improper recom Penalties for under whose supervision such employee has served; and mendation. such recommendation by any other person, if made with the knowledge and consent of the employee, shall be sufficient cause for debarring him from the promotion proposed, and a repetition of the offense shall be sufficient cause for removing him from the service. "It is hereby ordered that petitions or other communications regarding public business addressed to the Congress or either House or any committee or Member thereof by officers or employees in the civil service of the United States shall be transmitted through the heads of their respective departments or offices, who offices, who shall forward them without delay with such comment as they may deem requisite in the public interest. Officers and employees are strictly prohibited either directly or indirectly from attempting to secure legislation, or to influence pending legislation, except in the manner above prescribed. substitutes. "This order supersedes the Executive orders of January 31, 1902, January 25, 1906, and November 26, 1909, regarding the same general matter." (Executive order, Apr. 8, 1912.) * * "The right of persons employed in the civil service of the United States, either individually or collectively, to petition Congress, or any Member thereof, or to furnish information to either House of Congress, or to any committee or Member thereof, shall not be denied or interfered with." (An act making appropriations for the service of the Post Office Department for the fiscal year ending June 30, 1913, approved Aug. 24, 1912.) Promotion of 4. Substitutes shall be promoted to the first vacancies occurring in regular positions in the order of their original appointment, whenever there are substitutes of the required sex who are eligible and will accept, unless such vacancies are filled by promotion, transfer, or reinstate ment. A provision of the rules for the employment of substitutes for clerks, copyists, and other employees in the departments, who are temporarily absent on account of sickness or other unavoidable cause, and for the selection of such substitutes from persons regularly certified is not beyond the power of the commission with the approval of the President, to make, but would be practically inoperative, because of the lack of authority on the part of the heads of the departments to make additional expenditures for the employment of the substitutes. (Opinion Atty. Gen., Mar. 6, 1890, 19 Op., 507.) one or more of such substitutes may have been allowed preference under section 1754 R. S." (Minute of commission, Dec. 6, 1897.) Promotions from substitute to regular positions shall be made in the order of date of appointment in the entire office, and not in any one division. (Minute of commission, Aug. 14, 1888.) A senior substitute may waive his right of promotion to a regular vacancy in favor of the substitute standing next, and retain his position at the head of the substi tute list. (Minute of commission, Mar. 2, 1895.) A senior substitute who declines promotion will be considered to have been dropped from the service. (Letter of commission, Aug. 11, 1909, Albany, N. Y.) "When two or more substitutes are appointed on the same date, they shall be promoted to the regular force in the order of the averages attained by them in the examination, irrespective of the fact that 5. A person who has been reinstated in the classified service in a grade lower than that from which he had been separated may be promoted to his former grade without examination. Amendment of June 13, 1904. boys. Messenger 6. Messenger boys appointed without regard to the Amendment of apportionment shall not be promoted or transferred to apportioned positions whether they are residents of Sept. 18, 1909. States or Territories which are entitled to appointments to apportioned positions or not. Syllabus: Promotion from the position of messenger boy, in the classified nonapportioned service, to the position of laborer with classified duties, which is subject to the rule of apportionment, is prohibited by section 6 of Rule XI of the civil-service rules. An applicant by passing the civil-service examination does not acquire a vested right to promotion in accordance with the rules in force at the time the examination is held. (Opinion Atty. Gen., Jan '10, 1913; 30 Op., 10.) RULE XII.- -REMOVALS AND REDUCTIONS.1 1. Section 6 of the act of August 24, 1912, 37 Stat. 555, Reasons to be provides "That no person in the classified civil service of the United States shall be removed therefrom except for such cause as will promote the efficiency of said service and for reasons given in writing, and the person whose removal is sought shall have notice of the same and of any charges preferred against him, and be furnished with a copy thereof, and also be allowed a reasonable time for personally answering the same in writing; and affidavits in support thereof; but no examination of witnesses nor any trial or hearing shall be required except in the discretion of the officer making the removal; and copies of charges, notice of hearing, answer, reasons for removal, and of the order of removal shall be made a part of the records of the proper department or office, as shall also the reasons for reduction in rank or compensation; and copies of the same shall be furnished to the person affected upon request, and the Civil Service Commission also shall, upon request, be furnished copies of the "The commission holds that the probationary period required by law preliminary to permanent appointment is an essential part of the examinations held by the commission to ascertain the fitness of applicants. The first six months of service being regarded as probationary, section 6 of the act of August 24, 1912, is not regarded as applying to probationers. The existing practice under section 1 of Rule VII is not changed by the act, and a probationer may be separated from the service at any time during or at the expiration of the probationary period without further formality than a written notification setting forth the reasons in full. "In the removal of temporary appointees the commission holds that the law did not contemplate its application to 1 Amended July 28, 1914. temporary employment, and therefore the procedure required by the law need not be observed as to this class of employees. "The act is not regarded as applying to cases of suspension. Where the person is later dropped from the classified service, then the requirements of the act would need to be complied with. * * * The requirements of the rule as to the suspension of employees are not inconsistent with the act.' "The words in the statute 'affidavits in support thereof' are regarded as applying to the answer of the accused employee." (Minute of commission, Mar. 28, 1913.) 