speculating that independent officer exception might apply to New York City's Chief Medical Examiner, who was found for other reasons not to be within the notice and hearing protection of Sec. 75
How later courts described this case
- speculating that independent officer exception might apply to New York City's Chief Medical Examiner, who was found for other reasons not to be within the notice and hearing protection of Sec. 75
- observing that mutual understandings cannot “create a property interest for purposes of due process when they are contrary to the express provisions of regulations and statutes”
- oral and written statements of city officials, reflecting understanding that chief medical examiner was a tenured employee, insufficient to overcome contrary provision in city charter
- city charter permitted official’s removal and therefore he “could be removed without a prior hearing regardless of any mutual understandings between the individuals involved in the transaction”
Written by the judges who cited it.
The opinion
MANSFIELD, Circuit Judge
(dissenting):
I respectfully dissent. In my view Dr. Baden, having completed his six-month probationary term as a person appointed to a non-political, non-policy-making position in the competitive class of the classified civil *494 service (i. e., as County Medical Examiner (CME)), acquired permanent tenure under New York’s Civil Service laws and a property entitlement to that position. New York State Civil Service Law § 75(l)(a) expressly provides that “[a] person holding a position by permanent appointment in the competitive class of the classified civil service,” which describes Dr. Baden’s post as CME, “shall not be removed or otherwise subjected to any disciplinary penalty .. . except for incompetency or misconduct shown after a hearing upon stated charges.” Once Dr. Baden acquired permanent tenure, as he did by serving six months in the position of CME, his status was quite different from that of non-civil service city employees who did not acquire their positions by virtue of competitive examination but were appointed in a political context as part of the Mayor’s policy-making executive staff.
The record is clear that both the City of New York and Baden proceeded from the outset on the basis that Baden would acquire permanent tenure after expiration of his period of probation. The City’s notice of the civil service examination for the position of CME described it as a position in the competitive civil service, explicitly incorporating the City’s General Examination Regulations which, like the City’s Civil Service Rules, provided that persons appointed to positions in the competitive civil service would undergo a six-month probationary period (later changed prospectively to one year, but after Dr. Baden had been hired). The obvious purpose of the notice was to assure the successful civil service competitor that he would be removable at will only during the six-month probationary period, after which, having gained permanent tenure, he would be removable only for cause after a public hearing. Otherwise the whole civil service examination procedure would amount to nothing more than a meaningless charade.
The Mayor of the City of New York so construed the applicable laws. Although he labored under the erroneous impression that Dr. Baden was on probation for one year rather than the already-expired six-month period, the important point for present purposes is that the Mayor sought to exercise his rights under § 557(a) of the City Charter, which permits removal of a CME who has not gained a permanent tenure, before the expiration of what the Mayor conceived to be the probationary period, stating, “You must understand that [after expiration of the probationary period] this would have been a permanent appointment ... a lifetime appointment .... A year from now we might learn that [Health Commissioner Ferrer and District Attorney Morgenthau were] right and then it would be too late.” N. Y. Times, Aug. 3, 1978, Section B, p. 1, col. 1.
The Official Directory of the City of New York, published under the Mayor’s imprimatur, expressly stated that Chief Medical Examiner Michael M. Baden had been “appointed from the Classified Civil Service,” had “Permanent tenure,” and was “Removable by the Mayor only on stated charges after a hearing.” Nevertheless the majority here holds that he was removable at will without a hearing.
None of the reasons proffered by the majority in support of its holding are sustainable. First, it is asserted that N.Y.Civil Serv.Law, § 75(l)(a), which prohibits removal of permanent civil service employees except for cause and after a hearing, conflicts with § 557(a) of the City Charter, which authorizes removal of the CME at will. However, when these two laws are construed in pari materia, as they must be under N.Y.Statutes (McKinney), §§ 221(b) and 222, see Coster v. Albany, 43 N.Y. 399 (1870), no such inconsistency appears. As the Mayor recognized in his attempt to “beat the clock” by removing Baden at will before he acquired permanency, § 557(a) of the City Charter applies before the civil service employee acquires permanent status. Thereafter, § 75(l)(a) becomes operative and § 557(a), having served its purpose, no longer operates. The statute and the City Charter provision are therefore consistent with one another and dovetail, rendering inapplicable N.Y.Civil Service Law, § 76(4) (McKinney 1980), which requires that nothing in § 75 shall be construed to *495 repeal or modify a charter provision. Section 75(l)(a) does not repeal or modify § 557(a) of the City Charter. They apply to different time periods.
