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Civil Service Law - Chapter VI

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 VI


Appointment to office or employment in the administrative branch of
government is a phase of the general subject of the law of public officers.
Though the existence of a civil service law does not greatly modify this
general body of law, there are points at which the civil service law im-
pinges upon the law of appointment; these will be considered in the
present chapter. Some phases of this branch of civil service law are so
intimately connected with the law of certification that it is only with dif-
ficulty that the two can be separated; the discussion of certification in the
preceding chapter should therefore also be consulted.

At the outset there is always the question as to what constitutes an
appointment. The type of appointment may also be involved, for the
type may determine whether the person who fills it is in the classified
service. 1 Modified phrases such as "temporary appointment," "special ap-
pointment," and "probationary appointment," as well as the unmodified
"appointment," suggest the kind of problems that may arise.

Is reinstatement the same as appointment ? In one case involving this
question, a police captain was granted a leave of absence to serve as sec-
ond deputy police commissioner, a position that was not in the uniformed
force. At the expiration of two years he was returned to his former posi-
tion of captain. Did this restoration constitute an appointment? A rule
of the civil service commission contained the following statement: "A
person who has been permanently appointed to a position in the com-
petitive class in any department, and who was separated from his posi-
tion in that class by appointment to a position in a non-competitive or
exempt class, or to a position in another group of the competitive class,
and who has served continuously therein from the date of such separa-
tion, may be restored without the application of the foregoing restric-
tions, either to the position originally held by him, or to any position to
which transfer could be made therefrom." The court held that under this
rule the restoration was not an appointment, that the captain had not

1 Thus, for example, a "special" appointment may leave one outside the classified serv-
ice, while a "regular" appointment made later, but involving the same position and the
same person, may bring him within the classified service.



been separated from the service or from his old position in a sense that
would require the exercise of the power of original appointment. 2

Sometimes reinstatement is possible within a fixed period, such as one
year, following separation from the service without fault. Apparently
this act of reinstatement is not an appointment. However, if the person
is placed in his former position after the period expires, the procedure
prescribed for original appointment must be complied with. 3 Reinstate-
ment to a position several years after a separation with fault is an appoint-
ment. 4

The situation in which four vacancies in positions of the same class
are filled on the same day presents a problem when it comes to deter-
mining the priority in appointment. This must be determined in some
instances because of legal rights which flow from priority, such as senior-
ity in layoffs. Here the presumption exists that the candidate who stood
highest on the list was appointed first, and so on down the list. 5

There is some authority that where an appointment is not made in
accordance with the procedure prescribed for the classified service, that
fact should be taken as evidence that it was not found practicable to fill
the position in such manner; and that therefore the appointment is legal
under the civil service laws. 6 This leaves to the administrator a greater
leeway than is consistent with the spirit of most provisions governing
practicability; at least there should be required a formal rule or finding
that such examination is not practicable. The rule should be that he who
asserts an examination impracticable must bear the burden of showing
such to be the case, a rule that is occasionally overlooked by some courts. 7

As was pointed out in Chapter V, the person entitled to certification
for a vacancy does not obtain the position by operation of law. The ap-
pointing officer may leave the position unfilled. However, if the latter
takes any action that indicates his intention to fill the vacancy, then the
candidate is entitled to the position, providing, of course, that the rule
applies that the one highest on the list is to be certified. 8 To fill it without
asking for certification does not bar the candidate's rights. Apparently
it is not necessary that the candidate should first demand certification.
This is in accordance with the general rule that while demand must first
be made of the officer entrusted with the performance of a duty, it is
nevertheless not necessary to demand that which is futile.

2 Schieffelin v. Lahey, 243 N. Y. 102, 152 N. E. 690 (1926).
"Matter of Nammack v. Creelman, 145 A. D. 289, 130 N. Y. S. 211 (1911).
*Harcher v. Hurley, 116 N. J. L. 18, 181 Atl. 309 (1935).

