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and has provided that they shall be certified to appointing officers before all others of higher grade. The civil-service rules limit the preference to those whom Congress designated. Had the Civil Service Commission and the President in formulating rules given preference to other classes it would have been an assumption of legislative functions clearly not delegateil to them, and would have defeated the purpose of Congress to give preference in civil appointments to a certain limited class which is unmistakably described. It has long been evident to the Commission that section 1754 is very inequitable in its operation, and the attention of Congress and the public has repeatedly been drawn to the matter; but as long as that section remains law the civil-service rules must give preference to those described in it, and not to any others in the same way or sense. Congress alone can enlarge or abridge the class to which preference shall be given. 17. PROBATIONARY PERIOD.
(a) The rules provide for a probationary service of six months, at the end of which period, if the conduct and capacity of the probationer are satisfactory to the appointing officer, absolute appointment must be made. During probation the character of the service rendered by the probationer and his fidelity and business capacity are to be carefully observed, as the question of permanent appointment depends upon them. The probation is a practical scrutiny continued through six months in the very work which the applicant is to do. After passing an examination it is to be presumed that the applicant is worthy of a six months' trial until the contrary is decisively proved. The appointing officer must eviçlently be the final judge of the qualifications of the persons whom he employs. An appointing officer can not extend the period of probation, but must at its close either absolutely appoint or else dismiss from the service, and the dismissal must be for the reason that the conduct and capacity of the probationer are not satisfactory. An appointment for a definite tim succeeding the probationary period can not, therefore, be made, and any appointment at the expiration of the probationary period is held to be the absolute appointment required by the rules. If a furtKer probationary appointment could be made the appointing officer might prolong indefinitely the probationary period, while the rules contemplate but one such period. (Letter to Boston postmaster, March 29, 1890, Letter book N, p. 320.)
(b) The probationer can not, at the end of his probation, be subjected to any examination by any officer under whom he has served. The object of the probation is not so much to show what the probationer knows as what he can do and with what zeal and fidelity he does it. His elementary examination was completed before his probationary appointment. The two questions to be considered by the proper officer, with due reference to the report and other information he may have, before deciding whether to recommend the probationer for a permanent appointment, are these: (1) Does he appear to be a man of good character and fidelity? (2) Has he shown, on probation, adequate practical qualification for doing the public work in a satisfactory manner?
In October, 1885, President Cleveland decided: (1) That the proper officer to make the report concerning the conduct of a probationer was not the surveyor, but the gauger under whom the probationer served; (2) that a report from the gauger should be made; and (3) that a new elementary examination was not warranted. (Fourth Report, p. 304, and San Francisco custom house case, 1894.)
(c) Required in noncompetitive as well as competitive appointments.—The Commission understands that the langnage of section 2 of the civil service act “that there shall be a period of probation before any absolute appointment or employment” applies as well to persons appointed upon poncompetitive examination as to those appointed upon competitive examination, the character of the examination having no effect upon this provision of the law, and that therefore all appointments made upon certification of this Commission should be made for a probationary period. See notes on the rules No. 9 (a), p. 80, Ninth Report of the Civil Service Commission. (Minutes July 6, 1893, clause 39.)
Ordered, that hereafter requests for re-examination shall be disallowed ween the declaration sheet shows that the applicant was, in his own estimation, in a proper physical condition to undertake the examination, unless it shall be made to appear to the satisfaction of the Commission that the applicant failed to do himself justice by reason of an illness occurring during the progress of the examination, after the signing and delivery of the declaration sheet. In referring such requests to the Commission the reference of the chief examiner should quote the statement of the applicant made in the declaration sheet on the subject. (Minutes, July 28, 1893.) 19. REINSTATEMENT.
