Kolovsky, Fritz and Crane. The opinion of the court was delivered by Kolovsky, P.J.A.D.
[128 NJSuper Page 52] After a hearing before the governing body of the borough, respondent Fallon, a police officer, was found guilty on several charges. The penalty imposed
was removal from office. Fallon appealed to the Civil Service Commission. Following a hearing before a hearing officer, at which Fallon elected not to testify, the Civil Service Commission found Fallon guilty of some but not all of the charges, concluded that removal was not warranted and substituted a penalty of six months suspension, effective January 6, 1972, the date Fallon was originally suspended pending a hearing on the charges against him.
The borough appeals, arguing that Fallon's conduct and derelictions warranted his dismissal from the police department. We agree and reverse.
The record in this case consists only of the testimony offered by the borough in addition to admissions made by Fallon's attorney at the hearing. On the record here, and in the absence of any testimony or explanation by Fallon, there is no warrant for not giving full credence to the evidence offered by the borough. As the court said in Wratchford v. Millburn Tp., 105 N.J.L. 657 (E. & A. 1929), in affirming the township's dismissal of a police officer:
The omission of a party to an action to testify to facts or to produce evidence in explanation, except where the evidence is not peculiarly within his power, or is merely cumulative, raises a presumption against his claims. [at 658]
The first charge of which the Commission found Fallon guilty was that he had had in his possession and had transported across a state boundary line "a certain quantity of marijuana." The proofs were that in February 1971, some two months after Fallon was appointed a police officer and while he was attending a police academy, he visited a rock concert in Massachusetts and brought back a glassine bag containing marijuana to show to a fellow police officer who had never seen the substance. The latter officer, concerned with the impropriety of possession of the marijuana, turned it in to police headquarters. With respect to this charge, the Commission concluded:
Although appellant concedes he was in possession of a small portion of marijuana, the circumstances of that possession, a.) for the purpose of showing a fellow officer engaged in a Police Training Course which discussed that topic; b.) the fact that charges were never brought by either the officer or the Chief of Police, who were aware of that possession, and c.) the fact that marijuana is not a narcotic drug, convinced the Hearer that removal was too strong a penalty.
That marijuana is no longer classified, as it was prior to 1970 by N.J.S.A. 24:18-2(9), since repealed, as a narcotic drug, is of no moment and should have played no part in the Commission's conclusion. Its possession is still prohibited. One possessing 25 grams or less thereof is a disorderly person; one possessing more than 25 grams is guilty of a high misdemeanor. N.J.S.A. 24:21-20. Nevertheless, in the circumstances shown, were this the only incident demonstrative of Fallon's insensitivity to and disregard of his obligations as a police officer, "a special kind of public employee, [whose] primary duty is to enforce and uphold the law," Moorestown Tp. v. Armstrong, 89 N.J. Super. 560, 566 (App. Div. 1965), certif. den. 47 N.J. 80 (1966), we would be inclined to agree that dismissal therefor, in the case of a then novice police officer, was too harsh a penalty.
But that incident does not stand alone. Fallon's conduct thereafter, on the two occasions when he left his post without authority, showed a continued insensitivity to and disregard of the obligations of his office which fully justified the borough's determination that his removal as a police officer was warranted.
The Commission's conclusion minimizes the seriousness of these derelictions by stating:
The appellant did, in violation of police rules, leave his post without calling police headquarters. However, the location of his departure from his post, or the length of time, were not sufficient proof for ...