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Home -> Oliver P. Field -> Civil Service Law -> Chapter X continued

Civil Service Law - Chapter X continued

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

Apparently a hearing is to provide for oral presentation, with the em-
ployee being given an opportunity to be present, and unless the statute
recognizes the hearing as on briefs, it is deemed to be oral. 70

The hearing is to be fair, substantially fair, and without prejudice.
But this does not mean that every indication of prejudice invalidates the
hearing. For example, the fact that a member of a body who voted with
that body to remove an employee had previously prosecuted that em-
ployee in a criminal proceeding for the same act is not fatal. There was
present, the court thought, no relationship, no manifestation of ill will,
and no pecuniary interest such as generally characterize disqualifications

for work of this kind. 71 The fact that some members of the board have
expressed themselves as In-lk". in^i in the guilt of the person charged does
not render the decision to remove him reviewable by mandamus. 72 On
the other hand, bias may be so great as to make it clear that the removing
officer was not acting in good faith. 73 There is in removal no provision
for a procedure comparable to change of venue in judicial trials, so that
the only corrective is to set aside the removal or transfer the person to
another position. Therefore the courts are unwilling to hold that the
apparent prejudging of a case disqualifies the removing officer from con-
ducting the hearing, unless the case is clearly one of arbitrary action, and
such action is sought to be prevented by the law; then the corrective is
reinstatement. 74

The fact that a removal proceeding is not a criminal trial has been
noted several times, and the relationship of criminal prosecution to the
removal has also been mentioned. The removing officer may not accept
the findings of a criminal jury as a substitute for his own discretion. 75
That a grand jury investigation will not serve for a hearing that is pro-
vided by statute has likewise been settled. 76 No double jeopardy is in-
volved in removing a man, after a hearing, on the basis of an act for
which he has already been tried criminally and acquitted. 77 The fact that
a statute uses the word "punish" does not make it criminal; the word is
here used in a broad sense to include removal or suspension in the ac-
cepted meanings of those words. 78 Distinctions between a criminal trial
and a hearing will appear in the following -...,. y^. in the course of
the comments on the conduct of a hearing.

The civil service commission may be given power to hear and deter-
mine charges. It has been held that this carries with it the power to pass
upon the admission of evidence and to rule on or to regulate procedural
phases of the hearing. 79 This also includes the power to give notice and
to provide for hearings, the giving of oaths, and other details involved.
Practice varies as to whether hearings are governed by regulations made
in advance or by rules prescribed for each case as it arises, but perhaps
the general practice is to control some phases in advance by general regu-
lation and other phases as the need arises.

Some of the courts are quite strict in imposing the common law rules
of evidence upon civil service commissions in their conduct of hearings.
It has been held to be error for the commission to admit the evidence of
a witness who stated a conclusion in answer to a question. 80 This atti-
tude is defensible, of course, when the common law rules of evidence
really contribute to sifting the chaff from a mass of irrelevant data, but
more generally the courts have taken the attitude that if the testimony
contributes to the elicitation of the truth, it should be admitted, whether
or not it would be rejected at common law or in court. For example,
hearsay evidence has been held to be proper in a hearing. 81 A person
against whom the proceedings are instituted may not sit silently through-
out the hearing and later complain that the order of discharge was based
entirely upon hearsay evidence. 82

The importance of rules of evidence is illustrated by the holding that
if the only evidence produced is that of a disreputable stool pigeon, the
removal will be set aside. 83

The courts sometimes phrase the rule broadly that the hearing must
permit the employee to give his own testimony, bring in his witnesses,
and cross-examine any witnesses produced against him. 84 But it has been
suggested that unless witnesses whom he wished to bring in but had no
opportunity of bringing could have proved a good defense for him, a
court will not review a hearing on certiorari merely because of refusal
to postpone the hearing in order to permit the witnesses to appear. 85 The
witnesses should be sworn in because of the safeguard that arises from
the use of the oath. 86 There is apparently no obligation upon the plain-
tiff to cross-examine if he does not wish to do so. 87

In one case in which the employee was not present, no witnesses were
sworn and no evidence taken except an oral statement by the sergeant
that he had served the charges on the employee. This was held not to
constitute a hearing, even though the employee was at fault in not being
there. 88 Merely asking the employee to make a statement does not con-
stitute a hearing.
Apparently it is not fatal that lawyers are not permitted to take an
active part in the defense of the employee at the hearing. 90 Practice varies
a good deal as to the role accorded to attorneys in removal proceedings,
but some civil service commissions restrict their activities very severely. 91

The trial board, officer, or civil service commission must consider the
charges that are made against the employee and may not go into the
general subject of his record while in the position. 92 As was said earlier,
it is the charges presented rather than others which may develop in the
course of the hearing that are to be the basis of action. 93

The problem of postponement of hearings has caused some difficulty.
The employee or an attorney acting on his behalf may ask for a delay in
order more effectively to prepare the defense. The officer or body before
whom the hearing is to take place may wish to delay for proper or for
improper reasons. The general legal habit of taking postponements as a
matter of course in trial practice naturally carries over to the practice of
attorneys handling hearings.

