For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Hall, J.
[38 NJ Page 503] This is a civil service case. The respondent Bock, a fireman of the Town of West New York in the classified service, was dismissed from his position by the appointing authority after a hearing on charges. He appealed to the Civil Service Commission which, following a de novo hearing, reduced the penalty to suspension without pay for a period of approximately 15 months. On appeals from the Commission's judgment by both the town and Bock, R.R. 4:88-8, the Appellate Division modified the punishment
to a 6 months' suspension but otherwise affirmed. 71 N.J. Super. 143 (1961). We granted the town's petition for certification. 37 N.J. 135 (1962). Involved are important questions under the civil service law with respect to discipline of employees in the municipal service. Some further detail of the facts is needed to point up the several issues, which have proliferated during the course of this originally uncomplicated matter.
On October 7, 1959 Bock was served with charges signed by the town fire chief. The document was a form entitled "Preliminary Notice of Disciplinary Action," required at the time by the State Department of Civil Service to be served on a permanent employee in the classified service against whom disciplinary action beyond a 5-day suspension was proposed to be taken. The first item printed on the form reads: "You are hereby notified that, pending hearing, you are * * * suspended" for a specified period, "removed," "demoted" from one named position to another, or "fined" an inserted amount. The choice was to be made by placing a check mark in a square opposite the selected alternative. Then followed a space for typing in the reasons, which constitute the charges. The body of the form concluded with this statement: "Before final action is taken in this case a hearing will be held, at the time and place stated below, at which time you may appear and offer any evidence or testimony in your defense."
In Bock's case, a mark was placed in the square opposite "suspended" but the printing and spaces for designating a period of suspension were crossed out. All other squares were left blank. The charges were specified as 3 separate instances of violation of fire department regulations consisting of tardiness in reporting for duty, varying from 15 minutes to a half hour, on 3 named dates within the preceding 3 or 4 weeks. The notice ended with a designation of the time of hearing, some 6 days after service of the notice, before the appointing authority, who, in this case, since West New York was governed by the commission form, was the Director
of Public Safety. There was nothing to indicate that dismissal was the contemplated penalty or that anything but the 3 recited instances of tardiness was to be considered.
At the hearing the matter was prosecuted by the assistant town attorney. Bock appeared without counsel and was first asked to plead to the 3 charges of lateness. He replied that he was guilty. Following the plea, the municipal attorney advised that, "in view of the previous record of Fireman Bock * * * we proceed to establish" not only guilt of the present charges, "but also present" Bock's "complete background" in the department. Proof of the current offenses was then given by Bock's company commander. The department chief was called to testify "as to the status of Fireman Bock in reference to charges or tardiness in the past against him." Bock objected, asking whether his penalty was to be judged on the past or on present charges and adding "It may show bias to my penalty." The Director replied that the present charges were added to his past record and that he "must know the entire record to determine the entire penalty." The chief then testified from Bock's personnel file as to 5 offenses between 1943 and 1952, mostly for tardiness, as to which charges had been preferred, guilt found and penalties imposed, in no case exceeding suspension or fine for longer than 15 days. He further read entries of numerous other instances of tardiness, some trivial, some serious, during the years 1948 through 1956 from the company journal records and daily reports made by the commanding officer at the time. As was elicited when the same subject matter was explored at the hearing before the Civil Service Commission, West New York has no time clock or roll-call system and the attendance record is taken by the officer in charge at the particular time simply noting on the log who is present in the fire house at the appointed hour. There was no proof presented to the Director to substantiate these entries or to establish that they had ever been admitted by Bock. In addition, it appears that the so-called personnel record consisted only of notations of promotions, commendations, and adjudicated disciplinary charges
and did not amount to a record of service relative to efficiency. See R.S. 11:22-35 and Commission Rule 56 (1949).
