On appeal from judgment of the Second District Court of the City of Newark.
For the appellant, Raymond Schroeder (Thomas M. Kane, of counsel).
For the respondent, Tepper & Tepper.
Before Justices Bodine, Heher and Perskie.
The opinion of the court was delivered by
HEHER, J. Respondent was discharged from a clerical position in the Department of Revenue and Finance of the City of Newark for conviction of a crime not related to the performance of his official duties; and the point at issue is whether he is entitled to the return of all moneys paid into the pension fund. The District Court resolved the inquiry in the affirmative; and the Pension Commission appeals.
The facts have been stipulated. Respondent was "discharged" from his position "for the reason that on March 23d, 1934," he was "convicted of false pretense" in the Court of Quarter Sessions of the County of Essex, and was thereafter, on the ensuing April 6th, "placed on probation for a period of five years." He had been employed by the municipality for approximately twenty-seven years. His "record during such employment was good." Following respondent's
discharge, the Civil Service Commission "authorized a hearing" at his request, but it "was dismissed on November 12th, 1935, for lack of prosecution." His "dismissal" was "approved" by that body. On December 28th, 1936, respondent "requested a hearing" before the Civil Service Commission "relative to his dismissal." The application was denied on January 5th, 1937. On November 27th, 1941, the Civil Service Commission, by letter, advised respondent's attorneys that "the Commission's rules and procedure under the law do not automatically bar a person who has been convicted of an offense by the courts, if such a person is an applicant for admission to any examination held under the jurisdiction of the Commission;" and that "The applications of applicants in Civil Service examinations who may have, at some time, come under the notice of the courts, are given consideration and passed upon by the Commission as individual cases. The Commission seeks always to follow a policy that is equitable and conducive to public interest." It was stipulated that this letter "shall be received in evidence and shall be regarded * * * as the official interpretation of the Civil Service Commission of" the pertinent rule.
Rule 26 of the Civil Service Commission provides that the chief examiner and secretary "may reject the application of any person for admission to tests for a given position or refuse to test any applicant or to certify the name of an eligible from an employment list for any of the following or other good causes: * * * (d) That the applicant has been guilty of a crime or of disgraceful conduct; (e) That the applicant has been dismissed from employment in the public service or in a commercial or other organization for delinquency or misconduct;" and "(h) That the applicant has been previously employed in the classified service and has been removed for cause or did not resign in good standing."
The question is one of construction and of legislative intent. R.S. 43:13-10 provides that if a municipal employee shall be "suspended, dropped or discharged from his employment after having paid his assessments for a period over one year and his suspension or discharge shall continue for a period longer than two years," the moneys he shall have paid into the
pension fund shall be returned to him, provided that such refund shall not be made "to an employee suspended or discharged for causes which bar him from eligibility to ...