5 Matter of Fogle v. Levin, 150 Misc. 194, 268 N. Y. S. 419 (1934). See Chapter VIII,
on layoffs, p. 170.

8 Scahill v. Drzcwucki, 244 A. D. 530, 279 N. Y. S. 933 (1935).

7 State v. Board of Commissioners, 174 La. 516, 141 So. 46 (1932).

8 Savage v. Detroit, 190 Mich. 144, 155 N. W. 1031 (1916).


Appointment may or may not carry with it a claim for salary. The
basis for salary is an appropriation, and if there is no appropriation or
authorization to pay the salary, the fact that the position is established
by law and that a person has been appointed to fill the position does not
entitle him to a salary payment. 9

One of the functions entrusted to the civil service commission in some
jurisdictions is the certifying of payrolls. It has been held that an action
to recover salary will not lie if the plaintiff's name is not on the certified
payroll, but that he must first compel the commission to certify his name
on the payroll. 10 It is not a function of the commission to examine into
the question of whether the employee is actually performing the duties
of the position. Its duty is to see that the person has been appointed prop-
erly and that he is qualified for the position under which his name ap-
pears. It is for the department to see that he is properly performing the
duties that he was appointed to perform. 11 The function of the commis-
sion is not that of a comptroller general or auditor.

The power to appoint carries with it a certain amount of discretion
under most systems, although it becomes almost negligible under the
system which requires the appointment of the person standing highest
on the list. It has been held that discretion in appointment extends to
a consideration of the past records of two certified candidates when both
of them are veterans. 12 It has been noted in the previous chapter that the
appointing officer may not pass on eligibility or qualifications; these are
for the civil service commission to determine. It has been held, for ex-
ample, that it is for the civil service commission to determine whether
blindness constitutes a physical disability for the performance of the
duties of a position. 18

The failure of the , ;yo::uiMi: officer to notify the commission of a
vacancy or the failure of the records of the civil service commission to
show such notification is not fatal to an appointment that has been made
upon the basis of certification. It is presumed that certification is of the
proper persons unless the contrary is shown. 14 A law provided that the
commission should keep records relating to the classified service.

Some laws provide that if the appointing officer makes a written state-
ment that for reasons affecting the good of the service he is unable to
appoint anyone on the certified list, a second list may be sent to him upon
his request. But some laws fail to make provision for the submission of

9 Munch v. New York, 93 N. Y. S. 509 (1905).

10 Lynch v. New York, 90 Misc. 309, 153 N. Y. S. 186 (1915).

"People ex rel. Bedford v. McWilliams, 56 Misc. 296, 106 N. Y. S. 459 (1905).
"Santangelo v. Civil Service Commission, 12 N. J. Misc. 193, 170 Atl. 861 (1934).
18 State ex rel. Hoskins v. Ohio Board of Administration, 92 Oh. St. 457, in N. E. 283


"State ex rel. Leader v. Kansas City, 258 S. W. 762 (Mo. 1924).


the second list. Under this situation it has been held that if three persons
are certified on the first list and two of them do not appear when he calls
for them, the appointing officer must appoint the third, even though he is
the lowest of the three. 15 The danger that he would prove unsatisfactory
was minimized by the court on the theory that the administration is pro-
tected by a probationary period. The court added that the requirement of
three was not only for the purpose of allowing discretion to the appoint-
ing officer but also for the purpose of ensuring that if one or two of the
men should not appear there would still be someone left who was eligible
for the position. A second list could not be sent to the appointing officer
because the law did not authorize it.

An appointment that has been made in reliance on a certification
cannot be disturbed, of course, except in accordance with the procedure
governing removals, even though a mistake occurred in the certification.
The civil service commission can neither cancel the certification after
the appointment has been made nor refuse to certify a payroll on which
the name of the appointee appears. 16

A court will not permit certiorari to review an appointment made in
reliance on a certification, because the act of appointment is not a judicial
but an administrative act. Certiorari does not lie to review administrative
acts unless they involve considerable of the judicial element. 17 The court
suggested that quo warranto was the proper method of testing the legal-
ity of the appointment.