(a) In its request the Department stated that A was removed on a certain date; that the records of the Department did not show delinquency on his part in connection with such removal, and in connection with renewing the request for a certificate for the reinstatement said: “On further information the Department is of the opinion that the circumstances of the case did not require the action taken.” The Commission held that the certificate requested could not be issued, as it disl not appear from either letter of the Department that A was dismissed “without delinquency or misconduct,” but only that “the records of the Department do not show delinquency on his part in connection with his removal.” The statement in the second letter that, on further information, the Department is of the opinion that the circumstances did not require the action taken,” does not relieve the case of this difficulty, but leaves the inference that the removal was for a delinquency which was not made a matter of record. And this impression is strengthened by the fact that the Department declined, when the suggestion was made by a commissioner that such change might relieve the difficulty, to substitute “warrant” or "justify" for the word "require” in the phrase "did not require the action taken.” In a case cited, where a man had been dismissed upon charges, the Department, in connection with a request for a certification for his reinstatement, submitted certain evidence in relation to the truth of the charges, and the Commission in returning the evidence and disposing of the case said:
“This presentation of the case does not, in the judgment of the Commission, satisfy the requirement of the rule, since the Department does not state directly, or in effect, that from the investigation it has made it is satisfied that the man was dismissed without delinquency or misconduct, as the rule requires.
It is not the province of the Commission to consider evidence in such cases, and its certificate for reinstatement will be issued or withheld-according as the Department shall conclud, and state, upon the investigation already made, or upon such further investigation as may be made, that the dismissal was or was not without delinquency or misconduct.” (Letter to the Secretary of the Treasury, April 3, 1890.)
In a case cited, the Commission in its letter of Mareh 7, 1890, to the Secretary of the Treasury, said:
“ Certificate will not be issued unless it shall appear that the Department in the first instance acted upon a mistaken view of the facts, or that new facts have been discovered which relieve the case of the character it then seemed to have."
These two cases fairly illustrate the uniform practice of the Commission, and sustain the action taken. · (Letter book R, p. 137, March 18, 1891, and see Book U, p. 163, April 4, 1892.)
(6) Persons separated from excepted place8.-A person occupying an excepted place at the time it became such, who has been separated therefrom without delinquency or misconduct, may be reinstated to any classified place in the same office without examination. (Book K, p. 296, August 30, 1889, and ante p. 104, 10a.)
(c) The bar interposed by rules governing reinstatement against the reinstatement of those dismissed for misconduct is not removed at the end of one year, the language of the proviso of the rule which applies to those who may be reinstated after the expiration of one year being “subject to the other conditions of the rule,"
and one of said conditions is that the discharge or separation shall have been “without delinquency or misconduct.” General Rule VI and Departmental Rule X are not in conflict. They both bar the reappointment within one year of a person dismissed or separated from the service for misconduct, the one by denying him examination and the other by prohibiting the issuance of a certificate for reappointment upon the requisition of the head of the department from which he was separated. Under General Rule VI the bar is removed at the end of one year, and the delinquent has thereafter the same right to compete for an appointment as other citizens who have not been in the civil service. Departmental Rule X perpetuates the bar against a privileged appointment by reinstatement, and construed together the rules mean that the delinquent shall not be restored to the service within one year after his separation therefrom by any process, and thereafter he shall have only the same rights as are possessed by those who have not been in the service. (Minutes November 7, 1889, clause 2, vol. 14.)
(d) Reinstatement can not be made by revocation of order of dismissal. (Circular letter of January 23, 1888.)
(e) This Commission has uniformly held that a person can not be reinstated under Departmental Rule X upon a condonation of delinquency or misconduct that occasioned his separation from the service. The officer making the requisition for reinstatement must state, in the terms of the rule, that the separation was “without delinquency or misconduct.” Of course, this does not prevent the reinstatement of an employé dismissed upon charges if subsequent investigation shows the charges to have been unfounded, and the dismissal, therefore, to have been without delinquency or misconduct. (Minutes, March 31, 1888, clause 3, vol. 7, pp. 217, 218. Letter books N, p. 348, April 3, 1890, and P, p. 206, August 19, 1890.)
