that the budget had not made allowance for the full number of laborers formerly employed. Among those dismissed was a volunteer fireman. It appeared that, simultaneously with these changes, two men who were not laborers, but who had been employed as assistant foreman and well driver were demoted and retained as laborers. The court of appeals held that this was the creation of two new positions and that under section 22 the volunteer fireman was entitled to one of these. The court was of the opinion that if there had been no demotion the volunteer fireman would have been without remedy. "We think that if a new position, similar to the relator's was created, the commissioner was required in filling the new position to prefer the relator over others"1. PREFERRED LISTS Section 1543 of the charter provides in part: Wherever in any department or institution an office, position or employment is abolished, or made unnecessary through the operation of this act, or in any other manner, or whenever the number of offices, positions or employments of a certain character is reduced, the person or persons legally holding the office or filling the position or employment thus abolished or made unnecessary shall be deemed to be suspended without pay, and shall be entitled to reinstatement in the same office, position or employment, or in any corresponding or similar office, position or employment, if within one year thereafter there is need for his or their services. "Whenever such offices, positions or employments are abolished or made unnecessary, it shall be the duty of the head of the department or institution to furnish the names of the person or persons affected to the municipal civil service commission, with a statement in the case of each of the date of his original appointment in the service. It shall be the duty of the municipal civil service commission forthwith to place the names of said persons upon a list of suspended employees for the office, or position, or for the class of work in which they have been employed, or for any corresponding or similar office, position or class of work, and to certify the said persons for reinstatement, in the order of their original appointment, before making certifications from any other list. "The failure of any person on any such list for reinstatement to accept, after reasonable notice, an office or position in the same borough and at the same salary or wages as the 1 Peo. ex rel. Davison v. Williams, 213 N. Y. 130 (1914) position formerly held by him shall be held to be a relinquishment of his right to reinstatement as herein stated". The protection apparently extends to the entire city service. and covers all persons legally holding a position or filling an employment therein2. The provisions lay no real restrictions on the right to remove because of abolishment of position, lack of funds or for economy. The services of the subordinate may be dispensed with, when unnecessary, but for a year thereafter he is considered as being "suspended without pay". During that time he must be reinstated if there is need for his services but at the end of that time he is out of the service. As a general rule there is no right of preference in retention among subordinates; and the department head may use his discretion as to who shall be suspended and who shall be retained. So, where a stoker in the Far Rockaway disposal plant was transferred to the Jamaica disposal plant on April 29, and on reporting next day found it closed and was suspended "owing to reduction in force at Jamaica disposal plant", it was held that he could not be reinstated although it appeared that on May 1 another man who had worked at Jamaica was transferred to Far Rockaway and was doing the same work as previously performed by the man who was suspended3. Veterans, of course, have a preference in retention; and the rules of the New York City municipal civil service commission provide that "no person who has received a permanent appointment shall be suspended from any position for lack of work or appropriation while probationers serving under the same title are employed in the same department, office or institution" and that "when two or more persons selected from the same eligible list are serving as probationers under the same appointing officer, and a reduction of force is necessary, they shall be preferred for retention in the order of their original standing on such list". 4 When a person is laid off for such reason he is protected by the following requirements: 1 The same provisions apply to regular clerks, heads of bureaus and members of the competitive class in the service of the counties embraced in Greater New York, C. S. L. sec. 22. 2 The first part of section 1543 applies only to employees under the control of a department head or borough president, but this applies to those "in any department or institution". The meaning of "institution" is not exactly clear, but the apparent intent of the sentence was to extend the protection to all persons of this class in the city service. Matter of Griffin, 77 Misc. 553 (1912) 4 Rule XIII. subdiv. 1 Rule XI. subdiv. 3 1-The dismissing officer must send to the municipal civil service commission the name of the person "suspended" and the date of his original appointment 2-The civil service commission must place the name on a 5—The appointing officer must take the names in the order Reinstatement need be made only where there is need of the services of the suspended employee. The appointing officer is the sole judge of this need and is not required to fill the vacancies at any particular time". Reinstatement cannot be compelled The determination by the civil service commission that the duties of a new position are not the same as those of an abolished position cannot be reviewed by mandamus. Matter of Donovan v. Cantor, 89 A. D. 50 (1903) 2 It is probable that veterans, once their names are placed on the suspended list, are not entitled to preference. The Constitution gives a preference in "appointment and promotion", but this provision apparently does not apply to the "reinstatement" of persons who are merely "suspended". Section 21 of the Civil Service Law, also applies apparently to preference on eligible lists "prepared for original appointments and promotions" and to lists "prepared under the authority of this chapter". The "preferred" list is made up of those who are to be reinstated in the service from which they have been "suspended". Such a person is not out of the service at all, for if he dies within the year his wife is entitled to his pension. Reidy v. City of New York, 185 N. Y. 141 (1906). The list is not "prepared under the authority of the chapter". It seems that on this "preferred" list the veteran, like others, has to wait his turn for reinstatement in the order of his seniority in the service. 3 N. Y. Municipal Civil Service Commission, Rule XIII. subdiv. 1 4 It is the intent of the provision that all persons so suspended shall if possible be reinstated before appointments are made from the eligible list and that, if all cannot be reinstated within the year, those who have been longest in the service shall be preferred. It is only by requiring the names to be taken in the exact order of their original appointments that this can be accomplished. Technically the action of the appointing officer is a "reinstatement" and not an "appointment", and the usual rule does not apply. 5 Peo, ex rel. Tregaskis v. Palmer, 9 A. D. 252 (1896) Matter of Morrison v. Cantor, 75 A. D. 480 (1902) Matter of O'Toole v. Stewart, 75 A. D. 497 (1902) where the relator fails to show that there is a vacancy existing to which he could be appointed'. These provisions apply only to persons who are legally holding the office or filling the position or employment and so the names of those who hold positions illegally need not be sent to the civil service commission. Those who hold a temporary position or who were specially appointed in connection with a particular piece of work may not perhaps come within the strict terms of the section3. 1 Peo. ex rel. Ray v. McAneny, 153 A. D. 884 (1912) 2 See page 47. * See Rule XII. subdiv. 2 of N. Y. Municipal Civil Service Commission CHAPTER XIV SUSPENSION, FINES AND PENALTIES Protection against arbitrary removal would amount to very little if the department head could harass the subordinate into a resignation by suspending him without pay, docking his pay or subjecting him to large fines and penalties. Any adequate protection, therefore, must guard against the abuse of these powers as well as against direct removal. It is necessary that these powers should be lodged in the department head so that they may be exercised upon proper occasion but they should be limited so that they cannot be used to accomplish indirectly the very thing which is directly forbidden. An examination of these cognate disciplinary powers is essential to a complete understanding of the extent of the protection against removal. SUSPENSION There are at least three occasions when the power to suspend may be required: a where there is no need of the employee and it is not b-where the public interest might be imperilled by per- For lack of work This situation is met or partially met by the provision of the charter that where positions are abolished the persons holding them shall be deemed to be suspended without pay and shall be entitled to reinstatement in the same or similar positions if within one year thereafter there shall be need of their services. This provision has been discussed in chapter XIII. |