On appeal from the Supreme Court, whose opinion is reported in 134 N.J.L. 432.
For the prosecutor-appellant, Richard J. Baker (Warren Dixon, Jr., of counsel).
For the defendant-respondent, Henry L. Janowski (Dominick F. Pachella, of counsel).
The opinion of the court was delivered by
WELLS, J. This is an appeal from a judgment of the Supreme Court, dismissing a writ of certiorari which had been issued to review action taken by the respondent, Garfield Water Commission, in terminating the employment of the appellant, James McAlpine.
McAlpine had been employed in the position of water plant superintendent for the City of Garfield since 1924. This length of service afforded him the protection provided by chapter 234, laws of 1941 (R.S. 58:11-18.7), requiring that any removal from office or reduction in salary could only be effected "for good cause and after a public hearing."
On September 5th, 1944, a report was submitted to the Garfield Water Commission by two of its members, setting forth the results of an investigation, which had been directed by the Commission, and charging the appellant with failure to discharge his responsibilities. Based upon this report the appellant was suspended from his duties on September 16th, 1944, and he was thereafter, on September 29th, 1944, served with formal charges and a notice of hearing as required by the statute above cited.
On November 2d, 1944, McAlpine made formal denial of the charges filed against him, and thereupon the Commission, consisting of five members, proceeded to a hearing on such charges, as the duly authorized "appointing authority." At various hearings held from November 9th through November 24th, 1944, all five members of the Commission were in attendance. On December 7th and 8th one of the Commission members, a Mr. Anthony Vecchio, did not appear, but the hearing was allowed to proceed over protest of appellant's counsel.
On December 9th, 1944, the next adjourned date of the hearing, Mr. Vecchio was again in attendance, and took his seat to participate in the remainder of the hearing. The appellant then moved for a dismissal of the charges and a mistrial on the ground that Mr. Vecchio, not having heard all of the testimony, was incapable of rendering a fair and
impartial verdict. This motion was denied, and the appellant refused to participate further in the hearing with no testimony being presented in defense of the charges against him.
On December 13th, 1944, all members of the Commission being present, a resolution was adopted setting forth the findings and determinations resulting from the hearing, and discharging the appellant from his duties as water plant superintendent because of proof supporting sixteen of the twenty charges filed. A writ of certiorari was issued on February 17th, 1945, and was later dismissed by the Supreme Court on December 6th, 1945, affirming the findings and action of the Commission.
Although several arguments were advanced in the court below as supporting the writ, only one question is presented on this appeal. Where the dismissal of an employee is based upon a hearing conducted by the members of a municipal commission, and one of the members did not hear all of the evidence adduced, is the action of the commission ...