The true cause for punishing members of the uniformed force must be entered in writing in a book to be kept for that purpose by the commissioner, which book is a public record1. The true grounds of removal of members of the clerical and uniformed forces must be entered upon the records of the department. There is no requirement that after a removal a copy of the true grounds thereof shall be sent to the municipal civil service commission except that in section 1543 of the charter which applies only to regular clerks, heads of bureaus and members of the competitive class. CAUSES FOR REMOVAL The causes for which a member of the clerical force may be dismissed are the same as those which justify removal under section 1543 of the charter. The charter enumerates certain causes for which a member of the uniformed force may be dismissed3. The commissioner may dismiss when satisfied that the member has been guilty of: a-any legal or criminal offense b-neglect of duty c-violation of rules d-neglect or disobedience of orders e-incapacity f-absence without leave g-conduct injurious to the public peace or welfare i-any breach of discipline. The offenses which justify dismissal are practically the same as in the police and fire departments. The remarks made upon the causes for removal in the police and in the fire departments apply here, the only difference being that the action of the street commissioner cannot be reviewed by the courts, while that of the police and fire commissioners can be. The following conduct of members of the street cleaning department has been held to justify dismissal: Striking a horse with a heavy whip and being at work without a uniform" 1 Charter sec. 537 2 Charter sec. 537 Charter sec. 537 4 See page 83 5 See page 96 Peo. ex rel. McCloskey v. Andrews, 9 Misc. 569 (1894). Held a "breach of discipline. Driving at high rate of speed a team of horses attached to a heavy truck loaded with steel cans1 Making a disrespectful remark to the deputy who was conducting a hearing of charges against him to the effect that he was no gentleman2 Neglect of duty in regard to cleaning certain streets within his district3 Having obtained employment in the department by means of a fraudulent certificate of citizenship Physical incapacity to perform his duties". 1 Peo. ex rel. McCloskey v. Andrews, 9 Misc. 569 (1894). Held a "breach of discipline" 2 Peo. ex rel. Holden v. Woodbury, 88 A. D. 593 (1903) 3 Peo. ex rel. Middleton v. McCartney, 36 A. D. 39 (1898) Peo. ex rel. Picceola v. Woodbury, 114 A. D. 188 (1906) 5 See Rogers v. City of New York, 120 A. D. 513 (1907) CHAPTER XII REMOVALS FROM THE DEPARTMENT OF EDUCATION In the department of education the protection against removal depends upon the class to which the person belongs. One method of removal is provided for members of the executive and clerical staff and another for the teaching staff. EXECUTIVE AND CLERICAL STAFF Nature of the protection Section 1067 of the charter provides that certain members of the department, who may be designated as the executive and clerical staff, "may, any or either of them, be removed for cause at any time by a vote of three-fourths of all the members of the board of education, and may be suspended by the board of education pending the trial of charges". This is regarded as requiring a formal hearing or trial, and such seems to be the practical construction put upon it by the board of education itself. This does not appear to have been judicially determined, however. The provisions may be susceptible of the following constructions: a-Requiring a hearing for all members and giving a right to court review b-Requiring a hearing only for members appointed before consolidation but as to them giving a right to court review c-Requiring the charge of a substantial cause for removal but giving no right to review except as to the sufficiency of the cause alleged. In support of the view that a hearing and a review are required, it may be urged that the terms "for cause" and "trial of charges" are expressly used'. In opposition, it may be said that neither notice nor hearing is expressly required as in the case of veterans, police, and fire trials, and that the requirements of a three-fourths 1 Peo. ex rel. Shuster v. Humphrey, 156 N. Y. 231, 233 (1898) Peo. ex rel. Hayes v. Waldo, 212 N. Y. 156, 170 (1914) vote to dismiss indicates that this was thought to be sufficient protection without court review1. Again, the language is that the board "may" remove for cause and not that no removal can be made except in the manner provided2. The board of education has thrown the language into the form of a positive restriction, as follows: "No officer, clerk or subordinate shall be removed unless by a vote of three-fourths of all the members of the board, for cause "3. Persons protected The persons protected under section 1067 of the charter are: 1-City superintendent of schools 2-Associate city superintendents 3-District superintendents 4-Supervisor of lectures 5-Members of the board of examiners 6-Director and assistant director of the division of refer ence and research 7-Secretary of the board of education 11-Any other officers, clerks (except clerks appointed by Procedure on removal The procedure for trials is given in the chapters on the removal of veterans and members of the police and fire forces. 1 Charter sections 27 and 28 require judicial review where removal is made by two-thirds vote of the aldermen. Discharge "for cause" by the city superintendent is reviewed by the board of education. Charter, sec. 1078 1 2 The language of sec. 1067 by itself would no doubt be construed as restrictive and not merely as permissive. Construed with sec. 1101 it may raise a question. Sec. 1101 provides that "all school officers or other employees appointed by the board before this act takes effect . shall continue to hold their respective positions subject to removal for cause as is now or may hereafter be provided by law". It might be argued that since a removal may be made unless restricted and since there is no restriction except on the removal of those appointed before consolidation (Peo. ex rel. Callahan v. Board of Education, 174 N. Y. 169) section 1067 should be construed as merely permissive and introduced merely to protect those appointed before consolidation. If this were so those appointed since consolidation could be removed only under section 1543 of the charter or section 22 of the civil service law. 3 By-laws, sec. 10 4 He "may suspend or discharge them for cause, but in such case the clerks shall have a right of appeal to the board of education" Sec. 1078. Causes for removal The causes for removal are those substantial causes which justify removal under section 1543 of the charter or the removal of veterans and others. TEACHING STAFF Nature of the protection subject to Section 1101 provides that "all principals, teachers and other members of the educational staff shall continue to hold their respective positions removal for cause as is now or may hereafter be provided by law;" and section 1093 provides that charges may be preferred against members of the teaching staff and that: "The board of education on receiving notice of such charges shall immediately proceed to try and determine the case, either in the board or by a committee of its body, and shall fix the penalty or punishment, if any, to be imposed for the offense, and such penalty shall consist of a fine, suspension for a fixed time without pay, or dismissal, provided, however, that a vote of a majority of all members of the board of education shall be necessary to impose the penalty of dismissal. The report of any committee holding such trial shall be subject to final action by the board, which may reject, confirm or modify the conclusions of the committee, and the decision of the board shall be final, except as to matters in relation to which, under the general school laws of the state, an appeal may be taken to, the state superintendent of public instruction." Section 1088 provides when and how trials shall be conducted by a local school board. This has been construed as preventing removal except for cause after opportunity to be heard'. Persons protected The persons composing the teaching staff who are protected are: 1-Principals 2-Branch Principals 3-Directors 4-Heads of departments 1 Peo. ex rel. Callahan v. Board of Education, 174 N. Y. 169 (1903) Moore v. Board of Education, 121 A. D. 862 (1907) 2 Peo. ex rel. Kinney v. White, 64 A. D. 390 (1901) 3 Hoefling v. Board of Education, 120 A. D. 545 (1907) |