(f) A substitute employed in a post-office was dropped at the end of the probational period because he was considered slow and did not give promise of making a good clerk, having had but two weeks' test during probational period. The Commission held that this did not constitute delinquency or misconduct, and that certification for his reinstatement might issue, but that it must be for the purpose of making absolute appointment, because under the rules there can be but one period of probation. (Letter to Boston Postal Board, December 9, 1890.)
(9) Status of civil employés in the Departments at Washington, organized into regiments during war of rebellion, for reinstatement under proviso of Departmental Rule X.
These cases differ from those covered by the decision of the Attorney-General in McPherson's case (see opinions, post), the two classes of cases differing, among others in the following particulars:
(1) The Quartermaster's Department is a branch of the military arm; the officers of that Department are military officers, and its operations military operations. During the war the great mass of the civil employés of that Department were employed at depots within the lines of military operations and near to or at the scenes of actual conflict. On the other hand, the Departments at Washington aro civil departments, their officers civil officers, their employés civil employés, and their operations civil operations.
(2) The Quartermaster's volunteers were enrolled, uniformed, rationed, armed, equipped, furnished with horses and accouterments, and were drilled and frequently employed in scouting and other duty, even fighting. In other words, they were employed as soldiers in actual military operations in field and garrison, and therefore, according to the ruling of the Attorney-General, served in the military service
in the war of the rebellion,” while the clerks in the Departments at Washington, who were organized into companies and regiments and were armed and equipped, aside from drilling one hour a day for a few weeks, performed no military duty whatever, and were in no proper sense regarded or treated as soldiers. They were not only not “mustered in” nor “mustered out,” but they were not “ordered in nor “ordered out,” as was the case with the Quartermaster's volunteers, and
therefore, in the opinion of the Commission, did not "serve” in the “military service
in the war of the rebellion." In proposing the amendment to Departmental Rule X and the corresponding cus. toms, postal, and railway mail rules, under wbich W.’s reinstatement is sought, it was the intention of the Commission that it should apply only to those actually in the military or naval service as soldiers or sailors in the war of the rebellion. It was not intended to admit to privileged appointment by reinstatement without examination, in the discretion of the heads of the several Departments, any of those persons who, being in the civil service in the Departments at Washington in 1864, were organized into companies and regiments and drilled for a longer or shorter time, not one of whom, probably, regarded himself or was regarded as a soldier or as engaged in the “military service,” who are now living and not still in the service of the Departments. The number of such persons is very large—no doubt over a thousand, possibly over two thousand-who, in case of favorable action in W.’s case, would be rendered eligible for reinstatement.
If the rule as it now stands, properly construed, includes persons of this class, then the Commission will feel in duty bound to recommend to the President that it be amended so as to exclude them and apply only to soldiers and sailors who actually served in the Army or Navy, in the war of the rebellion, and were honorably discharged therefrom. (August 4, 1890, Book P, p. 108.)
(h) Persons separated from service before rules applied to it.--Held that such persons are eligible for reinstatement, the “one year next preceding the date of the requisition” meaning “any year next preceding the date of the requisition.” (Letter Book U, p. 319, May 23, 1892.)
(i) A Department explained the length of time elapsing after the issuance of a certificate of reinstatement and the appointment of A by stating that as there was no limit as to time stated in the certificate for reinstatement, and as all eligible lists hold good for one year and the action of the Department was taken within one year of the date of the certificate, it is the opinion of the Department that its action in this case was proper. The Commission informed the Department in reply that in its view “the head of a Department can properly make a requisition for a certification upon which to base an appointment only when there is an existing vacancy to be filled by such certification. The limitation of one year provided by the rule, while in terms applying to the date of the requisition of the Department, must be construed as extending the privilege of appointment no longer than is reasonably required by the steps to be taken in filling the vacancy. Your remark that all eligible lists were good for one year is not applicable, since the period of eligibility has reference to the time elapsing before certification. The period of eligibility for the reinstatement of A expired one year after his separation from the service. It is therefore clear that there is no authority under Departmental Rule X for holding that a new term of one year begins after the certificate for reinstatement is issued. Under the construction assumed by your letter, the head of a Department might defeat the time limitation of the rule by calling for certificates for reinstatement at the expiration of the year, with no present purpose of acting upon them but merely of keeping open the door twice the length of time fixed by the rule for re-entry to the service. (Letter book N., p. 147).
