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Civil Service Law - Chapter IX continue

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

A provision that "no member of the police or fire department shall be
removed" except in a certain manner has been held to include a harness-
maker in the fire department; these words were said not to be restricted
to the uniformed group. 66 Persons in the unclassified service may be
given regular civil service law protection against removal, 67 but it is usual
for those in the exempt class to be unaffected by the civil service pro-
visions with respect to discharge. 68 Probationary status has been discussed
elsewhere, 69 but it may be repeated that in general the rule applies that
probationers do not come within those provisions. 70 Confidential posi-
tions may be subject to the regular rules of removal that are contained in
the general officers' law, or they may be in the exempt class. The problem
of their status arises in connection with removal as well as with appoint-
ment. 71

The day laborer and part-time worker may occupy a somewhat differ-
ent status than others in the service because of the time factor in their
employment. 72 The day laborer may be distinguished from the part-time
worker because the laborer may or may not be in the classification scheme
of the statute to which the removal provision may refer, while the part-
time worker may be working in a permanent position on a part-time
basis and thus be in the classified service. 78 A reduced hour schedule may
result in putting a person on part time. This may not affect his status in
the service. A seasonal worker may be removed without reference to the
civil service law, because each seasonal employment is a new hiring;

therefore, he never gains sufficient status to enable him to claim protection
against removal. A failure to reappoint is to be treated as a problem of
hiring rather than of firing. 74

The position of those who were in the service at the time of the adop-
tion of the civil service law has been discussed. Many of the questions in
that discussion relate also to removal. 75 Sometimes those with "long and
efficient service" are given the same status as those who pass either a com-
petitive or a qualifying examination. 76 If so, they often receive the same
removal protections, although of course it may be that only those who
come under the selective provisions of the act are entitled to protection
against removal. The question of which laws govern a particular group,
of course, presents the usual problems of interpretation and of the rela-
tionship of one statute to another. 77 Temporary appointments and the
status enjoyed by short-time holders of positions have been dealt with
earlier. 78

An illegal removal does not in law sever a person from the service so
as to subject him again to examination for appointment when he is rein-
stated. 79


The causes of removal that prevail in civil service law are not peculiar
to that law, but may characterize those other branches of the law of
public officers that are covered by statute to any considerable extent. But
it is only natural that when civil service laws are enacted and the free rein
of administrative power to remove is thus checked, more attention should
be paid to the causes of removal than might otherwise be the case. The
situations that are described below and the rules governing them are to be
taken then as illustrative rather than as a complete catalogue of the par-
ticularities of the law governing cause of removal.

A common requirement in civil service laws is that no person shall be
removed except "for just cause and for reasons specifically given in
writing." The effect of such a recital upon the question of whether a hear-
ing is required will be discussed later, but it should be noted that the
effect of a statement of this kind is to limit the power of removal very
considerably. There must be a cause for removal. 80

Of course, the existence of an adequate legal cause does not excuse the
violation of statutory procedural requirements. 81 In commenting upon
the effect of a requirement of this type, the Michigan court said : "Appel-
lant was in office under civil service provisions. He could not be cap-
tiously removed on trivial or technical grounds. If he was to be removed
at all, it must be removal for cause, and that which is charged as a reason
or justification for removing one for cause must relate to and affect the
administration of the office. It must be something which in a material
way affects the rights and interests of the public." 82 It is, of course, the
adequacy of the cause rather than the truth of any particular cause that is
legally significant here. 83

When the commission has power to remove for cause, it is not neces-
sary that the causes for which removal may be made should be listed in a
regulation of the commission. 84

A statutory declaration that removal may be "for the good of the
service" means that reasonable cause must exist for the removal. 85 It is
insufficient to allege that the removal was for the good of the service
when a statute requires the statement of the reasons for removal because
though allegation implies a cause, it is not a reason. 86 Neglect of duty
may constitute just cause for removal, if substantial. Concerning a statute
which limited removal to "just cause," but defined just cause to mean any
cause which is detrimental to the public service other than political, racial,
or religious, one court made the following statement: "That the act and
the rule require that the appointing officer, in the make out a prima facie case of 'just cause' for the discharge seems reason-
ably clear. The discharge notice need not be verified, and it is a serious
commentary upon the so-called State Civil Service Act that the employee
has no right to question the truth of the charge no matter how serious it
may be. The appointing officer is not required to hold hearings or to make
findings. If he makes out a prima facie case of 'just cause' on paper, he
can arbitrarily and unjustly discharge civil service employees, and they
have no right to a hearing save to prove, to the commission, if they can,
that they were discharged solely for racial, religious or political reasons.
We are forced to the conclusion that the contention of the attorney
general that, under the act, whether or not there was 'just cause* as a
matter of fact, for the discharge of the plaintiff, is to be determined solely
by the appointing officer and that his action in that regard cannot be
reviewed by commission nor court, is sound. We recognize fully that the

act affords little, if any, protection to the employees; but the legislature,
alone, has the power to remedy the patent defects in the law." 87

