Chap. 246.—An ACT to amend and re-enact Sections 1, 2, 3, 4, as attended, 5, 6, 7,
8, 9, 12, 14, 18, 20 and 21 of Chapter 12 of an act entitled ‘““An Act to provide a
new charter for the City of Portsmouth.”, approved March 10, 1908, which
chapter and all sections thereof relate to the establishment of a civil service com-
mission for the said city and the administration thereof; and to amend said
chapter by adding thereto four new sections numbered Sections 23, 24, 25 and 26,
relating to procedure for certain departments to come under the civil service, to
certain persons who may not come under the provisions thereof, and to com-
pensation of members of the Commission. [H B 284]

Approved March 18, 1942
1. Be it enacted by the General Assembly of Virginia, That sections

one, two, three, four as amended, five, six, seven, eight, nine, twelve,
fourteen, eighteen, twenty and twenty-one of Chapter twelve of an act
cH. 246] ACTS OF ASSEMBLY 357

entitled ““An act to provide a new charter for the city of Portsmouth.”,
approved March tenth, nineteen hundred and eight, be amended and re-
enacted, and that said chapter be amended by adding thereto four new
sections to be numbered sections twenty-three, twenty-four, twenty-five
and twenty-six, which said amended sections and new sections shall read
as follows:

Section 1. Civil service commission applicable to police and fire
departments and certain other departments as hereinafter in this chapter
provided ; creation and term of office——There shall be in the city a civil
service commission, which shall be composed of three persons of known
sympathy with the merit system.

After the effective date of this section as hereby amended, the mem-
bers of such commission shall be appointed by the judge of the court of
hustings for the city of Portsmouth. No person shall be appointed a mem-
ber of such commission who is not a citizen of the United States, and a
resident of the city of Portsmouth, or who holds any office or post of em-
ployment under said city, or the State of Virginia or any political sub-
division thereof, or any public service corporation owned by said city or
State, other than the office of notary public, or who is an officer or mem-
ber of any national, State, or local committee of any political party, or an
officer of such party, or who is an officer or member of a committee of a
partisan political club, or an officer of such club, and who is known to be
not in sympathy with the merit system.

The term of office of such commissioners shall be four years. After
the effective date of this section as hereby amended, as and when the terms
of office of the commissioners then in office shall expire, their successors
shall be appointed by the judge of the court of hustings for the City of
Portsmouth, for terms of four years. Any vacancy occurring after such
effective date shall be filled by such judge for the unexpired portion of
the term of the commissioner whose office became vacant.

Any member of such commission may be removed from office for
incompetency, incompatibility, or dereliction of duty, or malfeasance in
office, or for injecting, or attempting to inject, political or religious in-
fluence into the administration of the provisions of this chapter, or for
other good cause, by the court of hustings for the City of Portsmouth;
provided, however, that no member of the commission shall be removed
until charges have been preferred in writing, due notice and a full hearing
had.

The members of such commission shall devote due time and atten-
tion to the performance of the duties herein specified and imposed upon
them. Two members of such commission shall constitute a quorum and
the votes of any two members of such commission concurring shall be
sufficient for the decision of all matters and the transaction of all busi-
ness to be decided or transacted by the commission under or by virtue of
the provisions of this chapter.

Section 2. Appointments, promotions, discharges, et cetera, in full
paid police and fire departments, or any other departments which may
come under this chapter, as hereinafter provided ; how made. —The classi-
fied civil service provisions of this chapter shall include all employees of
the police and fire departments, or any other departments of said city
which may come within the purview of this chapter, as hereinafter pro-
vided, but shall not include the chief of the police or fire department or
the head of any other department. All appointments to and promotions
in said departments shall be made solely on merit, efficiency and fitness,
which shall be ascertained by open competitive examination and impartial
investigation.

No person shall be reinstated or transferred, suspended or dis-
charged from any such place, position or employment contrary to the
provisions of this chapter.

Section 3. Functions and duties of the civil service commission.—
Immediately after appointment the commission shall organize and hold
regular meetings upon call of the chairman and at least once a quarter and
such additional meetings as may be required for the proper discharge of
their duties.