In assailing the title to office of one who is alleged to have been ap-
pointed, though not properly eligible, it is necessary to make the appoint-
ee a party. Mandamus against the appointing officer is not the proper
method for settling this question. 18

The civil service commission may be given the power to correct mis-
takes in certification and appointment when the two are closely depend-
ent upon one another, and may even go to the length of removing a
person who has been appointed. An example is the following: "The com-
missioner may before or after an appointment has been made cancel a
certification, if he finds that the certification was made in error, or that
any person certified was placed on the eligible list through mistake or
fraud; and, if a person has been appointed from such certification, he
may revoke his appointment and order his discharge." This was held to
vest a discretionary, not a mandatory power. 19

15 Jenkins v. Gronen, 98 Wash. 128, 167 Pac. 916 (191?).

18 Matter of Lazenby v. Municipal Civil Service Commission, 1 16 A. D. 135, 101 N. Y. S.
5 (1906).

"Matter of Carp, 179 A. D. 387, 166 N. Y. S. 243 (1917), affirmed, 221 N. Y. 643,
117 N. E. 1063.

18 Carey v. Jackson, 165 Md. 472, 169 Atl. 922 (1934).

19 Hayes v. Commissioner of Civil Service, 197 N. E. 471 (Mass. 1935)-


The person who has been appointed in disregard of the civil service
law cannot recover his salary or its equivalent upon the theory of quasi-
contract. The fact that the city has received the benefit of his services is
not sufficient to counterbalance the danger of encouraging disregard of
the civil service law by permitting recovery for work done. The person
who is appointed is himself under some duty to see that he is properly
appointed. 20 But it is to be presumed that this may be affected by the
presence or absence of fault, fraud, or negligence on his part, or by the
general rules governing recovery of compensation by de facto holders
of offices and positions.

In deciding whether to disturb an appointment made in error the
courts are influenced to a considerable extent by the length of time the
appointee has held the position from which it is sought to oust him. A
long period of recognition on all sides tends to cure the original mis-
take. 21 For example, if a person is employed by the wrong officer and
serves out a year, it has been held that he is entitled to protection against
removal by virtue of the civil service act. 22


Though some qualifications are placed upon appointment by civil
service laws, most of the qualifications prescribed in civil service statutes
and regulations are not put upon appointment but upon the right to ex-
amination and to a position upon the eligible lists. The residence rule, for
example, is most often imposed in connection with examination, though
at times the law is phrased in such a manner as to impose it upon appoint-
ment more commonly in the states than in the national government.
The exact phraseology must be observed carefully to determine for what
residence is a requirement.

The rule that a person may not be appointed if two members of the
same family already are in the service does not debar the third member
of the family from taking an examination. 23 A change of residence so as
to establish a separate household does not conform to the family rule if
at the time of the appointment the third member was really a member
of the "same family." Also, it has been held that if the rule is violated and
no serious equities have intervened, the person employed in contraven-
tion of the rule should be ousted. 24 In the absence of fraud, the civil serv-
ice commission may withdraw its certification of the third member, but
a person already employed should be left undisturbed. 25

20 Shaw v. San Francisco, 13 Cal. App. 547, no Pac. 149 (1910).

21 State ex rel. Hamilton v. Kansas City, 303 Mo. 50, 259 S. W. 1045 (1924).
2a Connell v. Board of Public Works, 234 Mass. 491, 125 N. E. 600 (1920).
28 26 Ops. Atty. Gen. 260 (1907).

24 31 Ops. Atty. Gen. 324 (1918).
"30 Ops. Atty. Gen. 169 (1913).


The word "family" refers to a group living under one roof as a fam-
ily. Thus the daughter of a father who is in the service and who lives in
his home is eligible to appointment if a brother in the service lives in
Washington in a separate house. 26


Civil service laws and regulations quite commonly provide for a pro-
bationary period that must be served before the person appointed to a
position becomes a regular or permanent appointee.