The regulation of the removal procedure does not convert the removal
into a trial. 88 But when charges in writing are required, it has been held -
that removal can be made only for the charges that are made in writing
and not for other charges brought out later in a hearing. 89

Illegality or irregularity in appointment has been discussed in the
chapters on certification and appointment, 90 but several cases have raised
the question of the relation between the removal power and the illegality
of appointment. This question is not unaffected by the presence or ab-
sence of a definite term. 91 It has been suggested that if there is no position
to fill, that is, if no position has been legally created to which to appoint
the person, then the removal protection will not apply to one who claims
to hold the position. 92 But if a position legally exists and an irregularity
in filling it is discovered, then on the de facto principle the holder may be
protected. 93 The de facto principle, it should be observed, protects the
holder against attack on the part of the public, but not against attack by
the authorized representative of the state, usually the attorney general.
In a removal case it is apparently to be assumed that the superior officer
is not the representative of the state but rather of the public. 94 Similarly,
since it is not proper for g defect in the title of the appointing authority
to be visited upon the appointee, providing that the appointing officer has
de facto status, 95 a person holding appointment by a de facto officer is
protected by the removal provisions. There is disagreement as to what
protection against removal should be given those who have been ap-
pointed irregularly, for example, when over age. 96 Long-continued recog-
nition of the appointee by the appointing officer may affect removal of
improperly certified persons. 97 It has been held that a removal statute
which specifies incompetency, gross neglect of duty, or "any other reason-
able and just cause" does not permit removal for unlawfully obtaining
the position.
Under a statute requiring that "all employees and officials under and
by virtue of this act shall be citizens of the United States and residents
of the city and county of New York," it was held that to have falsely
represented oneself as a naturalized alien constituted a good cause for
removal." Fraud in the examination is a just cause for removal, and ap-
plies to one who had another person write the examination for him. 100
In the national government conduct violating the oath of office or the
terms of employment may be cause for removal. 101

The procedure to be followed in a removal may be applied to a case of
illegality in appointment. For example, it has been held that a veteran is
entitled to notice and hearing in a procedure to remove him for having
failed to pass the examination, the statute giving such procedural pro-
tection to those removed for "incompetency." 102

It is sometimes difficult to tell whether the removing authority is acting
under one or another provision of a statute and difficult to tell whether
the court sustains the action under one or another of the provisions. For
example, a statute provided for removal for "habitual drunkenness" and
"for any other just and reasonable cause." An employee who had been
drunk once was removed. How many times does the superior have to
stand by and watch the employee become intoxicated before he can re-
move him because of habitual drunkenness? The court sustained the
removal, not saying whether it was for habitual drunkenness or for some
other just and reasonable cause. 108 An officer does not violate a rule
against intoxication merely by having the odor of liquor on his breath.
Nor is it "misconduct" for him to have a sufficiently strong breath to
cause his colleagues or superiors to suspect that he has taken a drink. 104

A policeman may be discharged for drunkenness, though off duty,
under a provision permitting removal for "conduct unbecoming to a
police officer." 105 A married policeman found to be the father of an
illegitimate child was discharged under an ordinance reciting that dis-
missal might be for "any immoral habits, lascivious or improper conduct
not herein enumerated which would render him an unfit and improper
person for employment by the city." This was held to be proper. 106 So,
too, a removal of an officer for having been found in a compromising

position with a married woman is valid under a provision authorizing
removal for conduct unbecoming an officer. 107

Disobedience of rules of the department or of the office in which the
employee works may constitute just cause for discharge. A policeman did
not violate a regulation which forbade the giving out of information,
when to do so would defeat the ends of justice, by telling an insistent
reporter that he might look up to see who had been responsible for the
change in the assignment of the policeman. The latter was under investi-
gation at the time. 108 It has been held that an allegation of "neglect of
duty" is sufficient when the requirement is that removal shall be for
cause. 109 A mere mistake in judgment is not sufficient to constitute a
cause for removal, and it is insufficient to establish incompetency and
neglect of duty that a certifying officer certified the wrong number of
names under a statute which recited that "not exceeding three" names
should be certified. 110

