In making any reduction of force in any of the executive departments the head of such department shall retain those persons who may be equally qualified who have been honorably discharged from the military or naval service of the United States and the widows and orphans of deceased soldiers and sailors. (Act of Aug. 15, 1876, 19 St. L., 169, c. 287, s. 3; 1 Supp., 120.) To be for the efficiency of the service. Ex soldiers or sailors or the widows and orphans of deceased soldiers and sailors are not entitled to preference over other persons under section 1754 and other statutes when reductions in salary and rank are to be made, even though their qualifications are equal. (Op. A. G., July 28, 1909.) 2. No person shall be removed from a competitive position, except for such cause as will promote the efficiency of the service. When the President or head of an executive department is satisfied that an officer or employee in the classified service is inefficient or incapable and that the public service will be materially improved by his removal, such removal may be made without notice to such officer or employee, but the cause of removal shall be stated in writing and filed. When misconduct is committed in the view and presence of the President or head of an executive department, removal may be made summarily, and no statement of reasons need be filed. No officer or employee of the Government shall, directly or indirectly, instruct or be concerned in any manner in the instruction of any person or classes of persons, with a view to their special preparation for the examinations of the United States Civil Service Commission. Reasons and answers. Power to investigate. The fact that any officer or employee is found so engaged shall be considered sufficient cause for his removal from the service. (Executive order, October 13, 1905.) 3. Where a recommendation for removal or reduction in grade or compensation of an officer or employee is made to the head of an executive department by a bureau chief or other subordinate officer, the said head of department may, in his discretion, require that the person sought to be removed be furnished with a statement in writing of the reasons for such action, and be allowed a reasonable time for personally answering the same. 4. The Civil Service Commission shall have no jurisdiction to investigate any removal unless it is alleged that the procedure required by section 2 of Rule XII has not been followed, or that the removal was made for political or religious reasons. Power of courts to review.-The courts have no jurisdiction to review the action of an appointing officer in removing an employee. The right of appointment necessarily involves the right of removal. This power is absolute, except in so far as restricted by Congress. The civilservice act limits the power of removal in no respect except for the single cause of failure to contribute money or services to a political party. An employee's fitness, capacity, and attention to his duties are questions of discretion and judgment to be determined by the heads of the departments. Such questions are beyond the power of any court. (Taylor v. Taft, Secretary of War, 24 App., D. C., 95.) Removal an incident to power of appointment. It may be regarded, then, as the settled law that the power of removal is incident to the power of appointment, and therefore that any law which confers upon the head of a department a power of appointment, ipso facto, conveys a power of removal as effectually as if that power were expressly given by the statute. The power of removal is intrenched in the law. It is created by an act of legslation, and it can only be taken away or modified by similar authority. (Woods v. Gary, Supreme Court, D. C., Sept. 14, 1897.) Removal under control of Executive.Possessed by the Constitution of the power of appointment and removal, except possibly as he may be therein restricted by act of Congress, the Executive has the right to regulate for himself the manner of appointment and removal. He may direct his subordinates, who exercise under him in certain cases the power of appointment and removal, with respect thereto, and may regulate the manner in which they may act for him; but this is an administrative order of the Executive, not done in compliance with any law or in regulation of the execution of any law enacted by Congress restricting his right of removal, but is simply an instruction to those who hold positions by virtue of his appointment of the manner in which they shall discharge their duties in respect to the removal of their subordinates. The order is not the law of the land; it is not the emanation of the lawmaking power, but is merely a regulation adopted by the Executive, as he rightfully might, in regulation of the conduct of those who are subject to his authority. He made it, 29783-10- -7 and may at his pleasure rescind it. (Carr v. Gordon, 82 Fed. Rep., 373.) No property right in office.-These rules regulating the power of removal were made by the President, and may be repealed, altered, or amended at his pleasure. Prior to November 2, 1896, no such restraints existed, and if after that date they came into force, it was alone by virtue of an executive order. Law is not thus enacted, altered, or amended. Law must be an expression of a rule of action by the legislative authority. These civilservice rules, so far as they deal with the executive right of removal, a right which is but an incident of the power of appointment, are but expressions of the will of the President and are regulations imposed by him upon his own action or that of heads of departments appointed by him. He can enforce them by requiring obedience to them on penalty of removal. But they do not give to the employees within the classified civil-service any such tenure of office as to confer upon them a property right in the office or place. (Morgan v. Nunn, 84 Fed. Rep., 551.) The complaint that unfit men are "protected by the rules" is not true. On the contrary, the power of removal for unfitness is with the head of the office. The appointing officer being responsible for the efficient performance of the work of his office, it rests with him to determine whether such cause exists as to require the removal of an employee in order to promote the efficiency or discipline of his office. In the case of the United States v. Wickersham the United States Supreme Court decided that Mr. Wickersham was entitled to compensation from November 1, 1897, the date on which he was illegally suspended, in violation of the civil-service rules, from a classified position by the surveyor-general of Idaho, until May 10, 1898, the date on which the department offered him another position at Washington, which he declined. The court said in part: "The case comes to this: The appellee, by his appointment, practically made by the Secretary of the Interior in entering his name in the classified list and designating him for the service required, was entitled to the privileges and emoluments of his position until he was legally disqualified by his own action or that of some duly authorized public authority. The attempted suspension without au Appointing officers to make. par. 8. thority of law, he remaining ready and willing to discharge the duties of the place, could not, during the period of such wrongful suspension, have the effect to deprive him of the compensation legally be longing to one entitled to hold the position." (201 U. S., 390.) RULE XIII.—REPORTS OF CHANGES. 