The existence of a constitutional provision, such as that in New York,
which requires appointments to be made on the basis of merit and fitness
does not operate in and of itself to prevent the requirement by statute of
a probationary period. The constitutional requirement that merit and
fitness be ascertained by examination so far as practicable was said to
leave room for the possibility that examination might not be practi-
cable as the sole test of merit and fitness, and for that reason a proba-
tionary service to determine fitness might be imposed. 27 The commission
is restricted in its power to prescribe a probationary period by the limita-
tions in a statute or charter. Thus, if a charter requires a six months'
period, the commission may not fix a term of one year. 28

The probationary period begins on the date of appointment and not
on the date of filing the notice of appointment with the civil service com-
mission. 29 The fact that the civil service commission sent a notice of its
approval subsequent to the appointment does not affect the date of the
original appointment. Unless the appointment as such is conditioned by
the requirement of approval in order to become effective, such subse-
quent formalities have no effect upon the date as of which appointment
becomes effective. The probationary period runs from the effective date
of appointment.

But this rule is not to be taken without some qualification. An ap-
pointment was made in these terms: "said appointment to take effect
on and after November 14, 1901." The relator commenced work on No-
vember 1 8. The court held that the probationary period should run from
the date on which he actually began work. 30

It would seem that a rational basis for the rule that should govern the
running of the probationary period is the distinction so often made be-

26 26 Ops. Atty. Gen. 301 (1907). Cf. 18 Ops. Atty. Gen. 83 (1884).

27 People ex rel. Sweet v. Lyman, 30 A. D. 135, 50 N. Y. S. 444, 51 N. Y. S. 641 (1898),
affirmed in People v. Lyman, 157 N. Y. 368, 52 N. E. 132.

28 Rodger v. Board of Public Works, 208 Cal. 291, 281 Pac. 64 (1929), still distinguish-
able from Rodrigue v. Rogers, 4 Cal. App. 257, 87 Pac. 563 (1906), because expressly
excluding temporary positions from discussion.

^Nisbet v. Frincke, 66 Colo, i, 179 Pac. 867 (1919).

80 People ex rel. O'Grady v. Low, 74 A. D. 246, 77 N. Y. S. 66r (1902).


tween office and employment. The general theory and law of the nature
of an office dictates that its holder should be entitled to compensation
irrespective of the actual duties performed. In the case of an employment,
however, the basis of compensation is the performance of the duties of
the employment. This rule, of course, will be subject to any specific pro-
vision in the civil service law or rules. The point may be covered ex-
plicitly therein, although ordinarily this is not the case.

It is, of course, not necessary to mention in the appointment that it
is for the probationary period if the statutes or regulations provide that
all appointments in the service are probationary. In this case the proba-
tionary condition is implied as a matter of law. 31

The rights of a person on probationary appointment are not the same
as the rights of a person on permanent appointment. An examination of
some of the cases bearing on this problem will make the difference clear.
It has been held that if plaintiff is unlawfully removed during his proba-
tionary period and is later reinstated, he may recover for the period that
he was out of his position owing to the illegal removal. 32 He may have
this right as a probationer if the law gives it to him. Whether this will be
the rule depends, of course, upon whether the probationer has been given
any rights against removal during the probationary period. Some courts
have refused to reinstate under these conditions, because they felt that
reinstatement by court order might be taken to mean reinstatement to
a permanent status, instead of reinstatement for the remainder of the
probationary term. 33 This would not be the rule if the probationer were
given any rights against certain types of removal during probation. The
normal situation is that probationers may be removed without the limi-
tations resting upon the removal of permanent employees. 34

A statute may contain a general tenure recital which at first glance
seems not to include probationers, but which upon closer analysis is seen
to include them. A California statute provided that "the tenure of every
person holding a position under the provisions of this act" shall be pro-
tected against removal unless removal takes place in a specified manner.
The court held that this applied to probationers as well as to permanent
employees. 35

A civil service regulation provided that "if his conduct or capacity on
probation be unsatisfactory to the appointing officer, the probationer shall
be notified in writing that at the end of such period he shall, for that

81 McVay v. New York, 116 N. Y. S. 908 (1906).
32 See Sutliffe v. New York, 132 A. D. 831, 117 N. Y, S. 813 (1909).
^McVay v. New York, supra, note 31; People ex rel. Hoeges v. Guilfoyle, 61 A. D. 187,
70 N. Y. S. 442 (1901).

