Price, Sullivan and Leonard. The opinion of the court was delivered by Leonard, J.s.c. (temporarily assigned).
This is an appeal and cross-appeal from a determination and decision of the Department of Civil Service.
Respondent and cross-appellant Harry Bock (Bock) was appointed to the fire department of appellant and cross-respondent Town of West New York (town) on February 1, 1943 and has been continuously employed therein until his removal therefrom as hereinafter stated.
On October 6, 1959 Bock was served with written notice advising him he was suspended from his position because he was late for duty on three specific occasions during September and October of that year. Said notice further advised him that a hearing on said charges would be held before the Director of the Department of Public Safety of town (director) on October 13, 1959. Bock appeared at the scheduled hearing without counsel and plead guilty to said charges. Testimony was then adduced of the past record of his tardiness. At the conclusion thereof, director removed him from his position.
On October 19, 1959 Bock appealed to Department of Civil Service (Department), and on February 11, 1960 it held a de novo hearing. At this hearing he again plead
guilty, and at the close of town's case his attorney rested without any witness or testimony. Eleven months after said hearing, Department rendered its decision whereby it reversed Bock's removal and substituted therefor a suspension running from the date of his original suspension to the date of its order, a period of some 15 months.
Town suggests that Department does not have "power" to modify a penalty which is supported by good and sufficient cause. This argument is predicated upon the fact that town functions under a commission form of government and that each commissioner is to be afforded an unusually high degree of authority over his departments.
Similar arguments were held untenable in City of Newark v. Civil Service Commission , 114 N.J.L. 406 (Sup. Ct. 1935). The court therein, at p. 411, stated:
"* * * [A] decision rendered by the Civil Service Commission is not an attempt to regulate the internal affairs of the Department of Public Safety of the city of Newark. The Municipalities act, the Walsh act and the Civil Service act, of our state, with respect to the matters in issue, are properly recognized and treated as statutes in pari materia."
R.S. 11:15-6 gives Department right to modify a penalty imposed by a municipality after a de novo hearing. Town urges Harrison v. State Bd. of Education , 134 N.J.L. 502 (Sup. Ct. 1946), as support for its position. Harrison did not involve a review under R.S. 11:15-6 and is therefore not pertinent.
Town next argues there was insufficient factual background to warrant modification. Although this court undoubtedly has the power to review Department's action and, if necessary, make independent findings thereon, R.R. 4:88-13, 1:5-4(b) and 2:5, it will not substitute its judgment for that of Department where ...