2 See page 58 for further provisions of the act. therefore should not be held to include excepted positions, unless such positions have been filled as competitive positions are filled, in which event, under Rule II, paragraph 3, of the Civil Service Rules, the person appointed is entitled to all the rights of a competitive employee. (30 Op. Atty. Gen., 181.) While section 6 of the act of August 24, 1912 (37 Stat., 555), relating to removals, requires that reasons for reduction in rank or compensation be made a part of the records of the proper department or office, it does not require or grant the privilege of answer by the person who is reduced, and the requirement in the act that the person affected shall upon request be furnished a copy of the reasons, does not make it necessary to postpone the reduction until such request is complied with. (Minute of commission, Mar. 17, 1914.) "No officer or employee of the Government shall, directly or indirectly, instruct Like penalties for like offenses. 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. The fact that any officer or employee is found so engaged shall be considered sufficient cause for his removal from the service." (Executive order, Oct. 13, 1905.) "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 boards of examiners for the diplomatic and consular services. The fact that any officer or employee is found so engaged shall be considered sufficient cause for his removal from the service." (Executive order, Dec. 23, 1910.) Other causes for removal are enumerated in section 4 of Rule V and section 3 of Rule VI. 2. In making removals or reductions, and in other punishment, like penalties shall be imposed for like offenses, and no discrimination shall be exercised for political or religious reasons. * * * "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 Stat., 169.) The removal of an honorably discharged soldier from a position in an executive department "because of his rating as inefficient" is the exercise of a purely execuTemporary suspension. Power to investigate. tive power, and the reasons for such exercise can not be inquired into by the courts. (Keim v. U. S., Apr. 9, 1900, 177 U. S., 290.) 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. (Opinion Atty. Gen., July 28, 1909, 27 Op., 490.) 3. Pending action under section 1 of this rule, or for disciplinary reasons, a person may be suspended for a period not to exceed ninety days, but the reasons for such suspension shall at the time of the suspension be filed in the records of the proper department or office and copies shall be furnished the commission upon request. The period of suspension may be extended beyond ninety days with the prior consent of the commission. 4. The commission shall have no jurisdiction to review the findings of a removing officer upon the reasons and answer provided for in section 1 of this rule, nor shall the commission have authority to investigate any removal or reduction, unless it is alleged, with offer of proof, that the procedure required by section 1 of this rule has not been followed or that the removal was made for political or religious reasons. of 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 civil service act limits the power 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. Č., 95.) Where a charge of delinquency, such as neglect of duty, has been sustained by a department, the commission refuses to hold that the removal was for political reasons. (Minute of commission, June 4, 1903.) In the case of the United States v. Wickersham the United States Supreme Court decided, April 2, 1906, that Mr. Wicker sham 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 authority 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 belonging to one entitled to hold the position." (201 U. S., 390.) RULE XIII.-REPORTS OF CHANGES. Appointing of 1. Every nominating or appointing officer in the execu-ficers to make. tive civil service shall report in detail to the commission, par. 8. 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 contract. List of all posi 2. Such officers shall also furnish to the commission, tions. 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. Statements of 3. Reports of appointments and changes in status of duties of laborers. 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 pertain-Changes of duing to persons appointed as mere laborers or workmen 65826-15- -7 Duty of officers and employees in regard to. Act, sec. 2, cl. 4. 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. 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. (Opinion Atty. Gen., Dec. 2, 1901, 23 Op., 595.) A per diem employee of the Frankford Arsenal, Philadelphia, Pa., absent from duty three and one-fourth hours under a Compensation conditional upon ment. Act, sec. 7. RULE XV. summons, in giving testimony concerning alleged violations of the civil service regulations, was denied payment for the time he was away from his regular work, because the duty performed in giving testimony was considered by the Ordnance Department as having no relation to his service as an employee therein. The Comptroller of the Treasury held, however, that he "should be treated as in a duty status and as in the performance of duty under his employment in going, returning, and attending on the commission, and should be paid the pay due him for such time from the appropriation for the Ordnance Service governing his employment." (Decision, Compt. Treas., Aug. 17, 1911. See also 17 Comp. Dec., 584; 5 Comp. Dec., 797; 9 Comp. Dec., 276.) -WITHHOLDING SALARY. If the commission shall find that any person is holding legal appoint-a position in violation of the civil service act or of the rules promulgated in accordance therewith, it shall, after 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 10 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. "The decisions are uniform that one claiming salary must prove his legal title to the office and that an officer de facto can not maintain an action for salary." (Glavey v. U. S., 35 Ct. Cls., 242, citing Romer v. U. S., 24 Ct. Cls., 336; Stratton |