84 Wells v. Commissioner, 253 Mass. 416, 149 N. E. 144 (1925).
88 Neuwald v. Brock, 79 P. (id) 397 (Cal. D. C. App. 1938).


reason, not be retained. His retention in the service otherwise shall be
equivalent to permanent appointment." Under this provision a person
who was on probation was notified by letter on the last day of his proba-
tionary period that he would not be retained, but because of the fact
that he was out of the office on that day he did not actually learn of the
notification until three days later. The court refused to give him any
aid, saying that as long as he had been given notice properly, the court
could not inquire into the time that it was given other than to see that
it was given at a time required by law, which was simply before the
expiration of the period. The fact that the reasons for failing to retain
him were known earlier was said to be immaterial. 36

A charter provided that "every original appointment . . . shall be for
six months, at the end of which time, if the conduct and record is satis-
factory ... he shall be permanently appointed." The same charter re-
quired "written specifications" in case of discharge. The probationer was
discharged before the expiration of the probationary period, without
written specifications. This action was upheld on the grounds that the
discharge provisions did not apply to probationary but only to permanent
appointments. 37

The power to appoint belongs not to the civil service commission but
to the appointing officer. It is his decision which permits probationary
appointment to ripen into permanent appointment, not the decision of
the commission; unless specifically restricted, the appointing officer de-
termines whether probationary service is satisfactory. Any attempt on
the part of the civil service commission to qualify that power by regu-
lations requiring its own consent to exercise of the power is in conflict
with the charter.

A statute provided that "all appointments or employments in the
classified service shall be for a probationary term, not exceeding the time
fixed by the rules." Under this statute the following rule was adopted:
"all employments . . . shall be provisional, and such provisional service
shall continue six months except in Schedule C, when it shall be for one
month, during which period the person so employed may at any time
be peremptorily discharged from service." It was held that this rule ex-
ceeded the authority of the commission, because it authorized peremp-
tory discharge, and the statute gave it authority only so far as time was
concerned. The court said that the regular notice and opportunity to
explain must be accorded to the person to be removed. 38 A vigorous dis-

86 Matter of Dalton v. Darlington, 123 A. D. 855, 108 N. Y. S. 626 (1908).

37 Milliken v. Zarnow, 95 Colo. 170, 34 P. (id) 84 (1934).

^People ex rcl. Kastor v. Kearney, 164 N. Y. 64, 58 N. E. 14 (1900). See People ex rel.
Zieger v. Whitehead, 99 Misc. 578, 164 N. Y. S. 663 (1917); People ex rel. White v. Coler,
56 A. D. 171, 67 N. Y. S. 652 (1900).


sent explained that such a decision eliminated the purpose of a proba-
tionary period, which is, according to the dissenting judge, to permit
the administrative superior complete freedom in taking action to termi-
nate the employment of one who is not satisfactory. The dissenting judge
seems to have the best of the argument, although he had only reason
with him.

Lack of work is a sufficient cause for laying off an appointee prior to
the expiration of the probationary period. 39 This is only logical, lack of
work being a good reason for terminating employment of even a sup-
posedly permanent nature. A probationer has no greater rights in layoffs
than a permanent employee.

