City of Newark v. Department of Civil Service

Decision Date03 July 1961
Docket NumberNo. A--878,A--878
Citation172 A.2d 681,68 N.J.Super. 416
PartiesCITY OF NEWARK, a municipal corporation of the State of New Jersey, Appellant, v. DEPARTMENT OF CIVIL SERVICE of the State of New Jersey and Antone S. De Moura, Respondents.
CourtNew Jersey Superior Court — Appellate Division

Thomas M. Kane, Newark, for appellant (Vincent P. Torppey, Corp. Counsel, Newark, attorney).

Martin S. Fox, Newark, for respondent Antone S. DeMoura (David I. Fox, Newark, on the brief).

Before Judges GOLDMANN, FOLEY and LEWIS.

The opinion of the court was delivered by

LEWIS, J.A.D.

Respondent, Antone S. DeMoura, was appointed as an Electrical Inspector in the Department of Health and Welfare, City of Newark, on March 17, 1957. This position is in the classified division of Civil Service.

On October 30, 1959 DeMoura pleaded Nolo contendere to an indictment, filed in the office of the Clerk of the United States District Court for the District of New Jersey, charging him with evasion of income taxes for the years 1952 and 1953 in violation of the Internal Revenue Code, 26 U.S.C., Section 145(b). Respondent was placed on probation, and ordered to pay a fine of $1,500. On October 27, 1959 he was suspended from his employment, by the Director of the Department of Health and Welfare, pending a hearing on charges that he violated Civil Service Rule 59(k) and (m) which provides for the discretionary removal of employees for:

'(k) The commitment of any criminal act;' and

'(m) Conviction of a criminal offense or of a misdemeanor involving moral turpitude.'

After a hearing before the Director, on November 23, 1959, a final notice of disciplinary action was filed, dated December 10, 1959, declaring respondent guilty of the charges (violation of Civil Service Rule 59), and removing him from his position of Electrical Inspector, effective October 27, 1959. DeMoura initiated an appeal, on December 23, 1959, to the Civil Service Commission. That administrative tribunal, on March 14, 1960, after due notice, heard the case and found as a matter of fact that DeMoura was guilty of violating Civil Service Rule 59, sections (k) and (m), and further decided that:

'* * * while such violations may be used as grounds for suspension or removal, they are not self-executing or obligatory upon the appointing authority. In the present case, we believe the penalty of removal from a permanent position for a Civil Service employee for income tax evasion was too severe since the Federal Court did not impose a jail sentence but, instead, placed appellant on probation for three and one half years.'

The order of the Commission was issued on June 13, 1960. Its effect was to reverse the penalty of removal imposed by the Director and to substitute an order of suspension, without pay, for a period of six months from the original suspension date of October 27, 1959.

An appeal from that determination is now before this court. The City of Newark contends, in substance, that: (1) the Civil Service Commission was not justified in reducing the penalty as provided in its order; and (2) DeMoura, by virtue of R.S. 40:69A--166, N.J.S.A., forfeited his employment upon his conviction of the federal offense of income tax evasion.

The applicability of N.J.S.A. 40:69A--166 was not raised below. This new issue of law was projected by appellant in its brief filed with this court in the appellate proceedings. This section 166 reads:

'Any person convicted of a crime or offense involving moral turpitude shall be ineligible to assume any municipal office, position or employment in a municipality governed pursuant to this act, and upon conviction thereof while in office shall forfeit his office. Any person who shall violate any of the provisions of sections 17--14, 17--15 or 17--16 of this article shall upon conviction thereof in a court of competent jurisdiction forfeit his office.'

The specific sections incorporated by reference are to be found in N.J.S.A. 40:69A--163, 164 and 165 and provide for the forfeiture of positions by those officers and employees having an interest in contracts or jobs with a municipality; accepting any franks, free passes, tickets or service from public utilities and transportation companies (with certain enumerated exceptions); giving promises of office, position, employment or benefits; or being convicted of any crime involving moral turpitude; and provide for the discretionary removal of one failing to appear or testify before a court, legislative committee or the Governor.

It will be readily noted from the foregoing that the conviction of a crime involving moral turpitude under the Faulkner Act (section 166) carries with it a mandatory forfeiture of employment; while, on the other hand, under Civil Service Rule 59 such a conviction is a sufficient cause for removal or forfeiture but the stated penalty is not a mandate.

