Campbell v. Department of Civil Service

• Decision Date: 01 April 1963
• Docket Number: No. A--67,A--67
• Citation: 189 A.2d 712,39 N.J. 556
• Parties: Bernard A. CAMPBELL, Appellant, v. DEPARTMENT OF CIVIL SERVICE, State of New Jersey, Respondent.
• Court: New Jersey Supreme Court

Page 556

39 N.J. 556

189 A.2d 712

Bernard A. CAMPBELL, Appellant, v. DEPARTMENT OF CIVIL SERVICE, State of New Jersey, Respondent.

No. A--67.

Supreme Court of New Jersey.

Argued Feb. 4, 1963.

Decided April 1, 1963.

Perry E. Belfatto, Newark, for appellant.

Milton Diamond, Deputy Atty. Gen., for respondent (Arthur J. Sills, Atty. Gen., attorney).

The opinion of the court was delivered by

JACOBS, J.

The respondent Department of Civil Service sustained the dismissal of appellant Bernard A. Campbell as deputy director of the Division of Workmen's Compensation. Mr. Campbell appealed to the Appellate Division and we certified before argument in that court.

On March 11, 1957 the appellant was appointed by the Commissioner of Labor and Industry as a deputy director of compensation (now called judge of compensation, L.1960, c. 58; N.J.S.A. 34:1A--12). The appellant, along with the other deputy directors, was considered by the Division as being subject to the terms of the civil service law including its provisions relating to service standards and ratings. See N.J.S.A. 11:7--7; R.S. 11:13--1, N.J.S.A.; R.S. 11:4--3, N.J.S.A.; N.J.S.A. 11:4--4(g). His appointment was without fixed term and he was removable only for cause as provided by the civil service law and rules. N.J.S.A. 11:7--7; R.S. 11:15--2 et seq., N.J.S.A.; cf. Swartz v. Civil Service Com., 3 N.J.Super. 6, 65 A.2d 77 (App.Div.1949); Young v. Civil Service Commission, 127 N.J.L. 329, 22 A.2d 523 (Sup.Ct.1941). Civil Service Rule 59(c) provides that there may be removal for 'incompetency or inefficiency in the service or incapacity due to mental or physical disability'; 59(d) provides that 'inefficiency in the performance of the duties of his position so that his service rating as maintained in accordance with the civil service rules is less than 70%' shall constitute sufficient cause for removal; and Rule 59 also states that removals may be made for causes other than those specifically enumerated.

In April 1958 the appellant was notified that he had received a service rating of unsatisfactory for the period from October 1, 1957 to March 31, 1958. His rating was 1.0 which was the lowest possible rating. He conferred with Mr. Ned J. Parsekian, then Director of the Division of Workmen's Compensation and was told, according to Mr. Parsekian's testimony, that the rating was a serious matter, that it indicated Mr. Campbell had not performed his duties with sufficient satisfaction, and that 'it meant that he would have to improve markedly in the future and soon.' Mr. Parsekian also testified he then informed Mr. Campbell that two consecutive unsatisfactory ratings would be basis for dismissal. On December 3, 1958, a service rating of unsatisfactory (1.0) for the period from April 1, 1958 to September 30, 1958 was sent to Mr. Campbell. Both of the service ratings were signed by Mr. Parsekian and were duly served but the personnel employee of the Division of Workmen's Compensation evidently did not file them with the Civil Service Department until a much later date.

On December 5, 1958 the Division of Workmen's Compensation served a preliminary notice of disciplinary action on Mr. Campbell. The notice advised him that, pending hearing, he was removed from his position of deputy director because of incompetency and inefficiency in the service and because of the service ratings. It also advised that before final action was taken a hearing would be held on December 22, 1958 at which time Mr. Campbell could appear and offer any evidence or testimony in his defense. On December 22 the hearing was begun and it continued during February and March 1959 before George S. Pfaus, Acting Commissioner of the Department of Labor and Industry. On the Department's behalf, the service ratings were presented and testimony was introduced in support of ten specific charges of incompetency and inefficiency. In addition, evidence was introduced relating to two matters which occurred while the proceeding before the Acting Commissioner was pending and which bore on Mr. Campbell's fitness to continue as deputy director. He was advised that the Acting Commissioner would consider these matters and chose not to introduce and evidence to meet them. However, he did appear and introduced evidence bearing on the ten specific charges. After the close of the hearing, Acting Commissioner Pfaus rendered his opinion which dealt fully with the ten charges and the two additional matters. He concluded that the charges of incompetency and inefficiency had been sustained and that the appellant should be removed permanently from the position of deputy director.

