142 N.Y.S. 426 | N.Y. App. Div. | 1913
The petitioner shows that in the month of April, 1900, he duly passed an open competitive examination held by the municipal civil service commission of the city of New York for the position of senior clerk with said commission and was duly appointed to that position on the 1st day of May, 1901, and that he served in that capacity until the 6th day of November, 1912, when he was dismissed, after certain charges had been made and served upon him, and he had been afforded an opportunity to explain them.
Petitioner further shows that he first served about a month as a clerk in the computing room, where computations of the ratings of those who enter civil service examinations are made after the papers have been marked by the examiners; that he thereafter served as a clerk in the labor bureau of the commission until September, 1909, and thereafter as a clerk in the information bureau until October 9, 1911, when he was put in charge of the computing room and remained in charge of that room until his dismissal; that there were several employees of the commission performing services in the computing room over whom and whose work he had supervision and charge; that his duties were to receive from the examiners for the commission all examination papers on which they had passed judgment and on which they had marked the ratings they had given to the candidates, and the sealed envelopes containing the identification cards of the candidates and to open the sealed envelopes which contained information identifying the candidates who had been known to the examiners only by numbers, and to enter upon a schedule the names of the candidates and the ratings given to them by the examiners as computed by the other employees, and the percentage of the total possible marks which each candidate had obtained, and to prepare eligible list cards showing the standing which each candidate had received as a result of the examinations, and to arrange the same in the order of their standing beginning with the highest percentage
“ I hereby prefer chaz’ges against Albert D. McGuire of conduct unbecozning an employee of this Commission and subversive of discipline and efficiency.
“ From the 19th day of October to the 29th, inclusive, the papers in the examination for promotion to Assistant Foreman, Fire Department, were in the custody of the clerk in the Computing Boom and during that time certain monitors were employed in calculating the percentages and preparing the schedule sheets. I charge that at different times during this period Mr. McGuire improperly interfez’ed with the work of the monitors so engaged, endeavoring to obtain information with reference to some particular candidates; that he went to several of these monitors with a slip of paper in his hand seeking and getting information from the schedule sheets with reference to the standing of some of the candidates in that examination and that he made memoranda on this slip of paper as a result of the information so derived and that his acts were irregular and improper; ” that he appeared before the commission, pursuant to notice from the chairman, accompanied by a copy of the charges, and affording him, at a time and place specified, an opportunity to make an explanation, and explained in substance his duties and the rumors which came to him and his investigation thereof as already stated, and gave to the commission the names of person's who had informed him concerning rumors with respect to the standings of certain candidates, and would have given the names of the candidates but for the fact that he had been instructed by the president of the commission that advance ratings were only to be given to him and that the president of the commission in questioning the petitioner “ abruptly turned to other matters at the point when the questions naturally led up to a disclosing of these names,” and that he feared to give the information at that time lest it*355 would be a disobedience of the order of the chairman of the commission; that after making his explanation he was notified in writing by the president of the commission that the commission found his explanation to be -unsatisfactory and had ordered that he be dismissed forthwith.
It was further shown in support of the petition by the affidavit of one Conway, who had been assistant chief examiner, that with respect to nearly every examination for promotion in the police and fire departments rumors reached the office of the commission to the effect that certain candidates had received certain ratings as a result of alleged unlawful conduct on the part of some -unnamed employee of the commission; that these rumors were generally unfounded, but that on one occasion an examination for police captain was set aside as a result of investigations in behalf of the commission with respect to such rumors; that like rumors were afloat with respect to the examination in question for promotion in the fire department and that during the compiling of the ratings of said examination they were brought to the attention of the president of the commission with the result that certain firemen were dismissed from the service and others were fined; that it had been the practice during the tenure of office of various commissioners for employees of the commission in the position which relator held at the time of his removal “ to make some investigation of such rumors for the purpose of verifying them before presenting them to the Commission; that no rule or regulation or order prohibiting such investigation had .ever been issued to his knowledge by any Commission against the practice.”
