For the prosecutor, Frank I. Casey.
For the defendant, Walter D. Van Riper and Eugene T. Urbaniak.
Before Justices Donges, Colie and Eastwood.
The opinion of the court was delivered by
DONGES, J. This writ was allowed to bring to this court for review two orders of the Civil Service Commission the effect of which was to determine that the prosecutor, Paul F. McLaughlin, had resigned from or abandoned his position as senior parole officer at the New Jersey State Prison within the provisions of rule 61 of the Civil Service Commission by absenting himself from his duties and refusing to state when he would be available for the resumption of work.
Rule 61 provides that, "Any employee who is absent from duty for five consecutive business days without notice to his superior officer of the reason for such absence and the time when he expects to return and without securing permission to be on leave from his superior officer, or who fails to report for duty within five business days after the expiration of any authorized leave of absence, shall be considered as having resigned."
Prior to June 13th, 1946, prosecutor had served as parole officer working from the state prison directly under the supervision of the principal keeper. On that date, for some reason not directly concerned in this case, he was suspended for a period of five days by the then keeper, John L. O'Hara, and at the same time was informed of his assignment to supervise parolees in the Counties of Passaic and Essex under the supervision of the principal keeper until such time as the then pending transfer of supervision of this work to the Department of Institutions and Agencies was effected. On June 13th the principal keeper directed a request to the director of parole of the department designating him to supervise the parole of all prisoners released from the prison. This was in pursuance of a resolution of the Board of Control of the prison. The department has since had supervision of this work.
When prosecutor reported back to work on June 19th, 1946, the term of office of John L. O'Hara had expired and George W. Page had assumed the office of principal keeper. Page instructed prosecutor to carry on his work as theretofore for the time being and on June 25th, 1946, informed him that the order of O'Hara for the transfer of supervision of the parole work to the Department of Institutions and Agencies would stand. On June 26th prosecutor filed an appeal with the Civil Service Commission protesting his transfer from the keeper's office to the director of parole of the department. At the same time prosecutor, with the consent of the keeper, went on sick leave. The next day, at the request of the director of parole, he produced a certificate of his physician respecting his condition of health. This certificate was to the effect that prosecutor was "suffering from nervousness and should have a period of rest."
Under date of July 2d, 1946, Dr. Bixby, Deputy Commissioner in charge of parole work, wrote to prosecutor requesting him to come to his office on July 8th to talk over "the prospects of your returning to duty and how your work in the field can best be covered until you do return." Prosecutor came to the office of Dr. Bixby and there voiced his protest against the transfer of supervision over him from the
office of the principal keeper to the department. He did not return to work or state any date when he expected to be able to return, pointing out that he had ...