view by the civil service commission, the commission may not pass upon
thepropriety of the reasons for a suspension/^

/TWhen the removing officer has only the power to suspend, and the
civil service commission has the power to dismiss in the last analysis,
having jurisdiction to review the dismissal, the commission may amend
the notice given by the suspending officer. The letter or notice of suspen-
sion is not invalid merely because it is couched in terms of dismissal, nor
is the commission acting outside its jurisdiction if it adds other reasons for
the dismissal. 10 A statement of the reasons, not of the acts committed by
the employee, was sufficient to satisfy the court, when reasons were speci
fied by the statute as the bases for removal.*]

In case a suspension is made by the superior and approved by the com-
mission in accordance with its statutory power, the superior may not later
increase the penalty imposed as part of the suspension. 11 Once it has been
fixed and approved, the penalty is out of the control of the superior.

When the power to suspend is for thirty days, pending a hearing,
thirty days is the limit of the period for which suspension can be made. 12
The statute in this case recited that "nothing herein contained shall limit
the power of any superior officer to suspend a subordinate for a reasonable
period, not exceeding thirty days, pending hearing and decision." It is not
uncommon to find that suspension is permitted as an incident to removal,
for example, pending a hearing on removal charges. 13 A charter provided
that "the police commissioner shall be the chief executive officer of the
police force ... He shall have power to suspend without pay, pending
the trial of charges, any member of the police force. If any member of the
police force so suspended shall not be convicted by the police commis-
sioner of the charges so preferred, he shall be entitled to full pay from the
date of suspension, notwithstanding such charges and suspension." Fur-
ther, "the police commissioner shall have power, in his discretion, on
conviction by him or by any court or officer of competent jurisdiction, of
a member of the force of any criminal offense, or neglect of duty, viola-
tion of rules, or neglect or disobedience of orders, or absence without
leave, or any conduct injurious to the public peace or welfare, or immoral
conduct or conduct i:-:iK,ii:n':i..i an officer, or any breach of discipline,
to punish the offending party by reprimand, forfeiting and withholding
pay for a specified time, suspension, without pay during such suspension,
or by dismissal from the force; but no more than thirty days pay or salary
shall be forfeited or deducted for any offense." Commenting upon these
provisions, the court said : "The punishment imposed subsequent to con-
viction has no relation whatever to the power to suspend without pay
pending the hearing of charges as provided . . . above. It is only when a
member of the police force is not convicted that he is entitled to the salary
withheld during suspension." In answer to the plaintiff's contention that
under this interpretation he would be fined more than thirty days with-
out pay, the court said: "Such is not the case, however; the punishment
inflicted subsequent to conviction should not be confounded with the
right to suspend from duty without pay prior to conviction. The one is
exclusive of the other. If the officer is innocent of the charges, he loses no
rights; if improperly convicted, his right to review the determination of
the police commissioner is safeguarded." 14

Of course, if no legal cause for suspension is present, the employee
cannot be deprived of any part of his compensation. Thus, for example,
when the statute provides for the imposition of penalties, and for suspen-
sions "for misconduct, incompetency or failure to perform their duties
under or to observe the rules and regulations of the department or office,"
that means that suspension cannot be made except for the reasons recited.
A civil service commission hearing a case of suspension ordered that the
employee be reinstated and receive the salary of which he had been de-
prived up to the time when he accepted other employment, but that he
should receive no salary after that time; this order was defective in so far
as it deprived him of salary for the full period during which he had been
kept out of his position. 15

The doctrine of laches applies in cases of suit for salary or for reinstate-
ment following suspension, just as it does in cases of removal, though in
removal the date of the period involved is that of the discharge and not
of the preceding suspension. 16 Per diem employees may find themselves

barred from recovery because of the rule that recovery is limited to work
done. 17 A suspension pending criminal charges in the courts may not be
governed by the same rules as one pending the outcome of proceedings
to remove. 18

The reversal by a court of the commission's action in affirming the dis-
charge of an employee operates, for purposes of reinstatement following
a suspension pending a hearing, from the time of the order of the com-
mission at the close of the hearing, so that the suspension ends at the time
the order is given by the commission. 19


The principles that govern the power to remove under civil service
law and the general law of public officers are sufficiently different in the
national government and in the states to justify a brief separate discussion
of removal in the national administration.