An employee may not successfully defend against a discharge by show-
ing that he honestly believed it would be better for the service if he dis-
obeyed the order and executed his duty in a manner contrary to the
order. 111

It is not insubordination for a suspended person to refuse to talk with
his chief in the absence of his attorney, when acting on the advice of the
latter, and he cannot be discharged because of that refusal. 112 That an
employee made a charge or complaint of mistreatment in the service
under a rule permitting such complaints does not support an allegation
that the employee intentionally made false reports and circulated false
rumors; this was held to be true even though he was unable to prove the
charges that he had made. 113

The fact that the head of a department has the power to make rules
for the "government" of an office does not mean that he may prescribe
a penalty of summary discharge for breach of the rules when the law
requires that notice and hearing or an opportunity to explain be afforded
the person who is to be removed. 114

"For the good of the service" is not the equivalent of just cause. 115 Old
age and temporary illness do not in and of themselves constitute a suffi-
cient cause for removal when the statute does not expressly recognize

them as causes, but does express incompetency, inefficiency, dishonesty,
drunkenness, immoral conduct, and the like. 116 Presumably if old age
was shown to result in incompetency, the situation might be quite differ-
ent. The problem of old age in the civil service is particularly difficult in
the absence of an adequate retirement system, and various methods of
dealing with it are in vogue in the several jurisdictions. Transfer, volun-
tary acceptance of part-time work, layoff, etc., are some of these practices.

Absence from work may be a cause for removal. Where, as is not
uncommon, the rules provide that if unexplained absences continue for
more than ten days, for example, the absence shall constitute a separation
from service on the theory of abandonment of office or position, the case
is clear. But what of an absence of three days under such a rule ? Appar-
ently that is also to be treated as a cause for discharge; however, if so
treated, the notice and procedural provisions must be observed, whereas
in an absence of ten days this is not necessary. 117 Sometimes the rule is
phrased in terms of resignation: for example, "absence, without leave,
of any member of the police force for five consecutive days, shall be
deemed to be a resignation, and the member so absent shall, at the end
of the period, cease to be a member of the police force and be dismissed
therefrom without notice." 118

The obligation that rests upon the employee to notify his superior of
intended absence is enforced by the courts, and failure to give such notice
may contribute materially toward justifying the superior's action in dis-
missing the employee for absence without leave. This is strikingly illus-
trated by the case of the police officer who was alleged to have suspected
his wife of too intimate relations with another man and who, without
notifying the proper superior, took an hour and a half's time from duty
to gather evidence. After obtaining the evidence, which apparently gave
rise to a fight between him and the other man, he was discharged. The
court upheld the discharge, saying that there was no excuse, under mod-
ern conditions of communication, for not giving notice of his intended
absence. 119

Absence due to illness is handled in a variety of ways. For example,
one rule provided that employees who were absent from duty must ar-
range to have their work carried on by others in the office and must pay
the persons carrying it on. An absence for illness in which no notice was
given was held to be a basis for removal, but of course the courts distin-
guish between the giving of notice by one who is able to do so and by

one who is so ill that he cannot arrange to give it. 120 Summary dismissal
may not be visited upon one who failed to give notice to the proper per-
son, but did give notice to a clerk, who for some reason failed to deliver
it to the proper officer. The regular removal procedure must be utilized,
because it might turn out that the notice was sufficient under the circum-
stances. 121

A provision of the civil service rules recited that "absence without
leave for a period of five days, unless it is substantially shown that such
absence was unavoidable, shall be construed as a resignation." It was
further provided that "in case of sickness, notice must be sent at once to
the department in writing and a doctor's certificate must be furnished
to the effect that the employee is physically unable to perform his duties."
An employee was absent without leave for two days, attending to private
business. He had intended to go back to work on the third day but was
taken ill. He notified the office by mail, but the notice was not received
on that day. The doctor's certificate came a few days later. Four days
after he gave the first notice he returned to work. The court held that
it was not necessary for the doctor's certificate to accompany the written
notice. The court , ' that the absence for the first two days might

have constituted a cause for removal, but that had not been the basis of
the charge. 122 The courts generally apply the test that if the employee
does all that he can to give the required notice as soon as he can give it,
that is sufficient. 1 2a It is not necessary for a person who seeks to justify his
absence from work on the ground of illness to show that he called a doc-
tor; nevertheless, if he has not called one, it is clearly more difficult for
him to make out a convincing case that he was really too ill to comply
with notice requirements. 124

