Kern v. LaGuardia , 36 N.Y.S.2d 346 ( 1942 )

Per Curiam.

We find that the petitioners were removed from office for cause, and after a public hearing, in accordance with the provisions of law. (Civ. Serv. Law, § 11, subd. 6.) In the case of a removal of a municipal civil service commissioner by a mayor, as distinguished from removal by the State Civil Service Commission (cf. Civ. Serv. Law, § 11, subd. 6), the only statutory requirements are for a public hearing, and that some cause for removal exists.

Comparison of the provisions contained in section 11 of the Civil Service Law relative to the removal in the two instances referred to, discloses that the mayor is given much broader powers than the State Civil Service Commission with respect to the grounds of removal, and that less stringent requirements are imposed with respect to the nature of the hearing to be accorded. We think, however, that reasonable notice of the charges should be given, and that such notice should be sufficiently specific to enable the officers to meet the issue as to the alleged existence of cause for removal. This much is to be implied from the statutory provisions.

The cause for removal must be substantial, and not trivial. It must have some relation to the fitness of the commissioners to perform their duties as public officials, and there must be sufficient evidence to support the charges. The courts are not justified in interfering with removal if these legal requirements are complied with. (People ex rel. Guiney v. Valentine, 274 N. Y. 331; Civ. Prac. Act, § 1296.)

The record established that petitioners were removed because they issued to the public press of the city of New York a false statement concerning the corporation counsel of the city of New York reading, in part, as follows: “ The failure of the Corporation Counsel to represent us will not deter our action in the least. If we were permitted to defend the merit system only when the Corporation Counsel chose to help us the merit system would be at the mercy of any politically minded lawyer who happened to hold that job. We have not forgotten that the present Corporation Counsel supported Ed Flynn’s candidate for Mayor against LaGuardia in 1933 and it is not surprising, therefore, that he should refuse to represent us in our efforts to put Ed Flynn’s favorities out of the Register’s Office and replace them with competitive employees.”

The words contained in the foregoing statement charged betrayal of his trust by the corporation counsel, and were obviously defamatory.

The issuance of the press release had followed a court proceeding involving the reclassification of certain positions in the civil service. This reclassification had been approved by the State Civil Service Commission and the Governor of the State. The corporation counsel had advised the court that the mayor of the city of New York was not opposed to such reclassification. Petitioner Kern, nevertheless, desired to take a contrary position. The press release quoted above had been issued after the termination of the court proceeding.

We find that the charges upon which removal was based were substantial; that they were sustained by the evidence; that the notice of the charges was sufficient, and that the removal of petitioners took place after a public hearing.

Though the written notices of charges served on the petitioners did not disclose what particular acts of misconduct were being complained of, the record establishes that before the hearing commenced petitioners were advised that the charges were based solely on the issuance by them of the press release defaming another public official.

The falsity of the statement made against the corporation counsel was established prima facie by the release itself, and by the statements made by the mayor at the opening of the hearing as to matters within his personal knowledge. Where an administrative officer conducting a trial of charges has personal knowledge of matters involved in such charges, it is not essential that other witnesses be called to establish the facts known to the trial officer. (Sharkey v. Thurston, 268 N. Y. 123, 128.) The mayor stated at the opening of the hearing that in an interview held a week before the issuance of the press release, he had advised President Kern that the position taken by the corporation counsel concerning the court proceedings had been agreed to by the mayor. President Kern testified at the hearing of the charges that he had advised Commissioner Sayre of his interview with the mayor. Knowledge of the falsity of the statement contained in the press release was thus brought home to both petitioners. The question presented is whether the making of a statement of this character out of court which was false, and known by the commissioners to be false when made, constituted an offense sufficiently aggravated to be cause for removal.

The statement, made without justification, winch was the basis of the charges tended to besmirch the reputation and impair the' usefulness of a public official whose duties included representation of the municipal civil service commission in the enforcement of the Civil Service Law. The mayor, we think, had the authority to find that the making of such a statement did constitute cause for removal, and that it bore a direct relation to the usefulness and fitness of petitioners to carry on their duties as civil service commissioners.

The determination should be confirmed, with fifty dollars costs and disbursements, and the petition dismissed.

Present — Martin, P. J., Townley, Glennon, Cohn and Callahan, JJ.; Martin, P. J., dissents.