On appeal from Department of Civil Service, certified to this court on its own motion.
For reversal -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For affirmance -- None. The opinion of the court was delivered by William J. Brennan, Jr., J.
After a hearing on charges, the City Manager of Asbury Park suspended Cecil Reed, a policeman, for six months without pay for conduct unbecoming a police officer. Reed appealed to the Civil Service Commission which heard the matter de novo and reversed the action. The case is here on certification on our own motion of the city's appeal to the Appellate Division.
Part of the testimony before the Civil Service Commission was heard by one member and part by two other members. The city's principal witnesses, two girls, Dianne Walker and Arlene Hankinson, both 18 when Reed was involved with them, were heard on May 11, 1954 by the commission's president, William F. Kelly, Jr., to accommodate the city which desired to complete the girls' testimony before they were sentenced on May 14 upon indictments for
prostitution and adultery to which they had pleaded guilty. The testimony of the other witnesses, one for the city and seven, including Reed himself, for Reed, was heard on June 24, 1954 by Commissioners James I. Bowers and Edward M. Gilroy.
We are aware of no authority which sanctions the hearing of part of a disciplinary appeal before some members and part before other members of the commission. The general rule governing the hearing and decision of disciplinary matters by boards or commissions, founded upon considerations of the fundamentals of fair play, is "that fairness and impartiality can only be assured when the members participating in the deliberations and decision of the board or commission, following a hearing on employee performance, have had an equal opportunity to hear and evaluate all of the evidence presented at the hearing." McAlpine v. Garfield Water Commission, 135 N.J.L. 497, 500, 171 A.L.R. 172, 174 (E. & A. 1947).
This is a case arising in the municipal rather than in the state service. R.S. 11:25-2 suggests that Civil Service Commission hearings in municipal disciplinary cases such as this should be heard by the full commission, or at least by a quorum constituted as provided by R.S. 11:1-10. If, however, R.S. 11:2 A -1 allowed this suspended municipal employee an appeal to be processed according to the procedure laid down for such appeals in the state service, Weaver v. New Jersey Dept. of Civil Service, 6 N.J. 553 (1951), the practice followed here is not sanctioned under R.S. 11:15-4 providing that the Commission in state service cases may "hear * * * sitting as a body or through one or more of its members." See also R.S. 11:5-1(d). This merely means that one or some of the members may be designated to hear and decide the appeal for the full commission, but only those designated who hear the whole of the case may participate in the decision; this statute is not like some under which one or more of the members of a commission or board merely take the testimony, and the determination is made by the full body upon the report of those members. Jersey City v.
The decision of the commission in the instant matter turned entirely on the credibility of the witnesses. The testimony of the two girls was disbelieved -- "It is our observation that the worth of their testimony is almost totally impaired and that little or no credibility can be given to their version of what transpired" -- and Reed's version of the events was found to be the true one, largely because those witnesses who corroborated Reed were also believed. Yet only the commission's president heard the girls testify and Commissioners Bowers and Gilroy, without the president, heard Reed and his corroborating witnesses. No one would doubt the invalidity of a jury verdict if half the jury heard only the plaintiff's witnesses and the other half heard only the testimony on behalf of the defendant. Fair play is plainly denied to litigants when a trier of fact who has not heard and evaluated all the testimony influences the decision by his participation in the deliberations by which it is reached. The members of the commission designated to hear and decide appeals of the instant class constitute the collective finder of fact and any one of those designated who has not heard all the testimony in a given case "occupies no legal status as arbiter or judge to adjudicate upon the cause." Eisberg v. Borough of Cliffside Park, 92 N.J.L. 321, 322 (Sup. Ct. 1919); Kelly v. Bishop, 119 A. 6 (Sup. Ct. 1922) (not in state reports); Long v. Daly, 105 N.J.L. 492 (E. & A. 1929), affirming 6 N.J. Misc. 495 (Sup. Ct. 1928). Since none of the three commissioners who participated in this case heard all of the testimony, it follows that the commission's decision is a nullity.
The city does not urge this infirmity in the decision as a point for reversal. But the defect is nevertheless vital, and cannot go unnoticed. In these circumstances, an independent determination by us under our power to make new or amended findings of fact to effect a complete determination of the cause ...