A distinction must be drawn between an office and an employment
in connection with illness as a reason for absence. The theory of com-
pensation is that an employee is entitled to it either through contract or
through work done, while the officer is entitled to it as a perquisite of
office. For this reason an officer may not be removed for illness, while
an employee may be under some conditions. If the employee has been
ill for a long period and has received compensation for a portion of that
period, that compensation is a matter of grace and gives rise to no claim
to compensation for the remainder of the period during which he was
ill. Long-continued illness is a valid cause for removal. 125 Absence with-

out leave for a fixed number of days may be a cause for removal; but
absence for illness for that length of time is not automatically brought
within the provision. 126 When a person who is on leave of absence is
taken ill, and is thought by virtue of his age and illness to be unlikely
to recover, his superior may not remove him in anticipation of his in-
ability to perform the duties of his position when the leave expires. 127

Closely allied with illness is mental disorder of such a nature as to
incapacitate a person for work. In the case of mental disability the pro-
cedure should not be discharge of the disabled employee, but rather sus-
pension or retirement, if he has any rights of that kind. 128 Of course, the
employee may waive the right not to be discharged without notice and
hearing when thought to be mentally deranged, and a claim for the
refund of his contributions to the retirement fund may operate as a
waiver. 129

In a few instances insanity or unsoundness of mind \ ..-.K . iij.: a police
officer "unable or unfit to perform full police service" is specified as a
cause for removal. The fact that the policeman has been adjudged insane
by the usual authorities is only prima facie evidence that he is so for
purposes of removal; it must be shown for this purpose that the unsound-
ness of mind rendered him "unable or unfit" to carry on his work. 130

Gross mistakes in the performance of one's duties may justify removal.
A charge setting forth that an officer had incompetently and negligently
handled the paving of a certain street was held to state a valid cause of
removal. 131 Usually a single mistake will not be sufficient to justify re-
moval, but this is subject to exception; the mistake may be so serious that
its bearing upon incompetency or irresponsibility is conclusive enough
to constitute it a valid cause. 182

A refusal on the part of an employee or officer to divulge the true na-
ture of the work that he is carrying on when he is requested by a superior
officer to give such information may be a cause for discharge. So, if a
subordinate fails to show by his report that some of his duties involve
the exercise of a great deal of discretion on his part, and his report should
show this, he is not saved by the fact that his superior might by an inde-
pendent investigation have so learned; he himself is under an <.-i)l!v;.i!iim
to reveal the nature of his duties.
Failure to make an arrest when liability for making a false arrest
might attach to the employee personally is not misconduct or incom-
petency for purposes of removal. 134 Abuse of subordinates by a superior
may be misconduct on the part of the superior. 185

A large unexplained bank account to the credit of a police captain may
constitute a "cause" for removal. The statute read, "No police officer or
fireman . . . shall be removed or discharged, except for cause . . ." The
court said of this statute and of this situation: "It was essential to the
proper discharge of his duties that he should comport himself as an offi-
cer in such manner that no act of wrongdoing should attach itself to
him, to the end that those who served under him should feel for him
that respect which insures confidence and obedience. As such an officer
he should have been keen to see that no taint of evil wrongdoing attached
itself to him, and when charges were made, reflecting upon his honesty
and integrity, that they were met with denials and answering proof of
no delinquencies." 13G

It is not a proper cause for removal that the employee uses government
gasoline in his own car so long as he uses his own car in the performance
of his governmental work. 187

Solicitation and bribery constitute conduct unbecoming to an officer
and may be cause for removal. 188 The relation of crime to discharge is
subject in part to statutes and in part to decisional rules of the common
law. The statutes may provide that if an officer is convicted of crime, he
shall be discharged. 139 The phraseology may be such that no discretion
is left to the removing authority, or it may be such that discharge occurs
by operation of law without the intervention of administrative action at
all. Whether or not notice and hearing are required under the civil service
laws in such a case will depend entirely upon the type of statute that is
involved. 140