A veterans' preference provision protecting a veteran from removal
except under certain conditions does not apply to action that terminates
the probationer's term. He is not "removed from office"; rather his term
expires by its own limitation. Its extension can be effected only by action
of the administrative superior. 40

An interesting question that has arisen in connection with the run-
ning of the probationary period is the effect that an illegal suspension has
upon it. Is the period of the suspension counted as part of the six months'
service? If so, the probationary period would terminate at a different
date than if the suspension were deducted, in which case the period
would be extended. It has been held that the period of suspension should
be deducted from the period of probation, not counted as part of it. 41

An example of bad draftsmanship in providing for the termination
of probation is to be found in a civil service rule which provided for a
probationary period of six months and then stated that "within ten days
of the termination of such probationary period, the appointing officer
shall file a report with the commission certifying that said employee has
met the requirements of the department . . ." 42 Must the appointing
officer give his notice ten days before or ten days after the running of the
six months ? The court held that the officer did not have an additional
ten days subsequent to the termination of the six months' period in which
to give his notice. The court seemed to think, and doubtless properly so,
that the provision that if the service of the probationer is unsatisfactory
"the appointing officer shall certify the same in writing to the commis-
sion and such probationer shall be dropped from the service" had some
bearing upon the meaning of the provision recited above. 43 The opinion
did not pass unchallenged by a dissent, however.

39 Brown v. United States, 39 Ct. Cl. 255 (1904).

40 Cole v. Marshall, 6 N. J. Misc. 702, 142 Ad. 563 (1928).

41 Blake v, Lindblom, 225 111. 555, 80 N. E. 252 (1907).

43 Sec. 9 of civil service rules of Spokane, Washington, in force in 1932.
43 State ex rel. Moulton v. Spokane, 174 Wash. 679, 26 P. (2d) 89 (1933).


Notice of the termination of the probationary period must be given
by the officer who is authorized to do so. If the notice has been given by
the wrong officer, the proper authority must ratify it before the expiration
of the period in order for it to be effective. 44 Certiorari is not the proper
procedure for reviewing the decision of the appointing officer that a pro-
bationary appointee is not to be retained. Such a decision is administra-
tive, not judicial, in character. 45

Once an effective notice has been given, the period is terminated.
Any subsequent effort to cancel the notice and to reinstate the employee
for purposes of filing charges against him with a view to discharging him
is ineffective. 46

A statute may provide for a formal procedure in cases involving ter-
mination of the probationary period, just as in removal from the service.
When a suspension is followed by a hearing and then by an order of
removal, the effective date as of which the compensation ceases is the
date of the suspension. 47 If a hearing on the termination of a probationary
period is required, it is likely that a "cause" for removal will also be re-
quired. 48

The civil service rules of the United States Civil Service Commission
provided that "if, and when, after full and fair trial, during this period,
the conduct or capacity of the probationer be not satisfactory to the ap-
pointing officer, the probationer shall be so notified in writing, with a
full statement of reasons, and this notice shall terminate his service. His
retention in the service beyond the probationary period confirms his ab-
solute appointment." A probationer was given notice that his services
would be terminated, but without full statement of reason. He refused
to recognize the action of his superior officer. Later he resigned. He then
demanded compensation for the period between his discharge and his
resignation. The comptroller refused to allow the claim. He said: "The
civil service act clearly intended that the appointing officer should have
entire freedom to exercise a sound discretion based upon observation of
the probationer during his preliminary trials in determining whether he
should be absolutely or permanently appointed, and that the decision
reached in good faith should be final. That the purpose of the law was
carried out in substance if not in the letter in this case, there appears to
be no doubt. The requirement of the rule in respect to making a full
statement of the reasons for his action cannot operate as a restriction of

"Matter of Goldschmidt v. Board of Education, 170 A. D. 395, 156 N. Y. S. 66 (1915).

45 People ex rel. Katz v. Woods, 171 A. D. 516, 157 N. Y. S. 786 (1916).

46 People ex rel. Looram v. Henderson, 77 Misc. 25, 135 N. Y. S. 782 (1912).
"Ruggles v. United States, 45 Ct. Cl. 86 (1910).