In behalf of the commission it was shown in opposition to the motion that before the ratings of the candidates at such examination were published several of the candidates came to the office of the commission and asked for their ratings, stating that ratings had been given to other candidates; that about this time the chief examiner inform d the commissioners that some of the monitors employed in the computing room had reported that the petitioner had obtained ratings from schedule sheets on which they were working and on which the ratings and standings of candidates were entered and had been making notes of such information; that thereupon charges were
The fact that the commission had not made a rule or issued an order forbidding the petitioner from examining the rating sheets in the hands of the monitors for the purpose of taking memoranda thereof with respect to the names and ratings of candidates and leaving the room and premises with such memoranda in his pockets, did not preclude the commission from removing- him for such conduct if they deemed it to be detrimental to the public service. (People ex rel. Hart v. Board Fire Comrs. of N. Y., 82 N. Y. 358.) The authority of the commissioners to make appointments is found in section 123 of the Greater New York charter (Laws of 1897, chap. 378, § 125; Laws of 1901, chap. 466, § 123), which provides, among other things, that they have authority to appoint “asecretary, examiners, and such other subordinates as may be necessary.” It is contended in behalf of the appellants that section 1543 of the Greater New York charter (Laws of 1901, chap. 466), which gives regular clerks, heads of bureaus and persons holding positions in the classified civil service subject to competitive examination a right to make an explanation with respect to' the grounds assigned for their removal, is not applicable to the appointees of the civil service commission. It is claimed by virtue of section 3 of article 10 of the State Constitution and on the authority of Abrams v. Horton (18 App. Div. 208) and People ex rel. Fonda v. Morton (148 N. Y. 156) that the appointees of the
The theory upon which the writ was granted and upon which it is sought to sustain the order is that the charges were frivolous, and Matter of Griffin v. Thompson (202 N. Y. 104), which reversed the decision made by this department by a divided court (140 App. Div. 904), is cited in support of that contention. In that case and in numerous other decisions (See People ex rel. Baum v. Butler, 120 App. Div. 807; People ex rel. Brown v. O’Brien, 137 id. 311; People ex rel. Meeks v. Drummond, 156 id. 926) it was declared to be the law with respect to the removals of persons in the civil service not entitled to a trial but merely to notice of charges and an opportunity to make an explanation, that the official or body in whom the power of removal is vested may act upon his or their own knowledge, or on any information received from other sources, and if the charge be substantial the court is without authority to review the determination with respect to the sufficiency of the explanation; but that if the charge be frivolous and without substance then the removal may not be predicated thereon.
In the case at bar it is manifest that if the charge was sufficient to give the commissioners jurisdiction to remove the petitioner the exercise of that discretion should not be reviewed. No argument need be advanced to show the importance to the public interests of leaving a wide discretion to the commissioners in a matter of this kind, for not only would the civil service be demoralized but the integrity of the commissioners would be questioned unless they are permitted to so conduct their offices and govern and control those in their employ that the civil service laws, rules and regulations will be honestly and impartially administered, and in a manner to inspire and retain public confidence with respect thereto which would soon be destroyed
The petitioner was neither charged with making false ratings nor giving out advance information; but he had reason to believe that such information was being given out and he so conducted himself as to give rise to suspicion on the part of those working over and under him and on the part of the commissioners that he was giving it out. He had no duty to perform which required him to take memoranda in writing with respect to names and ratings of candidates at the time when he took them from the papers in the hands of the monitors. His conduct cannot be justified on the theory that it was his duty to see that those over whom he had supervision performed their duties. He was not, in these matters, examining the work of the monitors and other employees with that end in view. His only explanation for taking the memoranda is that they were taken with a view to comparing them with information he had received with respect to rumors afloat concerning the rating of some of the candidates; but it would seem that he did not show that he had in his possession any memoranda with respect to such rumored ratings, and if he had, or if he remembered the ratings according to the rumors, he could have discovered whether they corresponded on a mere inspection of the schedule of ratings in the hands of the other employees without, writing down and carrying away in his pockets the actual ratings. Moreover, occupying such a responsible position, it would seem that if he had had the proper conception of the duties of his office and of his duty to the commissioners he would have reported to them and have asked them for instructions, instead of taking these memoranda in an apparently irregular manner and putting them in his pockets and leaving the room or bureau, and thus giving rise to comment and suspicion on the part of the other employees. The commissioners were not obliged to accept his assertion with respect to what he deemed to be his duty, and it is evident from the questions that they propounded to him that they deemed his conduct most irregular, and considered that it was no part of his duty to obtain this information in the manner and at the times charged.
It follows that the order should be reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.
Ingraham, P. J., and McLaughlin, J., concurred; Clarke and Scott, JJ., dissented.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.