Mr. Milliken.- Did not he send his examiners into the office? 'A. No, not into the mayor's office. Mr. Brown. I think Mr. Milliken did not understand you. Am I right in saying that Mr. Gaus's feeling with regard to Mr. Gallup was that he did not want in his place a man associated with Mr. Glynn, because of Mr. Glynn's attitude to him in his personal and political life? A. That was his point of view. Thus there is substantial agreement among the witnesses to facts making perfectly clear the motives prompting the removal, and the only question to be considered is whether a removal for these reasons falls under the condemnation of the statute. think it does. We The evidence shows that the Comptroller before he took office, without any regard to the question of Mr. Gallup's faithfulness or competency, determined on the removal. He did this because Mr. Gallup had been appointed and advanced by Mr. Glynn. The antagonism between Mr. Glynn and Mr. Gaus, whatever personal bitterness it may have developed, was essentially political antagonism. Mr. Gaus was active in Republican politics and Mr. Glynn in Democratic politics. Mr. Gaus had been mayor of Albany and Mr. Glynn's newspaper has criticised his administration. The two men were rivals for the Comptrollership at the last election. Such continued political contests naturally provoke bitterness. But if every official may dismiss the trusted and faithful employees of a predecessor merely because they were trusted by him, and excuse the action on the plea that his predecessor was a personal as well as a political enemy, then the law providing that removals shall not be "in any way affected" by political affiliations means nothing. Mr. Gallup's faithfulness, efficiency and entire loyalty to Mr. Gaus in the discharge of his duties are conceded. He was dismissed because Mr. Glynn had appointed him and had trusted him as faithful, efficient and loyal. No objection to Mr. Gallup personally prompted the removal. Mr. Kelsey urged upon his chief the fact that Mr. Gallup was a satisfactory employee. But the policy of removing him had been determined in consultation with Mr. Barnes before the Comptroller took office because he was in a "hostile camp,' and as Mr. Kelsey testified he had explained to Commissioner Kraft, "because it was believed that the place should be held by a man of the same political party as the Comptroller." The Comptroller may repudiate as not representing him this statement as well as Mr. Kelsey's attempt, on his own initiative, in Mr. Gaus' absence, to communicate by telephone with Mr. Barnes to get his authorization for not carrying out the order left by the Comptroller for dismissal on April 10th. These questions would doubtless arise if the matter should be carried into court and necessitate the participation of the Comptroller personally in the case. But judging the Comptroller's own statements as testified to by others in the light of the words and acts of his trusted deputy who was in authority during his prolonged illness and absence, we are unable to escape the conclusion that political affiliation was the determining factor in the case and was so without subterfuge or concealment until the question of violation of the Civil Service Law had to be faced. It is difficult to see how, short of a frank confession of an appointing officer that he had violated the law, any clearer case of the influence of a political motive could ever be found. If the law is not to be considered a mere empty phrase which may be made of no effect by saying that an act was not based on a political motive, in the face of almost any possible proof to the contrary, this removal, admittedly due to the Comptroller's unwillingness to keep in office a person because he was appointed by and politically affiliated with his political rival must be considered one such as the statute meant to forbid. We do not believe that the Legislature meant this statute to be a mere sign board warning officials against technical admissions of motives which might invalidate removals for political reasons, but rather believe that it was intended in a substantial manner to free appointments and removals in the classified service from the influence, direct or indirect, of political contests and animosities arising therefrom. Even if we assume that bitterness growing out of political warfare may become to such an extent personal that a removal made in good faith because of it would not violate the statute, we should be unable to apply that assumption to this case because of the collateral facts showing the influence of the question of political affiliation on the mind of the Comptroller, and proving his original purpose, independent of his personal feelings toward his predecessor, to take action concerning this place which was affected by the political affiliations of the incumbent. This purpose is shown in the additional reason given for the removal, that the Comptroller was dissatisfied with the classification which had deprived him of what he declared to be his rightful patronage. He complained to Mr. Gallup that he had been deprived of three positions "that I (he) was entitled to fill by appointing men of my (his) own party, and