The opinion
Owen B. Walsh, Esq. Second Chief Deputy County Attorney, Nassau County
You inquire whether physicians employed by a county medical center and designated in the competitive class of the civil service must be afforded a hearing upon stated charges prior to their removal.
The board of managers of a county hospital has responsibility for the management of the hospital and "shall appoint and may at pleasure remove resident, visiting and consulting physicians and surgeons" (General Municipal Law, § 128 [4] [5]). You informed us that your local civil service commission has designated certain physicians employed by the hospital in the competitive class of the civil service. Section 75 (1) (a) of the Civil Service Law provides that a person holding a position by permanent appointment in the competitive class of the civil service may not be removed or disciplined except for incompetency or misconduct shown after a hearing upon stated charges.
An enactment by the Legislature providing that the occupants of particular employment positions serve at the pleasure of the appointing authority is subject to the provisions of sections 75 and 76 of the Civil Service Law ( Matter of Mercer v Dowd, 288 N.Y. 381 [1942]; 1959 Op Atty Gen [Inf] 222). The provisions of sections 75 and 76 are designed to preserve the merit system (State Const, Art V, § 6), by providing that an employee may not be removed or disciplined except for incompetency or misconduct proved at a hearing upon stated charges (see Auburn Police Local 195 v Helsby, 62 A.D.2d 12 , 17 [3d Dept, 1978], affd on opn below 46 N.Y.2d 1034 [1979]).
We note that an agreement between a local government and an employee organization under Article 14 of the Civil Service Law (Taylor Law) may include provisions on discipline and removal that supplement, modify or replace sections 75 and 76 ( Auburn Police Local 195 v Helsby, supra ).
We conclude that a physician employed by a county hospital who occupies a position in the competitive class of the civil service may be removed or disciplined only in accordance with the provisions of sections 75 and 76 of the Civil Service Law or in accordance with an alternate procedure provided by an agreement between the employees' union and management under the Taylor Law.