Goldmann, Freund and Haneman. The opinion of the court was delivered by Goldmann, S.j.a.d.
This is an appeal from a decision of the Civil Service Commission affirming the removal of appellant Marro from his position as rehabilitation counsellor in the Rehabilitation Commission -- Disability Determination Service, New Jersey Department of Labor and Industry.
The facts are not in dispute. On June 4, 1958 appellant requested a leave of absence from July 14 to November 14, 1958. He submitted a physician's certificate stating that he was suffering from hypertension and recommending at least four months' rest away from the type of work he was performing. The leave was granted, without pay. Marro's regular paid vacation was scheduled to run from June 25 to July 11, inclusive, and would dovetail over the weekend of July 12-13 with the commencement of his leave of absence on July 14. He worked Monday, June 16, but his wife called the following day and said he was sick and would not be in to work. Nothing further was heard from him for the next six working days. He began his vacation (on June 25) and, eventually, his leave of absence, without further notification to his superiors. They received no word about his condition or whereabouts until they learned in July that he was employed in a similar position by the State of California.
It was subsequently discovered that appellant had made application for employment to various states as early as October 1957. Early in 1958 he received an offer of employment from the State of California, and on March 27, 1958 he wrote the officials there stating he was "available immediately" and was trying to purchase an automobile. Among other correspondence, he again wrote the California authorities on May 14 that he would begin work June 30. Appellant entered upon his official duties in California on that date.
After learning of the California employment, the Director of the Rehabilitation Commission sent a registered letter to appellant at his New Jersey residence on July 29, 1958,
notifying him that his leave of absence was cancelled and that he was to report for duty on August 1. Marro learned of this notice by telegram from his wife, flew back home and reported for work on August 1. At that time he was served with Civil Service Form CS31A, "Preliminary Notice of Disciplinary Action," notifying him that he was removed from the position of rehabilitation counsellor until a departmental hearing could be held.
The charges preferred in this notice concerned appellant's misrepresentation in obtaining a medical leave of absence and then taking employment in an almost identical position in the California Vocational Rehabilitation Service. The preliminary notice stated that this "constitutes fraudulent conduct on your part and justifies your removal under Civil Service Rules 59(g) conduct unbecoming an employee in the public service; 59(i) disorderly or immoral conduct; and 59(j) willful violation of any of the provisions of the Civil Service statutes, rules or regulations."
These charges were heard on August 22, 1958. Marro presented his defense, but no decision was rendered. Subsequently, on September 25, 1958, the appointing authority filed and served an "Amended Preliminary Notice of Disciplinary Action (CS31A)," incorporating the charges set out in the original preliminary notice of August 1, and adding charges of neglect, inefficiency and incompetency. There was a hearing on the amended notice on October 3, at which time Marro appeared but refused to present a defense. In a determination dated October 7, 1958, the hearing officer found all the charges had been proved. The Rehabilitation Commission Director, after reviewing the file and the evidence, concurred and removed appellant from his position. Marro was notified of this determination on Civil Service Form CS31B, "Final Notice of Disciplinary Action," a copy of which was sent to the Civil Service Department and received there the next day.
This final notice informed Marro that he was removed from his position of rehabilitation officer, effective August 4,
1958, all charges having been sustained. The reasons for dismissal were set out at length, carefully divided into two sections: (1) those set out in the preliminary notice of August 1, reproduced verbatim, and (2) those set out in the amended preliminary notice of September 25, also reproduced verbatim.
Marro then appealed to the Civil Service Commission, which proceeded to hold a full hearing. The hearing commissioners ruled against any consideration of the supplemental charges preferred in the September 25 amended preliminary notice, taking the position that since they related entirely to appellant's work performance earlier in the year, before he had even applied for his leave of absence, and all the facts had been available to the Rehabilitation Commission, they should properly have been brought at the time of the original charges. The Civil Service hearing was thus limited to the charges set out in the original preliminary notice, relating to the California employment and the circumstances of Marro's leave of absence. The Commission found that the proofs did not sustain the claim of disorderly or immoral conduct, and therefore dismissed the charge of violating Civil Service Rule 59(i). It sustained the action of the appointing authority on the basis of the original charges, stating that it was "convinced that Marro had acted in bad faith in obtaining a four months' leave of absence for medical reasons and then ...