Rivell v. Civil Service Commission

• Decision Date: 02 June 1971
• Citation: 115 N.J.Super. 64,278 A.2d 218
• Parties: Louis RIVELL, Plaintiff-Appellant, v. CIVIL SERVICE COMMISSION and the City of Newark, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 64

115 N.J.Super. 64

278 A.2d 218

Louis RIVELL, Plaintiff-Appellant, v. CIVIL SERVICE COMMISSION and the City of Newark Defendants-Respondents.

Superior Court of New Jersey,

Appellate Division.

Argued May 25, 1971.

Decided June 2, 1971.

Anthony T. Colasanti, Newark, for appellant (Angelo R. Bianchi, Newark, attorney; Anthony T. Colasanti, Newark, on the brief).

W. William Hodes, Asst. Corp. Counsel, on behalf of respondent City of Newark.

George F. Kugler, Jr., Atty. Gen., attorney for Civil Service Comm'n (David S. Litwin, Deputy Atty. Gen., of counsel) submitted statement in lieu of brief.

Before Judges KILKENNY, HALPERN and LANE.

The opinion of the court was delivered by

LANE, J.A.D.

Plaintiff appeals from a decision of the Civil Service Commission upholding and affirming the action of the City of Newark in removing him from the Police Department.

Plaintiff received a regular appointment as a patrolman of the City of Newark from a Civil Service list on June 6, 1964. On October 22, 1968 charges were preferred against him for violations of Rule 7:4.7, Rule 6:14 and Rule 6:2 of the Newark Police Department Rules and Regulations. The basis of the first charge was that when plaintiff had been ordered by the police surgeon to report from sick leave on August 22, 1968, he failed to inform his superior officer that he had been returned to duty. The basis of the second charge was that plaintiff had received a lawful order from the police surgeon to report to duty from sick leave and failed to comply with that order. The third charge alleged that plaintiff had absented himself from work without any superior officer giving him permission to do so. At a departmental hearing on January 3, 1969, he was found guilty of all the charges and suspended for 30 days. In addition, he was assessed an additional 30-day suspension as a result of alleged insubordinate conduct towards the Police Director at the time of the departmental hearing.

On January 27, 1969, Lt. William E. Weber gave plaintiff, who was still on suspension, an order to report to the First Precinct station so that he could be served with final notice of disciplinary action concerning the three charges referred to above. Earlier, on January 24, he had first been ordered to the station by Weber. When plaintiff advised Weber on the telephone on January 27 that he was not going to come into the precinct, Captain Charles M. Zizza came on the telephone and give him a direct order on the telephone to report to the precinct at 3 P.M. or charges would be instituted against him. Captain Zizza testified:

When Rivell heard this he said to me 'You order me?' And there was some langhter and again, in quotes 'I'm not taking orders from you. You did enough to me already.'

At the time of the conversation, plaintiff was officially assigned to Captain Zizza's command, and it was Captain Zizza's function to serve him with the final notice of disciplinary action. Lt. Weber's telephone conversation with plaintiff was made at the direct request of Captain Zizza.

As a result of plaintiff's failure to report to the precinct as ordered, charges were preferred against him as follows:

CHARGE I: Violation of Rule 3:2.5, Chapter 3, Rules and Regulations--Lawful Orders. 'Police officers * * * shall always respond to the lawful orders of superior officers * * *' (TWO COUNTS)

Specifications:

1. Patrolman Louis J. Rivell, First Precinct, while on departmental suspension January 24, 1969, at or about 1:15 p.m., having received a lawful order, via telephone, from Lieutenant William Weber, a superior officer, to report to the First Precinct station on January 27, 1969, did, without just cause, fail and neglect to comply with such order.

2. Patrolman Louis J. Rivell, First Precinct, while on departmental suspension January 27, 1969, at or about 12:30 p.m., having received a lawful order, via telephone, from Captain Charles M. Zizza, a superior officer to report to the First Precinct station by 3:00 p.m. on said date, did, without just cause, fail and neglect to comply with such order.