A court was asked to review the action of an administrator in dis-
charging a police officer who had repeatedly asked for postponement of
the hearings arranged. It appeared that the witness for whom the post-
ponements were being made was ill and that his illness was of a perma-
nent nature likely to grow worse rather than better. The evidence was
sufficient to justify the dismissal, so far as the court felt able to review it,
and the court refused to set aside the order of discharge. 94

Similarly a court has refused to set aside an action based upon a hear-
ing that had been postponed to a date on which it happened that the
employee's attorney could not appear. An employee has no right to an
indefinite number of postponements. 95

A New York case holds erroneously, it is believed that a removal
hearing should be postponed until the conclusion of a criminal trial. The
only rational legal ground on which this postponement could be justified
would be that the employee was not free to attend the hearing. But so
far as the relationship of the criminal case to the hearing is concerned,
the irrelevance of criminal trials for the very same charges involved in
removal proceedings has been indicated earlier. 96

Of course, if the employee has been told that the hearing would be

postponed and in reliance thereupon fails to appear, he cannot be dis-
charged on the basis of a hearing held at the time originally set. 97

If, on the other hand, the employee asks for a postponement beyond
the time within which the hearing is required by charter and civil service
regulations, he waives any claim to salary for the period by which the
postponement exceeds the time limit fixed by law. 98

Occasionally it happens that one officer initiates proceedings, filing
charges and holding a hearing, but takes no final action while he is in
office. What then is the status of the removal proceeding under his suc-
cessor ? May he remove without further action on his own part ? It seems
that he may not discharge the employee, but must conduct a hearing
himself. 99


Hearings as discussed in the preceding paragraphs may be held either
before the administrators themselves or before civil service commissions.
But not infrequently the civil service commission is given no power to act
until action has first been taken by the administrator, either accompanied
or unaccompanied by hearing. The reference to the commission may in
a sense be called an appeal to the commission. The civil service commis-
sion, of course, has no jurisdiction to take such appeals unless the power
to do so is conferred upon it by statute, and then it must act in accord-
ance with the statute. Statute usually prescribes the circumstances and
conditions under which such appeals may be taken. No presumption
exists in favor of this jurisdiction, the usual rule that favors the jurisdic-
tion of a general trial court not being applied. 100 This strict construction,
of course, is in accord with the rule generally applied by the courts to
administrative bodies.

This rule of strict interpretation of the powers of the civil service com-
mission to take appeals of discharged employees is illustrated by the case
in which such appeals were granted only to members of the fire and
police forces, the court holding that the other branches of the service
were excluded from the right to appeal. 101

(jSometimes the civil service commission may act as the hearing body,
but as an alternative may appoint a trial board, in which case it would
hear appeals. When the commission is given power to approve or set
aside such trial board decisions, it is not fatal that the members of the
commission have not read the record in full. There is no requirement

that they do so if in general they have done sufficient to justify their de-
cision to approve or set aside. 102 After certain crucial points have been
cleared up, the remainder of the case may be perfectly clear 7j

When given the power to review an order of discharge, the civil serv-
ice commission has the power to review, not the power to remove, so that
its action is confined to a consideration of the grounds set forth in the
order of removal. 108

A statute provided that "if, on such hearing, the civil service commis-
sion shall disapprove of such order of removal, discharge, fine or reduc-
tion the same shall be and remain of no effect." In one appeal to it, the
commission ordered the policeman reinstated on the condition that he
waive a claim to two years' back salary. The court held that the imposi-
tion of this condition was beyond the power of the civil service com-
mission. 104 The court said: "Where the findings of guilty of misconduct
are reasonably supported by competent evidence, the fitness of the ac-
cused servant for further public service, or the punishment to be imposed
in the event that dismissal is not regarded as essential, are matters resting
within the sound discretion of the departmental head; and there is no
review unless, perchance, there be a clear abuse of discretion." The court
continued: "At all events, there is no expression of a legislative intent to
substitute the judgment of the civil service commission, in respect of the
disciplinary action to be taken when a servant has been adjudged guilty
of misconduct, for that of the departmental head." The court felt that
an inconsistency existed between the two parts of the commission's order.

