City of Newark v. Massey

• Citation: 225 A.2d 723,93 N.J.Super. 317
• Decision Date: 12 January 1967
• Docket Number: No. A--940,A--940
• Parties: CITY OF NEWARK, Appellant, v. Harry M. MASSEY and N.J. Civil Service Commission, Respondents.
• Court: New Jersey Superior Court – Appellate Division

Page 317

93 N.J.Super. 317

225 A.2d 723

CITY OF NEWARK, Appellant, v. Harry M. MASSEY and N.J. Civil Service Commission, Respondents.

No. A--940.

Superior Court of New Jersey Appellate, division.

Argued Nov. 21, 1966.

Decided Jan. 12, 1967.

William H. Walls, Asst. Corp. Counsel, for appellant (Norman N. Schiff, Corp. Counsel of Newark, attorney).

Louis M. Minotti, Newark, for respondent, Massey (Friedman & D'Alessandro, Newark, attorneys).

Morton Anekstein, Deputy Atty. Gen., for Civil Service Commission (Arthur J. Sills, Atty. Gen., attorney).

Before Judges GAULKINLEWIS and LABRECQUE.

The opinion of the court was delivered by

LEWIS, J.A.D.

The City of Newark appeals from a final order of the Civil Service Commission which reduced, from removal to suspension for six months, the penalty imposed upon Harry Massey by the Newark police director, and ordered that he was 'entitled to back pay unless the appointing authority can present valid basis for a setoff against this claim.'

Prior to the incidents that gave rise to this proceeding, Massey served as a patrolman in the Newark Police Department from March 26, 1963. He was dismissed from his employment on March 9, 1965, after a departmental hearing at which he was represented by counsel. The several charges made at that time alleged that Patrolman Massey:

CASE NO. 1

'* * * prior to his appointment to the Newark Police Department * * * did co-sign a note the balance being $460.21. During past twelve (12) months has failed and neglected to meet his obligation to liquidate this debt.'

CASE NO. 2

(a) '* * * while on duty November 1, 1964, at or about 11:00 p.m. on the southwest corner of Broad and Market Streets, the location of a police call box, upon being questioned by Sergeant Bernard O'Leary, his Superior Officer, relative to his absence from post, did respond by willfully and contemptuously slamming the door of said call box.'

(b) '* * * on November 1, 1964, while assigned to the intersection of Broad Street and Market Street, from 4:00 p.m. to 12:00 M., did, without just cause or proper authority, absent himself from said assigned fixed post from about 10:50 p.m. to about 11:00 p.m., a period of approximately ten minutes.'

(c) '* * * on November 1, 1964 while assigned to the intersection of Broad Street and Market Street from 4:00 p.m. to 12:00 M., at about 11:00 p.m., having received a lawful order from Sergeant Bernard O'Leary his Superior Officer, to submit a report at the completion of his assigned tour of duty, relative to his alleged absence from said assigned post, did willfully fail and neglect to comply with such order.'

(d) '* * * on November 2, 1964, at or about 12:05 a.m., in the First Precinct station did behave with disrespect toward Lieutenant John B. Dunsmuir, desk officer, in that he did disrespectfully toss two blank report sheets on the business desk, behind which Lieutenant Dunsmuir was present, and contemptuously stated to him, 'Tell Sergeant O'Leary, I was on post and I'm not going to submit any reports,' or words to that effect, and further stated, disrespectfully and contemptuously, 'I quit, shove the job up your * * *, I've been writing since I came here,' or words to that effect.'

(e) '* * * on November 2, 1964 in the First Precinct station, at or about 12:10 a.m., did willfully and wrongfully toss a firearm, to wit: his fully loaded police service revolver, on the counter of the business desk, under circumstances such as to endanger human life.'

(f) '* * * on November 2, 1964, in the First Precinct station, at or about 12:10 a.m., did, contrary to good order and discipline, willfully and disrespectfully, toss his service revolver on the business desk, behind which Lieutenant John B. Dunsmuir, his Superior Officer, was present and on duty.'

CASE NO. 3

'* * * on January 28, 1965 did, without just cause or proper authority, fail and neglect to attend, as required of him, Human Relations Class #16, held at the Police Academy between the hours of 1:00 p.m. and 4:30 p.m. on said date.'

Massey was found guilty of all charges and received a total penalty of 16 months' suspension from duty, which was allocated: Case No. 2, (a) three months, (b) one month, (c) two months, (d) six months, (e) three months, (f) one month; Cases Nos. 1 and 3, no penalty.