CHARGE II: Violation of Rule 6:8, Chapter 6, Rules and Regulations--ACTS OF INSUBORDINATION--'Department members shall not commit acts of insubordination or disrespect to any superior officers.' (TWO COUNTS)

Specifications:

1. Patrolman Louis J. Rivell, First Precinct, while on departmental suspension January 27, 1969 was insubordinate and disrespectful to Lieutenant William Weber, a superior officer, in that, at or about 12:30 p.m. he communicated with Lieutenant Weber, instead of reporting in person as previously ordered, via telephone, at the First Precinct station and did, knowingly and wrongfully say to him, 'If you want to serve me with the final papers you can do so by bringing them to me at a store at 354 Broadway', or words to that effect, and upon being advised that he was required to submit reports of receipt of the papers, the said Patrolman wrongfully replied, 'I am not going to submit any reports, if you want to serve the papers at the Broadway address I will take them but I am not going to submit any reports', or words to that effect; and upon being told by the Lieutenant that he was still subject to department rules and regulations while under suspension, Patrolman Rivell did further wrongfully reply, 'When the department starts paying me after my sixty days, I'll start obeying orders', or words to that effect.

2. Patrolman Louis J. Rivell, First Precinct, while on departmental suspension January 27, 1969, at or about 12:30 p.m., was disrespectful and insubordinate to Captain Charles M. Zizza, in that after being ordered by said superior officer, via telephone, to report to the precinct station by 3:00 p.m., on said date or department charges would be brought against him, Patrolman Rivell did, knowingly and wrongfully reply, 'You order me', and commenced to laugh, and then he did further wrongfully reply, 'I'm not taking any orders from you, you did enough to me already', or words to that effect.

At a departmental hearing held April 11, 1969, plaintiff was found guilty of the charges and was discharged from his position as a patrolman in the Newark Police Department.

A hearing before the Civil Service Commission was held December 29, 1969. The Commission reversed the findings on the initial three charges that resulted in the 30-day suspension, holding that there was a lack of credible evidence to support them. Further, the additional 30-day suspension for insubordination was reversed on the ground that the evidence did not show an act of insubordination.

As to the two additional charges based upon plaintiff's failure to report, the Commission stated:

This appellant, though under suspension, for a defined period of time, was a member of the Newark Police Department, a quasi-military unit and was bound by the Rules and Regulations of that department. His failure to report as commanded by two superiors is a serious breach of conduct of a member of such a quasi-military organization. It is the Hearer's determination that the attitude as displayed by this appellant does not make him good timber for membership in a Police Department as does his failure to accept the responsibility and adhere to the Rules and Regulations of the department. Orders of superior officers must be complied with or the fiber of the organization is torn asunder.

The action of the appointing authority in removing plaintiff from the Police Department was upheld and affirmed.

Plaintiff argues on appeal that the order to report to the precinct was not a lawful order because at the time it was given plaintiff was not an active member of the Newark Police Department, being suspended. Essentially the argument is that a suspension is the equivalent to a removal for the duration of the suspension. Therefore, it is argued an employee under suspension is not subject to any orders during the time of the suspension.

Suspension has been defined as only a 'temporary forced withdrawal from the exercise of office' as opposed to a dismissal. Murley v. Township, of Raritan, 117 N.J.L. 357, 188 A. 739 (Sup.Ct.1936). But see Ballurio v. Castellini, 29 N.J.Super. 383, 390, 102 A.2d 662 (App.Div.1954). A suspended policeman remains as part of the department, for suspension is simply a matter of discipline of the policeman while a member of the department. Murley v. Township, of Raritan, Supra. Therefore, he should be subject to any applicable rules and regulations.

The rules and regulations of the Newark Police Department define suspension as (Rule 7:13.1):

Suspension is the act of temporarily denying a police officer or a civilian employee the privilege of performing his...