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Rochester The Commission met in Rochester in response to formal complaints of misconduct against the municipal civil service commission which was in office in the year 1901. Sessions were held on January seventeenth and eighteenth, February fourteenth and fifteenth and April first, and testimony was taken concerning examinations held for promotion to the position of battalion chief in the fire department, and to the position of captain in the police department, and generally concerning the enforcement of the civil service law. The reports of the Commission were filed April eighth and the same are set forth in full in the appendices.

Rome

The Commission has also conducted, through its secretary, an investigation as to the administration of the civil service law and rules in the city of Rome. A complaint was made to the Commission by Merritt B. Kingsley, of Rome, under date of October seventh, alleging that an inspector of paving was being employed under the title of "laborer." The secretary was directed to visit Rome and make a general investigation concerning the enforcement of the civil service law in said city and to report his findings to the Commission, which report was duly made, approved by the Commission and made public.

Recommendations as to legislation

1. Removals -- The Commission is of the opinion that in order to secure compliance with the present provisions of the civil service law forbidding removals for political reasons, the act should be amended so as to provide that no removal of any person in the competitive class of the classified service should be valid unless and until a statement setting forth legal and sufficient reasons for such removal is filed with the proper civil service

commission and the person removed has had notice thereof and an opportunity to reply thereto. As the law now stands removals for political reasons are prohibited but removals for no reason whatever are permitted, except in cases of veterans, etc., and in other special cases, and the burden is thrown upon the faithful and efficient employee to establish the fact that his removal was for political reasons. The burden should fall upon the officer making the removal to justify his act at least by stating in writing over his own signature a valid reason therefor. The rule of the federal civil service provides that "no removal shall be made from the competitive classified service except for just cause and for reasons given in writing; and the person sought to be removed shall have notice and be furnished a copy of such reasons, and be allowed a reasonable time for personally answering the same in writing. Copies of such reason, notice and answer and of the order of removal shall be made a part of the records of the proper department or office." Under the decision of the New York Court of Appeals in People ex rel. Percival v. Cram (164 N. Y., 166), the State Civil Service Commission and the municipal commissions have no power under the present law to make such a rule. Under the decision of the same court in People ex rel. Kennedy v. Brady (166 N. Y., 44), if the reasons stated by the appointing power under such a law or rule are sufficient upon their face to justify the removal, the courts will not review such removal.

The Commission is not of the opinion that the right of a trial on charges of misconduct, subject to judicial review thereof in the courts, should be further extended, but it recommends such legislation as will require a formal written statement of valid reasons for removal and permit a written answer thereto as a

prerequisite to removals from positions in the competitive class in all cases. Such a proceeding would give to the public information as to the manner in which their officers are exercising their powers of appointment and removal.

2. Exception from competition - Section 14 of the civil service law provides that three classes of positions in the competitive class may be filled without competition, as follows:

1. Whenever there are urgent reasons for filling a vacancy in any position in the competitive class and there is no list of persons eligible for appointment after competitive examination, the appointing officer may nominate a person to the state or municipal commission for non-competitive examination, and if such nominee shall be certified by such commission as qualified after such non-competitive examination, he may be appointed provisionally to fill such vacancy until a selection and appointment can be made after competitive examination, but such provisional appointment shall not continue for a longer period than two months, nor shall successive temporary appointments be made to the same position under this subdivision.

2. In case of vacancy in a position in the competitive class where peculiar and exceptional qualifications of a scientific, professional or educational character are required, and upon satisfactory evidence that for specified reasons competition in such special case is impracticable and that the position can be best filled by the selection of some designated person of high and recognized attainments in such qualities, the state or municipal commission may suspend the provisions of the rule requiring competition in such case, but no such suspension shall be general in its application to such place, and all such cases of suspension shall be reported in the annual reports of such commissions with the reasons for the same.

3. When the services to be rendered by an appointee in the state service are for a temporary period not to exceed one month and the need of such service is important and urgent, the appointing officer may select for such temporary service any person on the proper list of those eligible for permanent appointment without regard to his standing on such list.

Rule VIII, paragraph 9, reads as follows:

The commission may by special action except from examination under these rules any person engaged in private business who shall render any professional, scientific, technical or other

expert service of an occasional and exceptional character to any state officer, and whose compensation in any one year shall not exceed $300; provided, that such limitation of compensation shall not apply to any such person employed by the governor, comptroller, or attorney-general; and further provided, that the commission may suspend such limitation of compensation by special resolution in other cases. All exceptions granted under this section, with the reasons therefor, shall be set forth by the commission in its next annual report.

Under this provision we have authorized numerous appointments to be made without competition. Some provision of this nature seems absolutely essential to the efficient administration of the law, and, for that reason, such a rule has been in force for a period of years. The whole rule is entitled "Appointments to positions in the competitive class," and paragraph 9 is in terms the addition of a fourth class of exceptions from competition of positions in the competitive class, to those specified by section 14 of the law.

The law (section 13) provides that the competitive class shall include all positions in the classified service except such positions as are in the exempt class, the non-competitive class or the labor class, and that appointments shall be made or employment given in all positions in the competitive class that are not filled by promotion, transfer, etc., by appointment of those graded highest in open competitive examination, except as in the act otherwise provided. The only exceptions from competition contained in the act are those found in section. 14 above quoted.

The law provides (section 12) that "no office or position shall be deemed to be in the exempt class unless it is specifically named in such class in the rules." This compels the enumeration, separately, in the rules, with the approval of the governor,

of each position in the exempt class and prohibits general exemptions by description merely. It is somewhat doubtful if paragraph 9 of rule VIII is technically within the power of the Commission to make rules, treated as a provision either for exemption or for exception from examination of positions in the competitive class merely.

We would, therefore, recommend to the legislature the adoption of an amendment to section 14 of the law, expressly giving to the State Commission power to except from examination in such cases of the occasional employment of persons engaged in private business as are now provided for by rule VIII, section 9, where it is made to appear that competition is impracticable.

3. Collateral attack; review of classifications - Under the former civil service law the Court of Appeals held that the classification of positions in the civil service by this Commission was not subject to collateral attack but was to be respected by all unless and until it was changed by direct legal proceedings against the Commission. No appointment was, therefor, valid except when made in accordance with the classification as it existed at the time of making such appointment. The appointing power was obliged first to mandamus the Commission to exempt a position classified by it in the competitive class, before it could make an appointment to fill such position.

Under the present law the exemptions made by the Commis sion are subject to collateral attack under section 27 of the civil service law, which permits any taxpayer to bring an action against the disbursing officer to restrain the payment of an appointee holding a position alleged to have been improp