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Hildebrandt v. Bailey

Decided: January 27, 1961.

FRANCIS S. HILDEBRANDT, RUSSELL CARIDAD AND THOMAS DAIRE, PLAINTIFFS-APPELLANTS,
v.
HAROLD J. BAILEY, FIRE CHIEF OF THE TOWN OF BLOOMFIELD, TOWN OF BLOOMFIELD, A MUNICIPAL CORPORATION OF NEW JERSEY, AND CIVIL SERVICE COMMISSION OF THE STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS



Price, Gaulkin and Sullivan. The opinion of the court was delivered by Gaulkin, J.A.D.

Gaulkin

Plaintiffs appeal from the dismissal of their complaint for declaratory judgment.

The complaint recites that plaintiffs are members of the Bloomfield paid fire department, and members of the New

Jersey Firemen's Mutual Benevolent Association (FMBA) and of Local 19 of FMBA; that Caridad is president and Daire secretary of Local 19, and Hildebrandt is the representative of Local 19 to the FMBA. Paragraph 2 of the complaint says "Plaintiffs Russell Caridad and Thomas Daire bring this action on their own behalf, and Francis S. Hildebrandt and the other Plaintiffs bring this action on behalf of all paid firemen of the State of New Jersey who may be similarly involved."

The complaint then alleges that on or about March 31, 1959 Caridad and Daire

"* * * were fined five days' pay as the result of their participation in the circulation of a letter which commented on the use of the Fire Chief's car, allegedly for private or personal means of transportation for Town officials. Said fine was imposed pursuant to the Bloomfield Fire Ordinance, Article 15, Section 2(p), adopted April 18, 1938, which reads as follows:

'Charges may be preferred against any member of the Fire Department by any officer of the Department or any private citizen for any one or more of the following offenses:

'(p) publicly commenting on the official action of a superior officer, mayor, or member of the Town Council.'

No written charges were filed, and no hearing nor a chance to establish their innocence or guilt were afforded to the firemen involved.

4. New Jersey Statutes 40:47-6 provides that a fireman in a municipal paid fire department (such as the Township of Bloomfield) shall not be suspended, removed or fined, except after written charges and a hearing upon said charges to afford a reasonable opportunity for defense to the affected member of the fire department."

The complaint then points out that, under N.J.S.A. 40:47-10, a fireman in non-civil service municipalities "who has been convicted of any violation of any of the rules or regulations" of the fire department may appeal his conviction to the county court, whereas "The Township of Bloomfield, in 1940, adopted the provisions of the Civil Service Law of the State of New Jersey. New Jersey Statutes 11:15-1, 11:2 A -1 and 11:22-24, relating to suspension

and fines for disciplinary purposes under the Civil Service Law, provide, among other things, that the right of appeal of an employee only exists from a suspension or fine for a period greater than five days at one time."

The complaint then alleges:

"7. Under the law as it existed prior to the adoption of Civil Service by the Township of Bloomfield, a fireman charged with a violation of a local ordinance had a right to written charges and a plenary hearing, or in the absence of same could appeal a suspension or fine to the courts. If the provisions of the Civil Service Act, as hereinabove set forth, are the exclusive remedy of a fireman in a municipality adopting the provisions of that Act, despite the protection of New Jersey ...


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