For the prosecutors, Harry V. Osborne and Charles A. Malloy (Ervin S. Fulop, on the brief).
For the defendants, David T. Wilentz, attorney-general, Pierre P. Garven and Benjamin C. VanTine.
Before Justices Heher and Perskie.
The opinion of the court was delivered by
HEHER, J. The question here presented is the right of prosecutors to the stipulated compensation for the period intervening between their removal from their respective positions in the state highway department, and their reinstatement by order of the civil service commission. The latter commission held that the removals were in violation of prosecutors' rights as members of the classified civil service. In each case it was provided that the reinstatement should carry pay, at a given base rate, from the date that it was ordered; and this court, on certiorari, held that the prosecutors were "entitled to a decision on the complete issue thus presented," and that, inasmuch as the civil service commission made no decision "as to the intermediate period," the orders in question should be set aside, to the end that the commission, either with or without further proofs, "reach and express conclusions comprehensive of the issues." 12 N. J. Mis. R. 443; 172 A. 363. The following supplemental determinations were thereupon made by the civil service commission:
Re Walklet: This prosecutor was a material inspector; and it is conceded that his removal was in violation of his seniority rights. The highway department evidently sought to justify its action on the ground that the proper performance of the duties of this position required the use of an automobile, and that prosecutor was not capable of driving one. The civil service commission originally concluded that prosecutor was competent to do the work assigned to another at a quarry in New York State; and, in its supplemental determination, held that, inasmuch as the prosecutor had not theretofore indicated a willingness to accept the mentioned assignment, and there was doubt "as to whether he could actually perform the duties at that particular point, * * *
reinstatement with pay during the period that he did not render services would be against public policy."
Re Lefkowitz: The commission found that the action taken was not a "dismissal," but a "lay-off in a general reduction of the working forces of the department;" and that it "regarded the loss of time without pay from August 1st, 1933, to October 4th, 1933, as the petitioner's contribution in the sharing of employment with her fellow employes when the departmental authorities have been, in the discharge of their administrative responsibilities, faced with the clear necessity of reducing the number of employes commensurate with the reduced volume of work to be performed."
Re Swackhamer: While his removal was, as in the cases of Lefkowitz and Walklet, asserted to have been the result of an enforced reduction of personnel, the highway commission later preferred charges of inefficiency and neglect in the performance of his duties. The civil service commission originally found that the evidence did not "substantiate the reasons given," and in its supplemental determination stated that it intended to hold that the prosecutor "had not entirely dissipated all of the charges," and "merited another chance to demonstrate his ability to perform the duties of a process server in a satisfactory manner," and that its purpose was "to provide for this further opportunity to set aside the penalty of permanent removal contemplated under the action of the highway commission, and to substitute therefor the loss of position and pay for the period from August 1st, 1933, to October 10th, 1933."
These determinations have been brought up by separate writs of certiorari. It is not open to question that the civil service commission lacks authority to impose a penalty, or loss of pay in the nature thereof, where charges of misconduct or inefficiency are not sustained by the evidence. The right to impose a penalty of necessity presupposes misconduct or inefficient performance or dereliction of duty. The grounds subsequently urged by the highway commission for the ...