On motion of the respondent, Department of Civil Service, we remanded the matter to the Civil Service Commission to consider the effect of this cited statutory section 166 upon the merits of the case. The Commission, on or about January 24, 1961, in response to the remand, rendered a supplemental decision acknowledging the controlling relevance of section 166, and concluded:

'Therefore, the Civil Service Commission believes that Respondent DeMoura did in effect forfeit his employment upon his conviction in Federal Court, but whether this agency is the proper one to rule on it is a matter for the Superior Court to decide. In any event, the Civil Service Commission clearly believes that R.S. 40:69A--166 is applicable and, therefore, we had no authority to lessen the penalty and the decision of a six months' suspension is set aside. We concede that Respondent DeMoura is out of office under the automatic forfeiture provision, but is not being removed under operation of Title 11.'

The original suspension of DeMoura in October 1959, his subsequent hearing in November (resulting in dismissal from office), and his trial before the Civil Service Commission on March 14, 1960 were all predicated upon the fact that DeMoura was charged with violating Civil Service Rule 59(k) and (m) and the assumption that he was entitled to have his case reviewed and ultimately determined by the Civil Service Commission pursuant to its applicable laws and rules.

Title 11 (N.J.S.A. 11:1--1 et seq.) embodies the Civil Service Act. In the statute itself, there is no specific provision for penalties or sanctions upon conviction of a crime involving moral turpitude; N.J.S.A. 11:5--1, however, accords to the Commission the power to promulgate rules and regulations in order to effectuate the administration of the act. Pursuant to this delegated power, rule 59 was adopted setting forth specific causes, including (k) and (m) quoted supra, which 'shall be sufficient for removal' of any employee holding a position in the classified service.

The City of Newark is governed by the provisions of the Optional Municipal Charter Law, L.1950, c. 210, N.J.S.A. 40:69A--1 et seq., commonly referred to as the 'Faulkner Act.' It has been so governed since July 1, 1954, the effective date fixed by a successful referendum the previous November.

It is quite understandable that respondent DeMoura, under the circumstances, should advocate the jurisdiction of Civil Service. He maintains: that (1) N.J.S.A. 40:69A--166 is inapplicable to any municipality 'operating under the provisions of Title 11 (Civil Service) of the Revised Statutes,' and the right of the Civil Service Commission to modify penalties in disciplinary proceedings survives a muncipal adoption of the Faulkner Act; and (2) said section 166 is inapplicable to him since he is not a public officer.

I.

Specifically, it is argued that N.J.S.A. 40:69A--207 renders N.J.S.A. 40: 69A--166 inapplicable to municipalities operating under the provisions of Title 11 (Civil Service) of the Revised Statutes. Section 207 may be characterized as a saving clause. It is entitled 'Existing offices abolished on effective date of optional plan; exceptions,' and is under the group heading 'H. Succession in Government.' We quote verbatim the portion of this section material to the case Sub judice:

'* * * If the municipality is operating under the provisions of Title 11 of the Revised Statutes (Civil Service) at the time of the adoption of an optional plan under this act, nothing herein contained shall affect the tenure of office of any person holding any position or office coming within the provisions of said Title 11 as it applies to said officers and employees. If the municipal clerk has, prior to the effective date of the optional plan, acquired a protected tenure of office pursuant to law, he shall become the first municipal clerk under the optional plan.'

The apparent conflict presents another situation where--'The problem presented is purely one of statutory construction and mutual accommodation of legislative purposes and objects.' Myers v. Cedar Grove Township, 66 N.J.Super. 530, 535, 169 A.2d 689, 691 (App.Div.1961). The legislative purpose and the objective in including this transitional provision in the statute clearly was to protect the civil service rights of municipal employees upon a change-over in government, incident to an optional plan adoption under the Faulkner Act. Note N.J.S.A. 40:69A--26.

The Civil Service law was enacted to secure tenure during good behavior for those employees who come within its scope, Handlon v. Town of Belleville, 4 N.J. 99, 109, 71 A.2d 624, 16 A.L.R.2d 1118 (1950), and to give protection against dismissal and other types of discrimination to those holding positions which the Legislature placed in the classified service, Young v. Civil Service Commission, 127 N.J.L. 329, 331, 22 A.2d 523 (Sup.Ct.1941); Scancarella v. Department of Civil Service, 24 N.J.Super. 65, 93 A.2d 637 (App.Div.1952). Its primary function is to secure 'efficient public service'...

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