Town of West New York v. Bock

• Decision Date: 19 November 1962
• Docket Number: No. A--6,A--6
• Citation: 38 N.J. 500,186 A.2d 97
• Parties: TOWN OF WEST NEW YORK, a municipal corporation of the State of New Jersey, Appellant, v. Harry BOCK and Department of Civil Service of the State of New Jersey, Respondents.
• Court: New Jersey Supreme Court

Page 500

38 N.J. 500

186 A.2d 97

TOWN OF WEST NEW YORK, a municipal corporation of the State of New Jersey, Appellant, v. Harry BOCK and Department of Civil Service of the State of New Jersey, Respondents.

No. A--6.

Supreme Court of New Jersey.

Argued Sept. 11, 1962.

Decided Nov. 19, 1962.

Samuel L. Hirschberg, West New York, for appellant.

Sydney I. Turtz, West New York, for respondent Bock (Cohen & Turtz, West New York, attorneys).

William L. Boyan, Deputy Atty. Gen., for respondent Dept. of Civil Service (Arthur J. Sills, Atty. Gen., attorney, William L. Boyan, Trenton, of counsel).

The opinion of the court was delivered by

HALL, J.

This is a civil service case. The respondent Bock, a fireman of the Town of West New York in the classified service, was dismissed from his position by the appointing authority after a hearing on charges. He appealed to the Civil Service Commission which, following a De novo hearing, reduced the penalty to suspension without pay for a period of approximately 15 months. On appeals from the Commission's judgment by both the town and Bock, R.R. 4:88--8, the Appellate Division modified the punishment to a 6 months' suspension but otherwise affirmed. 71 N.J.Super. 143, 176 A.2d 527 (1961). We granted the town's petition for certification. 37 N.J. 135, 179 A.2d 569 (1962). Involved are important questions under the civil service law with respect to discipline of employees in the municipal service. Some further detail of the facts is needed to point up the several issues, which have proliferated during the course of this originally uncomplicated matter.

On October 7, 1959 Bock was served with charges signed by the town fire chief. The document was a form entitled 'Preliminary Notice of Disciplinary Action,' required at the time by the State Department of Civil Service to be served on a permanent employee in the classified service against whom disciplinary action beyond a 5-day suspension was proposed to be taken. The first item printed on the form reads: 'You are hereby notified that, pending hearing, you are * * * suspended' for a specified period, 'removed', 'demoted' from one named position to another, or 'fined' an inserted amount. The choice was to be made by placing a check mark in a square opposite the selected alternative. Then followed a space for typing in the reasons, which constitute the charges. The body of the form concluded with this statement: 'Before final action is taken in this case a hearing will be held, at the time and place stated below, at which time you may appear and offer any evidence or testimony in your defense.'

In Bock's case, a mark was placed in the square opposite 'suspended' but the printing and spaces for designating a period of suspension were crossed out. All other squares were left blank. The charges were specified as 3 separate instances of violation of fire department regulations consisting of tardiness in reporting for duty, varying from 15 minutes to a half hour, on 3 named dates within the preceding 3 or 4 weeks. The notice ended with a designation of the time of hearing, some 6 days after service of the notice, before the appointing authority, who, in this case, since West New York was governed by the commission form, was the Director of Public Safety. There was nothing to indicate that dismissal was the contemplated penalty or that anything but the 3 recited instances of tardiness was to be considered.