(a) It shall be the duty of the civil service commission; to make
suitable rules and regulations not inconsistent with the provisions of this
act. Such rules and regulations shall provide in detail the manner in
which examinations may be held, and appointments, promotions, trans-
fers, reinstatements, demotions, suspensions and discharges shall be
made, and may also provide for any other matters connected with the
general subject or personal administration, and which may be considered
desirable to further carry out the general purposes of the civil service pro-
visions of this act, or which may be found to be in the interest of good
personal administration. Such rules and regulations may be changed from
time to time. The rules and regulations and any amendments thereof shall
be printed, mimeographed or multigraphed for free public distribution.
Such rules and regulations may be changed from time to time.

(b) All tests shall be practical, and shall consist only of subjects
which will fairly determine the capacity of persons examined to perform
duties of the position to which appointment is to be made, and may in-
clude tests of physical fitness and of manual skill.

(c) The commission shall make investigations concerning and
report upon all matters touching the enforcement and effect of the civil
service provisions of this act, and the rules and regulations prescribed
hereunder ; inspect all institutions, departments, offices, places, positions
and employments affected hereby, and ascertain whether the civil service
provisions of this act and all such rules and regulations are being obeyed.

Such investigations may be made by the commissioner or by the
commissioner designated by the commission for that purpose. Not only
must these investigations be made by the commission, as aforesaid, but
the commission must make like investigation on petition of a citizen, duly
verified, stating that irregularities or abuse exist, or setting forth in
concise language, in writing the necessity for such investigation.

(d) In the course of such investigation or hearing as hereinafter
provided for, the commission or designated commissioner, or secretary,
shall have the power to administer oaths, subpoena and require the attend-
ance of witnesses and the production by them of books, papers, docu-
ments and accounts appertaining to the investigation and also to cause
cH. 246] ACTS OF ASSEMBLY 359

the depositions of witnesses residing within or without the city to be
taken in the manner prescribed by law for like depositions in civil ac-
tions in the court of original and unlimited jurisdiction in civil suits of
the State; and the oaths administered hereunder and the subpoenas is-
sued hereunder shall have the same force and effect as the oaths admin-
istered by a circuit judge in his judicial capacity ; and the failure upon the
part of any person so subpoenaed to comply with the provisions of this
section shall be deemed a violation of the civil service provisions of this
act, and punishable as such.

(e) All hearings and investigations before the commission, shall
be governed by this act and by the rules and practice and procedure to be
adopted by the commission, and in the conduct thereof the commission
shall not be bound by the technical rules of evidence. No informality in
any proceedings or hearing, or in the manner of taking testimony before
the commission, shall invalidate any order, decision, rule or regulations
made, approved or confirmed by the commission.

(f) Hear and determine appeals or complaints respecting the ad-
ministrative work.of the personnel department; appeals upon the alloca-
tion of positions; appeals of officers or employees, who are included in
the classified service by the provisions of this chapter, for an investigation
of their removal, suspension, demotion or discharge, as hereinafter pro-
vided for; the rejection of any examination, and such other matters as
may be referred to the commission.

(g) Establish or maintain in card or other suitable form a roster
of officers and employees.

(h) Provide for, formulate and hold competitive tests to determine
the relative qualifications of persons who seek employment in any class or
position and as a result thereof establish eligible lists for the various classes
of positions, and to provide that men laid off because of curtailment of ex-
penditures, reduction in force, and for like causes, head the list im the order
of their seniority, to the end that they shall be the first to be re-employed.

