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Sabia v. City of Elizabeth

Decided: December 30, 1974.

MICHAEL SABIA, JR. AND JOSEPH M. CORRIGAN, APPELLANTS,
v.
CITY OF ELIZABETH AND CIVIL SERVICE COMMISSION, STATE OF NEW JERSEY, RESPONDENTS



Kolovsky, Lynch and Allcorn. The opinion of the court was delivered by Allcorn, J.A.D.

Allcorn

The present appeal has been brought by appellants, police officers of the City of Elizabeth, to review the determination of the Civil Service Commission which found both appellants to have been guilty of breaches of departmental regulations and imposed a penalty of suspension from duty for a period of six months. The motion of appellants pending appeal to enlarge the record by filing the supplemental affidavit annexed to the moving papers is granted.

At the outset, we take occasion to observe that the proofs before the Civil Service Commission were more than sufficient to establish that, while partners on radio car patrol duty during the early morning hours of June 27, 1970, appellants broke into the office shack at the premises used by the City to store abandoned automobiles, and stole therefrom a gallon container of paint and two radios. So compelling was the evidence that, in addition to imposing the

maximum penalty available to it, the Civil Service Commission further provided in its order "that the matter be referred to the Division of Criminal Justice in the Office of the Attorney General for their consideration."

We concur with the findings and conclusions of the Civil Service Commission, and find the penalty imposed to be well-warranted. The contention that the evidence against appellants was insufficient to support the findings of the Commission and that the findings should be set aside as arbitrary and capricious, is manifestly frivolous. Equally without substance is the contention that the Commission determination is invalid by reason of its failure to set forth thereon the identity of the members of the Commission "who judged the matter."

Likewise, we perceive no merit in the challenge to the validity of the determination by reason of (1) the asserted omission to place into evidence the rules and regulations charged to have been violated by appellants, and (2) the failure to prove that such rules and regulations "had been enacted by ordinance." The record indicates that the rules and regulations in question were specifically set forth in full in the charges, and that neither appellant previously raised any question as to their content or the propriety of the manner of their adoption. N.J.S.A. 40:47-1; N.J.S.A. 40A:14-118. In any event, when dealing with misconduct of the nature of that here involved, a finding of guilt "need not be predicated upon the violation of any particular regulation or rule." City of Asbury Park v. Dept. of Civil Service, 17 N.J. 419, 429 (1955). Employed to enforce the law and sworn to uphold the law, a police officer who breaks into a locked shack and steals personal property therefrom is guilty of blatant misconduct in his office and plainly violates his oath. Upon proof thereof at a hearing on notice setting forth the essentials of the misconduct charged, he merits the most stringent discipline. Id.

Appellants next argue that, because the departmental hearing at the municipal level resulted in a dismissal of the charge that appellants had violated the criminal law, this "could only mean that defendants did not commit the acts under the remaining charges," and thus the hearer "could not find that defendants did commit the [same] acts under the remaining charges" -- and by reason thereof the de novo hearing by the Commission was "barred by prohibition against double jeopardy, res judicata and collateral estoppel." Quite aside from the circumstance that the point is raised for the first time on this appeal, it is specious. In our view, a final judgment of conviction of crime by a court of competent jurisdiction is an essential to a finding of guilt upon a departmental disciplinary charge of having violated the criminal law. Where the conduct of a public employee which forms the basis of disciplinary proceedings may also constitute a violation of the criminal law, however, the absence of a conviction, whether by reason of nonprosecution or even acquittal, bars neither prosecution nor finding of guilt for misconduct in office in the disciplinary proceedings. In re Pennica, 36 N.J. 401 (1962); In re Darcy, 114 N.J. Super. 454 (App. Div. 1971). Compare, Atkinson v. Parsekian, 37 N.J. 143 (1962); Dept. of Law and Public Safety v. Miller, 115 N.J. Super. 122 (App. Div. 1971).

Improper though it may have been, the non-disclosure by the City of the identity of the eyewitness (Fehring) until the de novo hearing before the Commission, caused appellants no real prejudice. Specifically, the appellants assert that nondisclosure was prejudicial in that it deprived them of "an adequate opportunity to prepare for trial" -- "to interview * * * [the witness] in preparation for trial," "to test his powers of observation, to attack his credibility." In spite of their asserted concern, in the seven or more months that intervened between the decision at the municipal level (October 26, 1972) and the de novo Commission hearing (June 13, 1973), appellants took no action

whatever to compel the City to make disclosure so that they might interrogate or interview the witness, or otherwise prepare themselves to meet his testimony; nor, once his identity was disclosed at the de novo hearing, did appellants seek any delay for such purposes.

Moreover, the substance and details of the testimony of this witness at the de novo hearing could have come as no surprise to appellants. It had been related testimonially by Captain Truzack, as well as set forth in the written report of Lieutenant Gogelman, received in evidence at the departmental hearing. The record of the de novo hearing reveals a complete and thorough cross-examination of the witness by counsel for appellants. In short, the non-disclosure in no way deprived appellants of a fair hearing ...


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