Chapter X
SUSPENSION AND REMOVAL (Continued)

D. NOTICE

Notice in removal proceedings may refer to (i) notice that the em-
ployee is being or has been removed, (2) notice that he will be removed
and that the procedure for removing him is being initiated, (3) notice
of the charges against him, or (4) notice of the hearing or of the time
allowed him for explanation if he wishes to avail himself of it. One no-
tice, of course, may cover more than one of these points, but it need not
do so in all instances.

Notice and hearing are not required unless the statutes provide for
them; and if the power to remove is a power to remove at pleasure, it
may even happen that the notice of removal will come in the form of
a successor appointed to fill the removed person's place, for in some in-
stances the law recognizes that the appointment of another to fill the
position is the equivalent, of a removal. Notice then is a requirement of
statute and not of common law. This is the only explanation that can be
offered for the decision that when a statute requires written notice for
removals based on "failure ... to comply with such instructions, or in-
competency, dishonesty, discourtesy, or neglect of duty on his part*' writ-
ten notice is not required for removal based on any other reason. 1

Unless expressly required, notice and hearing provisions do not apply
to the termination of seasonal employment, for example, that as "recrea-
tion pier attendant." 2

A constitutional provision stated that when the duration of any office
is not provided for in the constitution it may be declared by law, but that
the legislature may not create any office the term of which shall be more
than four years. This was held by the Indiana court to permit the estab-
lishment of good behavior terms for policemen, the office of policeman
having existed at the time of the adoption of the constitution, so that
"create" did not refer to it. Therefore, if the service of a policeman could
by statute be terminated only by notice and hearing, that requirement
could not be dispensed with merely because it was thought to be for the
good of the service to dispense with them.

Notice to an employee that he has been "dropped" is not sufficient
when the law provides that he must be given an opportunity to answer,
because he cannot answer unless there is a charge. 4 Notice in such a case
must inform him of something else than his discharge. On this same
point a Massachusetts statute is of interest: "The person sought to be
removed . . . shall, if he requests in writing, be given a public hearing."
Under this provision an employee was notified that he was discharged,
but that he could have a hearing if he wished it. The court pointed out
that the hearing was a condition precedent to the discharge, and that a
notice that he had already been removed was invalid. 5

A New York statute recited that removal could be only for cause and
after a hearing; a later statute dropped the words referring to cause and
hearing. The removing officer could then determine for himself the ade-
quacy of the cause, and no notice was required. 6

Notice and charges incident to removal are not comparable to in-
dictments in criminal prosecution, and it is necessary only that they be
framed in such a manner as to acquaint the employee with what he is
thought to have done to justify removal, and to notify him of the steps
that are being or are to be taken against him. 7 The statutes of limitations
applicable to crimes do not apply to charges on which removal is to be
based. 8 If the employee has objections to the charges or notice, he must
make them at the hearing; that is, he cannot let them pass and later ad-
vance them in a court.

An irregularity in the notice may be waived by an appearance at the
hearing. 9 A mistake in the notice, for example, that an employee is being
discharged when he is being suspended, is not fatal if he otherwise loses
no rights thereby. If he does, he may be reinstated to a status of suspen-
sion. 10

Notice and charges need not be made on a formal set of blanks, but
may be transmitted in the form of a letter, which fulfills the requirement
that notice and charges be in writing. 11 That the letter is filed with the
proper authorities is sufficient to give jurisdiction. The forms of criminal
actions are not required in civil service removals.

The requirements of notice and charges are not dependent upon the

requirement o a hearing. If a statute or rule lays down a procedure that
is to be followed in notice and charges, that procedure must be followed,
and one who is ousted by a contrary procedure may claim reinstate-
ment. 12

When the charter provides that the notice shall be left at the em-
ployee's last known residence, and when his wife says that she does not
know where he is but will be seeing him in a few days, it is proper to
leave the notice at the residence; nor is its validity affected by the fact
that a few days later, when the employee appears at the office, he is told
orally that he has been removed, and this proves to be the first notice
he has received. The requirement of written notice has been complied
with, even though he did not actually see that notice. The later oral state-
ment does not make the notice an oral one. 33 But it has been suggested
that a notice sent to the wrong address would not be binding, even
though the employee knew of it. 14