(i) When a vacant position is to be filled, to certify to the appoint-
ing authority, on written request, the name of the person highest or the
three persons highest on the eligible list for the class; and if there is no
such list, to establish a provisional or temporary appointment list of such
class. No temporary or provisional appointment shall continue for a period
longer than four months; nor shall any person receive more than one pro-
visional appointment or serve more than four months as a provisional
appointee in any fiscal year. Bes

(j) Keep such records as may be necessary for the proper ad-
ministration of the civil service provisions of this act. 7

-(k) The civil service commission shall make such reports as the
council may by ordinance or resolution require; provided, however, it
shall be the duty of the commission to report at least annually to the coun-
cil showing its own action, the rules in force, the practical effects thereof,
and any suggestions it may have for the improvement of the classified
service. | ,

Section 4. Adoption and induction of incumbents into civil service.
—For the benefit of the public service and to prevent delay, injury, or in-’
terruption therein by reason of the enactment of this act, all persons hold-
ing a position in the police or fire departments, not including the chiefs
thereof, when this act takes effect, or of any other department of the city
which may hereafter come under the civil service provisions of this chap-
ter, through the procedure hereinafter provided, not including the heads
of such departments, who shall have served in such position for a period of
at least six months last past continuously are hereby declared eligible for
permanent appointment under civil service to the offices, places, positions
or employments which they shall then hold, respectively, without exam-
ination or other act on their part, and not on probation; and every such
person is hereby automatically adopted and inducted permanently into
civil service, into such office, place, positions or employments which such
person then holds as completely and effectually to all intents and purposes
as if such person had been permanently appointed thereto under civil
service after examination and investigation.

Section 5. Applicants——(a) An applicant for a position of any
kind under civil service, must be a citizen of the United States of America
and a voter of the city of Portsmouth, who can read and write the English
language, and must have been a resident of said city for at least two (2)
years. In the discretion of the civil service commission, residence require-
ments may be waived only for technical and professional positions for
which qualified applicants who are residents of the said city cannot be
obtained.

(b) An applicant for a position of any kind under civil service
must be of an age suitable for the position applied for, in ordinary good
health, of good moral character and of temperate and industrious habits;
these facts to be ascertained in such manner as the commission may deem
advisable.

Section 6. Tenure of office of civil service employees, and causes
and manner of discharge-—The tenure of every one holding an office,
place, position or employments under the civil service provisions of this
act, shall be only during good behavior, and any such person may be
removed or discharged, suspended without pay, demoted, or reduced in
rank, or deprived of vacation privileges or other special privileges for
any of the following reasons:

(a) Incompetency, inefficiency or inattention to or dereliction of

(b) Dishonesty, intemperance, immoral conduct, insubordination,
discourteous treatment of the public or a fellow employee or any other
act of omission or commission tending to injure the public service ; or any
other wilful failure on the part of the employee to properly conduct him-
self; or any wilful violations of the provisions of this act or the rules and
regulations to be adopted hereunder ;

(c) Mental or physical unfitness for the position which the em-
ployee holds;

(d) Dishonest, disgraceful, immoral or prejudicial conduct ;

(e) Drunkenness or use of intoxicating liquors, narcotics or any
other habit-forming drug, liquid or preparation to such extent that the
use thereof interferes with the efficiency or mental or physical fitness
of the employee, or which precludes the employee from properly per.
forming the functions and duties of any position under civil service ;

(f) Conviction of a felony or a misdemeanor, involving moral tur-
pitude ;

(g) Any other act or failure to act, which in the judgment of the
civil service commissioners is sufficient to show the offender to be ar
unsuitable and unfit person to be employed in the public service. |

Section 7. Removal.—No person in the classified civil service whe
shall have been permanently appointed or inducted into civil service undet
provisions of this act, shall be removed, suspended, demoted or discharged
except for cause, and only upon the written accusation of the appointing
power, or any citizen or taxpayer, a written statement of which accusa-
tion, in general terms, shall be served upon the accused, within forty-
eight hours from the time of his removal, suspension, demotion or dis-
charge, and a duplicate thereof filed with the commission at the same
time. Any person so removed, suspended, demoted or discharged may
within ten days from the time of his removal, suspension, demotion or
discharge, file with the commission a written demand for an investigation,
whereupon the commission shall conduct such investigation. The investi-
gation shall be confined to the determination of the question of whether
such removal, suspension, demotion or discharge was or was not made for
political or religious reasons and was or was not made in good faith for
cause. After such investigation the commission may affirm the removal,
suspension, demotion or discharge, or if it shall find that the removal,
suspension, demotion or discharge was made for political or religious rea-
sons, or was not made in good faith for cause, shall order the immediate
reinstatement or re-employment of such person in the office, place, posi-
tion or employment from which such person was removed, suspended,
demoted or discharged, which reinstatement shall if the commission so
provides in its discretion, be retroactive, and entitle such person to pay
or compensation from the time of such removal, suspension, demotion or
discharge. The commission upon such investigation, in lieu of affirming
the removal, suspension, demotion or discharge may modify the order
of removal, suspension, demotion or discharge by directing a suspension,
without pay, for a given period, and subsequent restoration to duty, or
demotion in classification, grade or pay; the commission may direct a
lesser penalty than that given, but not a greater ; the findings of the com-
mission shall be certified in writing to the appointing power, and shall
be forthwith enforced by such officer.