Removal proceedings are not criminal proceedings, and removal from
a position is not normally a criminal penalty. For this reason it is per-
fectly possible that conviction in a criminal court may not conclude the
question of whether the convicted employee should be removed from his
position. The offense of which he was convicted may or may not have
any relation to his fitness for his position. The law generally recognizes
this difference; thus when a court finds a man not guilty, it recognizes

that he may properly be discharged by administrative action, even though
a hearing is required. 141 With reference to a charge of drunkenness of
which the employee had been acquitted in court, the court said: "The
Superior Court in trying a man on a charge of violation of the criminal
law and the town council of Bristol in deciding whether the same man
is qualified to be the chief of police of the town are separate and inde-
pendent tribunals moving in distinct spheres and are governed by dif-
ferent considerations and very different rules as to the necessary degree
of proof required for a finding by the one tribunal of guilty or not guilty
and a finding by the other tribunal of unfitness or fitness. The purpose
of the former proceeding is the punishment of crime and of the latter the
maintenance of the morale and efficiency of the police force and its good
repute in the community. Therefore the fact that a jury has acquitted
a man of criminal charges does not prevent the council from finding such
misconduct on his part as in its judgment disqualifies him for the office
which he holds, even though the same conduct by him is involved in both
cases." 142 This same reasoning has been applied to other types of con-
duct, for example, that involved in bastardy cases. 143

A problem that is common in the general law of officers and employees
is raised by the requirement that the misconduct be in the line of duty.
How far does official capacity carry over to one's private life and how
far is private conduct restricted by employment? In other words, can
an employee be discharged for an act committed off duty which, if he
committed it while on duty, would constitute a cause for discharge? The
courts are not in entire agreement, but the tendency seems to be to hold
the employee officially responsible for such acts committed privately as
affect his official status or fitness. 144 Some examples of this are to be found
among the preceding paragraphs. This problem, of course, is not peculiar
to civil service but is common throughout the entire field of public em-

Political activity and political contributions have given rise to several
difficult questions which the courts have had to settle. The civil service
naturally carries with it a certain amount of political neutrality, and often
one of the very reasons for the establishment of the merit principle is the
elimination of certain phases of political pressure upon civil servants, and
in turn the restriction of the political activity of the civil servants them-

When a charter provides that the charges must be specified, a charge

reciting "partisan political activity" is not sufficient, even though the
charter itself forbids such activity. 145

The receipt of political contributions is sometimes forbidden, and
when this is the case it is pretty difficult for a superior officer to convince
a court that the contributions made to him in his office by subordinates
were purely voluntary. 146 The phraseology of the laws differs consider-
ably, and in all cases it must be noted carefully. A provision that do-
nations or receipts are not to be made in the office building might be
different from a statute that covered political activity and contributions
generally. The former would cover less than the latter.

With respect to the removal of an employee for political reasons, it
should be said that such removals are generally forbidden. But, of course,
if the statutes do not forbid them, the courts will not protect tenure
against termination for this reason. 147 If, however, removal for political
reasons is forbidden, and the jury finds that removal was for this reason,
the court will give its sanction to the prohibition. 148

"Political" reasons are not to be understood as all reasons arising out
of differences of opinion between superior and subordinate. The charge
of political removal cannot be substantiated by showing that disciplinary
measures were taken against the employee. If the employee has received
his notice and hearing and if he was removed because of some action of
his which might seriously embarrass his superior in his official duties,
that constitutes a justifiable reason for removal. Thus it is valid to re-
move an employee for releasing to the newspapers material involving
the appraisal of one department by an investigating department, and do-
ing so on his own initiative. 149

When the reasons given for removal by a city manager were (i) that
the employee appealed sympathetically to the public through the press
by making misleading statements about the manager, (2) that he spent
public money trying to locate the city manager, and (3) that he used vul-
gar language about the manager before divers persons, and the evidence
showed that the employee had responded to interviewers from the news-
papers, that he had tried to reach the manager when the latter was in
another city but did so on behalf of a newspaper, and that he had be-
come profanely emphatic at times, the court refused to uphold the re-
moval. Not every difference of opinion between inferior and superior is
to be regarded as cause. 150 But, of course, sleeping at one's post is as valid
a reason for disciplinary action in the civil as it is in the military serv-
ice. 151

When there is a discrepancy between the recitals received by the em-
ployee and the recital in the official records of the commission as to the
cause of a removal, the official records prevail. 152

The position of the courts with respect to a review of the question of
the existence of cause or just cause will be discussed with the whole prob-
lem of judicial review of removals (Chapter XI), but at this point it
should be said that this problem is a question of law which the courts
will review if the proper remedy is used. 153 The doctrine of laches oper-
ates in this phase of judicial review as well as in the field generally.

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