son", or that the dismissal is "for the good of the service" 2, or that another is willing to serve at lower pay3. The acts assigned must be such as on a fair interpretation will make out a dereliction of duty. If they are just as consistent with fidelity and obedience as with the opposite qualities they do not constitute cause for removal. They must be defaults on the part of the accused. It is not enough to charge an offense unless responsibility for it is brought home to the accused. So, a person cannot be dismissed for acts committed by others over whom he had no control or for which he is in no way responsible". As a cause for removal, a reason given that the accused "had not given satisfactory reasons why he should not be removed" was clearly frivolous". The following causes have been held to justify removal: Clerks of markets, receiving bribes for letting out market stalls? Chief clerk in bureau of inspection of buildings, fire department, giving permission to go on with the alteration of a building when he had no authority to do so3 Clerk in finance department, failing to cancel coupons which he had paid and which it was his duty to cancel9 Inspector in bureau for collection of city revenue and markets, unable to balance his account book or add up correctly his collection for the past month1o Inspector of buildings in department of buildings, entering a saloon and committing an assault there11 Messenger in department of buildings, neglecting to serve charges on another member of the department when ordered to do so12 1 Peo. ex rel. Munday v. Fire Commissioners, 72 N. Y. 445 (1878) semble. "That some other man is a better man than the accused, or more congenial to the appointing or removing power is not a cause which the incumbent can explain in the sense in which that term is used, and is no cause of removal with the statute." 2 Peo. ex rel. Gildersleeve v. Dalton, 44 A. D. 556 (1899) 3 Peo. ex rel. Corrigan v. Mayor, 91 Hun. 308 (1895) rvsd on other grounds 149 N. Y. 215 4 Matter of Griffin v. Thompson, 202 N. Y. 104 (1911) 5 Peo, ex rel. Campbell v. Campbell, 82 N. Y. 247 (1880) v. La Grange, 2. A. D. 444 (1896) affd. 151 N. Y. 664 Peo. ex rel. Mitchel Peo. ex rel. Munday v. Fire Commissioners, 72 N. Y. 445 (1878) 7 Peo. ex rel. Woltman v. Myers, 10 Supp. 815 (1890) 8 Peo. ex rel. Dumahaut v. Fire Commissioners, 49 Superior Court 369 (1883) 9 Peo. ex rel. Emmet v. Campbell, 50 Superior Court 82 (1884) 10 Peo. ex rel. Lawson v. Coler, 40 A. D. 65 (1899) affd. 159 N. Y. 569 11 Peo. ex rel. Walsh v. Brady, 48 A. D. 128 (1900) 12 Peo. ex rel. Kennedy v. Brady, 166 N. Y. 44 (1901) Superintendent of repairs and supplies in department of public works, neglect and inaction in fitting up two armories and constructing an elevator in the court house for which he was responsible, delay in forwarding bills, making flagrantly incorrect estimates of the cost of work and failing to inform the commissioner of the lack of clerical help in his bureau1 Inspector tenement house department, extortion? Electrical engineer, department of water supply, taking a license from one C. and not returning it until $110 was paid; interesting himself pecuniarily in the manufacture or sale of storage batteries; failing to keep informed of the expenses of his bureau, to inform the commissioner that the bureau's expenditures would exceed its appropriation by $1,000, to inform himself of the presence in his bureau of certain papers important in well known litigation, permitting records to get twelve months in arrears and allowing quarters to become filthy and out of repair3 Inspector of buildings, making false and misleading report to the commissioner when called on to report on the duties performed under the preceding commissioner and dismissing violations and other cases without authority of the commissioner1 Watertender in department of docks and ferries, four days absence without leave Clerk in police department, frequent and continued absence during official hours Inspector of buildings, failure to report that wooden sleepers were laid throughout the first floor of a building in course of construction and that the underflooring was being laid without the necessary fill being installed between the sleepers as called for in sec. 106 of the Building Code, failure to correct it after the condition was called to his attention, and failure to file a violation? Clerk in civil service commission, giving out advance information as to ratings on examinations 1 Peo. ex rel. Keech v. Thompson, 94 N. Y. 451 (1884) Peo. ex rel. Koeber v. Bensel, 131 A. D. 89 (1909) Peo. ex rel. Brant v. MacLean, 11 Supp. 559; 58 Hun. 152 (1890) 7 Peo. ex rel. Daly v. Henderson, N. Y. Law Journal Jan. 23, 1913. Matter of McGuire, 157 A. D. 351 (1913) Assistant bookkeeper in the police department, asking and receiving $150 from a pensioner who sought to have his pension increased1 Junior assistant corporation counsel, being ejected from a hotel for intoxication and being arrested on an elevated train charged with grossly disorderly conduct and convicted therefor2. A mere statement that he would not obey orders made by the subordinate under exasperating circumstances is not cause for removal if in fact he did obey to the letter3. 