the subordinate is "a veteran exempt volunteer fireman" is not sufficient notice. The notice should be brought to the personal attention of the superior1. An incidental remark that the subordinate was a veteran made to the superior many years before has been held insufficient to charge him with notice2. PROCEDURE ON REMOVAL The procedure on removal may be best understood by considering it in relation to the preferment of charges; giving notice; hearings; conviction; and sentence. The preferment of charges The charges must be specific3 and must state as nearly as possible the time and place of the alleged offense1. If the charges are indefinite the accused may object to being called upon to answer without a distinct specification of the alleged offense, but if he appears without objection or requesting delay and proceeds with the inquiry he waives the insufficiency of the charges, unless he did so in ignorance of his rights under circumstances which deprived him of a fair trial or under circumstances which explain his failure to protest and show that he did not intend to waive his rights7. Giring notice Notice must be sufficient to give the accused a reasonable opportunity to prepare his defenses. The rules governing notice of opportunity for making an explanation apply to the trial of veterans9. Hearing By whom held The commissioner may hold the hearing but it is not clear that he must do so. It may be held by a deputy who is authorized I Peo. ex rel. Robesch v. President Peo. ex rel. Storey v. Butler, 124 A. D. 148 (1908) Knapp v. Duffey, 155 Supp, 818 (1915) 2 Peo. ex rel. McDonald v. Clausen, 50 A. D. 286 (1900) Peo. ex rel. Fallon v. Wright, 7 A. D. 185 (1896) affd. 150 N. Y. 444 Peo. ex rel. Miller v. Elmendorf, 42 A. D. 306 (1899) Peo. ex rel. Brady v. Brookfield, 6 A. D. 445 (1896) Peo. ex rel. Jordan v. Martin, 152 N. Y. 311 (1897) Peo. ex rel. Hodkinson v. Johnson, 153 A. D. 890 (1912) Peo. ex rel. Millington v. Kaiser, 157 A. D. 78 (1913) Peo. ex rel. Schumann v. McCartney, 34 A. D. 19 (1898) The rules for giving notice are slightly modified in the case of the police and fire departments by the charter provisions allowing the police commissioner to prescribe rules and fixing the minimum notice for fire trials at fortyeight hours. by statute to represent the commissioner generally1, and there seems to be no substantial reason why the commissioner may not designate any responsible subordinate to conduct the hearing. However, it is probably safer practice for the commissioner to conduct the hearing in person unless there is a deputy who is authorized by statute to represent him generally or in the particular case. Prejudice on the part of the commissioner does not deprive him of jurisdiction2. Witnesses sworn It has been said that witnesses must be sworn3. The power of the department head to administer an oath would appear to be derived from section 843 of the Code of Civil Procedure. The formality may be waived if the accused is aware of his rights but makes no protest and acquiesces in a proceeding where witnesses are not sworn1. Taking evidence The accused is entitled to introduce evidence in his own behalf3. Dismissal can only be based on competent evidence. The exclusion of competent evidence offered by the accused is ground for reversal7. Right to counsel The accused is entitled to be represented by counsel3. Right to cross-examine The accused is entitled to cross-examine witnesses fully, adequately and without illegal or undue restraint. Adjournments The rules governing adjournments are the same as those in police trials. Apparently a new trial must be had where no time. to procure witnesses is allowed 10. 1 Peo. ex rel. De Vries v. Hamilton, 84 A. D. 369 (1903) 2 Peo. ex rel. Shannon v. Magee, 55 A. D. 195 (1900) 3 Peo. ex rel. Schumann v. McCartney, 34 A. D. 19 (1898) 4 Peo. ex rel. Brady v. Brookfield, 6 A. D. 445 (1896) Peo. ex rel. Keane v. Dooling, 60 A. D. 321 (1901) 8 Peo. ex rel. Fallon v. Wright, 7 A. D. 185 (1896) affd. 150 N. Y. 444 Peo. ex rel. Fallon v. Wright, 7 A. D. 185 (1896) affd. 150 N. Y. 444 10 Peo. ex rel. Loevin v. Griffing, 166 A. D. 538 (1915) Fair trial The accused is entitled to a fair and impartial trial'. Conviction By whom made The conviction of guilt must be made by the commissioner where he conducts the hearing and apparently may be made by him even though the evidence was taken by the deputy. It was formerly held that if the evidence was taken by the deputy the conviction must be made by him2, but the reasoning of this case, namely, that the judicial procedure cannot be divided, seems to have been overruled3. Apparently it is possible for the commissioner to convict on evidence taken and reported to him by a properly authorized deputy1. On what based The accused cannot be convicted for a cause not stated in the charges or established at the hearing. Conviction must be based on competent evidence and on something in the record, and therefore the commissioner cannot support a conviction for physical incompetency by stating that it was based "on the appearance of the relator before him". The rules governing police trials apply to this heading as well. Amount of proof required The burden of proving incompetency or misconduct shall be upon the person alleging the same. The general rule of this class of cases is that if the party making the charges fails to sustain the burden of proof the accused is entitled to have the charges dismissed3. Sentence