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its requirements to provide for the improvement of local methods by making them more practical and thorough in detail than those which formerly existed.

SECOND-CONCERNING CERTAIN RULES AND REGULATIONS

Subsequent to the enactment of the present statute, new rules and regulations were prepared to comply therewith and to provide the methods to be pursued in the administration of the civil service in for the city of Elmira; which rules and regulations were approved by your honorable body in August, 1899. Annexed hereto is a copy of the same, as required, and which constitutes a part of this report.

There are three or four conspicuous changes provided by these rules, which were adopted upon your recommendation, and as questions have arisen in other cities concerning rules similar to these questions which courts have been called upon to consider we therefore call your special attention to the same, together with our opinion in connection therewith.

THIRD-CONCERNING THE CERTIFICATION OF NAMES FOR

APPOINTMENT

In

Appointments to positions in the competitive class are now made in pursuance of our rule XIX from the one graded highest upon the eligible list, where under the previous rule appointment could be made from one of the three highest upon the list. this community, the rule as it now exists has met with no particu lar opposition from appointing officers. Appointments have been made in the manner therein required and no question has here arisen in a legal way concerning the same. At a recent meeting of the police commission, however, when it was proposed to appoint a patrolman in the police department, and the name of the person highest upon the list was submitted, we understand the question was then considered as to whether or not such a provision in our rules, which requires the appointment of the highest, does not limit to an objectionable degree the rights of appointing officers, leaving no discretion for them, by making it necessary for appointments to be made practically at the dictation of the civil service commission. The appointment referred to has not

yet been made. The name of the person highest has been submitted; and we feel it our duty to decline at the present time to certify more than one name at a time, or any other name than that graded highest.

By recent decision of the appellate division, the same question was raised in a Binghamton case. We presume your attention has already been called to the decision referred to, which appears to be adverse to the present rule. While we are inclined to believe that such an objection to the rule is well taken, and that the decision referred to is consistent with the statute, we have not deemed it desirable at the present time to request any modification of the rule. It has been suggested that we should follow the decision of the appellate division concerning this rule, but this we do not feel disposed to do until, either the court of appeals have passed upon the question or your honorable body suggests an amendment of the rule.

FOURTH-CONCERNING PROMOTION EXAMINATIONS

Another change provided by the rules and referred to in paragraph second is that which concerns examinations for promotion (rule XXXI). As yet this commission has not been called upon to hold any such examination and we doubt if any such examination will be required in the near future. We have called particular attention to our rule concerning promotions and have requested that in those departments to be affected thereby, there shall be kept a continuous and comparative record of the efficiency, punctuality, attention and general good conduct of the persons employed therein. To our personal knowledge, such records are being kept in the police and fire departments and will no doubt be of value and service upon any such examination; for in those departments especially there is apt to be more occasion for such examinations and more strife and competition for promotion among those employed. One provision of this rule, however, is apt to be misunderstood, the provision that "an increase in the salary or other compensation of any person holding an office or position within the scope of these rules beyond the limit fixed for the grade in which such office is classified shall be deemed a promotion". The record contains merely the compensation re

ceived by the various employees in the various departments and we have not been officially informed of any limit fixed for the grades in which the offices are classified. If, for example, a person who receives $50 per month is increased to $60 per month, the question might arise for our consideration as to whether such an increase in salary would come within this provision and to be deemed as such a promotion. We have had no occasion to consider as yet any question such as this; but should it come before us, we will endeavor to consider it according to the reasonable meaning of the statute.

We observe that there is nothing in the statute to prevent appointing officers from decreasing the salaries of employees and our personal opinion is that the same right of increasing salaries should be given to appointing officers without the necessity of examination to determine the competency of the persons to be benefited thereby.

We believe, however, that the rule providing for examinations when persons are to be promoted from one grade to another is desirable and practical from a civil service point of view.