The national civil service law, as has been pointed out earlier, 20 rests
only partly on statute, being based partly upon executive and adminis-
trative regulations. The portions of the law that are to be found in orders
and regulations are not treated by the courts as "law" in the same en-
forceable sense as is a statute. 21 The provisions on removal are to be
found partially in statutes and partially in presidential regulations. The
statutory provisions deal with removal for political reasons; but inasmuch
as it is extremely difficult to prove that a man has been or is about to be
discharged for political reasons, this provision is of small, though it is of
some, significance so far as the courts are concerned. 22

A federal court will not enjoin the removal of an officer or employee,
but this rule is based as much upon the general limits of equitable juris-
diction as it is upon constitutional or statutory considerations. 23 An office
is not a position that involves a property right, so the courts refuse to take
jurisdiction in equity.

When the removal provision is the result of an executive regulation,
no law is violated by removal in disregard of the order, and therefore no
liability attaches to the United States because of the removal. 24 There is a

duty upon the removing officer not to remove in violation of the regula-
tion, but if he does so, the matter is one for internal disciplinary action
within the national administration, and cannot be dealt with by the courts
in an action for salary or damages against the government. "A duty is
imposed upon the officer, but if he ignores it and removes a person from
office, his action is not thereby illegal, nor is the removal rendered void
and of no effect, nor can the person so removed claim that he has not been
removed, and that he is entitled to continue in office, to perform the serv-
ices of the office, and to receive the compensation attached to it." 25

The presidential power to remove may be derived from several differ-
ent sources. In the first place, it may be a corollary of his power to appoint.
This corollary is derived from the common law, not from the constitu-
tion. The power to appoint that is granted in the constitution, or vested
by congressional act in pursuance of the constitution, may carry with it
the common law power to remove; but if so, it is because the constitution
is to be interpreted in the light of the common law and not because of any
constitutional doctrine relating to interpretation in this particular branch
of the law or because of any constitutional doctrine relating to the execu-
tive. It is obvious that if the power to remove is derived from the power
to appoint, the power to remove is narrowed very considerably, because
under that doctrine the president could not remove an officer who had
been appointed by the head of a department. Nevertheless, it has been
held that he can do this. Therefore, although the courts often speak of the
president's power to remove as derived from his appointing power, such
a statement is not to be taken too seriously. 26

The president's power to remove may be derived from the provision
giving him power to see that the laws are faithfully executed. If that is
the source of its derivation, the power is as broad as the presidential power
of administrative supervision implied in that constitutional provision.
Under this theory the president could, in seeing that the laws are faith-
fully executed, remove at least those officers who are part of the "adminis-
tration" subject to his control, irrespective of the power under which they
were appointed.

The broadest basis for the removal power of the president is, of course,
"the executive power" granted to him by the first sentence of Article II
of the constitution, if that grant is regarded as vesting in him all executive
power in the national government rather than as an announcement or
description of the list of expressed executive powers that follows. The
probable result of such a broad interpretation would be to give the presi-
dent power to remove all officers and employees except those in the
judiciary and in Congress, and the employees of these two. This limita-

tion would arise out of the doctrine of separation of powers and out of
that doctrine alone.

The significance of the source from which the presidential power of
removal is derived becomes apparent when considered in the light of the
power of Congress to impose restrictions upon both the power and the
procedure of removal. The Supreme Court seems to have favored the
theory of administrative supervision, for under that theory the Hum-
phreys case (Rathbun v. United States) is explicable, inasmuch as it per-
mits some parts of the administration to be protected against executive
removal except under such conditions as Congress prescribes. 27 It is on
this theory, apparently, that the court proceeded when it ordered the
postmaster general to adhere to the procedures provided for by statute in
connection with a reinstatement. 28 The court has also intimated that the
procedural requirements of a statute will be applied to the president. 29

The civil service law has not affected the removal power in the national
government. This principle has sometimes been stated in this form : The
civil service law has not changed tenure in the national administration.
The power to remove is left as it was prior to the enactment of the statute.
The law governing procedure and causes is the same as it was prior to
the civil service law. Whether the. old rule of the Shurtleff case that if
a statute imposed on the president special procedures in removal for any
of several enumerated causes, the president was unfettered when he re-
moved for other causes still obtains is open to doubt. However, the
doubt arises not out of the civil service law, but out of the confusion
inherent in the Rathbun case. 30