The failure of the notice to specify the charges may render it ineffec-
tive, so that an appeal to the civil service commission is not proper, with
the result that the hearing before it may be invalid. 15 The statute may
not require specific charges, but only that the notice should "set forth in
general the cause for ... discharge." When this is true, the letter sent
to the employee need not specify in detail, but may state generally, the
cause for which he is being discharged. 16

A notice was held to be sufficient in which the charges were specified
as failure to cooperate with the merchants in the markets and in the
vicinity, arrogant and discourteous treatment of people calling with com-
plaints and suggestions, and favoritism and partiality. Neglect of duty,
political activity, and "other and further reasons," were held to be defec-
tive as items in the charges. 17

An employee was notified that he was to be removed because "physi-
cally incapacitated for the reason that it would be unsafe for you to climb
ladders on account of your weight, as per report of department physician,
and further that you are unable to stand the efficiency test of the depart-
ment, as per report of the department drillmaster." The charter required
that "no person . . . [shall] be removed without first having received
a written statement setting forth in detail the reasons therefor, and at
the option of the person who shall have been removed, a copy of such

statement shall be filed in the office of the civil service commission." The
court held that the notice and charges were sufficient and that inasmuch
as he had not asked that they be filed, the employee could not complain
of the failure of the officer to file them with the civil service commis-
sion. 18

Recital in a notice that the position which the employee has been hold-
ing has been abolished for reasons of economy may be a sufficient speci-
fication for removal. 19

If the solicitation of business for attorneys is forbidden by statute, it
is sufficient for an employee to be notified that such solicitation is the
cause of his discharge; nor is it necessary to itemize the exact times
and places and persons and circumstances involved in particular solici-
tations. 20 But a general allegation that the employee engaged in political
activity of such a nature as to show that he was unable to cooperate "and
other and further reasons" referred to in a letter of specified date are not
sufficiently specific. 21

"For failure to carry out instructions of the department and for ineffi-
ciency" was held to be a sufficiently definite charge. 22

The charges specified must be against the person in his official ca-
pacity, however, unless charges against him as a person are of such a
nature that they are a reflection upon his official fitness. An allegation
against a person as a member of a board is not an allegation against him
as a superintendent of streets within the classified service. 28

"It is my opinion that your department will function more effectively
with one at its head wholly in sympathy with the mayor and his program
and a change for the good of the service is therefore necessary." This
charge was held not to be sufficient under a provision requiring reasons
to be "specifically stated in writing." 24

A charter may require that reasons be stated in the notice of removal,
but may not specify just what charges constitute legal reasons. When
this is the case, the court will assume that the reasons in the notice are
the ones found to be substantiated in the hearing. 25

The time when notice is to be given is determined by regulation in
some instances and by statute in others. Whatever the time requirement,
it must be complied with strictly. Forty-five hours before the trial will

not do if forty-eight hours is required. 26 There is no objection to giving
notice earlier than is required by statute. 27

If a statute provides that an employee may be suspended without pay
and have charges filed against him, the charges and trial must be held
within the period required by statute; this in turn affects the time of
notice. 28 If a hearing is to be held, the notice must specify the time and
place of the hearing; failure to do so is a defect going to the jurisdiction
of the body conducting the hearing. 29 But this rule is not strictly followed
by all courts, one case holding that when the mayor had notified the em-
ployee of the intention to remove him at a certain time, even fixing the
hour, but not mentioning formally that a hearing would be held at that
time, the employee was under a duty to appear, for in view of the serious-
ness of the charges enumerated in the notice, he should have inferred that
a hearing was to be held. 80

A statute that provides for an opportunity to explain is satisfied by
the stipulation in a notice of discharge that the employee must make his
explanation within forty-eight hours. 31 Apparently a requirement that
the employee is to be given three days within which to ask for a hearing
is interpreted to mean three days after receipt of the notice rather than
three days after the discharge takes effect. Notices of removal may, of
course, be given in advance, and often are given some time before the
actual discharge. 82

Some statutes provide for filing the reasons for removal with the civil
service commission. "But no regular clerk or head of a bureau, or person
holding a position in the classified municipal service subject to competi-
tive examination shall be removed until he has been allowed an oppor-
tunity of making an explanation; and in every case of removal, the true
grounds thereof shall be forthwith entered upon the records of the de-
partment or board or borough president, and a copy filed with the mu-
nicipal civil service commission. In case of removal a statement showing
the reason therefor shall be filed in the department." This requirement
of filing was said by the court to be something that might be complied
with after the removal, not a condition precedent to removal. 33

The necessary contents of notices have been referred to earlier in this
chapter, and the fact that the specificity required is not that demanded

in criminal proceedings has been mentioned. The courts do not agree
upon whether a mere allegation of "neglect of duty" is adequate state-
ment of cause in a notice, but probably the absence or presence of a
hearing on the matter affects the court's attitude. 34 This problem really
concerns charges rather than notices, but inasmuch as the charges are
usually stated in the notices, the problem also becomes one of the ade-
quacy of the contents of the notice.

