Gerald E. DeFilippo, Esq. Corporation Counsel, Elmira
You have asked whether a fire chief who is the head of a city's fire department and who is an honorably discharged veteran is entitled to the protection provided by section 75 of the Civil Service Law.
Under section 75 of the Civil Service Law, a person holding a position by permanent appointment or employment in the classified service in any local government in the State who is an honorably discharged member of the armed forces of the United States having served in time of war may not be removed or subjected to any disciplinary penalty except for incompetency or misconduct shown after a hearing upon stated charges (§ 75[1][b]).* Under this provision the right to a hearing has been extended to persons in the classified civil service who are not competitive class employees, provided that they are honorably discharged veterans as defined by law.
Your fire chief is the head of the city's fire department. Under section35(e) of the Civil Service Law, the head or heads of any department of government who are vested with authority, direction and control over the department and who have power and authority to appoint and remove officers and employees of the department have been placed in the unclassified service (§ 35[e]). If your fire chief is in the unclassified service, he is not entitled to protection under section75 of the Civil Service Law (Mtr. of Kropp v Common Council,26 Misc.2d 127, 132 [Sup Ct, Niagara Co, 1960]).
We conclude that a fire chief who is the head of a city fire department and who is vested with authority, direction and control over the department, including the power to appoint and remove officers and employees, is not entitled to the protection afforded by section 75(1)(b) of the Civil Service Law.
* A person holding a position by permanent appointment in the competitive class of the classified civil service, exempt volunteer firefighters and several others, are also entitled to this protection (Civil Service Law, § 75[1]).