Removal may take place by operation of law, 31 but it is with the re-
moval based on administrative discretion that we are concerned here.
A civil service law in a state or a civil service provision in a charter or city
ordinance does not necessarily make any change in the law governing
removal of public officers and employees; indeed, it is common for no
changes to be made in the location of the power to remove. 32 If not modi-
fied by the civil service laws, the general statutes governing the pro-
cedure in removals apply. 33 It is in regard to causes and procedures,
particularly procedures, that the civil service laws usually make the great-
est changes. The changes made are, of course, statutory, 34 but the statutes,
as is true of statutes generally, are interpreted against their common law

State constitutions sometimes contain provisions relating to tenure of
office and removals therefrom, and when those provisions specify a tenure
that is to be terminated in one manner unless otherwise declared by
"law," it is necessary that the legislature declare the other methods of
termination, the civil service commission having no power to do so under
such a constitutional provision. 35 Civil service regulations must comply
with the statutes or charters in the field of removal, just as in other
fields. 36 Thus a regulation providing for removal without a hearing is
invalid when the charter implies that removal shall be with a hearing.
Nor can the civil service commission restrict the power to remove so as
to lessen the power vested by statute in an officer, 37 But when the power
to remove and the civil service system both come from a city charter, an
ordinance is valid which limits the power to remove in accordance with
the civil service provision of the charter. 38

Civil service laws sometimes change the location of the power to re-
move by vesting it in the civil service commission. For example, a statute
provided that a police civil service commission should have "absolute
control and supervision over the employment, promotion, discharge and
suspension of all officers and employees of the police department." Other
provisions prescribed certification of the action of the commission to the
appropriate officer for enforcement. 39 This was held to leave the power
of removal with the civil service commission, and not with the chief
executive officer of the police force nor with the city council. Sometimes
the power to remove is vested in more than one officer. In one case both
the court and the mayor and council were vested with the power; this
was held to be valid under a constitutional provision providing that "the
general assembly shall, in addition to other penalties, provide for the re-
moval from office of county, city, town and township officers on convic-
tion of willful and corrupt or fraudulent violation or neglect of duty." 40

It is not uncommon for the administrative superior to be given the
power to remove, but for his exercise of removal power to be subject
to a review by the civil service commission if the employee demands such
review within a specified time. When this procedure is provided for, it

must be followed; an appeal to the wrong officer or body will not affect
the binding effect of action taken by the correct officer or body. If, by ap-
pealing to the wrong body, the time limit expires within which an appeal
to the commission could be taken, that would not affect the decision. If
the appeal is taken to the wrong officer and he orders the employee re-
instated, the commission can nevertheless order the discharge to be car-
ried out. 41

A civil service commission derives no power of removal from the
fairly common requirement that the removing officer must file a state-
ment with the civil service commission. 42 This type of requirement is
for the information of the commission rather than for the purpose of
allowing it to participate in the removal procedure. It also serves to make
public the reasons and details of the removal. The statutes may provide
for administrative appeals in the power of removal, giving the power
to remove some employees to one officer, with an appeal to another. This
leaves no share in the procedure with the civil service commission. 43 But,
of course, the officer having the power to remove must be the one to do
so. 44 No one else may exercise the power for him.

The conflicts that arise between statutes relating to the power to re-
move are settled by the rules that generally apply in a question of which
of two statutes is to govern. For example, of two statutes that were en-
acted during the same session of the legislature, both applying to remov-
als, but one general and the other special, the court held that the special
one would govern. 45 These rules of interpretation will sometimes favor
the civil service laws, at other times acts contrary to the civil service
laws. 46 Sometimes the question whether the civil service act governs
removal will depend upon whether the removed officer is subordinate
or confidential. 47

In general it may be said that civil service laws curtail the removal
power under existing statutes only in so far as they expressly or by clear
implication substitute different procedures or causes or new rules con-
cerning participation in the exercise of the power to remove. 48

Under some state constitutions situations are created in which it be-
comes difficult to tell just how far a civil service law can go in limiting
the power of removal mentioned by the constitution in connection with

certain offices or officers. In New York it was held that where possible
a section of the constitution which recited that certain officers "shall be
subject to suspension and removal" by a designated officer should be in-
terpreted so as to be subject to the civil service provision in the same
constitution, in order that a statute imposing certain forms and proce-
dures upon the removing officer might be held valid. 49

