On certification to the Appellate Division of the Superior Court.
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 Vanderbilt, C.J.
[21 NJ Page 32] The plaintiff appealed to the Appellate Division of the Superior Court from an order of the Civil
Service Commission reversing the action of the borough council in removing Anthony J. Salimone from his position as chief of police. The Appellate Division reversed the Commission's determination (36 N.J. Super. 485) and reinstated the municipal order removing the defendant. We granted the defendant's petition for certification (19 N.J. 539) to review the judgment of the Appellate Division.
The case presents two issues. The first is whether the evidence justifies the dismissal of Salimone. The second, a procedural question -- whether the Civil Service Commission has the power to disregard the time fixed by statute for the taking of an appeal to it from the determination of a municipality and in its discretion to substitute therefor its own standard of a reasonable time -- deals with very important concepts in our civil service law.
Salimone had been the chief of police of Park Ridge since 1929. On February 13, 1951, he was indicted by the Bergen County grand jury for conspiracy to make book upon the running of horse races in contravention of R.S. 2:119-1 (now N.J.S. 2 A:98-1). Touching, as it did, upon the administration of his office, he was immediately suspended by the council of the municipality. About the same time Salimone was also named as a defendant in another indictment charging misconduct in office. This latter indictment, twice tried but both times ending in a disagreement of the jury, was ultimately dismissed nolle prosequi, and plays no real part in these proceedings.
On the trial of the bookmaking indictment, however, in October 1951, Salimone was convicted and appealed to the Appellate Division. Pending the determination of that appeal, the municipality prepared written charges of violations of the police ordinance and the rules of the Park Ridge police department and copies of the notice of hearing and of the written charges were served on December 19, 1951 on the defendant.
The charges are fully set forth and discussed in 36 N.J. Super. 485, 488-490, and it is sufficient here to note that the specifications generally charge misconduct in office based upon factual allegations of conduct unbecoming an officer and subversive of good order and discipline of the police force. Only one of the four specifications is based on the conviction itself; the other three relate in part to the acts involved in that indictment, State v. Salimone, 19 N.J. Super. 600 (App. Div. 1952), and in part to acts which antedated those acts and occurred on October 19, 1949.
The hearing on these charges by the borough council was held on December 19, 1951, and continued on December 26, 1951. On both occasions Salimone was present and was represented by counsel. No evidence was offered by Salimone in defense of the charges against him. The reason assigned for such action was that it might prejudice his appeal or the trial of other charges which were pending against him in the county criminal courts. He was found guilty on all counts and, by a resolution duly adopted by the borough council, was dismissed from the department.
Thereafter, a hearing de novo before the Civil Service Commission was granted by it to Salimone. On that hearing of the charges, inasmuch as the first charge dealt with the commission of a crime for which Salimone had been acquitted, that charge was properly dismissed. The Commission's minutes, however, which contain its opinion and decision in this case, show the cursory consideration given to the other charges against Salimone:
"With respect to charges Nos. 2, 3 and 4, the allegations contained therein present questions of fact to be determined by this Commission. It seems unnecessary to repeat at length the testimony of the witnesses in this case and it narrows down to the question of whether or not this Commission is willing to accept the testimony of the witness Grube as against that of the appellant. Mr. Grube gave what we would characterize as amazing testimony with respect to his relationship with the appellant. He indicated that Salimone made an arrangement with him and agreed to pay him, the witness Grube, certain moneys for the use of telephone and telephone equipment at the place where Grube lived, namely, 163 Morningside Avenue, Park Ridge. In pursuance of this so-called conspiracy or unlawful
arrangement, bookmaking and betting was conducted at the premises. He also indicated in his testimony that Salimone had paid him certain sums of money, in all $35.00, for the use of his premises. Grube gave further testimony that he talked with Salimone in regard to renting his garage for the establishment therein of a gaming resort and that Salimone gave him certain sum of money for the use of the garage. Salimone was also charged with failing to make an entry in the Police Blotter and also with failing, as indicated by charge 4, to get information with respect to a dice game or gambling at the garage in the rear of premises 163 Morningside Avenue, Park Ridge.
