Kilkenny, Halpern and Lane. The opinion of the court was delivered by Kilkenny, P.J.A.D.
[114 NJSuper Page 457] John E. Darcy appeals from a final order and judgment entered by the Civil Service Commission, affirming the termination of his services by the Division of Motor Vehicles, Department of Law and Public Safety.
We now consider the particular points made by Darcy on this appeal.
Darcy contends that the not guilty verdict in his trial on criminal charges of nonfeasance in office acts as a collateral estoppel of matters pending before the Civil Service Commission.
The law is to the contrary. The quantum of proof in a criminal trial is different from and higher than that in proceedings before an administrative agency. In the former the proof must establish guilt beyond a reasonable doubt; in the latter, "it is only necessary to establish the truth of the charges by a preponderance of the believable evidence and not to prove guilt beyond a reasonable doubt." Atkinson v. Parsekian , 37 N.J. 143, 149 (1962). It has been held that the acquittal of a member of the bar following trial of a criminal indictment is not res judicata in a subsequent disciplinary proceeding based on substantially the same charge or conduct. The basis for the holding was that the quantum of proof is lower in the latter than in the former criminal trial. In re Pennica , 36 N.J. 401 (1962).
In Freudenreich v. Mayor, &c., Fairview , 114 N.J.L. 290 (E. & A. 1935), a police officer was found guilty of unbecoming conduct and dismissed from office. The unbecoming conduct was based on a charge that he carried on an illicit relationship with one J.L., an unmarried woman, as a result of which an illegitimate child was born. Some months prior to the departmental hearing he had been prosecuted and acquitted in the criminal court of Bergen County in a filiation proceeding that arose out of the same alleged illicit relationship. It was held that the doctrine of res judicata was clearly not applicable.
See Helvering v. Mitchell , 303 U.S. 391, 58 S. Ct. 630, 82 L. Ed. 917 (1938), holding that an acquittal of income tax evasion would not bar a suit by the government to recover
a tax deficiency which had been alleged in the criminal action.
So also in the instant case, Darcy's acquittal of the criminal charges does not preclude a finding by the Civil Service Commission of conduct unbecoming an officer, sufficient to warrant termination of his public employment.
Darcy's next point is that the testimony of those Latin-speaking witnesses who did not appear at the hearing before the Division of Motor Vehicles was improperly received at the hearing before the Civil Service ...