Greco v. Smith

• Decision Date: 02 May 1956
• Docket Number: No. A--139,A--139
• Citation: 40 N.J.Super. 182,122 A.2d 513
• Parties: Thomas P. GRECO, Petitioner-Appellant, v. Kenneth D. SMITH, Director of the Department of Public Works of the Town of Belleville, a municipal corporation of the State of New Jersey, Town of Belleville, a municipal corporation of the State of New Jersey, Civil Service Commission of the State of New Jersey, and Department of Civil Service of the State of New Jersey, Defendants-Respondents. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 182

40 N.J.Super. 182

122 A.2d 513

Thomas P. GRECO, Petitioner-Appellant, v. Kenneth D. SMITH, Director of the Department of Public Works of the Town of Belleville, a municipal corporation of the State of New Jersey, Town of Belleville, a municipal corporation of the State of New Jersey, Civil Service Commission of the State of New Jersey, and Department of Civil Service of the State of New Jersey, Defendants-Respondents.

No. A--139.

Superior Court of New Jersey Appellate Division.

Argued March 12, 1956.

Decided May 2, 1956.

Jacob Fox, Newark, for appellant (Jacob & Martin S. Fox, Newark, attorneys and of counsel).

Lawrence E. Keenan, Belleville, for respondents.

Before Judges GOLDMANN, FREUND and CONFORD.

The opinion of the court was delivered by

GOLDMANN, S.J.A.D.

Petitioner Greco sought reinstatement before defendant Civil Service Commission to his position as building inspector of defendant Town of Belleville, charging that bad faith rather than reasons of economy motivated the discharge. The Commission, after hearing, determined that petitioner had failed to prove bad faith, and affirmatively concluded that economy had been effected by the transfer of his duties as building inspector to the town engineer. Greco appeals from the adverse ruling.

Initially we recognize that upon review we will not upset the action of the Civil Service Commission in the absence of an affirmative showing that it was arbitrary, capricious or unreasonable, or not supported by the evidence (cf. Carls v. Civil Service Commission, 17 N.J. 215, 221, 111 A.2d 45 (1955); Falcey v. Civil Service Commission, 16 N.J. 117, 123, 106 A.2d 549 (1954)); or where the Commission has disregarded or failed to recognize the legislative policies enunciated in the Civil Service Act, R.S. 11:1--1 et seq., as amended, N.J.S.A. (Rogers v. Department of Civil Service, 17 N.J. 533, 541, 111 A.2d 894 (1955)). These principles serve as a guide in our approach to this appeal, but cannot be considered as prohibiting or limiting our complete inquiry into the facts, for only by such investigation can the action of the agency be properly evaluated. This course is plainly envisioned by R.R. 4:88--13, which gives this court the power to review the facts and make independent findings thereon, which power may be exercised to such extent as the interests of justice require. The question here is whether the claim of economy used in terminating petitioner's active services as building inspector of Belleville was a device for circumventing his tenure rights as a civil servant, in violation of R.S. 11:22--38, N.J.S.A., and as a veteran in violation of N.J.S.A. 38:16--1.

Belleville, which has a commission form of government, adopted the provisions of Subtitle 3 of Title 11 of the Revised Statutes, N.J.S.A., 'Civil Service,' in 1945. The position of building inspector was created in 1948 and is in the classified civil service. Plaintiff took the civil service examination for that position in February 1948, and was thereafter, on August 3, 1948, certified by the Civil Service Commission as entitled to appointment. He was not appointed until November 1, 1948, of which more hereafter. He held the position until his discharge. From the time of his appointment until February 21, 1955 the position of building inspector was in the Building Department, Department of Public Affairs, of which Joseph King was Director. On that day the city commission adopted a resolution, introduced by Director King, transferring the Building Department to the Department of Public Works, headed by Director Smith, one of the defendants. Two days later, on February 23, 1955, the intervening day being a holiday, Smith wrote petitioner advising him that his services would be terminated as of March 1, 1955, and that for 'reasons of economy' his duties were thereafter to be performed by the Engineering Department, allocated to the Department of Public Works. Although petitioner reported for work on March 1, he was not permitted to perform his duties. After March 1, 1955 his duties were assigned to and performed by the town engineer, Sheehan, who was subject to Director Smith's supervision. Director Smith had on February 23, 1955 designated Sheehan as 'acting building inspector' at no additional compensation, effective March 1, 1955. We were informed at the oral argument that Sheehan died in the latter part of 1955 and that the assistant town engineer, one Faust, was then appointed acting building inspector in his place.