your (Mr. Gallup's) place was one of them." Therefore, though he could no longer fill the place absolutely at will, but must appoint from an eligible list, he was determined to get rid of this Democrat in the expectation, as Mr. Kelsey testified, that Mr. McElroy, a Republican, would be able to pass an examination and take the place. Removals, even if there had been no reclassification in order to fill exempt places" by appointing men of my (his) own party," would have been illegal. Appointment to or removal from an exempt position on account of political affiliations is as plainly forbidden by the statute as is similar action with respect to a competitive position. A removal avowedly based by the Comptroller on his dissatisfaction that he could not fill the place out of hand by a man of his own party in violation of law is clearly influenced and affected by the matter of political affiliation and is forbidden by the Civil Service Law. We, therefore, find that the removal of Mr. Gallup was, as charged, made in violation of section 25 of chapter 7 of the Consolidated Laws, and that he should be restored to his position by the Comptroller. JOHN E. KRAFT, ROSCOE C. E. BROWN, May 29, 1909. MINORITY REPORT To the State Civil Service Commission: I cannot approve this report, which is in effect an indictment of the State Comptroller for violation of law: First, because he is seriously ill and unable to testify in his own behalf; second, because in strict compliance with the Civil Service Law and rules he has sought to fill the vacancy created by the removal of Mr. Gallup, by promotion of an experienced and capable subordinate, and thereby has shown that in making that removal he acted in good faith; third, because the evidence does not warrant the conclusion that in making the removal he was influenced by the political opinions or affiliations of Mr. Gallup, the reasons which actuated him being only ascertainable through his own examination; and, fourth, because the complainant originally secured appointment and later was advanced over more experienced men by political favor, and it seems proper that in equity he should be precluded from invoking for his own protection the law's prohibition against removal on account of political opinions or affiliations. The evidence fails to show that the removal of Mr. Gallup was influenced either by the political opinions he held or by his affiliation with any political organization. The witnesses agree in declaring that no political reason was assigned by Mr. Gaus for the removal. On the contrary it appears that Mr. Gaus decided to make the change for reasons entirely personal, that he felt he could not trust Mr. Gallup at the head of the important transfer tax bureau. So far as the record shows, he acted in the matter upon his own initiative and contrary to the expressed wishes of political leaders who interceded in behalf of Mr. Gallup. To restrict by any strained construction of the statute the power of a head of a department to remove an unsatisfactory subordinate would tend to impair discipline and efficiency in the public service. To attempt to convict a public official of violation of any provision of the Civil Service Law by inference rather than upon well grounded evidence would, I submit, discredit the administration of the merit system, which, by mandate of the Constitution, that law was designed to enforce. CHARLES F. MILLIKEN, President, State Civil Service Commission. Report of the Commission in the Matter of Investigation of Letters of John F. Skelly STATE OF NEW YORK STATE CIVIL SERVICE COMMISSION In the Matter of the Investigation of letters of John F. Skelly, Assistant Secretary of the Municipal Civil Service Commission of the City of New York, to Senator James J. Frawley. At the request of the Municipal Civil Service Commission of the city of New York, the State Civil Service Commission undertook an investigation into the enforcement of the laws and rules in the city of New York with particular reference to statements as to activities of employees of the Municipal Commission, in securing improper favor for individuals, made in published letters written by John F. Skelly, assistant secretary of the Municipal Commission, to Senator James J. Frawley. The Commission met in New York on December 27th, and examined all witnesses indicated as having any knowledge of the facts in the case. It also gave opportunity to the Civil Service Reform Association to suggest witnesses who might throw light upon the matter and allowed a representative of the Association to question all witnesses. Mr. Skelly, in letters which he admitted having written, had told of his exertions and of the volunteer aid which he said had been given by Frank A. Spencer, secretary of the Municipal Commission, in seeking a place in the Department of Docks and Ferries to which Jeremiah J. Flood, an employee of the borough president of Manhattan and a constituent of Senator Frawley, could be transferred. He also wrote Senator Frawley that Mr. Spencer had secured the passing, on a qualifying physical test for admission to a promotion examination from police sergeant to lieutenant, of Dennis McCarthy, another constituent of Senator |