If the appointing power fails to properly notify the accused or the
commission of the removal, suspension, demotion or discharge of a per-
son permanently appointed or inducted into civil service, within forty-
eight hours from the time the removal, suspension, demotion or discharge
was made, the commission shall set a date, within fifteen days, for a
hearing of the accused person and approve or disapprove the action taken
by the appointing power, and so notify the appointing power and the ac-
cused, as provided above. oe

If for good and sufficient reason any member or members of the
commission, the accused, or the appointing power should be prevented
from attending the hearing on the date set by the commission, the com-
mission may in its discretion adjourn the hearing to a later date, but said
date must be set:at the time of adjournment, and must be within the next
ensuing fifteen days, unless it is duly shown to the commission, that it will
be impossible to hold the hearing within said fifteen days, in which event
the commission shall set the time for the hearing at the earliest possible
date.

All investigations made by the commission pursuant to the provisions
of this section shall be by public hearing, after reasonable notice to the
accused of the time and place of such hearing, at which hearing the ac-
cused shall be afforded an opportunity of appearing in person and by
counsel, and presenting his defense.

If such order or removal, suspension, demotion, or discharge be
concurred in by the commission or a majority thereof, the person so re-
moved, suspended, demoted or discharged shall have the right to appeal
therefrom to a court of original and unlimited jurisdiction in civil sutts
in the city of Portsmouth, Virginia. Such appeal shall be taken by serving
the commission, within thirty days after the entry of such order of judg-
ment, a notice of appeal, stating the grounds thereof, and demanding that
a certified transcript of the record and of all papers on file in the office of
the commission affecting or relating to such order or judgment, be filed
by the commission with such court. The commission shall, within ten
days after the filing of such notice, make, certify and file such transcript
with such court. The court of original and unlimited jurisdiction in civil
suits shall thereupon proceed to hear and determine such appeal in a
summary manner ; provided however, that such hearing shall be confined
to the determination of whether the order or judgment of removal, su-
spension, demotion or discharge made by the appointing power and con-
curred in by the commission, was or was not made in good faith for cause,
or was or was not for political or religious reasons, and no appeal to such
court shall be taken except upon such ground or grounds.

Section 8. Duties of all officers and employees to assist the com-
mission.—It shall be the duty of all officers and employees of police and
fire departments of said city, and of any other department of the city
which may hereafter come under the provisions of this act by taking the
proper procedure, to aid in all proper ways of carrying out the civil serv-
ice provisions of this act, and such rules and regulations as may, from
time to time, be prescribed by the commission thereunder and to afford
the commission, its members and employees, all reasonable facilities and
assistance to inspect all books, papers, documents and accounts, applying
or in any way appertaining to any and all officers, places, positions and
employments, subject to civil service, and also to procure said books, pa-
pers, documents and accounts and attend and testify, whenever required
so to do by the commission or any commissioner.

