Rendering himself incompetent to perform his duties properly and safely (he was insane) by the excessive use of spirituous liquors1. One mistake in judgment is not enough to establish incompetence2. 1 Peo. ex rel. McLaughlin v. Partridge, 13 Abb. N. C. 410 (1884) 2 Peo. ex rel. Croker v. Sturgis, 91 A. D. 286, 296 (1904) CHAPTER X REMOVAL OF REGULAR CLERKS, HEADS OF BUREAUS AND PERSONS IN THE COMPETITIVE CLASS NATURE OF THE PROTECTION Section 1543 of the charter provides: "The heads of all departments and all borough presidents (except as otherwise specially provided) shall have power to appoint and remove all chiefs of bureaus (except the chamberlain), as also all clerks, officers, employees and subordinates in their respective departments, except as herein otherwise specially provided, without reference to the tenure of office of any existing appointee. But no regular clerk or head of a bureau, or person holding a position in the classified municipal civil service subject to competitive examination, shall be removed until he has been allowed an opportunity of making an explanation; and in every case of a removal, the true grounds thereof shall be forthwith entered upon the records of the department or board or borough president, and a copy filed with the municipal civil service. In case of removal, a statement showing the reason therefor shall be filed in the department." This section "was intended as a substantial limitation of the general power of removal . . . and to secure the continuance in office of persons named until a reasonable cause other than the pleasure of heads of departments, or a change in the political character of the majority, should exist for their removal" 2. The accused is "not entitled to a trial or a judicial hearing before the commissioner. The statute simply provides that in such cases removals, when made, shall be accompanied with certain formalities "3. The right of the accused is limited "to information as to the cause of the proposed removal and an The same protection is extended to regular clerks, heads of bureaus and members of the competitive class in the service of "every county of the state wholly included within the limits of a city but not comprising the whole of such city", i.e., the counties comprised in Greater New York. C. S. L. sec. 22 2 Peo. ex rel. Munday v. Fire Commissioners, 72 N. Y. 445 (1878) 1 Peo. ex rel. Kennedy v. Brady, 166 N. Y. 44 (1901) opportunity of making an explanation. If the cause is substantial the commissioner may rest on it without legal proof". "The head of the department, if the explanations are not satisfactory to him, may, in his discretion, remove without calling witnesses to substantiate the charges or allowing testimony on the part of the subordinate. He may exercise the power of removal upon facts within his own knowledge or based upon information received from others. The reasons assigned for the removal must appear, upon their face, to justify the action; in other words they must be substantial and not frivolous, but when they appear to be sufficient to justify the determination the courts have no power to interfere on the ground that the reasons, though good in themselves, had no existence as a matter of fact, or that the explanation given by the subordinate should have satisfied the head of the department. In other words, the sufficiency of the relator's explanation was a question for the commissioner alone to determine, and the courts have no power to interfere with his discretion in that regard"2. The commissioner is bound to fulfill the requirements of the section and nothing more. If he finds the relator guilty of the particular charges, after giving him an opportunity for an explanation and after considering it there is nothing for the court to review. He is vested with the power of removal when he follows the procedure provided by the statute. The procedure which must attend each such removal is discussed in greater detail under Procedure on Removal. PERSONS PROTECTED The regular city departments include the fifteen administrative departments enumerated in section 96 of the charters and the board of aldermen. They do not include the office of coroners nor that of commissioner of jurors'. The mayor's office which is not designated as a department would be excluded if the reasoning of the courts was closely followed.. Subordinates under the trustees of Bellevue and Allied hospitals are not protected by section 1543 since they may be removed "at pleasure 1 Peo. ex rel. Mitchel v. La Grange, 2 A. D. 444 (1896) affd. 151 N. Y. 664 2 Peo. ex rel. Kennedy v. Brady, 166 N. Y. 44 (1901) Peo, ex rel. Keech v. Thompson, 94 N. Y. 451 (1884) 4 Peo, ex rel. Brown v. O'Brien, 137 A. D. 311 (1910) Peo. ex rel Hillman v. Scholer, 94 A. D. 282 (1904) semble Because it is designated in the charter as the legislative department.' Peo. ex rel. Martin v. Scully, 56 A. D. 302 (1900) 7 Peo. ex rel. Maharin v. Plimley, 1 A. D. 458 (1896) subject to the civil service laws" 1, and section 1543 is not strictly a civil service law2. Inspectors of buildings and other subordinates appointed by a superintendent of buildings are not protected by it 2. From the language of the decisions it would seem that the only heads of bureaus protected are those serving under the five borough presidents, the fifteen administrative departments and the board of