Town of West New York v. Bock
| Decision Date | 14 December 1961 |
| Docket Number | No. A--344,A--344 |
| Citation | 71 N.J.Super. 143,176 A.2d 527 |
| Parties | TOWN OF WEST NEW YORK, a municipal corporation of the State of New Jersey, Appellant and Cross-Respondents, v. Harry BOCK, Respondent and Cross-Appellant, and Department of Civil Service of the State of New Jersey, Respondent and Cross-Respondent. |
| Court | New Jersey Superior Court — Appellate Division |
Samuel L. Hirschberg, West New York, for appellant and cross-respondent.
Sidney I. Turtz, West New York, for respondent and cross-appellant (Cohen & Turtz, West New York, attorneys; Sidney I. Turtz, West New York, of counsel).
William L. Boyan, Deputy Atty. Gen., for respondent and cross-respondent (David D. Furman, Atty. Gen., attorney; William L. Boyan, Bergenfield, of counsel).
Before Judges PRICE, SULLIVAN and LEONARD.
The opinion of the court was delivered by
LEONARD, J.S.C. (temporarily assigned).
This is an appeal and cross-appeal from a determination and decision of the Department of Civil Service.
Respondent and cross-appellant Harry Bock (Bock) was appointed to the fire department of appellant and cross-respondent Town of West New York (town) on February 1, 1943 and has been continuously employed therein until his removal therefrom as hereinafter stated.
On October 6, 1959 Bock was served with written notice advising him he was suspended from his position because he was late for duty on three specific occasions during September and October of that year. Said notice further advised him that a hearing on said charges would be held before the Director of the Department of Public Safety of town (director) on October 13, 1959. Bock appeared at the scheduled hearing without counsel and plead guilty to said charges. Testimony was then adduced of the past record of his tardiness. At the conclusion thereof, director removed him from his position.
On October 19, 1959 Bock appealed to Department of Civil Service (Department), and on February 11, 1960 it held a De novo hearing. At this hearing he again plead guilty, and at the close of town's case his attorney rested without any witness or testimony. Eleven months after said hearing, Department rendered its decision whereby it reversed Bock's removal and substituted therefor a suspension running from the date of his original suspension to the date of its order, a period of some 15 months.
Town's Appeal.
Town suggests that Department does not have 'power' to modify a penalty which is supported by good and sufficient cause. This argument is predicated upon the fact that town functions under a commission form of government and that each commissioner is to be afforded an unusually high degree of authority over his departments.
Similar arguments were held untenable in City of Newark v. Civil Service Commission, 114 N.J.L. 406, 177 A. 121 (Sup.Ct.1935). The court therein, at p. 411, 177 A. at p. 124, stated:
R.S. 11:15--6, N.J.S.A. gives Department right to modify a penalty imposed by a municipality after a De novo hearing. Town urges Harrison v. State Bd. of Education, 134 N.J.L. 502, 48 A.2d 579 (Sup.Ct.1946), as support for its position. Harrison did not involve a review under R.S. 11:15--6, N.J.S.A., and is therefore not pertinent.
Town next argues there was insufficient factual background to warrant modification. Although this court undoubtedly has the power to review Department's action and, if necessary, make independent findings thereon, R.R. 4:88--13, 1:5--4(b) and 2:5, it will not substitute its judgment for that of Department where there is proof to support the latter's action and its judgment is not arbitrary capricious or unreasonable. Borough of East Paterson v. Civil Service Department of N.J., 47 N.J.Super. 55, 65, 135 A.2d 213 (App.Div.1957). Under the circumstances the penalty of dismissal imposed by director was too severe. We conclude the action of Department in modifying the penalty was a reasonable exercise of its statutory authority supported in the record. The legality of the penalty imposed by Department is hereinafter determined.
BOCK'S CROSS-APPEAL.
Bock urges as grounds for reversal of Department:--(1) it exceeded its powers in imposing a period of suspension of over six months; (2) it refused to permit testimony to show he was discharged for political reasons; (3) it should have dismissed the charges against him because town failed to comply with requirements of N.J.S.A. 40:47--6; (4) it should have dismissed the charges because he was found guilty on charges not included in the original municipal notice, i.e., his prior record of tardiness; (5) he was misled into pleading guilty before director because town's original notice of intended action had checked thereon the box 'Suspension' rather than the box 'Removal.'
(1).
Bock relies upon R.S. 11:15--6, N.J.S.A., which provides:
'The commission shall, within fifteen days after the completion of the investigation, inquiry or hearing, and sooner if practicable, render a decision to be forthwith certified to the appointing authority who shall forthwith enforce the same.
The decision shall state whether the removal of the employee is approved, or whether he is to be restored to his position without loss of pay, transferred to another position in the same class, fined, demoted, suspended without pay or with reduced pay, for A period not exceeding six months, or to be reprimanded or otherwise dealt with.
The 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, except that removal from the service shall not be substituted for a lesser penalty.' (Emphasis added.)
We concur with his interpretation of this statute. It gives Department power to modify or amend a penalty imposed by the appointing authority or to substitute another penalty for that imposed. In the event of removal of an employee, it gives Department the right to approve the removal or to restore him to his position. If restored, Department has the authority to suspend him without pay, but this last power is limited to 'a period not exceeding six months.' Since this limitation does not merely involve procedure but affects substantive rights of the employee (loss or reduction of pay), we hold it to be mandatory and not directory.
Bock was originally suspended October 6, 1959. In view of the period of time that has since elapsed we are of the opinion that justice requires a full...
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