Goldmann, Foley and Barrett. The opinion of the court was delivered by Foley, J.A.D.
The Township of Middletown appeals from a judgment of the Civil Service Commission (Commission), directing the reinstatement of defendant Murdoch who previously had been removed from his position of patrolman by the Township Committee, after a hearing of departmental charges.
Murdoch was charged with "misconduct subversive of good order and the discipline of the police force and conduct unbecoming an officer," in the respects that:
(a) on April 5, 1960, at or about 2:30 A.M. while on duty, he removed from the private property of Middletown Garden Center, Middletown, New Jersey, without the consent of the owners of that establishment, articles of merchandise consisting of a mailbox, a wooden sign, ornamental dog, two pair of pruning shears, glass spray jar, letters for the sign, and a small crow bar;
(b) on April 5, 1960 "in the morning" he admitted to Police Sergeant Elwood Seeley in the course of an investigation of his activities, that he had "taken" the articles;
(c) at about noon of the same day he admitted to both Police Captain William Woodward and Lt. Joseph McCarthy that he had taken a mailbox, a wooden sign and letters for the sign from the Middletown Garden Center;
(e) he failed to divulge to the police department on April 5, 1960, and thereafter, all information, evidence and other relevant data pertaining to the investigation of the Middletown Garden Center at or about 2:30 A.M. on that date.
He was charged also, in paragraph (d), with "insubordination, neglect of duty and willful disobedience of rules and regulations," in that on April 5, 1960 he refused to comply with an order of his superior, Captain Woodward, to render a written report of his activities relating to such investigation. All the foregoing was charged as contrary to N.J.S.A. 11:22-38 of the Civil Service Commission, rules promulgated pursuant thereto, and N.J.S.A. 40:47-6, as well as the provisions of the local police ordinance.
After a full hearing, at which defendant appeared and presented his defense, the Township Committee dismissed
charge (a). However, it found that charges (b), (c), (d) and (e) had been sustained and, consequently, ordered respondent's removal from his position as patrolman.
On appeal the Commission "dismissed" charges (d) and (e) and found the respondent "not guilty" of charges (b) and (c).
Appellant does not challenge the action taken on charges (d) and (e) which, we may say without further comment, we believe to have been justified. The issue now raised is whether the action of the Commission with respect to charges (b) and (c) was arbitrary, capricious and unreasonable.
Initially, the scope of our review should be defined. On an appeal from the determination of an administrative agency it is not within our competency to balance the persuasiveness of evidence on one side, as against the other. The choice of accepting or rejecting the testimony of witnesses rests with the administrative agency. Insofar as the evidence is concerned, we are limited to a determination of whether or not there was substantial evidence to support the conclusions reached. Hornauer v. Div. of Alcoholic Beverage Control , 40 N.J. Super. 501, 506 (App. Div. 1956). See also United Hunters Ass'n of New Jersey, Inc. v. Adams , 36 N.J. 288 (1962). The "substantial evidence" however, must be legal evidence; the factual conclusions drawn therefrom such as might be said by reasonable men to flow naturally from the evidence; and the legal conclusions based thereon, in accord with established legal principles. Present these factors we are without authority to disturb the administrative holding, although had we been given free rein to weigh the evidence we might have decided the case differently. If, however, any of these factors be absent, the challenged determination may be regarded as arbitrary, capricious or unreasonable.
The charges arose from an episode which occurred on April 5, 1960. At about 2:35 A.M. on that day Sergeant Seeley, on desk duty at the police headquarters, received
a radio call from patrol car # 31, which was operated by patrolman Dominic Furiato, reporting an open door at the Middletown Garden Center. Seeley, by radio, dispatched patrol car # 32, operated by patrolman John B. Kelly, to the scene, for the purpose of "checking out" the building. Murdoch, on duty as a plain-clothesman attached to the detective division, heard Furiato's call and being a short distance away, drove his patrol car to the Garden Center. Murdoch and Furiato proceeded to check the building and when Kelly joined them shortly thereafter, he assisted in this duty. This done, Furiato resumed his patrol, while Murdoch and Kelly returned to the police headquarters in time for Kelly to replace Sergeant Seeley at the desk and relay the 3:00 A.M. time signal. Murdoch's tour of duty for the day ended at that time.
What happened thereafter is a matter of considerable dispute. Shortly after Kelly took over the desk, Seeley left the headquarters to go on patrol. He said that on the way to his patrol car he looked in Kelly's and Murdoch's private automobiles with a flashlight; that he observed in the rear of Murdoch's car a bag marked "Middletown Garden Center"; protruding from it was a wooden sign with jagged edges, such as is used on the lawn of a residence to identify the occupant; some handles were "sticking up," and some hose and "stuff" lay in the car; but "the main thing was this bag full of stuff in the rear of the car."
Continuing, he said that he then "checked" by radio with Kelly who was at the desk, and asked him whether Murdoch had been over to the Garden Center; Kelly said that he had; that this was the first knowledge he had that Murdoch had been there; he then called Furiato in car # 31 and instructed him to come to the police station; when Furiato arrived he had a conversation with him and Murdoch who was about to leave for home, and reprimanded both for spending too much time in "checking out" the Garden Center. (Evidently Seeley did not at that time mention
to either of the men what he had seen in the rear of Murdoch's car.)
Seeley testified further, that shortly thereafter he drove to Murdoch's home, Murdoch drew up and joined him in the police car. Seeley said:
"I again stated to him that there was something wrong over there, that too much time elapsed in checking it out and that I wanted to know what happened. He stated again that they were talking over there and nothing happened. We played cat and mouse a little bit you might say, and finally I came out and told him I knew he had the stuff in the car and I wanted to know what was the story on it."
According to Seeley, Murdoch then said that he had taken the articles, and he left to talk with his wife; when Murdoch returned they went to his car, took the bag from it and Murdoch placed the bag and its contents in the rear of the patrol car; he examined the contents and found the sign, mailbox, pruning shears, a larger pair of shears, letters and an iron dog; all these articles were new, and the mailbox was enclosed in a cellophane wrapper; they then went inside the Murdoch residence and he and the Murdochs conversed at length, and that:
"His wife was upset about it. She wanted to know why he did it. He said it was a foolish thing and he shouldn't have done it and he would take the articles back. It was a long conversation involving what it would mean to him, his family, to the police department, my position in the matter."
Seeley said that he told Murdoch he would "have no part" in returning the goods, and suggested that they call Captain Woodward "and tell him the whole story"; they attempted to reach this officer on the telephone but were unsuccessful. The witness said that he was in the Murdoch house "a good two hours"; among other things Murdoch said that "if this thing came out he would have to resign, sell his house, move out of town." Murdoch and his wife "were both concerned about the effect this would have on the children. I might add so was I"; eventually Seeley
and Murdoch went to a nearby diner; when they returned Murdoch carried the "stuff" from the patrol car and put it in the vestibule of his house; after further conversation in which Murdoch reiterated his desire to return the articles, Seeley left "with the understanding that that was going to be the end of it right there" and "if nothing did come up on it he [Murdoch] would be working the following night * * * and would drop the stuff off there at the Garden Center."
It was then about 6:00 A.M. Seeley was relieved from duty at 8:00 A.M. and went home. He testified that after a conversation with his wife he returned shortly after 9:00 A.M. and reported the incident to Captain Woodward.
Murdoch's version of the conversations at the police headquarters was not essentially different from that related by Seeley except, he said that before Furiato arrived Seeley intimated that ...