At the conclusion of the testimony, the Director announced:
"If your past record were one that could be easily dismissed or overlooked, I could then feel free to judge you on today's charges and fine you in accordance with that and forget the incidents, but for the welfare of the West New York Fire Department and I feel, for your own welfare, so that this condition that you are creating by constant tardiness and neglect of duty shall be avoided in the future and to keep the morale of the West New York Fire Department on the high plane it justly deserves, I find you guilty and, therefore, must dismiss you from the West New York Fire Department starting immediately."
This was the first indication to Bock that dismissal from his position was involved. After Bock's protest, the Director added: "* * * today's charges are not the only charges that are involved. The charges date back since you have joined the Department * * *" The town thereafter filed with the Civil Service Commission a copy of the required notice to Bock, entitled "Final Notice of Disciplinary Action," N.J.S.A. 11:22-38, Commission Rule 59 (1949), which again recited only the 3 tardiness charges upon which he had been found guilty and set forth that he had been removed by reason thereof.
Bock then engaged counsel who filed a letter notice of appeal with the Commission. N.J.S.A. 11:22-38; R.S. 11:22-39. Two grounds were specified: first, that the penalty of removal had been dictated by political reasons rather than any infractions of the rules and, second, that the penalty was too harsh and entirely out of line with the offenses committed. During the course of the subsequent hearing it was made plain that the latter ground was intended to encompass a claim that Bock had actually been tried and found guilty below on what amounted to a charge of chronic tardiness constituting continual neglect of duty and that he had not been notified of such grounds in the charges served upon him; and, in addition, that, in any event, the instances of tardiness taken from the log books should not be considered
since they were not substantiated and had never been adjudicated formally or informally. At the outset of the hearing, one of the two sitting Commissioners raised the further question that the notice originally served on Bock did not indicate removal was contemplated and he might therefore have been lulled into a false sense of security in making no defense before the municipal authority.
It was stipulated that Bock had pleaded guilty below to the 3 charged incidents of tardiness and no evidence was offered to dispute his guilt thereof. The proofs offered by the town took substantially the same course as at the municipal hearing and were received over objection based on the claim noted above.*fn1 The Commission did, however, limit
the proof of so-called prior offenses to those beginning with the year 1952 on the ground that earlier instances were too remote. The proofs as so limited showed one disciplinary action, based on a charge of tardiness in 1952, resulting in a fine amounting to 2 weeks pay and a warning as to the next offense, and a log record of some 20 instances of tardiness within the next 7 years. Of these none occurred in 1959 beyond the 3 which are the subject of the current charges and only one in 1958. There was no substantiation of any of these log entries and no proof of any admission by or warning to Bock with reference thereto.
The decision of the Civil Service Commission was not rendered until 11 months after it had heard the appeal -- an unconscionably long time.*fn2 We are advised by counsel for the Commission that the delay was occasioned because the two Commissioners were unable to agree upon a conclusion earlier. Be that as it may, the great lapse of time led to a peculiar result. It was first held that Bock was not liable to removal [38 NJ Page 509] under any circumstances because that contemplated disposition was not indicated by an appropriate marking on the notice of charges served upon him, and he had been led to plead guilty by what later proved to be an erroneous notion that he faced at most a suspension, such disciplinary measure being the only one checked on the form. We take it this holding was reached as matter of law since there was no evidence on the question. It was further held that the municipal authority "erred in using * * * past alleged acts of tardiness in establishing the charges upon which he based his dismissal." We read this to mean the commission decided, on the basis of the earlier quoted conclusions of the Director, that Bock had actually been tried and convicted on charges of habitual and chronic tardiness and neglect of duty, of which he had been given no notice, rather than on the 3 specific instances of tardiness listed. No mention was made of Bock's contention that the log entries of lateness could not be considered in any event because they were neither substantiated nor adjudicated. The Commission concluded that, based on the 3 instances alone and by reason of the public seriousness of a fireman's being late for duty, Bock should be suspended without pay from October 6, 1959 (when he was originally suspended upon the preferring of the charges) until the date of the Commission decision, January 9, 1961. Counsel for the Commission has informed this court that the period of suspension fixed was determined in accordance with a Commission policy that a municipality, in the event an employee's appeal does not result in reinstatement without loss of pay, should not have to pay salary for any period when no services were rendered. This would have been the case here if the suspension were for a lesser period than that ordered. Therefore, even assuming that the Commission was right in holding that dismissal could not legally be ordered because of the manner in which the notice form was completed, it did not actually determine on the merits what would be a proper penalty for the 3 offenses specifically charged. And, of course, there was no consideration of
whether dismissal would be appropriate if that disposition were legally possible.
