Williams v. Civil Service Commission

• Decision Date: 17 December 1974
• Citation: 66 N.J. 152,329 A.2d 556
• Parties: Henry WILLIAMS, Appellant-Respondent, v. CIVIL SERVICE COMMISSION, Respondent-Appellant.
• Court: New Jersey Supreme Court

Page 152

66 N.J. 152

329 A.2d 556

Henry WILLIAMS, Appellant-Respondent, v. CIVIL SERVICE COMMISSION, Respondent-Appellant.

Supreme Court of New Jersey.

Argued Feb. 20, 1974.

Decided Dec. 17, 1974.

Theodore A. Winard, Asst. Atty. Gen., for respondent-appellant (William F. Hyland, Atty. Gen., attorney; Stephen Skillman, First Asst. Atty. Gen., of counsel; John M. Van Dalen, Deputy Atty. Gen., on the brief).

Randall W. Westreich, Basking Ridge, and Louise Halper, East Orange, Essex County Legal Services, for appellant-respondent (Randall W. Westreich, on the brief).

The opinion of the Court was delivered by

MOUNTAIN, J.

Plaintiff held a provisional appointment as Assistant Dog Warden of the City of Roange. While so employed, he claims to have become aware of certain unsatisfactory conditions at the Orange Dog Shelter. These alleged inadequacies he brought to the attention of his superior and when no improvements were forthcoming, related his observations to a newspaper reporter. Publicity followed in the local press. Shortly thereafter plaintiff's supervisor commenced submitting complaint regarding Orange. While so employed, he claims to of the governing body directly concerned with the conduct of the dog shelter. Following the last of these complaints plaintiff was asked to resign. He refused and instead induced the publication of another newspaper article and personally expressed his point of view and defended his conduct at a public meeting of the municipal governing body. Within a fortnight he was discharged.

The reasons given for his discharge were: (1) an inability to furnish accurate daily reports to the Department of Parks and Public Property, (2) an inability to comply with departmental regulations, (3) misuse of a Dog Shelter vehicle, and (4) an inability to solve complaints. In addition to denying the validity of each of these charges, plaintiff asserts that the real reason for his discharge was the fact that he had publicly criticized his superiors in the Department of Parks and Public Property.

The day after his release from employment Williams submitted to the Civil Service Commission a written request for a hearing. The request was denied, the Commissioner citing as the reason and authority for the denial, N.J.A.C. 4:1--16.8(b). ¹ Williams appealed to the Appellate Division from the action of the Commissioner. R. 2:2--3(a)(2). The appellate court reversed the decision of the administrative tribunal and remanded the matter for a hearing. 124 N.J.Super. 444, 307 A.2d 628 (1973). We granted certification at the instance of the Civil Service Commission, 63 N.J. 584, 311 A.2d 7 (1973).

We concur in the reasoning which underlies the Appellate Division's grant of a hearing in this case. But we modify that Court's ruling to provide that the hearing shall be held before the governing body of the City of Orange rather than before the Civil Service Commission.

The Appellate Division in large part rested its ruling in favor of a hearing upon the decision of the Supreme Court in Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). We agree that this decision applies here. See also Wilderman v. Nelson, 467 F.2d 1173 (8th Cir. 1972); Harnett v. Ulett, 466 F.2d 113 (8th Cir. 1972). Roth held, Inter alia, that a teacher without tenure, with 'no possible claim of entitlement to re-employment,' did not possess a property interest sufficient to require that he be given the due process safeguard of a hearing upon the occasion of his failure to receive a contract renewal. This is equally true of the plaintiff here. He was a provisional or temporary employee subject to be terminated at any time at the discretion of the municipality. His claim to be accorded the procedural protection of a hearing cannot rest upon the alleged deprivation of a property interest.

But as the Appellate Division carefully noted, Roth stands for the further proposition that a public employee, even though possessing no adequate property interest, may yet be entitled to demand a hearing if governmental action will deprive him of some 'liberty.' The term 'liberty' in this context has never been precisely defined, but there is no doubt that it must be given a broad and comprehensive reach. In his discussion of the meaning of liberty in the area of public employment, Justice Stewart, speaking for the majority in Roth, had this to say,

Similarly, there is no suggestion that the State, in declining to re-employ the respondent, imposed on him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities. The State, for example, did not invoke any regulations to bar the respondent from all other public employment in state universities. Had it done so, this, again, would be a different case. (408 U.S. at 573, 92 S.Ct. at 2707, 33 L.Ed.2d at 559)

In this State a rule of the Civil Service Commission authorizes the Chief Examiner and Secretary of the Commission, with respect to any applicant who shall at any time theretofore 'have been removed . . . from the public service . . .' to do any of the following:

1. Reject the application of a person for admission to an examination;

2. Refuse to test an applicant;

3. Refuse to place the name of a person on the employment list;

4. Refuse to certify the name of an eligible person; or

5. Remove from the employment list the name of an eligible person. (N.J.A.C. 4:1--8.14)

Thus removal from the public service--as has occurred to this plaintiff--may indeed have imposed upon him a stigma or potential disability, seriously affecting his liberty to seek future employment in a position which falls within the domain of the civil service regulations. ² Moreover, the publicity in the press attendant upon his dismissal may well have damaged his ability to obtain employment in the private sector. For these reasons, we feel that the plaintiff is entitled to a post-termination evidentiary hearing to clear any damage to his reputation.

In addition to the denial of 'liberty' found by the Appellate Division, we observe another ground of significant constitutional dimension which supports the grant of a hearing to this plaintiff. Nearly 80 years ago, Justice Holmes implied that public employment might be conditioned upon the waiver of First Amendment rights. McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N.E. 517, 517--518 (1892). This is no longer the law. As the United States Supreme Court recently observed in Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972):

For at least a quarter-century, this Court has made clear that even though a person has no 'right' to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, There are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests--especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. (408 U.S. at 597, 92 S.Ct. at 2697, 33 L.Ed.2d at 577; emphasis added)

We cannot of course say upon the record before us whether in fact plaintiff's criticism of municipal conduct was or was not a cause or motivation for his discharge. Nor can we say whether such criticism was or was not entitled to protection in the factual context of plaintiff's employment. One purpose of the hearing will be to determine in fact whether the criticism was or was not so protected. At such a hearing, to paraphrase slightly what we recently said in Winston v. Board of Education of South Plainfield, 64 N.J. 582, 319 A.2d 226 ...