process, are employees not in the service of the county but in that of the sheriff, and that therefore "the positions held by these employees fall neither within the constitutional provision nor within the purview of the statute (civil service)" (p. 567 of opinion). However, "all appointees of the sheriff whose duty relates exclusively to the functions of the sheriff's office in criminal matters should be considered in the service of the public and not of the sheriff personally, and are subject to the civil service regulations" (p. 569 of opinion). He also held that where employees were discharging duties both of a criminal and a civil character they were exempt from the civil service regulations, saying: "so long as there is no separation of the duties, we think those subordinates must also be held exempt from the civil service regulations" (p. 570 of opinion). The main reason given by the court for exemption from civil service regulations of employees discharging duties in relation to the civil business of the sheriff's office is that the sheriff is liable in respect to such business for the default of his appointees, and the appointees for such default are liable to the sheriff and no one else (p. 568 of opinion). For the acts, defaults, torts, extortions or other misconduct of his employees in the course of the execution of their civil duties, whether it be wilful or inadvertent, the sheriff is liable "to the same extent as if the fault were his own" (p. 567 of opinion). It appears that the principle of this decision has been embodied and interpreted by the State Civil Service Commission in Civil Service Rule V, the last paragraph of which reads as follows: "No provision in these rules, except those relating to certification of pay-rolls, shall be held to apply to any employee or appointee of a sheriff whose duty relates exclusively or in part to the functions of the sheriff's office in civil matters." It would appear that the decision in Matter of Flaherty v. Milliken, supra, and the rule above quoted are applicable to the cmployees of the sheriff of the county of New York. The office of the sheriff of the city and county of New York is partly a salaried office and partly a fee office (chap. 523, Laws of 1890 as amended). Therefore, in so far as the employees of the office are wholly or partly engaged in discharging duties which relate to the civil busi ness of the office, they must be considered under the Flaherty decision as exempt from the regulations of the civil service. The positions of chief clerk, entry clerk, law clerk, arrest clerk, assistant entry clerk, assistant auditor, clerk, messenger and assistant counsel were, it appears, certified to the Commission by the sheriff as appointees engaged in discharging duties of a civil nature. If that is so then the decision in the Flaherty case is applicable and they are exempt from civil service regulations. While other positions than those here considered were involved in the Flaherty proceeding, and while the duties of these positions may be of a clerical character, yet they must be considered covered by the principle of that decision inasmuch as the sheriff for any acts, torts or other misconduct of such employees committed in the course of their employment, whether wilful or inadvertent, would be liable to any party aggrieved "to the same extent as if the fault were his own." Of course, the certificate of the sheriff that these employees are engaged wholly or in part in duties of a civil character is not conclusive upon the Commission. That is a question which the Commission has the right to determine for itself after an investigation into the duties of each position. All of the above applies with equal force to the positions of bond clerk, cashier and confidential stenographer, which it appears the Commission has retained in the classified service. It may be noted in this connection that the positions of assistant equity clerk and bookkeeper of the jail in the office of the sheriff of Kings county, and the auditor, entry clerk, law clerk, index clerk and messenger in the office of the sheriff of Queens county have been held by this office to be exempt from the regulations of the civil service under the decision in the Flaherty case (Report of Attorney-General 1910, p. 688, opinion of April 1, 1910, to the State Civil Service Commission). Dated December 5, 1913. THOMAS CARMODY, TO STATE CIVIL SERVICE COMMISSION, Albany, N. Y. Employees of the Bill Drafting Commission are apparently in the unclassified service. INQUIRY FROM CIVIL SERVICE COMMISSION Are the employees of the Bill Drafting Commission created at the recent extraordinary session of the Legislature subject to classification under the Civil Service Law or are they exempt from classification as legislative employees? OPINION Section 9 of the Civil Service Law includes in the unclassified service" all legislative officers and employees." At the recent extraordinary session of the Legislature, an act was passed amending the Legislative Law, the title of which is "An Act to amend the legislative law in relation to the legislative bill drafting commission." This act creates a legislative bill drafting commission, consisting of two commissioners, to be appointed by the temporary president of the Senate and the Speaker of the Assembly. The act further provides: "The commission may employ necessary legal and other assistants, the number, compensation and terms of whom shall be fixed by the temporary president of the Senate and the Speaker of the Assembly," etc. Employees designated under this authority to carry out the purposes of this act are plainly legislative employees and belong in the unclassified service, under section 9 of the Civil Service Law. Dated December 26, 1913. THOMAS CARMODY, To the STATE CIVIL SERVICE COMMISSION, Albany, N. Y. |