On certification to the Superior Court, Appellate Division.
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 Vanderbilt, C.J. Heher, J., concurring in result.
This is an appeal from a determination of the Department of Civil Service directing the county judges of Bergen County as the statutory appointing authority in the matter not to pass over the defendant Anthony Schillizzie in making an appointment to the position of county probation officer. This appeal was certified by this court on its own motion while pending in the Appellate Division of the Superior Court.
The defendant Anthony Schillizzie worked for the County of Bergen on a temporary basis from October 1943 to November 24, 1950 when he was suspended and thereafter dismissed. At first he was in the Child Welfare Department, but in January 1945 he was transferred to the Probation Department. His initial appointment in that department was as an investigator, but in October 1945 he was appointed temporarily as a probation officer, there being at that time no civil service list available from which permanent appointments could be made.
Over the years of his employment the defendant had taken three civil service examinations for the position of probation officer and had failed to pass any of them. After his dismissal and on February 11, 1953, however, the defendant passed the examination for county probation officer. Upon learning that Schillizzie had been certified as eligible for appointment, the appointing judges addressed a letter under date of May 7, 1953 to the Department of Civil Service stating that the services of Schillizzie were not satisfactory
and that he had been discharged by reason of his conduct in connection with a raid conducted by men from the prosecutor's office, and that in their opinion he was not a man who was morally qualified to occupy the important office of probation officer. Attached to this letter was a "Report on the Circumstances Surrounding the Discharge of Anthony Schillizzie as an Employee of the Bergen County Probation Office," which had been submitted to the county judges by the chief probation officer.
On May 19, 1953 the Department of Civil Service on its own motion removed the defendant's name from the employment list for the position of probation officer. From this action the defendant appealed to the Department of Civil Service. The defendant's appeal was sustained and his name was ordered restored to the employment list for the position of probation officer, the Department indicating that Schillizzie should have been accorded an opportunity to tell his story before the County Judges of Bergen County as the appointing authority. Thereupon County Judges Del Mar and Vanderwart called Schillizzie before them to provide him with the opportunity to tell his story and at this hearing the defendant was represented by counsel. As a result of that hearing and by letter dated December 23, 1953, Judge Vanderwart, for himself and Judge Del Mar, wrote a letter to the Department of Civil Service advising it that during the period of Schillizzie's service with the probation office
"* * * an event occurred during his off-duty hours which seemed to us, as Judges, to preclude the possibility of his acting as a probation officer. * * * that the conduct of Mr. Schillizzie has precluded his opportunity at our hands to be a Probation Officer of the County."
Thereafter it became necessary to appoint a woman probation officer, and in making the appointment Judge Vanderwart certified, as required by R.S. 11:10-8, that the reason for the nonappointment of Schillizzie was that Judge Del Mar (who by this time had retired) and he had conducted a hearing concerning the appointment of Schillizzie and had
reached the conclusion that he lacked the essential moral qualifications necessary for the office of probation officer.
Schillizzie then appealed again to the Department of Civil Service from this action in passing over his name, and on the hearing held thereon the Department decided in his favor and ordered the appointing authority to reconsider the matter of the appointment of probation officer and in doing so not to pass over Schillizzie as a disabled veteran. It is from this determination that the plaintiffs appeal.
At the first hearing before the Department of Civil Service in July 1953 Deputy Attorney-General Stephen Toth testified that Schillizzie had come to the police station at Garfield, New Jersey, at about 1 A.M. on November 23, 1950, while persons who had been caught in a gambling raid were being booked, and had attempted to secure the release of one or more of them. He testified:
"A. Yes, and Mr. Schillizzie appeared. I knew Mr. Schillizzie, of course. I come from Garfield. I have known Mr. Schillizzie for a good many years. And he came into Police Headquarters on the second floor of the building and asked me to let some of the men go, that he would see to it that they would no longer engage in that kind of activity, that they were men that he knew, that it would help him considerably in the City if I could see my way clear to let the men go. Of course, I refused and went about my work. Understand, that all of these men are not too much help. There was a certain amount of confusion. I wanted to be sure that everything was done as efficiently as possible and I went about doing whatever work had to be done. Mr. Schillizzie kept following me and asking me on two or three occasions to let the men go -- not all of them -- there were certain ones that he was interested in. And I kept telling him I couldn't possibly let them go, they all had to be treated alike, I was holding them all, and I was fixing bail at $50 for each of the players and the actual operator at $1,000. Mr. Schillizzie kept asking me and I don't recall the number of times. It was several times. And I was becoming annoyed at his insistence and told him I couldn't possibly do it, I had conducted the raid, these men were under arrest and I would not let anybody go, they were all going to be treated alike. That was about the sum and substance of it."
At this hearing the defendant's superior, Chief Probation Officer Chandler of Bergen County, testified that the county
prosecutor attempted to question Schillizzie about the raid. The transcript of the interview with the prosecutor on Friday morning, November 24, 1950 which was introduced in evidence on the civil service ...