The tenure that is provided for by those civil service acts which affect
tenure was discussed in an earlier chapter. 50 The exact effect that such
laws have upon tenure depends, of course, partly upon the phraseology
of the constitutions under which they are enacted and partly upon the
exact phraseology of the laws themselves. Some of the general principles
governing the terms of officers apply to this branch of the law. If the civil
service law does not expressly apply to those holding for definite terms,
there is a tendency to decide that the removal provisions apply only to
those holding for indefinite terms. 51 Those on definite terms do not hold
on good behavior if good behavior is the tenure that is generally provided
for in the civil service law.

When the statute provides for the method that is to be followed in
separation from service, it is not permissible for the civil service com-
mission to provide by rule for other methods. Thus a rule of the civil
service commission that leave of absence of more than a year for sickness
shall constitute a separation from service is invalid when the statute does
not recognize this method of severing the employee's connection with
the service. 52 Whether the term is definite or indefinite is, of course,
tested by the rules of law that apply to that question in the general law
of public officers; one of the most troublesome of all the phases of this
subject is that of failure to reappoint when short terms have been used
and continued on the assumption that the term was really indefinite. 53
Some constitutions limit the terms of officers, but not of employees, and
also give the power to remove at pleasure. 54 Under some of these provi-
sions it is not possible to grant officers tenure during good behavior. 55
This type of provision may result in only employees being covered by
the classified service or in extending the removal provisions of the civil
service act to employees only. The Colorado constitution is rather un-
usual in that it provides for tenure itself instead of leaving it to be deter-
mined by statute. 56 The definition of term or tenure is bound up inti-

mately with removal provisions. The inverse order rule in layoffs cannot
be imposed upon an officer having a constitutional power of removal. 57

There is a tendency to require cause for removal if, by ordinary canons
of interpretation, it can be required in connection with civil service laws. 58

The time at which a civil service law takes effect has been referred to
earlier, and it has been pointed out that some provisions of the law may
not be applicable during the period of establishment but must wait until
the selective machinery has been established and the procedures worked
out. Other provisions, such as the removal provisions, need not wait upon
this preliminary work but may become effective upon enactment. 59

Not every change of duties constitutes a removal or layoff or demotion,
of course, because there can be no vested right in duties. A transfer may
involve change of duties and be valid. The courts are ordinarily ready to
protect the employee against the use of transfer as a method of removal,
and statutes also recognize the necessity of this protection. However, if a
transfer is made legally and with no coercion, it is valid even though the
transferred employee is laid off the new position shortly after being trans-
ferred to it, and even though the superior had knowledge that this was
likely to be done. 60

Protection against removal does not prevent reduction of force for
economy, nor does it require that a position be continued indefinitely
without regard to considerations of efficiency. 61 But, of course, the courts
will refuse to sanction changes in titles, classifications, or duties which in
reality seem to have been made for the purpose of depriving employees
of classified status; and neither transfer, reassignment, nor reorganization
will be sustained if the surrounding facts give to the transaction the color
of evasion. 62 The general reorganization of the city administration that
sometimes occurs as a part of the reconstruction of city government is not
to be confused with the minor type of change that is more likely to be
motivated by a desire to rid the service of an employee or officer. 63

A failure to certify the payroll is not equivalent to a removal. Certifi-
cation is evidence of title, and failure to certify may be evidence of lack
of title to a position, but neither is determinative of title itself. It has been
said that certification is for the purpose of administrative convenience,
not for the purpose of determining legal rights. 64

Which classes of persons are subject to removal in one manner and
which in another manner are determined by statute. Usually one of the
chief purposes of civil service laws is to grant certain classes of public
officers and employees special protections against arbitrary or political
removal and provide safeguards as to the procedure to be followed in
removal. These classes may be described in general terms, or they may be
identified and defined precisely. A search of the statute and a study of the
decisional law relating thereto are necessary to obtain the answer to the
question : Which employees are entitled to the removal provisions of the
civil service law? Some of these problems have been discussed in an
earlier chapter on the scope of the civil service and the establishment of
the civil service law.

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