The statute may make it clear that the civil service commission is to
hear the case de novo. If this is true, the fact that the employee pleaded
guilty to the charges during his hearing does not prevent the commission
from finding that he ought to be reinstated in his position. 106

The civil service commission is sometimes given power to review dis-
missals alleged to be based on political grounds; under such a provision
the commission may not pass on the merits of the case in general if the
removal is found to have had no political basis. 106 So, too, if the employee
is discharged by a person having no authority to discharge him, he is
under no obligation to appeal to the commission but may proceed di-
rectly to court. The commission would have had no authority to hear an
appeal based on usurpation of discharging authority, being restricted to
cases of discharge by the proper officer. 107 Of course, an officer having the

power to remove may approve a removal that has been made by a person
without power. 108

LThe civil service commissions may, however, be given broader pow-
ers by statute. A statute which says that the commission is "to fully hear
and determine the matter" means that the commission may alter the
punishment so as to require reinstatement but impose a forfeiture of sal-
ary claim. 1 ^

In line with more restrictive rules, however, is the decision that when
the statute requires removal to be referred to the commission before it
becomes effective, a suspension may go into effect previous to being
brought before the commission. 110 This rule draws a rather fine distinc-
tion restrictive of commission power.

The commission may not order reinstatement when it is shown that
the commission really thought that the charges were true, but told the
employee that they would reinstate him if he would take a layoff of six
months. 111

Notice of appeal, of course, must be filed in accordance with the re-
quirements of the charter or law, but if the appeal is to a trial board
appointed by the city council, and this is not a standing board, then it
is sufficient to file the notice of appeal with the council. 112

Some courts hold that employees need not proceed to exhaust their
right to appeal to the commission if they have been suspended or re-
moved in violation of the procedures outlined by law. A suspension made
without complying with notice, filing, and other requirements need not
be taken to the commission first, because the commission has no juris-
diction; such being the case, the court is the only body to which appeal
may be made. 118 This is in line with the rule that removal by the wrong
officer should not be reviewed by the commission but by the court. 114
fThe power of the civil service commission to determine cases of re-
movals appealed to it is fixed by statute, and it is rather usual for the
statute to say that the commission shall have the power to "determine"
the matter and that its decision shall be "final." Such phraseology has
sometimes raised the question of whether, after the case has been de-

cided, the commission can be forced to reopen it upon the discovery of
new evidence. The rule seems to be that the court will not compel the
commission to reopen a case once it has been decided. 1 ^

Under a statutory provision that "the decision of the commission shall
be final" the commission ordered an employee suspended, subject to the
condition that at the end of his suspension he should be reinstated if his
superior recommended it. This the court held was not a final disposition
of the case, and the order was invalidated. 116

Two divergent views have been taken by the courts of the power of
the civil service commission to reopen a case, either on its own initiative
or upon request, once it has been decided. One line of cases holds that
the commission may not reconsider a case that has been decided. The
reasons for this view seem to be that the statutory phrases "final" or "final
and conclusive" should be interpreted to mean just what they say, also
that there is no presumption of the jurisdiction of statutory bodies like
the civil service commissions, because of the rule that the powers of these
bodies should be strictly construed. 117 One case seems to suggest that the
power of the commission to act is dependent upon whether the vacated
position has been filled; if it has been filled, then to reinstate the dis-
charged employee would be to make a new appointment. 118 Another
case draws a distinction between action to reopen based on the discovery
of mistake, which would be permissible, and action founded upon a
conclusion that the action had been too harsh, which would not be per-
mitted. 119 The superior officer who removed the employee cannot him-
self reinstate after a final discharge, because that too would be a new
appointment. 120

A minority view supports the commission in its power to reopen a
case, even though finally decided, apparently upon the theory that the
power to discharge carries with it the power to correct mistakes in dis-
charge. 121 Somewhat distinguishable from this rule is that which permits
the commission to approve reinstatement of a discharged person upon
the request of the department head because of error in the original dis-
charge, in spite of a commission rule that a year must elapse before dis-
missed persons can be reinstated. 122
A somewhat similar problem is presented by the situation in which a
removing officer who has distilled an employee for a bad reason or
by illegal procedure later discharges the same person for good cause and
in accordance with the proper statutory procedure. It is generally held
that an improper removal may be cured by later appropriate action, but
that the employee can recover for the period he was thrown out of serv-
ice. 128 He may not recover for the period after the defect in the discharge
was cured. 124 Sometimes the procedure is to reinstate wrongfully ousted
persons for such period as will enable them to be compensated for the
period of wrongful ouster, but only for that period. However, in most
states this is not a necessary technicality.