48 Ruggles v. United States, supra, note 47. See also the discussion of cause and hearing
in Chapter X.


the substantial purposes of the law. It could not, therefore, deprive the
appointing officer of the right, in the exercise of a sound discretion based
upon the observation of the appointee during his probationary period, to
make a final decision as to whether or not the probationer's appointment
should become absolute. The appointing officer having thus made such
final decision, as contemplated and intended by the law, his failure to
accompany his notification thereof with a full statement of reason,
whether or not such failure be a violation of civil service rules and ren-
der him amenable to discipline by competent executive authority, cannot
operate to give the probationer a right which the civil service act never
contemplated that he should have, but which is, in fact, in clear contra-
vention of the plain intent of that act, namely, absolute appointment not
only without the approval of the appointing officer after a preliminary
trial but actually in spite of his disapproval after such trial." The ap-
pointment never became absolute, said the comptroller. 49

It is proper for the appointing officer to conduct investigations into
the past record and performance of the probationary appointee, and his
findings may serve as a basis for a decision to terminate the appointment
when the time comes to decide whether it shall ripen into a permanent
appointment. 50 The civil service commission's findings on eligibility do
not preclude such an investigation on the part of the officer.

There may be a difference in the salaries attached to probationary and
to regular service. If the probationer receives permanent status, he is en-
titled to compensation as of the permanent status, and if he does not
receive the difference, he may sue for it. 51


It is becoming rather usual for persons who are desirous of entering
public service to offer to work for nothing for a time. The hope that often
lies behind such an offer is that by voluntary service the servant will be-
come familiar with the duties of an office or position and thus prepare
himself more thoroughly for an examination or for a vacancy that may
be filled without examination. He may also feel that he will make per-
sonal contacts which will be helpful in other jurisdictions. Usually the
problems raised by a practice of this kind are confined largely to the field
of personnel policy, but at least one legal problem may arise. May the
apprentice or volunteer advance a claim upon the government for work
done to the benefit of the government, basing his claim upon general
principles of quasi-contract and unjust enrichment? Some jurisdictions

49 26 Dec. of Comp. 804 (1920).

50 People ex rel. Walter v. Woods, 168 A. D. 3, 153 N. Y. S. 872 (1915).
61 Chicago v. McNally, 117 111. App. 435 (1904).


have taken action to deal with the problem of volunteers, although such
action was apparently not directed against this particular phase of the
problem, which arose during the inauguration of modern programs of
training for the public service accompanied by apprenticeship service. 52


Temporary appointments, or as they sometimes are called, provision-
al appointments, are often provided for in civil service laws. The two
phrases are not always synonymous; the latter (provisional) sometimes
refers to filling a vacancy until it can be filled by the regular method, the
other (temporary) means the filling of a position temporarily for one
of two reasons. In the first place, it may refer to employment which is
temporary because of the nature of the work, e. g., seasonal work. In the
second place, it may refer to temporary employment on a permanent
service or in a permanent position. Care must be taken to see which of
the two situations is contemplated by the law and which of them is in-
volved in a given case. The terms "provisional" and "temporary" may be,
and in many instances are, used interchangeably.

The reasons for providing for temporary appointment are several.
Among these motives that of evading the usual procedures accompany-
ing civil service selection under the merit statutes is of concern to persons
interested in the merit principle. If the candidate for a position is not
competent to discharge its duties, one method of offering him an oppor-
tunity to make himself competent is to give him some experience in the
position. This may be accomplished through the use of temporary ap-
pointment. Later, when an examination of a "practical nature" is given
for the position, the candidate who has discharged the duties of the posi-
tion will ordinarily be able to place at least among the first three on the
list. Temporary appointments have therefore caused some difficulty, for,
though they may be used to evade the merit principle, it is felt to be
unwise to eliminate them entirely.

A temporary appointment may ripen into a probationary appoint-
ment under some circumstances. A renewal may be construed as appoint-
ment to a probationary status, even without any such intention upon the
part of the appointing officer. Such a doctrine, while invented largely
to protect the employee and give him a better status, is of doubtful sound-
ness and should be reserved for the most unusual types of situations, if
used at all. 53

Some statutes specifically authorize temporary appointments and then
proceed to surround them with restrictions designed to prevent abuse of

62 Sec 27 Dec. of Comp. 131 (1920).

"Nilsson v. State Personnel Board, 78 P. (20!) 467 (Cal. D. C. App. 1938).


the power to make them. Some statutes say nothing about them. Some
specifically forbid them. Still others exclude them by providing that
examinations shall be required for both regular and special appoint-
ments. 54 There is some doubt that temporary appointments can be used
in the absence of statutory authorization.