Section 9. Appointments to vacant positions; certifications from
lists Whenever a position in the classified service becomes vacant, the
appointing power, if it desires to fill the vacancy, shall make requisition
upon the commission for the name and address of a person eligible for ap-
pointment thereto. The commission shall certify the name of the person
cH. 246] ACTS OF ASSEMBLY 363

highest or the three names highest on the eligible list for the class to which
the vacant position has been allocated, who is, or are, willing to accept
employment. If there is no appropriate list for the class, the commission
shall certify the name of the person or persons standing highest on said
list held appropriate for such class. If more than one vacancy is to be
filled, an additional name shall be certified for each additional vacancy.
The appointing power shall forthwith appoint such person to such vacant
position. ,

Whenever requisition is to be made, or whenever a position is held
by a temporary appointee and an eligible list for the class of such posi-
tion exists, the commission shall forthwith certify the name of the persons
eligible for appointment to the appointing power, and said appointing
power shall forthwith appoint a person so certified to said position. No
person so certified shall be laid off, removed, discharged, suspended or
given leave of absence from duty, transferred or reduced in pay or grade,
except for reasons which will promote the good of the service, specified in
writing and after an opportunity to be heard by the commission and then
only with its consent and approval, as hereinabove provided. :

To enable the appointing power to exercise a choice in the filling
‘of positions, no appointment, employment, or promotion in any position in
the classified service shall be deemed complete until after the expiration of
a period of three to six months probationary service, as may be provided in
the rules of the civil service commission during which the appointing pow-
er may terminate the employment of the person certified to him, or it, if
during the performance test thus afforded, upon observations or consid-
eration of the performance of duty, the appointing power deems him
unfit or unsatisfactory for service in the department. Whereupon the
appointing power shall designate the person or persons certified as stand-
ing next highest in any such list and such person or persons shall likewise
enter upon said duties until some person is found who is deemed fit for
appointment, employment or promotion for the probationary period
provided therefor, whereupon the appointment, employment or promo-
tion shall be deemed to be complete.

— Section 12. Civil suits—lIt shall be the duty of the commission
to begin and conduct all civil suits which may be necessary for the proper
enforcement of the civil service provisions of this act and of the rules of
the commission. The commission shall be represented in such suits by the
city attorney of the city of Portsmouth; but in any case of controversy
with the city administration of the said city, it shall be represented by
the Commonwealth’s Attorney of the said city of Portsmouth, but said
ra aa may in any case be represented by special counsel employed

y it. |

Section 14. Political services disregarded and prohibited ; political
activities prohibited —No person holding any office, place, position or
employment subject to civil service is under any obligation to contribute
to any political fund or to render any political service to any person or
party whatsoever, and no person shall be removed, reduced in grade or

salary, or otherwise prejudiced for refusing to do so.
No public officer, whether elected or appointed shall discharge,
promote, demote or in any manner change the official rank, employment
or compensation of any person under civil service, or promise or threaten
so to do, for giving or withholding or neglecting to make any contribution
of money or services, or any other valuable thing, for any political pur-
pose.

No person shall be appointed to or promoted to, suspended from,
demoted, removed or discharged from any position in the classified
service, or in any way favored or discriminated against with respect to
employment in the classified service because of his political or religious
opinions or affiliations. |

No person shall seek or attempt to use any political endorsement in
connection with any appointment to a position in the classified service.
No recommendation for any person who applies for office or position in
the classified service, or for examination under the provisions of this
chapter, except as to character, and in the case of former employers, as to
ability, shall be considered by the commission, director, or the appointing
authority, in giving any examination, appointment, promotion or rein-
statement under this chapter.

No person shall use, or promise to use, directly or indirectly, any
official authority or influence, whether possessed or anticipated, to secure
or attempt to secure for any person an appointment or advantage in
appointment to a position in the classified service, or an increase in pay
or other advantage in employment in any such position, for the purpose
of influencing the vote or political action of any person, or for any
consideration.

No person in the classified service, and no member of the commis-
sion, shall directly or indirectly, pay or promise to pay any assessment,
subscription, or contribution for any political organization or purpose,
or solicit or take part in soliciting, or receive, any such assessment, sub-
scription or contribution. No person shall solicit any such assessment,
subscription or contribution of any employee in the classified service.

No person in the classified service, and no member of the commis-
sion, or the personnel director, should one be appointed, shall take any
active part in the management of any political party or in any political
campaign; provided, however, that nothing in this act shall be construed
to prohibit or prevent any such officer or employee from exercising his
rights as a citizen privately to express his opinion or from enjoying
entire freedom from all interference in casting his vote, or from seeking
or accepting election or appointment to public office.