The problem of veterans' preference has been discussed in several
other places in this volume. In connection with removals, as with other
questions, veterans' preference is common to a much broader body of law
than that relating to civil service. The problem appears generally through-
out the administrative service.

The preference in removal often takes the form of special safeguards
to protect the veteran from being removed either without notice and
hearing or in case there is anyone else who could be removed in his stead.
Special requirements as to causes of removal may be stipulated for veter-
ans. In all instances the preference is the creation of statute.

With respect to abolition of positions a subject dealt with earlier,
with some reference to the problem of preference 125 the general rule
is that unless the statute expressly forbids it, the administrator is as free
to abolish the position of a veteran as the position of anyone else, except
that special procedures may be required in the case of veterans. Veterans'
preference does not give the courts any greater power over the adminis-
trative superior in abolition of offices or positions than they otherwise
have. The courts cannot always prevent that which they know to be
evasive. 126 Statutes prohibiting removal of veterans except for incompe-
tency or misconduct and after notice and hearing do not prevent the
abolition of positions for lack of funds, and the fact that others are re-
tained is not fatal so long as they are not doing the veteran's work. 127

Neither does veterans' preference convert employment into office for
purposes of recovering compensation because this type of question is gov-
erned by the general law of officers rather than by veterans' law. 128 The
courts will attempt in these, as in all abolition cases, to see whether the
removal or abolition has been made in good faith. 129

The difficulty of enforcing the rules governing abolition of positions
has led some veterans' organizations to adopt the view that their only
safeguard is expressly to prohibit the abolition of a position held by a
veteran. 130 It is questionable whether even this type of legislation would
preclude a general reorganization whereby under existing rules veterans'
positions may be abolished as part of the general shake-up. 131

Transfers are often provided for, so to make certain that if there is any
vacant position in the service, the veteran whose own position has been
abolished will have an opportunity to obtain it. 182 A statute giving to a
veteran whose position has been abolished the right to transfer to "such
positions as he shall be fitted to fill" has been held to entitle the veteran
to nothing more than a right to fill a vacancy if one exists. 188 When the
work connected with the veteran's position has been completed, the su-
perior is under no obligation to discharge another employee in order to
retain the veteran. 134

Preferred status on a list is given to veterans whose positions have
been abolished, but it is customary to qualify their preference for appoint-
ment to other positions by the word "similar"; if it is doubtful whether
the veteran has the qualifications for another position to which he claims
appointment on the basis of his preference, the civil service commission
must determine the question. 185 If no similar position exists, the veteran
is remediless. 136 It has been said that it is the burden of the superior officer
to prove incompetency on the part of a veteran under veterans' acts, but
that it is the burden of the veteran whose position has been abolished to
prove competency for the position to which he seeks transfer. 137

The subject of layoffs has also been discussed earlier, 138 and reference
to the veteran problem made therein. Veterans' preference does not ex-
tend to layoffs or reduction in force when the phraseology is restricted to
removal. 139

When the statute provides that no veteran whose record is "good"
shall be laid off, the department head may decide whether his rating is
good, and the fact that there is no formal efficiency rating system in force
in the department does not invalidate his judgment. 140 The veteran gets
the preference that he is entitled to by law and no more. 141 A statutory
preference to veterans who are equally qualified with other persons does
not give the preference to a veteran whose rating is "inefficient." 142

The inverse order rule in layoffs may be used despite a statutory recital
that veterans are to be removed only for incompetency. 143 Persons who
have been laid off and whose names are placed on a special list for re-
employment are often given preference in the order in which their names
were entered. 344 When transfer privileges are given to veterans, so that
if similar positions are open they may have the preference in appoint-
ment, that does not mean that those in such similar positions need to be
discharged in order to render them vacant. 145

An interesting case raising a related question is that in which eight
men were appointed without including four veterans who were entitled
to appointment. In complying with a court order to fill four places with
four veterans, the appointing officer was not allowed to discharge the
men who stood highest on the appointment list, but had to choose those
who entered the service with the lowest grades on their entrance ex-
aminations. 146