On conviction of incompetency or misconduct the commissioner has power to dismiss. Dismissal will be reversed if conviction was made upon two charges, only one of which is established by evidence". Probably the commissioner has no power 1 Peo. ex rel. Fallon v. Wright, 7 A. D. 185 (1896) affd. 150 N. Y. 444 2 Peo. ex rel. De Vries v. Hamilton, 84 A. D. 369 (1903) Peo. ex rel. Garvey v. Partridge, 180 N. Y. 237 (1905) See In re Hathaway, N. Y. Law Journal, July 26, 1913 Peo. ex rel. Shuster v. Humphrey, 156 N. Y. 231 (1898) Peo. ex rel. Long v. Whitney, 143 A. D. 17 (1911) Peo. ex rel. Haverty v. Barker, 1 A. D. 532, 538 (1896) affd. 149 N. Y. 607 7 C. S. L. sec. 22 8 Peo. ex rel. Keane v. Dooling, 60 A. D. 321 (1901) Peo. ex rel. Long v. Whitney, 143 A. D. 17 (1911) to impose any other punishment than removal unless authorized by statute to do so1. Section 1569 of the charter authorizes him to cause deduction of salary not exceeding thirty days' pay2. CAUSES FOR REMOVAL Veterans cannot be removed except for incompetency or misconduct3. "Incompetency" refers to a want of capability or a deficiency of powers rendering a person unfit for his position, while "misconduct" refers to willful or conscious conduct tending to the same result. Both are relative terms and the courts have formulated no definite rules for determining what degree of incapacity or reprehensible conduct constitutes incompetency or misconduct. Incompetency The Court of Appeals has suggested that incompetency may be applied to one "who proved unable to discharge the duties of the office through want of skill, knowledge, ability or some requisite of that kind", and that "the legislature meant by 'incompetency' the want of ability or fitness, as a matter of fact"4. Incompetency means inability to perform the duties of the particular position. A veteran may be unfitted to perform other duties but as long as he can perform those of the position which he holds he is not incompetent. Accordingly, when the court reviews the evidence to see if the charge of incompetency is established it examines, first the duties which the veteran is expected to perform and then the nature of his disability. It is only when the disability interferes with the particular duties required that incompetency is established. So, a veteran removed from the position of tax assessor was reinstated because his feebleness did not interfere with the performance of the duties required of that position. On the other hand he may be removed if unfitted for the position which he holds even though he is able to fill some other7. Under a literal reading of section 22 a veteran removed because of partial disability is not entitled to be transferred to such position 1 In re Hathaway, N. Y. Law Journal, July 26, 1913 2 See page 136 3 C. S. L. sec. 22 4 Peo. ex rel. Hannan v. Board of Health, 153 N. Y. 513 (1897) 5 Peo. ex rel. Haverty v. Barker, 1 A. D. 532 (1896) affd. 149 N. Y. 607 Matter of Stutzbach, 62 A. D. 219 (1901) 6 Haverty v. Barker 7 Peo. ex rel. Folk v. Board of Police, 69 N. Y. 408, 412 (1877) as he may be fitted to fill, for that provision applies only to cases where the position "shall become unnecessary or be abolished". Such cases, however, seem to be within the intent of the section and if foreseen by the legislature would perhaps have been provided for1. Incompetency may be due to physical causes or to defects of mentality, character or temperament. The veteran may be physically incapacitated or he may be inefficient or mentally unfit. Absence on account of prolonged illness may raise a question as to how long the veteran must be continued on the rolls and what action the department head may take. The principle on which the department head may act seems to be plain. Dismissal cannot be made for involuntary absence2 and it follows that the veteran cannot be removed except for incompetency. Temporary disability cannot, it seems, constitute incompetency, and the veteran, therefore, can be removed only where the evidence shows that the incapacity is permanent or practically so. If the evidence taken at the hearing justifies a finding of incompetency it seems that the veteran could not obtain reinstatement even though he later recovered3. As a general rule incompetency is not established by a single negligent act, although the court has intimated that a single negligent act might "in the light of the attendant facts and circumstances" constitute such a failure of duty as to show incompetency1. The courts have not indicated what degree of disability or inefficiency amounts to incompetency. Not every inefficient man is incompetent, but inefficiency may be so gross as to amount to incompetency. The question is necessarily one of degree and each case will have to be determined as a fact in the light of the attendant circumstances. A veteran, head of a bureau in the finance department, was dismissed for permitting such lax methods in his office that it was possible for one of his subordinates to steal large sums of money. For several years he had permitted one Chip to act as interest clerk, cashier and 1 See Peo. ex rel. Shea v. Bryant, 28 A. D. 480 (1898) Peo. ex rel. O'Brien v. Scannell, 53 A. D. 161 (1900) 2 See page 90 See page 77. Peo. ex rel. O'Brien v. Scannell, 53 A. D. 161 (1900) affd. 164 N. Y. 572 Peo. ex rel. Long v. Whitney, 143 A. D. 17, 19 (1911) Matter of Stutzbach, 62 A. D. 219 (1901) Peo. ex rel. Alexander v. Brady, 50 A. D. 372 (1900) |