This Commission has studied all of the testimony and it is our observation that the testimony offered on behalf of the Borough and especially that of the witness Grube is not at all convincing. All that he said was stoutly denied by the appellant and, as we review the proof, there is not sufficient in it, in our judgment, to lead us to the conclusion that the charges have been sustained.
A careful review of the entire record, including all of the testimony, the exhibits and the arguments of counsel, leads us to the conclusion that the factual questions must be decided in favor of the appellant. It is our opinion that the authorities of the Borough of Park Ridge have failed to sustain the charges with a greater weight of creditable proof, that their action in removing the appellant from his position was not justified and proper and that the appellant has sustained his appeal."
The Commission reversed the dismissal and ordered Salimone to be restored to his position as chief of police with full pay from the date of his original suspension, February 13, 1951.
We find, as did the Appellate Division, that the greater weight of the evidence so clearly pointed to the delinquency of Salimone, and to his guilt of conduct unbecoming an officer as well as conduct subversive of good order and discipline in the police force, as to permit of no such disposition as made by the Commission.
From the evidence adduced before the Commission we find the factual situation to be as follows:
Conrad Grube, a man 71 years of age in 1949, lived at premises 163 Morningside Avenue in Park Ridge for a period of over 25 years. The house is in an isolated section of the borough and appears to be of the type found in many suburban areas of post-World War I vintage. There is a garage in the rear of the premises which is separate from the
dwelling. Grube apparently lived on a small income or pension of about $45 a month. He had known Salimone for over 20 years and from time to time had borrowed money from him and members of his family. In October 1949, he testified that he asked Salimone for help in finding a means whereby he could earn some extra money. Following that conversation by a few days three men appeared at Grube's home and rented the garage for $50 a week. It was to be used for a "crap" game and at their request Grube painted the windows black and provided a table on which they could play. Salimone's patrol took him by Grube's house at least twice a day but said that he never noticed the black windows in the garage.
The surreptitious game ran for three nights. On October 19, 1949 it was raided by First Assistant Prosecutor Wallace DePuy and three county detectives. Grube, in bed at the time of the raid, on the request of one of the detectives came down to the garage. There were 12 or 15 men there, one of them being one of the three men who had hired the garage from Grube and who was running the game. The prosecutor's men took the names of the persons present and then First Assistant Prosecutor DePuy told them to get out of Park Ridge and not to come back. Strangely, no one was arrested.
At DePuy's order Salimone was called on the telephone. He was in the radio patrol car of the Park Ridge Police Department at the time. The message was transmitted to him and he arrived at the garage at about 11:35 P.M. Present were Grube, a person he later learned was a man by the name of Malfitano (which the defendant referred to as Mel Petano), and the prosecutor's men. When he asked "what was going on, * * * nobody answered." Salimone indicated that DePuy and the detectives walked out taking Malfitano with them. Salimone's inquiry to DePuy as to whether he was taking the man to the police station also went unanswered. Salimone testified that DePuy departed taking Malfitano with him in a car, and that being "suspicious" of DePuy he followed them. The car proceeded to DePuy's home, which also was in Park Ridge, and the occupants went
inside. Such conduct will come as no surprise to those who have followed the former first assistant prosecutor's record through the reported pages; In re DePuy, 10 N.J. 282 (1952). Salimone parked about two blocks away and waited. When he saw the man, Malfitano, come out and get into the car and drive away, Salimone says he followed him. On direct examination he indicated that he lost the car on the road. On cross-examination he indicated that he stopped the car, took the fellow's name, but could not recall it, that he did not write it on the police blotter, that he did not communicate his name to anybody in the Park Ridge Police Department. Salimone also testified that all he obtained from the apprehended man was the telephone number of the man's "boss," a Bayonne telephone number; that he telephoned to the number in Bayonne, found out the man's name but could not recall it, and told the party answering the telephone that he was going to hold his man under arrest until he was given certain information. Notwithstanding all this, he let the man go without getting his name, without getting the license number of the car, or any other information concerning the man. Salimone also testified that at the time ...