The second basis of the majority’s decision is equally unpersuasive. The majority argues that the New York Legislature’s adoption in 1962 of a law to the effect that the board of supervisors of a county shall appoint a medical examiner who shall serve at the pleasure of the board, 1962 N.Y. Laws, Ch. 897, N.Y.County Law § 400(4-a) (McKinney 1962), is consistent with the majority’s interpretation of § 557(a) of the City Charter as authorizing removal at will after the CME has acquired permanent tenure. At the outset the argument is met by the admitted inapplicability of N.Y.County Law, § 400(4-a), to the CME of New York City. Moreover, § 10 of L.1962, ch. 897, provides, in keeping with the legislature’s desire to permit counties to be free to regulate the employment of their own CMEs, that any county charter provision in conflict with the 1962 amendment (4-a) will apply. Here the City Charter, § 816, differs from § 400(4-a) by requiring that all appointments of persons such as CMEs be made “in accordance with the provisions of the civil service law.” If the office of CME were not governed by the New York Civil Service Law, including § 75(1), it might then be treated as analogous to appointments made under N.Y.County Law, § 400(4-a), under which there is no mandate that medical examiners be appointed as part of the competitive civil service class, and the appointee might then be removed at will by the appointing power (the board of supervisors). But New York City has chosen to make the post of CME a civil service position and § 75(1) therefore applies.
As a last, fail-back, position the majority suggests that Dr. Baden should be treated as coming within the “independent officer” exception to New York’s Civil Service Law, i. e., as a civil servant possessing such a high degree of initiative and independent judgment that he should not be entitled to See Nolan v. Tully, 52 A.D.2d 295 , 383 N.Y.S.2d 655 (3d Dept. 1976); Eaton v. County of Broome, 73 A.D.2d 991 , 423 N.Y.S.2d 1021 (3d Dept. 1980). There are several reasons for not expanding this narrow judicially-created exception of the Third Department to the present case. In the first place it would, if applied here, tend to defeat the purpose of New York’s Civil Service Law, which is to insure that hiring decisions, particularly where founded on competitive examination, should be based on merit rather than on politics. Second, while the CME’s duties are important in that he has the power to appoint and remove members of his own staff, subject to civil service law limitations, and to investigate causes of death, they are not political or policy-making in nature. Thirdly, Nolan and Eaton are distinguishable in significant respects from the present case. Nolan was concerned with a noncompetitive class of estate tax attorneys possessing a wide range of discretionary powers. In Eaton the position, Business Manager of the Broome County Infirmary, had as a de facto matter been upgraded to that of a department head (Nursing Home Administrator) and within one month after the incumbent’s dismissal was reclassified from a competitive civil service position to that of an exempt one. Local legislation, moreover, then specified that the holder was “to serve at the pleasure of the county Executive” and the Broome County charter, § 2604, placed department heads in the unclassified service. In contrast to cases where the narrow independent officer exception was applied, we are here confronted with a situation where everyone viewed the position of CME to be non-political and non-policy making in nature. the protections of § 75(l)(a).
Nor is the situation here governed by our decisions in Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438 (2d Cir. 1980), and Stone v. Philbrook, 528 F.2d 1084 (2d Cir. 1975), which held that a property interest in a position for due process purposes cannot be created on the basis of mutual understandings or expectations of the par *496 ties which are contrary to express statutory limitations. Here the parties’ expectations and understandings, as reflected in (1) the Mayor’s reasonable interpretation of the relevant statutes (undoubtedly after consultation with the City’s Corporation Counsel), and (2) the City’s Official Directory, (3) Dr. Baden’s understanding that he would acquire permanent status after his six-month probationary period, and (4) the recognized purpose of the pertinent civil service laws, simply confirmed what those laws provided and were not in conflict with them. Under these circumstances the reasonable expectations and understandings of the parties recognized a due process property right in the position which could not constitutionally be defeated by denying Dr. Baden his right under N.Y.Civil Service Law § 75(l)(a) not to be removed except for incompetence or misconduct after a due process hearing. Board of Regents v. Roth, 408 U.S. 564, 577-78 , 92 S.Ct. 2701, 2709 , 33 L.Ed.2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 600-03 , 92 S.Ct. 2694, 2699 , 33 L.Ed.2d 570 (1972).
Dr. Baden was clearly denied his right to a due process hearing. The adverse effect of the Mayor’s decision to remove him was exacerbated by the abruptness with which the Mayor acted with respect to the holder of an essentially non-political position. The Mayor’s undue speed, which was wholly unnecessary, deprived Dr. Baden of a fair opportunity to face his accusers.
For these reasons I would affirm the judgment of the district court.