Town of Belleville v. Coppla

• Decision Date: 07 October 1982
• Citation: 187 N.J.Super. 147,453 A.2d 1344
• Parties: TOWN OF BELLEVILLE, Respondent-Appellant, v. John COPPLA and Thomas Festa, Petitioners-Respondents, and Civil Service Commission, Department of Civil Service of the State of New Jersey, Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 147

187 N.J.Super. 147

453 A.2d 1344

TOWN OF BELLEVILLE, Respondent-Appellant, v. John COPPLA and Thomas Festa, Petitioners-Respondents, and Civil Service Commission, Department of Civil Service of the

State of New Jersey, Respondent.

Superior Court of New Jersey,

Appellate Division.

Submitted Sept. 20, 1982.

Decided Oct. 7, 1982.

Frank J. Zinna, Nutley, for respondent-appellant (Frank J. Cozzarelli, Belleville, on the brief).

Fox & Fox, Newark, for petitioners-respondents Coppla and Festa (Richard H. Greenstein, Newark, on the brief).

Irwin I. Kimmelman, Atty. Gen., for respondent Dept. of Civ. Service (James R. Zazzali, former Atty. Gen., and Janet Share Zatz, Deputy Atty. Gen., on the statement in lieu of brief).

Before Judges MILMED, MORTON I. GREENBERG and FURMAN.

The opinion of the court was delivered by

MORTON I. GREENBERG, J.A.D.

The background and procedural history of this matter should be set forth so that the issues are clearly understood.

Petitioners John Coppla and Thomas Festa became employed by respondent Town of Belleville in September 1977 as laborers on a water truck in Belleville's Department of Public Works. The department was responsible for overseeing, checking and repairing Belleville's water distribution system.

In October 1978 petitioners were promoted to provisional water repairers. When each accepted this position he was expected to know how to check water leaks. Specifically, their duties included "[r]epair of all pipes, checking the water leaks, any kind of cuttings which come under the mains, hydrants, services." Each held his position on a temporary basis until November 5, 1979, when apparently at the direction of the Director of Public Works, they were returned to the position of laborer. Petitioners concede that such action was lawful. Shortly thereafter, on November 17, 1979, when petitioners were the only two men on the water truck, they were requested to respond to a call about a possible water leak in the town. When they did not go to the place of the leak an assistant superintendent of public works investigated to find out the problem. Petitioners told him they did not know how to check a water leak. The assistant superintendent did not believe them. Petitioners did offer to go with him if he checked on the leak, but in fact did not respond to the call.

On November 19, 1979 the Director of Public Works sent letters of termination to petitioners. These letters were not sent in accordance with Civil Service procedure. Upon learning the correct procedure the Director properly terminated petitioners as employees, effective December 4, 1979. Coppla was charged with neglect of duty, incompetency or inefficiency, and insubordination or serious breach of discipline. Festa was charged with neglect of duty and insubordination or serious breach of discipline. ¹

Petitioners challenged their removal before the Civil Service Commission (hereinafter Commission). The matter was assigned to an administrative law judge, who held an evidentiary hearing on June 10, 1980. On September 26, 1980 the judge issued his written initial decision. He made detailed findings of fact, including the following:

The appellants did know how to check for a water leak, and they were fully capable of doing so. Their claim of ignorance was tantamount to a refusal to perform an assigned task. It was a wrongful and contrary demonstration of pique motivated by their seemingly unjustified demotion five days earlier.

Though the judge concluded that both men "should be subject to disciplinary action and imposition of a penalty because of the ... violation," he decided that the penalty imposed was too harsh. Specifically he stated:

Considering the level of the appellants' titles as laborers, the two-year length of their employment, and the fact that their records were completely clear of prior disciplinary problems, the penalty of removal for the above single violation is unreasonably severe. A six-month suspension is more appropriate and is a sufficiently strong penalty under the circumstances.

Thus, the judge ordered that the town's action be modified by reducing the penalty to a six-month suspension beginning December 4, 1979. He further ordered back pay for the period between November 19, 1979, when the men were removed in fact, and December 4, 1979, when their removal became properly effective--reduced and mitigated by income earned during that time. Finally, he ordered petitioners reinstated retroactively as of the expiration of the six-month suspension period. Petitioners were to be considered during the time between then and the actual date of reinstatement as having been on a leave of absence without pay.