1. Every nominating or appointing officer in the execuAct, sec. 2, cl. 2, tive civil service shall report in detail to the Commission, whenever and in such manner as it may prescribe, all changes in the service under his authority, whether they affect positions or employees that are classified, unclassified, excepted, permanent, temporary, or subject to List of all positions. Statements of duties of laborers. Changes of duties Duty of officers contract. 2. Such officers shall also furnish to the Commission, when requested, a list of all the positions and employments under their authority, together with the names, designations, compensations, duties, and dates of appointment or employment of all persons serving therein. 3. Reports of appointments and changes in status of mere laborers or workmen shall be accompanied by a statement setting forth specifically the kind of labor performed, in detail sufficient to enable the Commission to determine the status of each position as classified or unclassified; and a similar statement of duties performed by any employee or pertaining to any position in the executive civil service shall be furnished to the Commission on request. All essential changes of duties pertaining to persons appointed as mere laborers or workmen without examination under the civil-service rules shall be at once reported to the Commission. See notes under Rule II, section 5. RULE XIV.-TESTIMONY. It shall be the duty of every officer and employee in the executive civil service, and of every applicant or eligible for a position therein, to give to the Commission, or its authorized representatives, all proper and competent information and testimony in regard to matters inquired of arising under the civil-service act and rules, and to subscribe such testimony and make oath or affirmation to the same before some officer authorized by law to administer oaths. Testimony in investigations.—It is within the power of the President so to modify the civil-service rules as to impose upon all officers and employees in the public service the duty of giving to the Commission or its authorized representatives all proper and competent information in regard to all matters inquired of, and to subscribe to and make oath to such testimony before some officer authorized by law to administer oaths. The imposition of such a duty upon every officer and employee in the public service is neither unreasonable nor unsuitable. It is clearly within the exercise of the executive power, and its legality can not be doubted. (23 Op. A. G., 595.) RULE XV.-WITHHOLDING SALARY. conditional upon ment. If the Commission shall find that any person is holding Compensation a position in violation of the civil-service act or of the legal appointrules promulgated in accordance therewith, it shall, after Act, sec. 7. notice to the person affected and an opportunity for explanation, certify the facts to the proper appointing officer. If such person be not dismissed within ten days thereafter, it shall certify the facts to the proper disbursing and auditing officers, and such officers shall not pay or audit the salary or wages of such person thereafter accruing: Provided, That if a question of law respecting the power to appoint or employ is raised in any such case, the President or the head of a department may obtain the opinion of the Attorney-General thereon. See executive order of November 29, 1904, p. 71, relative to the manner in which the question as to whether examination is required in any particular case is to be determined. Employment of persons who have not been certified by the Commission.-A person employed by a marshal as his office deputy, without having been certified by the Commission as eligible to employment, although employed in violation of executive orders, is not employed in vio lation of law, and is entitled to the expenses incurred by him in serving a warrant of arrest. (5 Dec. of Compt. Treas., 649.) Presumption of compliance with law and rules. In the absence of evidence to the contrary, the accounting officers will, in the settlement of salary accounts, assume that the civil-service law and rules have been complied with by the officer having the power of appointment. (3 Dec. of Compt. Treas., 52.) RULE XVI.-REGULATIONS. regulations. 1. The Commission shall have authority to make regu- Power to make lations for the execution of these rules. 2. No modification of the existing regulations in the Navy-yard regulations. Navy Department governing the employment of labor at navy-yards shall be made without the approval of the Commission. Skilled laborers and mechanics in navyyards.-Persons employed at navy-yards as skilled laborers or mechanics are not within the provisions of section 7 of the civil-service act which declares that "no person merely employed as a laborer or workman" shall be required to be classi fied thereunder. Such mechanics have not been classified within the meaning of the act, but their classification may be ordered by the President by revoking or modifying the navy-yard regulations. (Op. A. G., July 6, 1909.) SCHEDULE A. CLASSIFIED POSITIONS EXCEPTED FROM RULE II, CLAUSE 3. EXAMINATION UNDER [The classified service does not include positions under the government of the District of Columbia, the Library of Congress, legislative and judicial branches, Consular and Diplomatic services, and Bureau of the American Republics.] No office or position is excepted unless it is specifically named herein. Not more than one position shall be treated as excepted under the title of any such position unless a different number be indicated. I. THE ENTIRE CLASSIFIED SERVICE. 1. Two private secretaries or confidential clerks to the head of each of the executive departments and one to each assistant head. 2. One private secretary or confidential clerk to each of the heads of bureaus appointed by the President and confirmed by the Senate in the executive departments, if authorized by law. 3. All persons appointed by the President without confirmation by the Senate. 4. Attorneys, assistant attorneys, and special assistant attorneys. 5. Chinese and Japanese interpreters. 6. Any person receiving not more than $300 per annum compensation for his personal salary, who may lawfully perform his official duties in connection with his private business, such duties requiring only a portion of his time.a 7. Any person employed in a foreign country under the State Department, or temporarily employed in a confidential capacity in a foreign country under any department or office, but this exception shall not apply to any person employed in a foreign country contiguous to the United States in the service of the Bureau of Immigration, Department of Commerce and Labor. 8. Any position the duties of which are of a quasi military or quasi naval character, and for the performance of which duties a person is enlisted for a term of years; also positions in the Revenue-Cutter Service, where the persons enlist for the season of navigation only. 9. All positions in Alaska which can not be filled from appropriate existing registers, except those in the Customs Service. 10. A person serving under temporary appointment continuously since May 29, 1899, may be permanently appointed, in the discretion of the appointing officer. a The essential requirements for exception under this section are that the duties must take only a part of the employee's time, must be such as may be performed lawfully in connection with his private business, and for which his compensation does not exceed $300 per annum. It does not permit temporary employments requiring an employee's entire time, though his compensation may not exceed $300 during the time of his employment or during the year. Such employment shall be made under the rule governing temporary employment. |