At the hearing the matter was prosecuted by the assistant town attorney. Bock appeared without counsel and was first asked to plead to the 3 charges of lateness. He replied that he was guilty. Following the plea, the municipal attorney advised that, 'in view of the previous record of Fireman Bock * * * we proceed to establish' not only guilt of the present charges, 'but also present' Bock's 'complete background' in the department. Proof of the current offenses was then given by Bock's company commander. The department chief was called to testify 'as to the status of Fireman Bock in reference to charges or tardiness in the past against him.' Bock objected, asking whether his penalty was to be judged on the past or on present charges and adding 'It may show bias to my penalty.' The Director replied that the present charges were added to his past record and that he 'must know the entire record to determine the entire penalty.' The chief then testified from Bock's personnel file as to 5 offenses between 1943 and 1952, mostly for tardiness, as to which charges had been preferred, guilt found and penalties imposed, in no case exceeding suspension or fine for longer than 15 days. He further read entries of numerous other instances of tardiness, some trivial, some serious, during the years 1948 through 195l from the company journal records and daily reports made by the commanding officer at the time. As was elicited when the same subject matter was explored at the hearing before the Civil Service Commission, West New York has no time clock or roll-call system and the attendance record is taken by the officer in charge at the particular time simply noting on the log who is present in the fire house at the appointed hour. There was no proof presented to the Director to substantiate these entries or to establish that they had ever been admitted by Bock. In addition, it appears that the so-called personnel record consisted only of notations of promotions, commendations, and adjudicated disciplinary charges and did not amount to a record of service relative to efficiency. See R.S. 11:22--35, N.J.S.A. and Commission Rule 56 (1949).

At the conclusion of the testimony, the Director announced:

'If your past record were one that could be easily dismissed or overlooked, I could then feel free to judge you on today's charges and fine you in accordance with that and forget the incidents, but for the welfare of the West New York Fire Department and I feel, for your own welfare, so that this condition that you are creating by constant tardiness and neglect of duty shall be avoided in the future and to keep the morale of the West New York Fire Department on the high plane it justly deserves, I find you guilty and, therefore, must dismiss you from the West New York Fire Department starting immediately.'

This was the first indication to Bock that dismissal from his position was involved. After Bock's protest, the Director added: '* * * today's charges are not the only charges that are involved. The charges date back since you have joined the Department * * *' The town thereafter filed with the Civil Service Commission a copy of the required notice to Bock, entitled 'Final Notice of Disciplinary Action', N.J.S.A. 11:22--38, Commission Rule 59 (1949), which again recited only the 3 tardiness charges upon which he had been found guilty and set forth that he had been removed by reason thereof.

Bock then engaged counsel who filed a letter notice of appeal with the Commission. N.J.S.A. 11:22--38; R.S. 11:22--39, N.J.S.A. Two grounds were specified: first, that the penalty of removal had been dictated by political reasons rather than any infractions of the rules and, second, that the penalty was too harsh and entirely out of line with the offenses committed. During the course of the subsequent hearing it was made plain that the latter ground was intended to encompass a claim that Bock had actually been tried and found guilty below on what amounted to a charge of chronic tardiness constituting continual neglect of duty and that he had not been notified of such grounds in the charges served upon him; and, in addition, that, in any event, the instances of tardiness taken from the log books should not be considered since they were not substantiated and had never been adjudicated formally or informally. At the outset of the hearing, one of the two sitting Commissioners raised the further question that the notice originally served on Bock did not indicate removal was contemplated and he might therefore have been lulled into a false sense of security in making no defense before the municipal authority.

It was stipulated that Bock had pleaded guilty below to the 3 charged incidents of tardiness and no evidence was offered to dispute his guilt thereof. The proofs offered by the town took substantially the same course as at the municipal hearing and were received over objection based on the claim noted above. ¹ The Commission did, however, limit the proof of so-called prior offenses to those beginning with the year 1952 on the ground that earlier instances were too remote. The proofs as so limited showed one disciplinary action, based on a charge of tardiness in 1952, resulting in a fine amounting to 2 weeks' pay and a warning as to the next offense, and a log record of some 20 instances of tardiness within the next 7 years. Of these none occurred in 1959 beyond the 3 which are the subject of the current charges and only one in 1958. There was no substantiation of any of these log entries and no proof of any admission by or warning to Bock with reference thereto.

The decision of the Civil Service Commission was not rendered until 11 months after it had heard the appeal--an unconscionably long time. ² We are advised by counsel for the Commission that the delay was occasioned because the two Commissioners were unable to agree upon a conclusion earlier. Be that as it may, the great lapse of time led to a peculiar result. It was first held that Bock was not liable to removal under any circumstances because that contemplated disposition was not indicated by an appropriate making on the notice of charges served upon him, and he had been led to plead guilty by what later proved to be an erroneous notion that he faced at most a suspension, such disciplinary measure being the only one checked on the form. We take it this holding was reached as matter of law since there was no evidence on the question. It was further held that the municipal authority 'erred in...