Mistakes in filing the grounds of dismissal may occur, but if they are
corrected and if the ones later filed are good grounds for discharge, the
fact that insufficient grounds were first filed is not fatal. This assumes,
of course, that the grounds on which the employee was actually dis-
charged and of which he had notice were the good grounds. 35

Removal must be for the reasons set forth in the notice, and further
charges made at the hearing may not be used as the basis for removal. 36
This rule, of course, makes it the more imperative that the charges set
forth in the notice be the ones on which action is to be based.

By whom should the notice be sent ? It is enough that the notice be
signed by the authority having power to make the removal, but it is not
fatal if another who has no power to remove also signs it. 37 The power
to remove does not always limit the power to file charges, for the law may
permit anyone to file charges but allow only one officer the power to re-
move. Under this principle it is possible for a wife to file a charge against
her husband that may result in a hearing and discharge, even though if
the proceeding involved a criminal offense and trial, she would not be per-
mitted to testify against him in the trial. She may file charges even though
she is not permitted to appear as a witness at the hearing. 38

Another principle which illustrates the distinction between a removal
and a criminal trial is that a charge once found to be unsubstantiated
may later be used again, though of course the court may regard it as stale
and will naturally tend to be adversely disposed toward its repeated use.
But it is not subject to the rule of double jeopardy or the rule of res
adjudicata. 39

E. HEARING

Whether a hearing must be given to the employee who is threatened
with discharge, and under what conditions he may have it, if provided,
are matters to be settled by reference to statute. If provision for a hearing

is neither implied nor expressed in the statutes, the employee is not en-
titled to claim it. The common law apparently contains no such require-
ment, and due process requirements do not apply to ejections from the
governmental service. A constitution could provide for a hearing, but
only those provisions dealing with civil service itself are seriously to be
considered in this connection, and these appear in the constitutions of
only a few states.

Some statutes guarantee a hearing to certain groups in the service and
not to others. 40 Veterans may be given special consideration in this re-
spect. A distinction may be made between those who are in the service
by virtue of examination and those who came in by other methods. 41
Officers may be in a different position from employees; 42 when this is
true, the usual tests of officers apply. Hearings are usually not guaran-
teed to probationers. 43

The statutes do not always expressly cover the subject of hearing; in
this case, it may be necessary to resort to interpretation to determine
whether a hearing is required. For example, a statute provided that a
board "may remove such subordinates for such cause as they may deem
sufficient and shall assign in their order of removal." It has been held that
this imposed some qualification upon the power to remove at pleasure,
but that it did not impose the obligation to grant a formal hearing. 44
Notice and written charges do not necessarily import a hearing. 45 "For
cause" has been held to require charges and hearing. 46 A hearing has also
been required by the courts when the charter specifies written charges
and states that an opportunity to answer must be given. 47 A good cause
does not permit dispensing with a hearing if one is required by law. 48

Certain grounds, such as religious or political, may be prohibited by
law. Or the law may require that written charges be given and an oppor-
tunity to answer be afforded in cases involving these causes. Such a law
has been held to require no hearing. 49

Hearings are often granted only upon request of the employee or of-
ficer. In other cases they may be given only if the removal is alleged to
be for the prohibited reasons of political, racial, or religious prejudice or

feeling. 50 Under such specifications, a hearing will not be granted for
removal upon other grounds. This is likewise true of investigations by
the civil service commission, so that if investigation is to follow filing of
reasons, and no reasons for removal are assigned, the commission may
not investigate. 51

A hearing may be waived and laches run against the claim to it if the
employee waits too long before requesting it. If no time limit is imposed,
the request must be made seasonably; if one is specified, the request must
be made within the limit provided. 52 But the waiver must be expressed
or implied; and the implication of waiver will not be made lightly. 53