Section 18. It shall be the duty of the commission to make suitable
rules and regulations, not inconsistent with the purpose of the civil service
provisions of this act, for the purpose of carrying the provisions thereof
into effect; and the failure upon the part of said commission, or any
individual member thereof to do so, shall be deemed a violation of the
same, and shall be punishable as such.

Section 20. Penalties—Any person who shall wilfully violate any
of the civil service provisions of this chapter shall be deemed guilty of a
misdemeanor, and upon conviction thereof shall be punished by a fine
~-

cH. 246| ACTS OF ASSEMBLY 365

of not less than one hundred dollars nor more than one thousand dollars
or by imprisonment in the city jail for not longer than one year, or by
both such fine and imprisonment. The court of original and unlimited
jurisdiction in civil suits shall have jurisdiction of all such offenses de-
fined by this act. If such convicted person be in the classified service he
shall be dismissed therefrom.

Section 21. Definition of terms.——As used in this chapter, the
following mentioned terms shall have the following described meanings :

The term “commission” means the civil service commission herein
created, and the term “commissioner” means any one of the three
members of that commission.

The term “appointing power” shall mean the city manager, or other
officer with appointing authority, should one be designated.

The term “chief of department”, or “head of department’ shall
mean the single person who is the head or principal officer of the depart-
ment, and shall not include the assistant chief or chiefs, or assistant head
officer or officers of the departments.

The term “appointment” includes all means of selection, appointing
or employing any person to hold any office, place, position or employment
subject to civil service.

Section 23. Procedure for other departments of the city to come
under the provisions of the civil service——Upon petition in writing signed
by ten per cent of the employees and/or appointees of any department
of the city of Portsmouth, with the exceptions hereinafter made, to the
city council of the city of Portsmouth, requesting that their department
be put under the civil service provisions of this act, it shall be the duty
of the said city council to set a date for the hearing of the said petition,
at which hearing the council shall consider the written petition, shall
hear the verbal plea of the petitioners or their representative, or repre-
sentatives, shall hear the written or verbal opposition to the said plea,
made by the city administration or its representative or representatives,
or any citizen or citizens of the said city and shall, by resolution or ordi-
nance, either reject the petition, or decree that on and after a certain day
the said petitioning department shall come within the provisions of and
be subject to and governed by the provisions of this civil service act and
the rules and regulations of the civil service commission created hereby
as fully and completely as if it had been originally included herein.

Section 24. Officers and employees or other persons who may not
be brought under the civil service provisions of this act——The civil serv-
ice provisions of this act shall not be extended to include the following
officers, employees or other persons :

(a) Officers elected by the people and persons appointed to fill
vacancies in such elective offices.

(b) The head or director of each department.

(c) The deputy or deputies or assistant or assistants, secretary
or secretaries, clerk or clerks, appointed by an elective officer.

(d) The City Manager.

(e) The City Collector, the City Clerk, the City Attorney.
(£) Officers or members of boards, or other persons, elected or
appointed by the city council, under provisions of law.

- (g) Superintendents, Assistant Superintendents, Supervisors,
principals, teachers and librarians of the public schools.

Section 25. Compensation for members of the commission.—The
city council of the city of Portsmouth may hereafter, if and when it
deems that the work of the civil service commission warrants it, fix the
salary or compensation to be paid the members of the said commission,
and provide for the method of its payment, and the said council shall
make any necessary provisions for carrying out the intent and purposes
of this act.

Section 26. Separability—If any provision of this act or of any
rule, regulation or order thereunder or the application of such provision
to any person or circumstances shall be held invalid, the remainder of
this act and the application of such provision of this act or of such rule,
regulation or order to persons or circumstances other than those as to
which it is held invalid shall not be affected thereby. ,

2. All laws or parts of laws in so far as they are inconsistent with
this act or any of the provisions thereof are hereby repealed.

3. An emergency exists and this act is in force from its passage.