Preference granted to veterans in removal is entirely statutory; 147 in-
deed preference may be, and sometimes is, extended to other groups. 148
The preferred groups get exactly what the statutes grant and no more. 149
Even though the civil service section of a constitution gives preference
to veterans, they may be removed at pleasure when necessary to comply
with some other more specific provision of the same constitution, such as
a requirement o equal representation of political parties on certain
boards. 150 Veterans' preference statutes may be repealed and removal at
pleasure restored by express or implied exceptions arising out of later
statutes. 151

Sometimes protection is limited to the veterans of certain wars. 152 The
types of preference given to various groups may also vary: one statute
may give the preference to the veterans of one war; another statute may
provide for different types of removal protection for veterans of differ-
ent wars. 153

It has been held that a veteran cannot be suspended without pay pend-
ing the settlement of charges against him in removal proceedings when
no express power to suspend is given, 154 but this decision probably arises
not so much out of veterans' law as out of the general law governing sus-
pension. 155

Preference laws make no change in the status of probationary ap-
pointees unless express reference is made to veterans on probationary
appointment. 156

Nor do temporary appointees obtain the protection of veterans' pref-
erence laws. Thus veterans temporarily appointed, pending the establish-
ment of an eligible list from which candidates could be certified, cannot
complain when removed that the removal was contrary to veterans' pref-
erence laws. 157 Preference does not prevent quo warranto from testing
title to a position or office being held by the veteran. 158

If preference is provided for those in the classified service, members
of the unclassified service do not receive the benefit of it, 159 though of
course the statute may extend the preference to both groups. 160 Prefer-
ence laws often do not apply to deputies, 361 nor to holders of confidential
positions. 162 The distinction between a deputy and 3 confidential em-
ployee depends upon the general rules noted earlier in the discussion of
classification (Chapter IV). But the relationship between the employee
and the removing officer must be confidential if the employee is not to
receive the protection of the preference law. 163

Veterans' preference laws do not repeal by implication former statutes
fixing terms of office. Since the term of office is governed by rules com-
mon in the law of public officers, where that term is definite neither the
enactment of a civil service law nor a veterans' preference law governing
removals can alter the term. 164 When it expires the incumbent is out of
office, and no violation of the preference act has taken place. 185 But ac-
cording to some cases, preference may operate because of continuity in
the position. 166

When the statute provides preference for "positions" and "employees,"
the law applies only to minor positions rather than to officers and those
in positions of management. 167 Words of this type also indicate that the
preference is not to extend to a veteran who is essentially a private con-
tractor. 168

The status of laborers under preference acts is determined by the
phraseology of the acts themselves. If the statute uses broad phrases such
as "those in the public service," it may cover laborers. 169 The use of the
phrase "salaried employees or officers," or of similar phrases, raises the
question of the time unit in compensation. 170 The rule seems to be that
the laborer is protected against arbitrary removal if there is work for him
to do of the kind he has been doing and is qualified to do. 171 The nature
of the laborer's work may affect the remedies open to him; it has been
held that he need not seek mandamus to reinstate him before suing for
breach of contract for wages.

The problem of determining who is a veteran arises at all stages of
preference, whether in appointment or removal. Sometimes, by taking
too great care in defining a veteran, the statute excludes some who might
have been covered had a broader statement been used. 173

The opinions commonly enunciate the rule that a veteran must claim
his preference seasonably in removal cases, and that he must inform the
officer or body which has the power to remove and which is threatening
to exercise or is exercising it, before he is entitled to any special considera-
tions arising from his status as a veteran. 174 It is not sufficient that he file
a certificate, 1 rc although if there is a registration requirement, he must
comply with it at the proper time. 176

If the statute requires a definite period of service, the veteran must
show that he has served the requisite number of years. 177 And if asked
whether he is a veteran, he must answer directly and definitely and not
be evasive in his answers, so as to raise doubt as to his real status. 178

The courts usually do not insist upon formal notice, 179 any notice that
gives the requisite information being sufficient. It is also sufficient that
the removing officer know of the, employee's status as a veteran, whether
by virtue of the notice pr otherwise. 180 Furthermore, the veteran is not
required to give notice when no opportunity exists for doing so. 181

Statutes often provide that veterans may not be removed for the same
causes as may others. 182 Such a requirement is not to be confused with
such procedural requirements as those requiring the statement of a
cause for removal. The former affects causes; the latter leaves the law
on causes as it was and merely regulates procedure.

Veterans have sometimes obtained the enactment of legislation that
gives a special sanction to their claims. Criminal penalties and the inflic-
tion of personal damages upon the offending officer who makes the re-
moval are provided for in some states as a special warning to removing
officers that they act at their peril in making removals under veterans*
preference laws.

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