The matter was then considered by the Commission at its November 6, 1980 meeting. At that time it adopted the judge's findings of fact. ² However, the Commission concluded that a 60-day suspension was a more appropriate penalty. In reaching this conclusion the Commission noted that each petitioner had an unblemished work record from 1977 until November 19, 1979. The Commission further ordered that back pay be awarded for the period from the end of the 60-day suspension to the actual reinstatement date. This award was to be reduced and mitigated by income earned during that period.

On January 28, 1981 the town filed a timely notice of appeal to this court.

Belleville, in its brief on this appeal, filed December 1, 1981, states "that John Coppla has not returned to employment, and that Thomas Festa has been reinstated." No further details have been supplied. We presume that Coppla, for reasons unrelated to this case, has not returned to work. In any event, petitioners seem not to contest this assertion.

Belleville raises a preliminary procedural point. The case was tried pursuant to the Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq. The decision of the judge was received by the Civil Service Commission on September 30, 1980. N.J.S.A. 52:14B-10(c) provides in part The head of the agency, upon a review of the record submitted by the administrative law judge, shall adopt, reject or modify the recommended report and decision no later than 45 days after receipt of such recommendations. Unless the head of the agency modifies or rejects the report within such period, the decision of the administrative law judge shall be deemed adopted as the final decision of the head of the agency.

The Commission met on November 6, 1980 and, as we have already indicated, adopted the judge's findings but modified the penalty. This action was within 45 days after September 30, 1980, as allowed by N.J.S.A. 52:14B-10(c). The Commission, however, did not issue its written final decision until December 17, 1980, more than 45 days after September 30, 1980.

Belleville further cites N.J.S.A. 52:14B-10(e), which provides:

Except where otherwise provided by law, the administrative adjudication of the agency shall be effective on the date of delivery or on the date of mailing, of the final decision to the parties of record, whichever shall occur first, or shall be effective on any date after the date of delivery or mailing, as the agency may provide by general rule or by order in the case. The date of delivery or mailing shall be stamped on the face of the decision.

Since the effective date of the decision was December 17, 1980, the town argues that the Commission did not comply with the 45-day requirement in N.J.S.A. 52:14B-10(c). Thus, Belleville asserts that the initial decision of the administrative law judge, including the penalty of a six-month suspension without pay, became final pursuant to N.J.S.A. 52:14B-10(c). Petitioners respond that the Commission did act within 45 days, at its meeting on November 6, 1980, and "[t]he fact that the written decision was not issued until December 17 is irrelevant."

We agree with petitioners on this point. N.J.S.A. 52:14B-10(d) requires that: "A final decision or order adverse to a party in a contested case shall be in writing or stated in the record." Here the decision was stated in the record on November 6, 1980. While it is true that for a decision to become effective, N.J.S.A. 52:14B-10(e) requires that it be delivered or mailed to the parties, the section contains no explicit time constraint. Here the Commission acted within a reasonable time after having made its decision. In the circumstances we see no basis to invalidate its action on the procedural ground raised.

Belleville contends that the action of the Commission in reducing the penalty to a 60-day suspension was arbitrary, capricious and unreasonable.

In considering this contention certain basic principles should be considered. Clearly the Commission had the power to modify Belleville's action. N.J.S.A. 11:2A-1. Specifically, "[t]he Commission may, when in its judgment the facts warrant it, modify or amend the penalty imposed by the appointing authority or substitute another penalty for that imposed ...." N.J.S.A. 11:15-6. Since the Commission must redetermine guilt and the penalty at a de novo hearing, it may impose a penalty without the need to first find a clear abuse of discretion by the town. West New York v. Bock, 38 N.J. 500, 519, 186 A.2d 97 (1962).

In reviewing a decision of the Civil Service Commission we have a limited role. Thus, ordinarily we will reverse the decision only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole. Henry v. Rahway State Prison, 81 N.J. 571, 579-580, 410 A.2d 686 (1980); Campbell v. Civil Service Dep't, 39 N.J. 556, 562, 189 A.2d 712 (1963). Furthermore, we accord the Commission's action a presumption of reasonableness. East Paterson v. Civil Service Dep't, 47 N.J.Super. 55, 65, 135 A.2d 213 (App.Div.1957).

To support its claim that the Commission acted arbitrarily, capriciously and unreasonably, Belleville cites Henry v. Rahway State Prison, supra, 81 N.J. at 571, 410 A.2d...