On July 24, 1959 Mr. Campbell appealed to the Department of Civil Service from his dismissal as deputy director. A hearing De novo was held before Civil Service Commissioner Gilroy. It was begun on September 24, 1959, was continued during 13 additional days, and was finally concluded on June 30, 1960. Extensive testimony was introduced before Commissioner Gilroy by the Department of Labor and Industry, which was represented by a Deputy Attorney General, and by Mr. Campbell, who was represented throughout the hearing by counsel. Briefs were submitted and on August 2, 1961 the Civil Service Commission rendered its decision sustaining the dismissal. Its formal opinion dealt in detail with the charges and the testimony and made appropriate factual findings. We will refer to those findings to such extent as may be required for the proper disposition of the appeal from the Commission's determination. In this connection the limited scope of judicial review must be borne in mind; ordinarily, we will not upset a determination by the Commission in the absence of a showing that it was arbitrary, capricious or unreasonable, or that it lacked fair support in the evidence, or that it violated legislative policies expressed or implicit in the civil service act. See Marro v. Civil Service Dept., 57 N.J.Super. 335, 346, 154 A.2d 733 (App.Div.1959); cf. Briggs v. N.J. Dept. of Civil Service, 64 N.J.Super. 351, 354, 165 A.2d 810 (App.Div.1960); East Paterson v. Civil Service Dept. of N.J., 47 N.J.Super. 55, 65, 135 A.2d 213 (App.Div.1957); Dutcher v. Department of Civil Service, 7 N.J.Super. 156, 162, 72 A.2d 393 (App.Div.1950). See also Rogers v. Dept. of Civil Service, 17 N.J. 533, 541, 111 A.2d 894 (1955); Kaplan, Civil Service 249--250 (1958).

In its first charge, the Department of Labor and Industry asserted that on his assignment to hear informal matters, Mr. Campbell failed to record necessary information and his recommendations, with resulting embarrassment to the Department in that at least on one occasion it was obliged to ascertain from the insurance carrier what had been the disposition of the matter. As indicative of Mr. Campbell's attitude, the Department pointed out that he had walked out on his training session in informal matters; his explanation is that he had been called out by another deputy director. The Commission stated that it did not consider the walking out as a major issue but it did find that Mr. Campbell had failed to record necessary information as charged. It expressed the thought that the first charge was merely ministerial in character and evaluated it 'only as part of cumulative testimony of his service in the Department.'

The second charge carried implications of greater significance. In a proceeding which may here be described as the Lowe case, an award of 1/2 of 1% Was rendered. Counsel for the insurance carrier testified that Mr. Campbell stated that he would have made it 1/4 of 1% 'if it were not so difficult to figure it out.' Mr. Parsekian testified that when the unusual award came to his attention, he made inquiry and was told by Mr. Campbell that since the petitioner was a colored person he did not want him to think that he was being discriminated against and 'so rather than dismiss the case I gave him a half per cent of total.' During the hearing before Commissioner Gilroy, Mr. Campbell gave testimony which sheds further light on the award.

Mr. Campbell testified that in another matter he had rendered an award of 2% which was reversed on appeal and that at that time a deputy told him that if he had not awarded as much the chances were that he 'would not have been taken up in the first place.' When asked whether he believed that it would be improper to consider the possibility of reversal in fixing the amount of the award, he said, 'not necessarily' since the employee had some injury for which he should be compensated and 'you are certainly not doing him a favor if you give him an award that invites an appeal because of the size of it.' He indicated that he viewed workmen's compensation legislation simply as a matter of favor to the employee. But cf. Danek v. Hommer, 9 N.J. 56, 58, 87 A.2d 5 (1952). He rejected the rule of preponderance of evidence saying, 'if the evidence leaves you in such a conclusion that it is equally consistent with the verdict in favor of the petitioner as well as a dismissal, then you must give an award in your determination for the petitioner.' The law is otherwise. See Parker v. John A. Roebling's Sons Co., 135 N.J.L. 440, 442, 52 A.2d 681 (Sup.Ct.), aff'd, 136 N.J.L. 635, 57 A.2d 387 (E. & A. 1947); Page v. Federated Metals Div., Amer. Smelt. & Ref. Co., 71 N.J.Super 59, 61, 176 A.2d 290 (App.Div.1961), certif. denied, 38 N.J. 302, 184 A.2d 418 (1962). Later on in his testimony, he expressed the view that when dealing with what he described as a minimal award, it was proper, in fixing the amount, to consider the possibility of reversal since 'it doesn't do the Department much good, or the injured workman, if you give an award that invites an appeal, and it's taken, and that his money that he needs badly is denied to him.' This indefensible approach suggests a lack of comprehension of the nature of the deputy director's functions and reference to it serves to reenforce the...