For modification -- Justices Jacobs, Francis, Proctor, Goldmann and Haneman. Opposed -- None. The opinion of the court was delivered by Goldmann, J. (temporarily assigned).
Appellants challenge a Civil Service Commission order restoring them to their positions of patrolmen in the City of Trenton (a municipality operating under the provisions of the Civil Service Act, Title 11 of the Revised Statutes), and awarding them back pay for the period of illegal dismissal, less all monies they had earned by other gainful employment during that period. The Commission also allowed each appellant a $200 counsel fee and $50 for miscellaneous costs incurred. The main question for determination is whether the Commission is empowered under R.S. 11:15-6 to apply the doctrine of mitigation to municipal employees in the classified civil service. We hold that it is, and to that extent affirm the order. However, the matter must be remanded to the Commission to determine the amount of earnings to be deducted from back pay and what consideration is to be given with respect to the matter of expenses necessarily and reasonably incurred by appellants in obtaining vindication.
Following a full departmental hearing, the Director of Public Safety of the City of Trenton found appellants guilty of certain charges of misconduct and dismissed them from their positions as patrolmen. The Civil Service Commission, after a de novo hearing on appeal in accordance with N.J.S.A.
11:22-38 and 39, found appellants innocent of the charges and ordered that they be returned to duty immediately, but without back pay for the period of their dismissal. Appellants immediately filed an application for back salary and other benefits with the city clerk, pursuant to N.J.S.A. 40:46-34. Shortly thereafter they also filed a notice of appeal in the Appellate Division from that portion of the Commission's determination which disallowed back pay. Mason v. Civil Service Comm'n, Docket A-253-65. By consent of counsel, the entire matter was remanded to the Commission for a rehearing on the issue of back pay. The appeal then pending was later dismissed.
At the rehearing testimony was adduced that appellants had been employed during the period of their illegal dismissal. The Commission, relying on our decision in Mastrobattista v. Essex County Park Comm'n, 46 N.J. 138 (1965), which had come down soon after the entry of its earlier order, thereupon determined that appellants were entitled to their salary for the dismissal period, less the monies they had meantime earned through other gainful employment, and entered the order here in question. Appellants appealed to the Appellate Division, and while the matter was there pending we certified the appeal pursuant to R.R. 1:10-1A. The New Jersey State PBA was subsequently permitted to intervene as amicus curiae.
Appellants argue that under N.J.S.A. 40:46-34 they are entitled to their full salary and benefits for the period of the illegal dismissal. R.S. 11:15-6, they say, does not empower the Civil Service Commission to enter the order it did, for such determination vitiates R.S. 40:46-34. Amicus curiae takes the same position and, in addition, contends that the Commission's order amounts to a denial of equal protection of the laws guaranteed by the State and Federal Constitutions.
Under N.J.S.A. 11:22-38 and 39 a permanent classified municipal civil service employee who has been dismissed by the appointing authority has the right of appeal to the Civil
Service Commission within 20 days from receipt of his notice of dismissal. The Commission holds a de novo hearing and then, in accordance with R.S. 11:15-6, made applicable to municipal civil service employees by N.J.S.A. 11:2A-1, renders its determination. R.S. 11:15-6 provides:
"The commission shall, within fifteen days after the completion of the investigation, inquiry or hearing, and sooner if practicable, render a decision to be forthwith certified to the appointing authority who shall forthwith enforce the same.
The decision shall state whether the removal of the employee is approved, or whether he is to be restored to his position without loss of pay, transferred to another position in the same class, fined, demoted, suspended without pay or with reduced pay, for a period not exceeding six months, or to be reprimanded or otherwise dealt with.
The commission may, when in its judgment the facts warrant it, modify or amend the penalty imposed by the appointing authority or substitute another penalty for that imposed, except that removal from the service shall not be substituted for a lesser penalty." (Emphasis added)
In Mastrobattista v. Essex County Park Comm'n, above, we held that the Civil Service Commission has ample authority under R.S. 11:15-6 to invoke the doctrine of mitigation, the concluding phrase of the second paragraph of the statute, "or otherwise dealt with," evidencing "a clear legislative purpose that the Commission's powers shall extend beyond the prior specific enumerations" of that paragraph. 46 N.J., at pages 147-148. This holding, appellants allege, was dictum as applied to the present case, for the decision dealt with county and not municipal employees; indeed, the issue here projected -- the relationship between R.S. 11:15-6 and N.J.S.A. 40:46-34 -- was not before the court. In support, they refer us to what we said in discussing McGrath v. Jersey City, 38 N.J. 31 (1962), a per curiam sustaining a Law Division judgment granting back pay without mitigation to a member of the classified service. We noted that McGrath's claim rested on N.J.S.A. 40:46-34, which deals solely with municipal personnel and was not applicable to the county park personnel involved in Mastrobattista.
We then pointed out that at no time, however, was any issue raised or passed upon in McGrath as to the Civil Service Commission's power to invoke the doctrine of mitigation, or as to the effect which R.S. 11:15-6 might have on N.J.S.A. 40:46-34 when dealing with civil service personnel. We went on to observe that "It may well be that if [this matter] had been presented, the result would have been a remand to the Commission to provide for back pay less appropriate mitigation; * * *." Accordingly, since McGrath was admittedly inapplicable, "full consideration of its holding and the scope of N.J.S.A. 40:46-34 may be deferred until a suitable case is presented." (46 N.J., at page 148).
To characterize what was said in Mastrobattista as mere dictum is to blunt the thrust of that decision insofar as it held that the Civil Service Commission has the power to apply the doctrine of mitigation under R.S. 11:15-6. Examination of the briefs filed in that case clearly establishes that the question was squarely before the court as a necessary issue to be determined. What must now be decided is whether R.S. 11:15-6 supersedes N.J.S.A. 40:46-34 with regard to municipal employees who are subject to the provisions of the Civil Service Act.
N.J.S.A. 40:46-34, part of Title 40, Chapter 46 (N.J.S.A. 40:46-1 to 53) governing municipal officers and employees generally, provides:
"Whenever a municipal officer or employee, including any policeman or fireman, has been or shall be illegally dismissed or suspended from his office or employment, and such dismissal or suspension has been or shall be judicially declared illegal, he shall be entitled to recover the salary of his office or employment for the period covered by the illegal dismissal or suspension; provided, that a written application therefor shall be filed with the clerk of the municipality within thirty days after such judicial determination, unless such determination was made ...