Willis v. Dyer

• Decision Date: 19 October 1978
• Citation: 163 N.J.Super. 152,394 A.2d 383
• Parties: Norman WILLIS, Plaintiff-Respondent and Cross-Appellant, v. Margaret J. DYER and Harold Beidleman, Individually, Township Committee of the Township of Clinton, a Municipal Corporation of the State of New Jersey, Defendants- Appellants and Cross-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 152

163 N.J.Super. 152

394 A.2d 383

Norman WILLIS, Plaintiff-Respondent and Cross-Appellant, v. Margaret J. DYER and Harold Beidleman, Individually Township Committee of the Township of Clinton, a Municipal Corporation of the State of New Jersey Defendants- Appellants and Cross-Respondents.

Superior Court of New Jersey, Appellate Division.

Argued Sept. 26, 1978.

Decided Oct. 19, 1978.

Roger M. Cain, Lebanon, for defendants-appellants and cross-respondents (Felter & Cain, Lebanon, attorneys; William A. Shurts, Lebanon, on the brief)

Robert I. Kuchinsky, Flemington, for plaintiff-respondent and cross-appellant.

Before Judges MATTHEWS, KOLE and MILMED.

The opinion of the court was delivered by

KOLE, J. A. D.

Plaintiff was an employee of the Road Department of defendant Township of Clinton (township), a non-Civil Service municipality. On December 18, 1975 he was summarily dismissed from his employment after having worked for the Department for about 15 years.

On January 19, 1976 plaintiff notified the township that he was a veteran entitled to the benefits of the Veterans' Tenure Act, N.J.S.A. 38:16-1 and 2 (the act). The trial judge properly held that until it had thus been made aware of plaintiff's veteran status, the township had no duty to proceed against plaintiff under that act before dismissing him; that its duty in this respect did not arise until January Under the act plaintiff, as a veteran, could only be dismissed or removed for "good cause shown," after a fair and impartial hearing preceded by a written statement of charges. Absent such a procedure and finding of good cause for removal, he held his employment during good behavior.

19, 1976, and thus his dismissal or removal for the period from December 18, 1975 to January 19, 1976 was valid and legal, notwithstanding noncompliance with the provisions of the act.

After receiving notice of plaintiff's rights under the act, instead of immediately restoring him to his employment or filing and serving charges against him in connection with a dismissal or removal hearing, the township, by letter of February 6, 1976, stated that it was considering its earlier action a "suspension" without pay, "pending the outcome of an investigation which may or may not result in written charges and a hearing." It was not until plaintiff instituted this action to compel compliance with the act and after the court below, on March 12, 1976, so ordered, that the charges were filed and served and the hearing was held by the township committee. ¹ On March 29, 1976 the original charges, as ordered by the court, were served on plaintiff. The statement of these charges provided that the township was treating plaintiff's original dismissal as a suspension pending the outcome of the hearing. More specific charges, directed by the court on plaintiff's motion, were sent to plaintiff on May 13, 1976. The township held the hearing on May 19, 1976. A delay in rendering its decision resulted in the issuance of a June 23, 1976 court order, on plaintiff's application, to the township to show cause as to why the matter should not be decided. The township's written decision was rendered July 22, 1976.

The township found plaintiff guilty of two of the five charges (Nos. 1 and 5). The effect of its decision was to uphold Thereafter, plaintiff sought a review by the court below of his dismissal, together with other relief, including back pay. A De novo hearing on the record before the township committee was held by that court.

his original dismissal, and his suspension without pay pending the hearing, as being "justified," and to direct that he not be reinstated to any position in the township.

Among other things, the judge determined that plaintiff was guilty of charge No. 5 the "blacktop incident" but was not guilty of the other charge (No. 1). No appeal has been taken from the not guilty finding. The judge also decided that dismissal of plaintiff from employment was warranted by reason of the blacktop incident, but that, apparently because of the township's failure to comply with the act before dismissing plaintiff, plaintiff was entitled to recover his net back pay $3,586.45 without mitigation, from January 19, 1976 to July 22, 1976, the date of the township decision "the official date of his dismissal." He also awarded plaintiff interest on the $3,586.45, at 8% A year from July 22, 1976, together with costs. He denied plaintiff any counsel fees.

This appeal and cross-appeal followed.