Because the penalties totaled 16 months' suspension, the police director determined that the accused patrolman should be discharged from the force. In doing so he followed Town of West New York v. Bock, 38 N.J. 500, 526, 186 A.2d 97 (1962), in which a six-month limitation on suspension, R.S. 11:15--6, N.J.S.A., was held to be a policy mandate of the Legislature.

On appeal to the Civil Service Commission, Massey was again found guilty of all charges, but the penalty was reduced to a suspension for six months. The matter was reviewed by the Commission on a stipulated record which included, primarily, a transcript of the testimony of witnesses at the hearing conducted by the police director. While purely formal proof may always be stipulated or presented to the Commission on an agreed record, if the weight of testimony must be evaluated, credibility decided, and impressions as to candor and forthrightness received, the agency 'should have the advantage of seeing and hearing the witnesses.' Moorestown Tp. v. Armstrong, 89 N.J.Super. 560, 565, 215 A.2d 775, 778 (App.Div.1965), certification denied 47 N.J. 80, 219 A.2d 417 (1966). See also Town of West New York v. Bock, supra, 38 N.J., at p. 507, n. 1, 186 A.2d 97; R.S. 11:22--39, N.J.S.A. Here, we have a statement by the attorney for Massey before the Commission that 'we do not quarrel with the findings of guilt by the Director * * *. It is our contention that the penalty was harsh and too severe.' In essence, the appeal to the Commission was a plea for clemency and reinstatement based on the record of the departmental proceedings.

The Commission plainly considered the several offenses which occurred on November 1 and 2, 1964 as contemporaneous acts of misconduct constituting a single malefaction. Its decision concluded with the statement that, 'Technically, they might be deemed separate and distinct. In fact, they were not.' We disagree.

There was an adequate lapse of time, between the episode of insubordination and contemptuous attitude toward Sergeant O'Leary and the subsequent acts of disrespect and misconduct manifested before Lieutenant Dunsmuir, for Massey to have 'cooled off' and reflected upon the seriousness of his behavior.

The sergeant testified that Massey was absent from his assigned post at Broad and Market Streets on the night of November 1, 1964 for approximately 25 minutes and refused to give any reason for such absence; he also refused, at the close of his tour of duty, to submit a report with respect thereto, as requested by the sergeant. The reasons advanced at the municipal hearing were not convincing. The director stated, 'I don't believe what he (Massey) said.' When his counsel characterized the charges against his client as 'rather trivial,' the director explained the necessity for constant police protection against street crimes at that location, stating:

'The minute we put a policeman there in uniform that was deterrent enough to stop ninety-nine percent of them. * * * Now, as to him being tired and that he has to contend with people, this is the job of a policeman and discipline is a primary and basic consideration that a policeman must have. We are a semimilitary organization, and without discipline and without respect for your superior, whether you like him or not, we cannot have a police department, and I must have one.'

The conduct of Massey in leaving his post, like that of the suspended policeman in City of Asbury Park v. Department of Civil Service, 17 N.J. 419, 111 A.2d 625 (1955), indicated 'an attitude of mind and approach to the obligation of his office fundamentally at variance with his sworn duty.' At pp. 429--430, 111 A.2d at p. 630. In that case, Civil Service reversed the decision of the city manager, but our Supreme Court overruled the Commission and reinstated a six months' suspension without pay. In Eisberg v. Borough of Cliffside Park, 98 N.J.L. 260, 118 A. 533 (E. & A. 1922), an officer was dismissed from the local police force for failure to 'ring in to headquarters from certain specified police boxes * * *.' The penalty was sustained by our former Supreme Court and, on appeal, abandoned by default, a judgment of affirmance was entered.

Massey's original offense was compounded by his subsequent defiance of the orders properly issued by his sergeant and later by his lieutenant to make out a report immediately as to his 'whereabouts.' Generally, insubordination warrants a dismissal. See 4 McQuillin, Municipal Corporations (3d ed. 1949), § 12.240, p. 272. State v. Naglee, 44 N.J. 209, 221, 207 A.2d 689, 695 (1965), jurisdiction postponed, appeal on the merits pending Sub nom. Garrity v. New Jersey, 383 U.S. 941, 86 S.Ct. 1194, 16 L.Ed.2d 205 (1966) (case argued November 10, 1966, 385 U.S. ---, ---, 87 S.Ct. 616, ---, 17 L.Ed.2d ---, ---), involved an officer who failed to cooperate in an investigation of his official conduct, and it was held that his actions were inconsistent with his police duties and that he was properly subjected to dismissal. The obligation to cooperate 'is intrinsic to the position of a police officer.' Ibid.

A patrolman was charged, Inter alia, in a New York case, with a refusal to obey the order of his superior officers to return to his post. The court concluded that such behavior, standing alone,...