On appeal from a decision of the State Board of Education of the State of New Jersey.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by Oliphant, J.
Benjamin Mackler, business manager of the Board of Education of the City of Camden (hereinafter referred to as the "board") since December 1, 1942, was on September 25, 1952 discharged from his position. The resolution of dismissal was passed by the board following lengthy hearings on charges preferred against Mr. Mackler pursuant to the statute N.J.S.A. 18:5-51. An appeal was taken to the Commissioner of Education and was dismissed by him, and thereafter a further appeal was taken to the State Board of Education which affirmed the decision of the Commissioner. After a further appeal to the Appellate Division, Superior Court, and before argument there, we certified the cause here on our own motion.
Several months prior to April 16, 1952 a committee was appointed by the president of the board, consisting of three of its members, to look into and study the business manager's office. This committee conducted an investigation, interviewed many witnesses and then made a report of its findings to the board with recommendations. Thereafter two members of the investigating committee, Mr. Pierce and Mr. Sherman, signed a formal complaint against the defendant, charging
him with inefficiency and neglect of office, failure to devote his full time to the duties of the office, failure to attend the meetings of the board, and insubordination.
Hearings on the formal charges preferred against the defendant were commenced by the board on May 15, 1952. At that first hearing there were present seven members of the board, two being absent. The defendant was present and represented by counsel.
Prior to the commencement of the hearing the defendant objected to the two members of the board who had signed the complaint against him participating in the hearing, the contention being they were disqualified by reason of their having preferred the charges. No objection was made by the defendant to the hearing proceeding in the absence of two members of the board. The defendant's objection to the participation in the hearing by the two members who had signed the charges was overruled. The hearings continued on June 4, June 6, June 14, June 28 and July 1.
On the several dates on which the hearings were conducted on some occasions one or two members of the board were absent, so that at the conclusion of the meeting on July 1 only two members of the board had heard all the testimony presented up to that time.
Testimony on behalf of the board had been completed at the July 1 hearing, and on August 5, 1952 it reconvened to proceed with the taking of testimony on behalf of the defendant. At this time the attorney for the defendant moved to dismiss the charges on two grounds: first, that only two members of the board had heard all the testimony presented, and it was, accordingly, unable to render a decision on the matter and had lost jurisdiction, and secondly, that the evidence adduced at the hearings had failed to establish a prima facie case against the defendant.
Counsel for the board then suggested that certain testimony which had not been heard by a sufficient number of members of the board be stricken from the record and be withdrawn from the consideration of the board and that it base its decision solely on such evidence as had been heard
by a sufficient number of members of the board to permit a majority of it to properly consider the charges. The motion to strike the testimony in accordance with the suggestion was granted, and after argument the motions made on behalf of the defendant were denied. The defendant then advised the board that he felt his legal position was so secure that he was not going to ...