Informal Opinion No.
|

Jerome A. Mirabito, Esq. City Attorney, Fulton

You have asked whether the City of Fulton can summarily retire, terminate or discharge the assistant chief of the city fire department when he reaches age 70. The city has no local regulation requiring retirement at age 70. The assistant chief is a member of a city-funded pension plan with no mandatory retirement age. (He is not a member of the New York State Retirement System, which requires retirement at age 70 [Retirement and Social Security Law, § 70].)

Your letter notes that the assistant chief is a permanent appointee in the competitive class of the civil service. Section 75 of the Civil Service Law states that:

"a person holding a position by permanent appointment in the competitive class of the classified civil service shall not be removed or otherwise subjected to any disciplinary penalty * * * except for incompetency or misconduct shown after a hearing upon stated charges * * *."

Retirement mandated by local law does not constitute "removal" within the meaning of section 75 (Humbeutel v City of New York, 125 N.Y.S.2d 198 [Sup Ct, Spec Term, New York Co, 1953], affd 283 App. Div. 1011 [1st Dept, 1954], affd 308 N.Y. 904 [1955]). However, in the absence of a local regulation or pension provision mandating retirement upon reaching a certain age, we believe that a person holding a position by permanent appointment in the competitive class of the civil service may be removed only in accordance with the provisions of the Civil Service Law. Removal could be achieved only upon a showing of incompetency or misconduct, after a hearing upon stated charges in accordance with sections75 and 76 of the Civil Service Law.

We conclude that in the absence of a local regulation mandating retirement of public employees at age 70, the assistant chief of the City of Fulton fire department cannot be summarily retired, terminated or discharged upon his reaching age 70, and may only be removed from his position upon a showing of incompetence or misconduct under sections75 and 76 of the Civil Service Law.