1 Matter of Hawthorne, v. Waldo, 83 Misc. 372 (1913) 2 "There are certainly cases where an officer has efficiently performed his duties during office hours and been guilty of no dereliction, and yet his acts outside of office hours might demonstrate that he should not properly be kept in the position he holds. No careful private employer would retain in a trusted position a subordinate, however efficient, whose life at night is of a character to show that the subordinate is unworthy of his trust, and no private law firm could properly retain in its employ an attorney to represent it who outside of business hours behaves in a manner to bring him and his firm into disrepute. Consequently, when a public officer who is also an attorney at law conducts himself in such a manner as to justify his eviction from a public hotel, and to permit a conviction in the Magistrates' Court for disorderly conduct, even though these acts are done after business hours, his superior officer has right to require an explanation and, if this explanation is not satisfactory, to remove him." Peo. ex rel. Costa v. Polk, Ñ. Y. L. J. March 4, 1915 3 Peo. ex rel. Hill v. Mace, 84 Hun. 344 (1895) CHAPTER XI REMOVAL OF MEMBERS OF THE CLERICAL AND UNIFORMED FORCES OF THE STREET CLEANING DEPARTMENT NATURE OF THE PROTECTION Section 537 of the charter provides: "No member of the clerical or uniformed force of the department of street cleaning shall be removed until he has been informed of the cause of the proposed removal and has been allowed an opportunity of making an explanation and in every case of removal the true grounds thereof shall be entered upon the records of the department. The commissioner of street cleaning shall have power, in his discretion, on evidence satisfactory to him that a member of the uniformed force has been guilty of (here follows an enumeration of causes) to punish the offending party by . . . dismissal from the force. This section gives no right to a trial upon evidence but merely an opportunity for making an explanation'. The nature of the protection is the same as that furnished by section 1543 of the charter2. Clerical force PERSONS PROTECTED The clerical force consists of: a-a chief clerk b-medical examiners (not exceeding three) c-such clerks and messengers as the commissioner may deem necessary. Uniformed force The uniformed force consists of: a-a general superintendent b-an assistant superintendent Peo. ex rel. Lahey v. Woodbury, 112 A. D. 79 (1906) 2 See page 99 d-an assistant superintendent of final disposition e-district superintendents (not exceeding twenty-one) g-section foremen (not exceeding one hundred and twenty- h-dump inspectors (not exceeding forty-three) i-assistant dump inspectors (not exceeding forty-three) k-dump boardmen (not exceeding forty-three) m-stable foremen (not exceeding twenty-one) n-assistant stable foremen (not exceeding twenty-one) q-such mechanics and helpers as may be necessary. All members of the department, except the commissioner, his deputies and engineers, belong, apparently, to one or the other of these two classes2. PROCEDURE ON REMOVAL The procedure up to the time of removal is the same as that required under section 1543 of the charter. The procedure on removal from the clerical and uniformed force is the same although the commissioner has greater disciplinary power over the latter. It is provided that the commissioner may dismiss from the uniformed force "on evidence satisfactory to him"; but this does not require the taking of evidence. The commissioner has power in his discretion on conviction of certain offenses, to punish the offending member of the uniformed force by: a-forfeiting or withholding pay for a specified time not exceeding thirty days b--suspension without pay during such suspension for a period not exceeding thirty days e-dismissal from the force. 1 The number is fixed by the charter but may be increased by the commissioner provided an appropriation has been made for the extra men. Charter sec. 536 2 Charter sec. 536. "The members of the department of street cleaning shall be divided into two general classes, to be designated, respectively, the clerical force and the uniformed force." See page 99. Peo, ex rel. Adamson v. Edwards, N. Y. L. J. Jan. 31, 1912 4 Peo, ex rel. Middleton v. McCartney, 36 A. D. 39 (1898) 5 See Causes for Removal below Charter sec. 537 |