(j) Vacancy must exist.— The Commission has no authority to comply with a requisition for reinstatement except where there is an existing vacancy. Departmental Rule VII, clause 1 (a), prescribing the manner in which, upon the occurrence of a vacancy, the appointing officer shall make a request for a certification, limits the authority to “a certain place then vacant.” (Letter book X, p. 123.)
(k) A woman who remarries after the death of her husband is, after such remarriage, no longer his widow, and is, therefore, not eligible to reinstatement under the rule. (Minutes of November 4, clause 2.)
(a) Entrance to the classified service is upon the merit of the applicant without regard to his political opinions or affiliations. An appointing officer who appoints or refuses to appoint an applicant because the applicant does or does not ente.tain certain political opinions violates the law, and an appointing officer who removes an employé because that employé refuses to render political service, to be coerced in political action, or to contribute money for political purposes also violates the law. Removals made for any other reason can not be investigated by the Commission. (Minutes, November 10, 1888, clause 1, vol. 9, pp. 33, 34.)
(b) Takes effect when the appointing officer confirms the recommendation of removal, reverting to the time of the suspension from work. (Minutes, May 8, 1888, clause 6, vol. 7, p. 352; Book H, p. 468, May 13, 1889.) 21. TEMPORARY APPOINTMENT.
(a) Person may be continued on the register for certification to other Departments. (Letter book R, p. 213, April 10, 1891.)
(b) In the practice of the Commission no distinction has been drawn between per. manent and temporary employés except where there has been a distinction in the method of entering the service; but when such entrance has been analogous to the entrance to permanent places the temporary employés have been regarded as having all the rights under the rules as though appointed to permanent places. (Letter book R, p. 164, March 26, 1891.) 22. TRANSFER FROM ONE REGISTER TO ANOTHER.–Customs and postal services.
Rule II provides whatexamination shall be held for the customs and postal services. Rule III, clause 3 (a) and (b), provides that those who pass shall be “eligible to the class or place to test fitness for which the examination was held.” Rule IV directs how certification shall be made and subdivision (b) of clause 1 of that rule provides that when the appointing officer has requested a certification of the names of either males or females to fill a vacant place, specified as in subdivision (a), the board of examiners, if the place to be filled is tested by competitive examination, shall certify the names of the three males or the three females standing highest on the register from which certification is to be made.
In view of these provisions of the rules the Commission holds that a person eligible on any register for the customs and postal service may be certified only to the class or place for which he was examined. (Letter to Boston postmaster, October 19, 1889, Letter book L, p. 109.) 23. TRANSFER DOUBLE.-ONE EXAMINATION SUFFICIENT.
Where a transfer is to be made from an excepted to a nonexcepted place, with the view to further transfer immediately to another office or Department, and this purpose is stated in the papers in the form of a requisition for such transfer, single examination may suffice for both transfers, the examination to be to test fitness for the place to which the second transfer is to be made, provided that such transfer requires an examination of an equal or higher grade than the transfer from the excepted to the nonexcepted place; but if, on the other hand, transfer to the nonexcepted place requires a higher examination than the subsequent transfer, then that examination shall serve as the basis for the double transfer. (Minutes, July 28, 1893, clause 23.) 24. VOUCHERS must not be relatives of the applicant. Minutes, July 10, 1893. 25. WORKMEN.
The places of “awning-maker," "one fireman, who shall be a blacksmith," " fireman, who shall be a steam fitter," " one carpenter,” one assistant carpenter,” "one plumber," are regarded as places of mere laborers or workmen, not embraced within the classified service. (Letter book Q, p. 62, November 14, 1890.)