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Borough of Ho-Ho-Kus v. Menduno

Decided: June 17, 1966.

BOROUGH OF HO-HO-KUS, PLAINTIFF-APPELLANT,
v.
WILLIAM MENDUNO, DEFENDANT-RESPONDENT



Goldmann, Foley and Collester. Goldmann, S.j.a.d.

Goldmann

After a full hearing on charges, the mayor and council of plaintiff borough found defendant guilty of immorality, indecency and lewdness, and also of conduct unbecoming an officer and a gentleman, under the applicable sections of the local ordinance establishing and regulating the borough's police department. Accordingly, it terminated his employment as patrolman, effective as of the date the charges were brought. He took an appeal to the County Court under N.J.S.A. 40:47-10, the provisions of Title 11 relating to removal from service not being applicable because the borough has never adopted the Civil Service Act. The County Court judge held a trial de novo and found that the borough had failed to sustain its burden of proving by a preponderance of the credible evidence the exact specifications of the charges brought. Under the circumstances, he stated that he had no alternative but to reverse the findings of the mayor and council and order defendant returned to duty as a patrolman, with restoration of all back pay and the other rights attending his employment.

The borough attorney then moved to amend the charges to conform to the evidence, basing his application on R.R. 4:15-2 and 4:15-4. (The latter, strictly considered, applies

to supplemental pleadings in a civil action.) Its motion also requested that final judgment be entered in favor of the borough on the ground that upon the record filed with the court (the reference was obviously to the record of the hearing before the mayor and council), the evidence adduced before the county judge, and the requested amended pleadings, defendant was in violation of the police department ordinance. In denying the motion the judge observed that at no time during the course of the de novo trial was anything tried with consent, other than the specific charges set out in the resolution of the borough governing body terminating defendant's employment. The borough having limited its charges to specific instances and times, he concluded that it had failed to discharge its burden of proving those charges.

Plaintiff appeals the resultant judgment in defendant's favor.

We have carefully reviewed the testimony adduced before the county judge and conclude he was correct in reinstating defendant. The borough had brought charges containing exact specifications. The fact remains, however, that it failed to establish by a preponderance of the credible evidence that defendant was guilty of the offenses specifically mentioned in those charges. That is the test, no matter how critical we -- like the trial judge -- might be of defendant's general conduct.

The borough asks us to deal with this appeal not only on the record in the County Court but also on the transcript of the proceedings before the local governing body. It argues that under the provisions of R.R. 4:90-3, part of the rules relating to appeals from local agencies and allegedly made applicable to the County Court by R.R. 5:2-1, the transcript of testimony taken at the municipal hearing is made part of the record before the County Court. We do not agree. N.J.S.A. 40:47-10, dealing with review of a conviction of a municipal police officer for violation of departmental rules and regulations, provides for a de novo trial before the County Court: "The court shall retry such charge or charges de novo

and either affirm or reverse such conviction." (Italics ours) See Kearins v. Ziegener, 135 N.J.L. 119, 120 (Sup. Ct. 1947). R.R. 4:90-1 et seq., upon which plaintiff relies, relates to summary proceedings where, by statute, an appeal is allowed to the Superior Court from the decision or action of any local officer, board, body or commission other than an inferior court, or a review allowed of such decision or action, when the proceeding is not in lieu of prerogative writs. Defendant was therefore entitled to a completely de novo trial before the County Court, and not to any de novo determination on the basis of the record made before the local governing body. Valonis v. Cinnaminson Tp., 54 N.J. Super. 567, 574 (App. Div. 1959). The trial judge therefore properly refused to permit the municipal hearing transcript to be admitted in evidence. We, too, should not consider it, because our scope of review is the record made in the County Court.

The borough, in Point I of its brief, argues that defendant convicted himself of conduct unbecoming an officer and a gentleman, in violation of the police department ordinance, by (1) provoking a certain woman to a public disturbance of the peace by assaulting him; (2) provoking a second woman to another such assault in the course of a wild scene of drinking and disorder at his home at 4 A.M. of a certain day; (3) permitting her to leave immediately thereafter in her car, thus endangering those on the highways; and (4) among other things, carrying on an open and notorious relation with this woman despite the pleas and threats of the man she called her husband, and in the presence of her 14-year-old daughter. In support of its argument the borough in its brief has included references to the testimony contained in the transcript of the hearing before the borough governing body. In view of what we have said, this was highly improper because the transcript was not part of the record of the trial before the County Court.

N.J.S.A. 40:47-6 provides for the removal of a police officer for violation of the rules and regulations of the local police department. No ...


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