Dutcher v. Department of Civil Service of State, A--117

• Decision Date: 03 April 1950
• Docket Number: No. A--117,A--117
• Citation: 72 A.2d 393,7 N.J.Super. 156
• Parties: DUTCHER, Surrogate, et al. v. DEPARTMENT OF CIVIL SERVICE OF THE STATE et al.
• Court: New Jersey Superior Court — Appellate Division

Page 156

7 N.J.Super. 156

72 A.2d 393

DUTCHER, Surrogate, et al. v. DEPARTMENT OF CIVIL SERVICE OF THE STATE et al.

No. A--117.

Superior Court of New Jersey Appellate Division.

Argued March 20, 1950.

Decided April 3, 1950.

Milton T. Lasher, Hackensack, for and of counsel with plaintiffs-appellants, argued the cause.

Ralph W. Chandless, Hackensack, argued the cause for the defendant-respondent, Joseph Adelberg (Chandless, Weller, Kramer & Frank, Hackenshack, attorneys).

Before Judges JACOBS, McGEEHAN and EASTWOOD.

The opinion of the court was delivered by

EASTWOOD, J.A.D.

At the conclusion of a hearing on charges preferred by plaintiff, Donald G. Dutcher, Surrogate of Bergen County, the employment of defendant, Joseph Adelberg, a Record Clerk in his office, was terminated. On Adelberg's appeal to the Civil Service Department of the State of New Jersey (hereinafter referred to as 'Commission'), the judgment of the Surrogate was modified and Adelberg was suspended for a period of three months effective July 1, 1949. Plaintiffs appeal from the Commission's determination.

In February, 1949, Adelberg was suspended by the Surrogate for five days on the ground that he had failed and refused to comply with instructions of the Surrogate to correct certain erroneous entries made by Adelberg and to conform to the Surrogate's directions as to the manner of making record entries. Upon Adelberg's return, he failed to make a number of corrections in his records in compliance with the Surrogate's instructions. Also, the Surrogate ascertained that other corrections had not been made as directed. On July 1, 1949, the Surrogate suspended Adelberg on charges of insubordination, incompetence and conduct unbecoming a civil servant and detrimental to the service. On July 8, 1949, a hearing on these charges was held, at the conclusion whereof the Surrogate found the defendant guilty and dismissed him. On September 23, 1949, at the Commission's hearing, proofs were submitted by the respective parties. On November 1, 1949, the Commission filed its determination that the defendant was guilty of non-cooperation and certain infractions of the rules of office procedure, and thereupon set aside the defendant's dismissal, substituting therefor a penalty of three months' suspension.

Plaintiffs contend that the judgment of the Commission should be reversed on the following grounds, viz.: (1) that the Commission lost its jurisdiction to enter its order of November 1, 1949, modifying the Surrogate's judgment of dismissal, as it failed to render a decision '* * * within fifteen days after the completion of the investigation, inquiry or hearing, and sooner if practicable, * * *' as required by R.S. 11:15--6, N.J.S.A.; (2) that the Commission's order was an abuse of its discretion; and (3) that 'The Civil Service Commission committed reversible error in conducting the hearing and in rendering its decision.'

No useful purpose will be served by a discussion of the charges made against Adelberg or of the testimony of the witnesses with respect thereto. In fact, it is difficult to glean from the record the evidence that specifically relates to the alleged acts of misconduct in office for which he was dismissed, occurring after Adelberg's return to the office following his five-day suspension in February. A review of the evidence reveals that much of the testimony proffered to establish the charges against Adelberg recounted incidents that occurred prior to the date of his five-day suspension. This testimony is admissible to establish Adelberg's general attitude of insubordination, &c., for several years preceding his five-day suspension, particularly in view of the Surrogate's testimony that upon his return after the termination of the five-day suspension, Adelberg still persisted in refusing to make corrections in the records and refused to cooperate withe the Surrogate in maintaining the records in the manner and form in which the Surrogate had directed. However, the evidence of Adelberg's alleged acts of misconduct prior to the five-day suspension were not admissible to establish the charges upon which his discharge was predicated.

Until the adoption of P.L.1938, c. 76, p. 191 (R.S. 11:2A--1, N.J.S.A.), the Commission, on appeal from disciplinary action of the appointing authority under review here, could only affirm or reverse the finding--it could not modify. Maguire v. Van-Meter, 121 N.J.L. 150, 1 A.2d 445 (E. & A. 1938). The 1938 act extended the authority of the Commission, granting it the same power of revoking or modifying the disciplinary action of the appointing authority, as it possessed in cases involving State employees. The 1938 Act was amended by P.L.1946, c. 184, p. 771, Sec. 1, to read as follows: 'No employee of the State, or of any county, municipality or school district of the State shall be suspended, fined, demoted for a period of greater than thirty days in the aggregate in any one year or discharged without the same right of appeal to the commission, which shall have the same power of revoking or modifying the action of such authority, as in the case of removal as provided in sections 11:15--2 to 11:15--6 of the Revised Statutes. No such employee shall be suspended, fined or demoted for a period greater than five days at one time without the same right of appeal, with the same authority in the commission as aforesaid.'

It is quite clear that under the 1938 Act, as amended, the Commission was authorized, at the conclusion of the hearing, to review the evidence, reach its determination as to the guilt or innocence of the employee and, In its judgment, to modify the penalty imposed by the appointing authority.

Plaintiffs contend that if the Commission undertook to act under the authority of R.S. 11:2A--1, N.J.S.A., it could only do so by rendering its decision within fifteen days after the completion of the hearing. R.S. 11:2A--1, N.J.S.A., indicates a legislative intent to broaden the authority of the Commission, permitting it to exercise its judgment in determining whether the penalty imposed by the appointing authority should be approved or modified and, if modified, by the imposition of a different penalty. The only limitation placed upon the Commission in such circumstances is that it could not remove the employee from the service in substitution of a lessor penalty by the appointing authority. R.S. 11:15--6, N.J.S.A. The Legislature obviously...