FIFTH-CONCERNING CERTIFICATION OF PAYROLLS

Another rule referred to in paragraph second is that which provides for the certification of payrolls and the manner and form therefor (rule XXXIX). This rule was prepared to meet the requirements of a new provision in relation to civil service, and one which seems to have met with some indifference in certain departments. It has seemed to take some little time for officials. in departments to become familiar with the requirements of this rule. We have called their especial attention to it and believe hereafter it will be thoroughly recognized and followed without necessity of further request. In the few instances to which we have referred, it is apparent that officials preparing payrolls have overlooked, unintentionally, the fact that they are required to be certified before payment, and further that they must be presented according to the rule for certification at least three days before payment is to be made. We do not apprehend any future difficulty in having this provision recognized and followed by department officials.

In connection with this, our attention has been called to an opinion reported in the local press purporting to have been handed down by Justice Patterson of the appellate division of the first department, and in which he is quoted as saying: "The requirement of such a certificate is a novel feature of law, and taking into consideration both the nineteenth section and the one preceding it. we think it is quite clear that the requirement is as to prospective appointees. What the legislature meant to do and did was to prescribe a penalty for the making of appointments in contravention of the laws and its rules. Our conclusion is that persons lawfully appointed prior to the adoption of civil service rules of 1899 cannot be kept out of their salaries until the payrolls which contain their names bear the certification of the civil service commission that they were appointed in pursuance of law; and on the other hand that those illegally appointed gain nothing by the certificate that in the judgment of the commissioners they were appointed in pursuance of law and of the rules made in pursuance of law".

To obviate any misunderstanding of the legislative intention or any difficulty in the technical enforcement of the rule, it seems in our opinion more desirable and practical if the law and the rules were so amended as to provide that annually a record of the classified service in each city should be prepared by the civil service commission thereof and transmitted to the chamberlain or the fiscal officer (and whenever new appointments are made, a record of the same to be transmitted), that such official might have before him the record for comparison with each of the many payrolls which necessarily come in in the course of the month. A requirement that the chamberlain or other fiscal officer should pay no person in the classified service whose name did not appear upon the record transmitted would serve the same purpose as provided by the present statute and do away with seemingly unnecessary "red tape" by bringing the matter directly between the heads of departments and disbursing officers.

We believe however the present requirement is commendable to the extent that it necessarily prevents appointments to and in violation of the civil service; but we likewise believe that an amendment as proposed would not lessen the effect or purpose of the present statutory provision.

SIXTH-CONCERNING THE LABOR CLASS

Under the statute of 1898 and the rules in force thereunder, a certain discretion was allowed commissioners of the civil service in selection of names for employment of those registered for ordinary labor, whereby a preference was given first to veterans and second to those having families dependent upon them for support; and in addition that the commissions should certify the names of twice the number of men wanted for employment. Under the present rule, the preference to veterans alone is given and it is made compulsory for employment of those in the order in which they are registered. Some objection has been raised to this method. In one department, at the request of the appointing officer thereof, we furnished only the names of the number called for, and called attention to the requirements of the rule. It seems, however, that certain persons whose names were so recommended, and who were first in order for employment, declined to work and hindered and delayed the progress of the same in consequence. Whether or not the commission would be justified in refusing to send names of persons the second time after they have declined the work once is a question. We believe such refusal would be justified. Under the present requirements, however, employment shall be given to laborers in the order of their registration. It is not infrequent that those who are recommended decline the work, or at the time their names are transmitted are engaged in work elsewhere. In this particular we believe the former rule, permitting twice the number of names to be transmitted, selection to be made therefrom, was more agreeable and satisfactory. A new feature of the present rule relative to the labor class is that which provides that all registry lists shall expire on the last day of February in each year. This provision in our opinion is far more desirable than the continuance of lists from year to year as it will tend to obviate difficulty in locating persons when wanted for such employment.

SEVENTH-CONCERNING NEW METHODS OF EXAMINATION

We have established a new method of examination by giving different weights to different subjects according to the importance of the same. This method, we believe, has been followed in state

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