absence of twenty days in each year except upon condition that the member shall waive or release not less than one-half of his salary during such absence1. The appointing officer may, upon the application of any subordinate officer or employee grant such subordinate a leave of absence without pay2 whether the subordinate is ill or not. The appointing officer may grant to an employee whose compensation is payable by the day and who may be injured in the performance of his duties a leave of absence during disability with pay but not to exceed thirty days except with the consent of the mayor and the comptroller3. A person who has been granted "an unlimited leave of absence without pay" is not "separated from the service"; he still continues to be a member and has the option of returning to work4. VACATIONS The granting of vacations is much the same as the granting of leaves of absence except that in the former case the grant does not depend upon any pressing cause such as sickness while in the latter it does. "The executive heads of the various departments are authorized and empowered to grant to every employee of the City of New York a vacation of not less than two weeks in each year and for such further period of time as the duties, length of service and other qualifications of an employee may warrant, at such time as the executive head of the department or any officer having supervision over said employee may fix, and for such time they shall be allowed the same conpensation as if actually employed, except that no such vacation shall be granted to per diem employees for longer than two weeks and only during the months of June, July, August and September". Apparently under this section the department head has discretion as to whether or not he will grant a vacation but if he does grant a vacation to a salaried employee it must be for at least two weeks. It seems that he may grant less than two weeks to a day laborer. The Code of Ordinances, Chapter 16, Art. 1, section 2 provides: (1.) Salaried employees. The executive heads of the various departments, and the bureaus thereof, of the city, 1 Charter secs. 303, 537 2 Charter sec. 1569-b 3 Charter sec. 1568 4 Peo. ex rel. Davie v. Lynch, 164 A. D. 517 (1914) 5 Charter sec. 1567 including the department of education, shall grant a vacation of not less than 2 calendar weeks in each year to every employee for whom provision is made for continuous or yearly service; provided, that if any employee has been less than 1 year in the service, it shall be within the discretion of the executive head of the department or bureau having jurisdiction to grant such vacation. Vacations authorized by this subdivision may be extended for such period of time as the duties, length of service, and other qualifications of the employee may warrant. (2.) Per diem employees. A vacation shall be granted, during the months of June, July, August and September of each year, to each per diem employee, who has been in the service of the city for at least one year, prior to each June 1st, and, during said year, has actually worked for a period of at least 150 days in the aggregate, and who shall waive all claims to any rights or privileges under Chapter 121, Laws of 1913 [Charter sec. 1567, referred to above]. Such vacation shall consist of 1 day for each 25 days that the employee has actually worked during the said year. This subdivision shall not apply to per diem employees who are engaged to furnish professional or expert services at a per diem rate. (3.) Time of vacation. The heads of the various departments and bureaus may fix the time when vacation shall be given, except that per diem employees, other than those in the department of parks and the department of water supply, gas and electricity shall be given vacations only during the months of June, July, August and September. (4.) Compensation. For all vacations granted under this section, the same compensation shall be allowed as if the recipient were actually employed. PENSIONS Members of the public service are not entitled to pensions except by virtue of some express statutory provision'. There are provisions providing pensions for certain members in the police2, fire3, street cleaning, and health departments and for public school teachers, professors in the College of the City of New York', and for certain court employees in the First and Second Judicial Departments. 1 Pension statutes have no retroactive effect. Peo. ex rel. Waddy v. Partridge, 172 N. Y. 305 (1902) 2 Charter sec. 354 3 Charter sec. 790 4 Charter sec. 552 Charter sec. 1323a Charter sec. 1092 7 Charter sec. 1130a L. 1811, chap. 855 as amd. L. 1914, chap. 497. Jud. Law sec. 117 The board of estimate also has power to retire from active service any officer, clerk or employee not provided for above, who has been in the service of the city for a period of thirty years, or any honorably discharged Civil War veteran who has been in the service of the city for 20 years and who has become physically or mentally incapacitated for the further performance of his duties1. Any person so retired shall be granted an annuity or sum to be fixed by the board not exceeding one-half the amount which his annual salary or compensation averages for the period of three years immediately prior to the time of his retirement2. By the General City Law the city is given power to establish pension systems. The fact that a subordinate would be entitled to a pension if he were permitted to remain in the service does not prevent the department head from removing him. He has no vested interest in his pension3. 1 Charter secs. 165, 166 2 Charter sec. 167 Peo. ex rel. Miller v. Peck, 73 A. D. 89 (1902) Matter of Lazenby, 76 A. D. 171 (1902) CHAPTER II PRELIMINARIES TO APPOINTMENT . CLASSIFICATION "Appointments and promotions in the civil service of the state, and of all the civil divisions thereof, including cities and villages, shall be made according to merit and fitness, to be ascertained so far as practicable, by examinations, which, so far as practicable, shall be competitive; provided, however, that honorably discharged soldiers and sailors from the army and navy of the United States in the late civil war, who are citizens and residents of this state, shall be entitled to preference in appointment and promotion, without regard to their standing on any list from which such appointment or promotion may be made. Laws shall be made to provide for the enforcement of this section." Const. Art. V, sec. 9. "The concluding clause, to the effect that laws shall be made to provide for the enforcement of this section, would seem to indicate that it was within the contemplation of the constitutional convention that some legislation would be necessary. . The constitution has made no provision with reference to the appointing of examiners, or for the manner in which examinations shall be made, or how the qualifications of the applicant shall be determined. This it has left to the legislature." Judge Haight in Chittenden v. Wurster, 152 N. Y. 345, 354. The civil service provision of the constitution is not self-operative for it does not determine when examination is practicable nor of what the examination shall consist; and until these things are done there is no standard by which to determine whether a particular appointment does violate the spirit of the constitution. Before the civil service provision can become effective there must be some classification of the positions in the civil service and some method provided for ascertaining when examination is practicable and when its tests have been met. By the civil service law the legislature has created the machinery for putting the spirit of the constitutional provision into effect. This law divides the positions of the public service into classes and provides for the creation of civil service commissions whose duty it is to determine, within certain limits, in what cases competitive examinations are practicable and to conduct the examinations for determining the merit and fitness of applicants. Divisions of the public service The public service is divided into the "military service" and the "civil service." The provisions of the civil service law apply only to the latter. The "military service" includes such offices and positions in the militia and the military departments as are or may be created under the provisions of article eleven of the constitution. The "civil service" includes all other offices and positions of trust or employment in the service of the state or of any of its civil subdivisions or cities. The "state service" includes all such officers and positions in the service of the state or of any of its subdivisions, except a city. The "city service" includes all such offices and positions in the service of the city1. The "civil service" is divided into the "unclassified service" and the "classified service" 2. No examinations are required for positions in the former class. The "unclassified service" comprises: 1-All elective offices3 2-All offices filled by election or appointment by the legislature on joint ballot 3-All legislative officers and employees1 4-All offices filled by appointment by the governor, either with or without confirmation by the senate, except officers and employees in the executive offices. 5-All election officers 6-The head or heads of any department of the government 7-Persons employed in or who seek to enter the public 1 C. S. L. sec. 2 2 C. S. L. sec. 9 3 Elective offices are those filled by election of the voters in some political subdivision of the state, and so the physician to a county jail is not in the unclassified service because he is "elected" by the board of supervisors. Matter of Phillips, 139 A. D. 365 (1910) affd. 200 N. Y. 521 4 Employees of the board of aldermen are in the unclassified service, Matter of Shaughnessy v. Fornes, 172 N. Y. 323 (1902), and so are appointees of the city clerk. Matter of O'Grady v. Polk, 132 A. D. 47 (1909) |