On its appeal to the Appellate Division, the town, in seeking reinstatement of the dismissal, principally urged that the Civil Service Commission is without power to modify a penalty imposed by the appointing authority absent a clear abuse of discretion. Consequently it said that the guilty plea and the proof at the municipal level of prior derelictions warranted dismissal and precluded any commission modification. It further urged that there was no evidential basis for the Commission's conclusion that Bock had been misled to his prejudice because the initial notice of charges did not indicate removal as the contemplated penalty and that the municipal authority had used Bock's prior record not to establish charges other than those of which he had been given notice, but only to determine the appropriate penalty for the 3 specific instances in the light of his past record.
In support of the Commission's rulings in the latter respects, Bock reasserted his position that the journal entries of tardiness could not be considered for any purpose since they had not been substantiated or adjudicated.
Bock's cross-appeal had alternative aspects. On the one hand, he contended that the Commission could not validly order a suspension for longer than 6 months because of an alleged statutory limitation, R.S. 11:15-5, N.J.S.A. 11:2A-1, to that effect, and therefore that the determination should, in any event, be modified to suspension for no more than 6 months. In reply, both the Commission and the town took the position that the statutory provision was not mandatory but permitted suspensions at least until the entry of the decision of the Commission. Alternatively, Bock asserted that he was entitled to reinstatement with full pay from the date of his original suspension because the municipal hearing was held sooner than 15 days after the service of charges (see footnote 1, supra) and because the Commission refused to allow evidence that the penalty of dismissal was actuated by political motivations rather than meritorious considerations.
The Appellate Division, 71 N.J. Super. 143, held initially that the Commission had both statutory power and sound reason to modify the dismissal penalty and that removal was too severe "under the circumstances." The court further held that the 6-month limitation on suspension was binding on the Commission and, exercising its original jurisdiction, R.R. 4:88-13; 1:5-4(a), 2:5, because of the great length of time which had elapsed, went on to decide that a penalty of 6 months' suspension without pay was "reasonable and proper" "[u]pon a review of the facts as contained in the record." The court disagreed with the Commission's holding that dismissal was barred as a penalty for the reason that the initial notice of charges did not indicate that this result was contemplated. It found that any such irregularity in the form was not prejudicial since Bock knew at the time of his de novo hearing before the Commission that dismissal was sought.
The opinion further stated that, while an employee's past record "is not admissible to establish the charges upon which his dismissal is predicated," it "may be considered in determining the penalty to be imposed" and so the municipal authority here could consider it for that purpose. The discussion concluded with this sentence: "However, the penalty cannot be imposed as punishment for his past record, it must bear a reasonable relation to the offense for which he is presently charged." 71 N.J. Super., at p. 152. The court's meaning, in the light of the issues before it, is not entirely clear to us since "past record" is nowhere defined. It would seem the court tacitly disagreed with the Commission's finding that Bock had really been convicted below for habitual tardiness and neglect of duty with which he had not been charged. But we are not sure whether the court meant that the hearer at the town level, and so also the Commission, could properly and should consider Bock's entire record and that the Commission was wrong in excluding offenses prior to 1952 as too remote. It did not expressly advert to the [38 NJ Page 512] questions raised by Bock that the unsubstantiated and unadjudicated tardiness entries in the company journal were not entitled to consideration. We assume, however, it believed such items to be a proper part of the employee's record. So we cannot be certain exactly what "facts" or "circumstances" the court took into account in reaching its independent ...