O'Neil, J.c.c., Temporarily Assigned.
Plaintiff, a Newark policeman, was suspended from the force in April, 1972, after being indicted for misfeasance, and during the suspension his salary, totaling $23,329.85, was not paid by the city. In March, 1974 he was tried and acquitted by a jury and reinstated by defendant. Purporting to rely on N.J.S.A. 40A:14-151, he made claim upon the city for the full amount of salary withheld. His affidavit, submitted in support of the claim, showed that during the period of suspension he had earned $5,906.45 in other employment and had become obliged to pay a counsel fee of $5,000 for his defense. On the supposed authority of Mason v. Civil Service Comm'n , 51 N.J. 115 (1968), defendant deducted the outside earnings from the withheld salary, paid the plaintiff $17,423.40 and refused to pay him the balance of $5,906.45. This suit seeks to recover that balance.
After the city answered with a general denial, plaintiff moved for summary judgment in his favor and that motion is before the court for decision. No facts are in dispute, and all that is required is a determination whether plaintiff is entitled to judgment as a matter of law. R. 4:46-2.
The complaint alleged an entitlement, by reason of R.S. 40A:14-151, to all of the money he would have earned during the suspension. A one-page memorandum annexed to the motion for summary judgment stated that this section of the statutes "is dispositive of this action and represents all of the law on the subject in the State of New Jersey."
Subsequently, plaintiff moved for leave and filed an amended complaint, the only change being the citation of N.J.S.A. 40A:14-149.1 and 149.2 instead of § 151. This action was probably prompted by the city's affidavit and statement in lieu of brief filed in opposition to the motion for summary judgment. The affidavit of Veda Simon, described as an employee of the business office of the Newark Police Department, asserted that the deduction of $5,906.45 was made "by the Police Department * * * in accordance with the decision in Mason v. Civil Service Commission * * *" The statement in lieu of brief contends that in Mason the Supreme Court held that "a municipality could mitigate back wages for police officers by setting off against said back wages the sums of any monies earned by him while on suspension." This result is characterized as an interpretation of N.J.S.A. 40:46-34, the admitted predecessor of N.J.S.A. 40A:14-151.
After argument on the motion for summary judgment plaintiff filed a further brief emphasizing the new reliance on N.J.S.A. 40A:14-149.1 and 149.2, and arguing that these sections indicate a conscious legislative intent to change the result of 40A:14-151 as construed in Mason. The city has not filed any further memorandum, although on argument of the motion decision was reserved to allow both sides an opportunity to do so.
Mason dealt with the dismissal of two municipal patrolmen for misconduct of which they had been found guilty in departmental hearings. On their appeal the Civil Service Commission reviewed the matter de novo , found the officers innocent of the charges, reversed the dismissals and restored them to duty. The municipal statute governing this situation, then N.J.S.A. 40:46-34, provided that when such a dismissal was judicially declared illegal, the officer would be entitled, upon prompt application therefor, to recover "the salary of his office * * * for the period covered by the illegal dismissal * * *" The Commission had allowed recovery of the unpaid salary, less the amount of earnings in
outside employment during the time of separation from the job. A modest amount was added for counsel expense. The court basically affirmed the Commission's action, except that it remanded for a hearing to determine the actual amount of legal expense incurred by the officers.
The court explicitly held, however, that the result it reached was dictated not by N.J.S.A. 40:46-34 but by the laws governing the Civil Service Commission, specifically, N.J.S.A. 11:15-6. Mason v. Civil Servce Comm'n, supra , 51 N.J. at 126. Beyond that, the court stated:
The power possessed by the Commission under the second paragraph of R.S. 11:15-6 to award back pay less what was earned in outside employment during the period of illegal dismissal also serves as authority for increasing the net salary award by any sum that will reasonably compensate the vindicated employee for ...