A detailing of the factual situation is necessary to our conclusion that petitioner was wrongfully discharged. Greco was a disabled veteran. From the date of his certification in August 1948 to the date of his appointment on November 1, 1948--a period of about three months--the position of building inspector was filled by Campbell McCall, a friend of Director of Public Affairs King, with whom he had allegedly been associated in business. Plaintiff testified that during this period he tried to get information about his appointment, but made no progress until after he had written a letter of complaint to the Civil Service Commission. It appears that although municipal funds were available for the purpose, Director King chose to retain McCall rather than appoint a regular building inspector. King nonetheless insisted before the Commission that he could not appoint Greco because he did not have the money in his budget, funds not being available until he could transfer them in November 1948. After Greco had written the Commission he received a call from Smith, who at that time was deputy chief of police but not yet a member of the governing body. Smith was related to Director King through marriage. He asked petitioner 'what the adverse publicity concerning King was about'; Smith seemed annoyed and remarked that Greco should 'cut it out or it won't be good' for him. Thereafter he took Greco to King's summer home where King signed a letter, previously prepared by Smith, appointing petitioner as building inspector.

Greco testified that from the time of his appointment onward Director King displayed a resentful attitude toward him. When Greco tried to discuss official business, King would walk away without answering. Except for a brief period when he was able to get secretarial help from another department, petitioner was without secretarial or clerical assistance, despite repeated requests made of Director King, all of which were refused. The bulk of Greco's secretarial work had to be performed at home by his wife.

Asked about his relations with petitioner, King testified: 'I get along with anyone and also with Mr. Greco but he couldn't get along with me.' At the hearing before the Commission King acknowledged that Greco's work was satisfactory, but he complained of his 'attitude toward the people that were coming in and his attitude toward him (King) at all times too.' Pressed to explain what he meant by Greco's attitude toward him, he said that citizens were calling up and making complaints about the building inspector's attitude; 'They said he was arrogant and things like that. I tried to get along as best I could.' King acknowledged, however, that petitioner was not arrogant toward him. In further elaboration of the subject he stated that Greco's inability to get along with him manifested itself by his 'not being congenial with the people coming in.'

One particular incident throws light upon and explains in good measure the strained relations existing between King and Greco. In November 1954, a short time before petitioner was discharged, Belleville held a referendum on the question of adopting a new form of municipal government. The attempt proved unsuccessful. Greco had been in favor of the change; King naturally favored retention of the commission form. Greco testified that soon after the referendum he met Director King at the City Hall and extended his hand to congratulate him upon his victory; that King looked at him coldly and said, 'I want to thank you for everything you did not do for me in the campaign,' to which Greco countered 'I would like to thank you, Commissioner, for everything you never did for me'; that King pointed his finger at him and said, 'I will take care of you for that.' King did not deny this conversation. His only testimony with reference thereto was that when he met Greco he said, 'Thanks for what you did or what you did not do,' the remark being explained as a 'satirical comment.'

Greco had on several occasions sought out Smith in order to persuade him to have the building inspector's office transferred to his department, apparently, as Smith speculated that he might receive secretarial assistance or a possible raise in salary. Smith testified that he was unwilling to assist in bringing about the transfer. Then suddenly, and without prior notice to Greco, came the resolution of February 21, 1955, transferring the office of building inspector from Public Affairs Director King to Public Works Director Smith. Greco thought the purpose might have been to get him the salary increase and a secretary because, as he testified, he had talked to Smith about the matter and Smith had promised to get him 'straightened out.' However, when he spoke to Smith directly after the meeting at which the transfer resolution was adopted, Smith's only answer was 'The Department was transferred,' and 'Don't think you are going to get away with the crap you did under Commissioner King.' Smith's comment as to this testimony was that he did not recall the conversation. The notice of termination of Greco's employment came on the first business day following.

King, as might be expected, denied having any personal prejudice against petitioner, but (as noted) refurred several times in his testimony to the complaints allegedly received from citizens about his conduct. On one occasion King actually tried Greco on formal charges supposedly based on complaints of...