Sometimes confusion also arises in attempting to distinguish tempo-
rary from probationary appointment. A city charter provided that a
civil service employee on the regular payroll become a permanent em-
ployee after serving a six months' probationary period. The civil service
regulations provided similarly, and also stated that "all other positions
shall be considered as temporary positions and appointments to tempo-
rary positions shall automatically expire at the end of four months."
The charter limited temporary appointments to sixty days, A plaintiff,
after taking the examination and being placed on the eligible list, had
been appointed and had served more than six months in his position.
Was he entitled to the protection of the provisions governing removals
or was he a temporary appointee ? The court held that he was entitled
to such protection against removal on the ground that he was a perma-
nent employee. The commission could not make permanent positions
subject to the provisions on temporary appointments. The appointment
here was to be considered^ probationary rather than temporary. 55

Temporary appointment may not be used as a method of evading re-
tirement acts. A person retired by operation of law may not be kept on
as a temporary appointee. An act providing that "all employees to whom
this applies shall on arriving at the retirement age" be automatically sepa-
rated from the service comes within this rule. 56

A sanction for the rules on temporary appointments is provided in
some jurisdictions by requiring the consent of the civil service commis-
sion to such appointments and by the treasury's practice of withholding
compensation unless such consent is shown. 57

It has been held that a person who is certified as an intermittent em-
ployee upon a request of the appointing officer for such an employee, no
time being specified in the request or the certification, and who serves
twenty-two months, is to be considered a permanent employee and given
the protection accorded members of the classified service. 58 In this case
the limit on temporary appointments was three months, and such ap-
pointments could be renewed for another three months upon consent of
the commission. A service of twenty-two months must be considered

"Matter of Grenan v. Rice, 150 Misc. 784, 270 N. Y. S. 158 (1934)-

60 McGillicuddy v. Civil Service Commission, 133 Cal. App. 782, 24 P. (2d) 942 (1933).

58 3 Dec. Comp. Gen. 119 (1923).

87 3 Dec. of Comp. 52 (1896).

"O'Brien v. Inspector of Buildings, 261 Mass. 351, 158 N. E. 760 (1927).


permanent, thought the court, inasmuch as it exceeded the period fixed
for temporary appointment as well as that for probationary appoint-

Contrary to the above cases on the rights of persons who are tempo-
rary appointees, but who have served for longer periods, is the case of
State v. City of Seattle. 59 The court held that when a person serves longer
than the temporary period, he is a holdover, and as such, is not entitled
to the protection accorded regularly appointed permanent employees.
This decision goes far toward discouraging abuse of temporary appoint-
ments. Whether most courts would adhere to this principle if the time
involved were a long period is doubtful. It might be that a person who
had remained in the position for a year or two would receive protection
against an ouster, although he might not be able to resist an attack upon
his title by the appropriate parties. It is, of course, necessary to examine
very closely the statutes and the terms of appointment or employment in
determining whether a particular employment is designed to be tem-
porary or permanent. 60

Temporary appointment often fails to bring with it the various privi-
leges and rights that accrue to permanent status. For example, when the
reclassification of the national service was authorized by the act of 1923,
"all new appointments" were ordered to be made at the minimum rate
of the appropriate grade or class. A person who was holding a temporary
appointment at the time, but who was to be made a permanent appointee,
was considered a "new" appointee and given the minimum rate of pay. 61

A similar discrimination against temporary appointees is to be found
in a California case wherein the court said that temporary appointees
could not qualify for positions in the highway patrol under a provision
that permitted the appointment of persons who had held office for one
year. The court held that only those who had held positions for a year
as a result of appointment from an eligible list compiled on the basis of
examinations were qualified. A temporary appointment, even though it
lasted for the period of a year, would not come under this act, said the
Temporary appointees may be denied leaves of absence because of the
absence of a statutory provision.

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