aldermen3. Persons employed in these regular city departments or under the borough presidents are protected even though they are not removable by the department head but by one of his subordinates. So the protection extends to subordinates who are removable by the city clerk. The section applies to probationers and they can be removed before their probation period is ended, only in the same manner as those whose appointment has been made permanent. Regular clerks The term is used in its popular sense as denoting one whose duties are clerical. The position must be determined by the nature of its duties. A regular clerk is "one employed in the duty of keeping the records or accounts, or in doing the writing which relates to the ordinary conduct or business of the department", one "engaged in the keeping of books, the making of entries or the casting of accounts" 8. A complaint clerk in the police department has been held to be a regular clerko. The performance of some clerical work does not make a regular clerk if the weight of the duties are not clerical1o; and so the 1 Charter sec. 692, subdiv. 5 2 Peo. ex rel. McKeon v. Ludwig, 215 N. Y. 389, 394 (1915) "Section 1543 has no application to the cases specially provided for in section 406 (dealing with disciplinary power of superintendents of buildings). Except as affected by the requirements of the civil service law the employees specified in section 406 are subject to removal in the discretion of the superintendent of buildings, and the exercise of that discretion is not limited by the provisions of section 1543 of the charter." Acting superintendent has no power to dismiss. Peo. ex rel. Daly v. Henderson, 148 A. D. 225 (1911) Peo. ex rel. Boyd v. Hertle, 28 Misc. 37 (1899) is not even a dictum to effect that employees under the commissioner of accounts are protected as the opinion of the learned justice implies a doubt and affirmatively bases his reason on another ground and besides the position involved was in the competitive class. Peo. ex rel. Martin v. Scully, 56 A. D. 302 (1900) Peo. ex rel. Sims v. Fire Commissioners, 73 N. Y. 437 (1878) Peo. ex rel. Warschauer v. Dalton, 34 A. D. 302 (1898) affd. 159 N. Y. 235 Peo. ex rel. Blatchford v. McAdoo, 101 A. D. 183 (1905) affd. 181 N. Y. 547 Peo. ex rel. Corkhill v. McAdoo, 98 A. D. 312 (1904) 10 Peo. ex rel. Emerick v. Board of Fire Commissioners, 86 N. Y. 149 (1881) property clerk in the police department is not a regular clerk1, nor is a chief clerk whose duties are confidential in character2, nor the secretary of the fire departments. Where the nature of the position is doubtful the classification of the position made by the municipal civil service commission while not conclusive is entitled to great weight?. Head of a bureau The protection extends only to the chief officer of a bureau expressly created by statute or by an officer or board under authorization of a statute1. The head of a branch of a bureau is not included nor is the head of a so-called bureau created without authority of law and purely for administrative purposes. It was held that an appointment as "Chief Inspector of the Old Building Bureau in the Brooklyn Division of the Tenement House Department" did not make the person "head of a bureau”. Members of the competitive class The persons who hold positions subject to competitive examination are determined by the municipal civil service commission and are to be found in its classification which is conclusive until set aside in a direct proceeding since it cannot be attacked collaterally by one seeking reinstatements. The Appellate Division, First Department, has suggested that a person appointed to a competitive position without examination, under section 15, subdivision 2, of the civil service law, is not protected by section 1543, and may be removed without notice. The expression 1 1 Peo. ex rel. Blatchford v. McAdoo, 101 A. D. 183 (1905) affd. 181 N. Y. 547. But the property clerk in the park department has been held a regular clerk. Van Valkenburgh v. Mayor, 49 A. D. 208 (1900) 2 Peo. ex rel. Berlinger v. Wells, 85 A. D. 378 (1903) 3 Peo. ex rel. Jussen v. Scannell, 51 A. D. 360 (1900) 4 The borough president of Manhattan is authorized to create bureaus. Peo. ex rel. Collins v. Ahearn, 193 N. Y. 441 (1908). The power to consolidatë bureaus is not the power to create. Peo. ex rel. Emerick v. Board of Fire Commissioners, 86 Ñ. Y. 149 (1881). An allusion in the budget to a so-called bureau does not create one. Peo. ex rel. Collins v. Ahearn, 120 A. D. 95 (1907) 5 Peo. ex rel. Eastmond v. Oakley, 93 A. D. 535 (1904) Peo. ex rel. Michaels v. Ahearn, 111 A. D. 741 (1906) 7 "We prefer to dispose of the appeal upon the undisputed facts that no bureaus other than the three created by statute were established in the department, the commissioner refraining from exercising his power; that the relator was not appointed head of one of these bureaus, and that his letter of appointment and the history of his relation to the department show that his appointment was limited to a separate division of the department in a branch of the inspection bureau." Matter of Garvey, 164 A. D. 344 (1914) Peo. ex rel. Schau v. MeWilliams, 185 N. Y. 92 (1906) Peo. ex rel. Rosenthal v. Travis, 169 A. D. 203 (1915) The opinion fails to mention the statute by which relator, who was a state employee, claimed to be protected. |