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Bingham v. Department of Civil Service

Decided: December 17, 1962.

JAMES J. BINGHAM, APPELLANT,
v.
DEPARTMENT OF CIVIL SERVICE OF THE STATE OF NEW JERSEY, HYMEN SIEGENDORF AND SIDNEY ZISLIN, RESPONDENTS



Conford, Gaulkin and Kilkenny. The opinion of the court was delivered by Gaulkin, J.A.D.

Gaulkin

Bingham and Zislin, captains in the Passaic Police Department, took a Civil Service promotional examination on December 10, 1960 for the post of deputy police chief. On March 1, 1961 they were advised that Bingham had finished first and Zislin second. Zislin, however, is a disabled veteran. On July 26, 1961 Bingham's then attorneys wrote to the Department of Civil Service (Civil Service) requesting "an examination and investigation of the applications filed by various persons to take the above mentioned examination * * * Captain Bingham is in receipt of information which indicates that statements may have appeared on one of these applications which are factually incorrect." Civil Service wrote the attorneys for "definite information * * * from your client." The attorneys replied that they thought "the best way to provide the [Civil Service] Commission with such information would be * * * an interview." Civil Service thereupon asked the attorneys to produce Bingham on October 18, 1961 "at which time Captain Bingham can make a statement on this matter which will be stenographically recorded."

On that date Bingham was sworn and read a prepared statement in which he said (emphasis ours):

"I have strong reasons to believe that Captain Zislin, who had suffered two serious heart attacks prior to the last examination for Deputy Chief, and was confined to the Passaic General Hospital, and has over a total of 135 days sick leave, neglected to state these facts on his application to take the deputy chief's examination. If this is found to be true, I request the Commission to direct that a medical examination be conducted by its physician to ascertain these facts. I also believe that he failed to inform the Department of Civil Service that a special office had been set up on the first floor of the police building when he returned to duty after his illness, because he would not return to his office on the second floor.

* * *

Civil Service made the investigation demanded by Bingham. It found (and now Bingham does not dispute) that Zislin's application had disclosed the facts about his heart attack and hospitalization. The application stated that Zislin had had a myocardial occlusion on October 7, 1958 and had been unable to return to work until February 2, 1959. It now appears to be conceded also that Zislin had not had "two serious heart attacks prior to the last examination," as Bingham had charged, but only the one on October 7, 1958. As we understand Bingham's argument, his contention now seems to be that Zislin was not physically able to perform the duties of deputy chief when Civil Service certified his eligibility, and therefore he was disqualified under R.S. 11:23-2(b).

Apparently Civil Service's investigation had satisfied it, by December 20, 1961, that there was no fraud or concealment in Zislin's application, for on that date it certified Zislin as eligible. However, mindful of Bingham's demand, the certification was "conditional, pending outcome of medical examination by Civil Service physician."

In compliance with Bingham's demand for such examination, Civil Service had Zislin examined by its Dr. Finkle. Dr. Finkle reported on January 13, 1962 that Zislin was physically fit for the post, and on February 14, 1962 Bingham was so advised by Civil Service.

On February 23 Bingham's present attorney wrote Civil Service requesting a "full hearing * * * on the issues involved" without specifying them. The attorney states that by a "full hearing" he meant a trial-type one. Civil Service denied the request, and from that refusal Bingham now appeals.

I.

Civil Service argues that no applicant has standing to demand a trial-type hearing on the issue of the physical disability of another applicant. It points out that the last ...


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