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Greco v. Smith

Decided: May 2, 1956.

THOMAS P. GRECO, PETITIONER-APPELLANT,
v.
KENNETH D. SMITH, DIRECTOR OF THE DEPARTMENT OF PUBLIC WORKS OF THE TOWN OF BELLEVILLE, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, TOWN OF BELLEVILLE, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, CIVIL SERVICE COMMISSION OF THE STATE OF NEW JERSEY, AND DEPARTMENT OF CIVIL SERVICE OF THE STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS



Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.

Goldmann

Petitioner Greco sought reinstatement before defendant Civil Service Commission to his position as building inspector of defendant Town of Belleville, charging that bad faith rather than reasons of economy motivated the discharge. The Commission, after hearing, determined that petitioner had failed to prove bad faith, and affirmatively concluded that economy had been effected by the transfer of his duties as building inspector to the town engineer. Greco appeals from the adverse ruling.

Initially we recognize that upon review we will not upset the action of the Civil Service Commission in the

absence of an affirmative showing that it was arbitrary, capricious or unreasonable, or not supported by the evidence (cf. Carls v. Civil Service Commission , 17 N.J. 215, 221 (1955); Falcey v. Civil Service Commission , 16 N.J. 117, 123 (1954)); or where the Commission has disregarded or failed to recognize the legislative policies enunciated in the Civil Service Act, R.S. 11:1-1 et seq. , as amended (Rogers v. Department of Civil Service , 17 N.J. 533, 541 (1955)). These principles serve as a guide in our approach to this appeal, but cannot be considered as prohibiting or limiting our complete inquiry into the facts, for only by such investigation can the action of the agency be properly evaluated. This course is plainly envisioned by R.R. 4:88-13, which gives this court the power to review the facts and make independent findings thereon, which power may be exercised to such extent as the interests of justice require. The question here is whether the claim of economy used in terminating petitioner's active services as building inspector of Belleville was a device for circumventing his tenure rights as a civil servant, in violation of R.S. 11:22-38, and as a veteran in violation of N.J.S.A. 38:16-1.

Belleville, which has a commission form of government, adopted the provisions of Subtitle 3 of Title 11 of the Revised Statutes , "Civil Service," in 1945. The position of building inspector was created in 1948 and is in the classified civil service. Plaintiff took the civil service examination for that position in February 1948, and was thereafter, on August 3, 1948, certified by the Civil Service Commission as entitled to appointment. He was not appointed until November 1, 1948, of which more hereafter. He held the position until his discharge. From the time of his appointment until February 21, 1955 the position of building inspector was in the Building Department, Department of Public Affairs, of which Joseph King was Director. On that day the city commission adopted a resolution, introduced by Director King, transferring the Building Department to the Department of Public Works, headed by Director Smith, one of the defendants. Two days later, on February 23, 1955, the

intervening day being a holiday, Smith wrote petitioner advising him that his services would be terminated as of March 1, 1955, and that for "reasons of economy" his duties were thereafter to be performed by the Engineering Department, allocated to the Department of Public Works. Although petitioner reported for work on March 1, he was not permitted to perform his duties. After March 1, 1955 his duties were assigned to and performed by the town engineer, Sheehan, who was subject to Director Smith's supervision. Director Smith had on February 23, 1955 designated Sheehan as "acting building inspector" at no additional compensation, effective March 1, 1955. We were informed at the oral argument that Sheehan died in the latter part of 1955 and that the assistant town engineer, one Faust, was then appointed acting building inspector in his place.

A detailing of the factual situation is necessary to our conclusion that petitioner was wrongfully discharged. Greco was a disabled veteran. From the date of his certification in August 1948 to the date of his appointment on November 1, 1948 -- a period of about three months -- the position of building inspector was filled by Campbell McCall, a friend of Director of Public Affairs King, with whom he had allegedly been associated in business. Plaintiff testified that during this period he tried to get information about his appointment, but made no progress until after he had written a letter of complaint to the Civil Service Commission. It appears that although municipal funds were available for the purpose, Director King chose to retain McCall rather than appoint a regular building inspector. King nonetheless insisted before the Commission that he could not appoint Greco because he did not have the money in his budget, funds not being available until he could transfer them in November 1948. After Greco had written the Commission he received a call from Smith, who at that time was deputy chief of police but not yet a member of the governing body. Smith was related to Director King through marriage. He asked petitioner "what the adverse publicity concerning King was about"; Smith seemed annoyed and remarked that Greco

should "cut it out or it won't be good" for him. Thereafter he took Greco to King's summer home where King signed a letter, previously prepared by Smith, appointing petitioner as building inspector.

Greco testified that from the time of his appointment onward Director King displayed a resentful attitude toward him. When Greco tried to discuss official business, King would walk away without answering. Except for a brief period when he was able to get secretarial help from another department, petitioner was without secretarial or clerical assistance, despite repeated requests made of Director King, all of which were refused. The bulk of Greco's secretarial work had to be performed at home by his wife.

Asked about his relations with petitioner, King testified: "I get along with anyone and also with Mr. Greco but he couldn't get along with me." At the hearing before the Commission King acknowledged that Greco's work was satisfactory, but he complained of his "attitude toward the people that were coming in and his attitude toward him [King] at all times too." Pressed to explain what he meant by Greco's attitude toward him, he said that citizens were calling up and making complaints about the building inspector's attitude; "They said he was arrogant and things like that. I tried to get along as best I could." King acknowledged, however, that petitioner was not arrogant toward ...


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