From our review of the record we are satisfied that there was ample credible evidence to support the trial judge's determination that plaintiff violated his duty as a public employee when he misused township property in connection with the blacktop incident (charge No. 5). Accordingly, the finding of guilt of that charge is affirmed. State v. Johnson, 42 N.J. 146, 199 A.2d 809 (1964).

However, although we conclude that "good cause" existed to penalize plaintiff for such misconduct, we do not agree that dismissal was an appropriate sanction under the circumstances disclosed by the record in the case. In our view, a penalty less than dismissal is authorized by the act and should have been imposed. Our determination also requires a modification of the back pay award.

I

A review of the facts relating to the blacktop incident, as well as plaintiff's prior record as an employee, is necessary in order to determine whether dismissal was warranted.

The blacktop incident occurred in August 1975, about four months prior to plaintiff's summary dismissal in December 1975. It involved plaintiff and two other Road Department employees Hendershot and Van Camp all of whom knowingly had acted in contravention of township policy. Plaintiff had greater employment seniority and was a higher paid employee than the others. He had once been an acting road supervisor. However, in August 1975 he was not a supervisor and indeed, as the court properly found, was not a working foreman.

It was Hendershot who suggested that the blacktop, which was in a township truck, be provided to a private gasoline service station located outside the municipality. No compensation was paid by the service station owner to plaintiff or the other employees in connection with the delivery of the blacktop in the township truck, or the unloading thereof at the station. After the township's "formal" dismissal of plaintiff on July 22, 1976, it held a hearing with respect to the involvement of Hendershot and Van Camp in the blacktop incident. As a result, they were suspended for only two days without pay and then returned to their employment. The grand jury found no cause to take any action after investigating the incident.

At the time of his initial summary dismissal and the later affirmance thereof by the township after the hearing, plaintiff was about 52 years of age and had worked for the Road Department for about 15 years. He was found innocent of four of the five charges involved in the present dismissal proceedings initiated by the township and found guilty of only the blacktop incident. Except for these charges, during the entire period of his employment with the township, he We assume that the trial judge was correct in concluding that, compared to Hendershot and Van Camp, plaintiff's "greater seniority and former position as Acting Road Supervisor imposed on him a higher duty of loyalty to his employer," and that in the "eyes of his less tenured accomplices, his participation in the blacktop incident undoubtedly provided an undeserved aura of legitimacy to the affair." Thus, his violation justified a more severe sanction than that imposed on Hendershot and Van Camp.

had not been subjected to any official charge, reprimand, censure or penalty relating to his work.

Nevertheless, the incident itself was not so egregious in nature as to warrant the sanction of dismissal of an employee with 15 years of unblemished service, particularly in view of the light penalties imposed on the other two participants. We note that there was evidence, although not undisputed, that the kind of blacktop involved might not have been usable by the township at and after the time of delivery to the station.

For the foregoing reasons, we have concluded that the penalty of dismissal in this case is so utterly disproportionate to the offense and extreme as to make it arbitrary, unreasonable and contrary to substantial justice. See Feldman v. Irvington Fire Dep't, 162 N.J.Super. 177, 392 A.2d 616 (App.Div.1978) (hereafter Feldman ); Connelly v. Jersey City Housing Auth., 63 N.J.Super. 424, 428, 164 A.2d 806 (App.Div.1960). Cf. Makwinski v. State, 76 N.J. 87, 385 A.2d 1227 (1978).

We hold hereafter that the act authorizes a sanction less than dismissal or removal.

A more appropriate penalty, which we hereby impose in the exercise of our original jurisdiction, is a period of suspension of three months without pay. See Feldman, supra.

II

Although the act refers only to dismissal or removal proceedings, we have concluded that it impliedly authorizes We have also determined that the act impliedly permits, as here, a sanction less than dismissal or removal from employment after such a hearing if the employee is found guilty of the charges and the circumstances disclosed at the hearing, while falling short of "good cause" for removal, justify "good cause" for a lesser penalty. It is neither in the interest of the public nor the protected employee veteran that the sole choice be between removal from, and retention in, employment where the employee has been found guilty of some form of misconduct. Such a construction of the act would not further the legislative intent. See Russo v. Governor of New Jersey, 22 N.J. 156, 166-167, 123 A.2d 482 (1956); Russo v. Walsh, 18 N.J. 205, 210, 113 A.2d 516 (1955). See also, Nicoletta, supra, concurring opinion; 63 Am.Jur.2d, Public Officers and Employees, § 256 at 778.

the suspension with or without pay of an...