It is the more common for hearing to be required before removal,
but it may also be granted afterward. When a statute does not require it
to be held before removal, the employee or officer may not complain if
it is given later, and this even though administrative regulation provides
that it should precede removal. 54

Not all courts take a strict view against the employee. The statute
may make it clear that the hearing is required, whether asked for or not;
but if there is doubt, some courts favor requiring it. 55

The phraseology of the statute is controlling, and if ten days is speci-
fied as the time within which the employee must request an investiga-
tion, he must make the request within the ten days. When he is sus-
pended for a time and then discharged, the ten days apparently runs from
the date of discharge. 56 The request must be a request and not merely a
general protest against the action taken against him. The request need
not be in writing unless the charter requires it. 57 It is sufficient that it be
a request, but it must be that.

Instead of specifying or implying a hearing or guaranteeing an investi-
gation upon request, the law may require that the person be informed of
the charges against him and be given an opportunity to explain. The
opportunity to explain may be phrased in general terms or it may be
specifically regulated. While this guarantee of explanation does not guar-
antee a hearing, it may involve some opportunity for informal oral ex-
planation, depending upon the statutory phraseology; in any event,
it imposes some restriction upon the power to remove which narrows

that power somewhat as compared with the power to remove at pleasure.
The cause must be substantial, and if the explanation is really a conclu-
sive answer going to the merits, it may be that the employee cannot be
discharged; 68 however, doubt exists on this point under some statutes, 59
and a difficulty in the judicial remedy exists under some decisions, be-
cause the procedure of explanation is said not to be reviewable by cer-
tiorari. 60

Before whom shall the hearing be held or by whom shall an investi-
gation be made? Nothing in the usual constitutional and common law
principles forbids the hearing to be held by the accuser, and this often
occurs. 61 Even under a civil service system, the statutes may provide that
the hearing shall be before or by the removing officer. 62 Although there
may be some tendency to interpret the law so as to require that the hear-
ing be before some other body, such as the civil service commission, 68 it
has been said that if the statute does not expressly provide otherwise, it is
to be presumed that the hearing should be held before the officer making
the removal. 64

uThis question often arises: When a board or commission such as a
civil service board or commission is to conduct the hearing, must it con-
duct the hearing as a body or may it delegate the routine work of hearing
to a committee or commissioner and let that person or body report upon
the hearing and present a record of it, with recommendations which can
then be adopted or rejected by the body as a whole? An investigation is
regarded as somewhat less formal than a hearing, and where the pro-
cedure calls for an investigation, it has been thought legal for one of the
commissioners to conduct it and make the report and for the commission
to adopt the report, providing the proper entries are made on the board
records. 65 A civil service commission is sometimes authorized to make
its investigations "either sitting as a body or through a single commis-
sioner"; of course when this is true, the report of the commissioner may
be adopted as the commission action
hearings before the commission, it is not necessary that all mem-
bers be present. A quorum is sufficient for this purpose, as for most other
purposes. 67 In one case some members of the civil service commission
sat as the trial board, and when the commission adopted the finding of
the board, the objection was made that the board had been ratified as a
trial board after the investigation and that the civil service commission
had adopted its report when either the board or the commission should
have made the investigation. The court brushed aside technicalities and
said that the adoption by the commission of the board's findings made
the procedure regular^ 8

A Wisconsin case on the subject of committees is worthy of special
mention. A charter provided that "a majority of the members elect of
the council shall have power to dismiss from office, for malfeasance in
office in said city, any person elected or appointed to office in said city,
except justices of the peace. And the common council shall provide by
ordinance the manner of hearing and disposing of complaints against
such officers." The council appointed a committee of its own members
to investigate charges and conduct a hearing. Upon the basis of the com-
mittee's report to the council, the latter body adopted the committee
action as its own. The court said that the charter provision was to be
interpreted as requiring a hearing, and that the hearing was to be before
the council, that being the body with the power to remove. The com-
mittee might be used for purposes of investigation, but an investigation
is to be distinguished from a hearing. In view of the controversial and
circumstantial nature of the evidence, the employee should have been
permitted to make an oral presentation and explanation, that being the
purpose of a hearing; furthermore, that purpose could be satisfied only
by a presentation to the body having the power to make the final deci-
sion.