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In re Appeal of Emil K. Tuch

Decided: April 26, 1978.

IN THE MATTER OF THE APPEAL OF EMIL K. TUCH, PLAINTIFF-APPELLANT


On appeal from New Jersey Department of Civil Service.

Allcorn, Morgan and Horn. The opinion of the court was delivered by Horn, J.A.D.

Horn

Appellant Emil Tuch, a Riverside Township (township) police officer, was indicted in June 1974 for atrocious assault and battery, and misconduct in office. The charges arose out of defendant's alleged conduct in striking a manacled prisoner without cause, the blow resulting in injury to the prisoner. A jury trial resulted in appellant's acquittal of atrocious assault and battery; however, he was found guilty of simple assault and battery.*fn1

Shortly after appellant had been indicted he was served with a preliminary notice of disciplinary action dated June 28, 1974, which charged him with committing an atrocious assault and battery upon a prisoner. He was suspended pending the outcome of a hearing which was to be held the following month. Pursuant to Civil Service rules, appellant waived his right to that hearing until the indictment had been prosecuted to completion.

Prior to his sentencing date (May 1, 1975) appellant requested a departmental hearing on the charges pending against him. On or about April 10, 1975 he was served with a second notice of disciplinary action dated April 10, 1975. That notice stated that he was charged with assault and battery, for which his removal was sought. At the bottom of the notice the following appeared: "Based on New Jersey Administrative Rules, Civil Service Code 4:16.9(a)

9 Cause for removal-The conviction of any criminal act or offenses."

The hearing was held on April 28, 1975. Six days before appellant was sentenced by the judge on the assault and battery conviction the township committee adopted a resolution which recited defendant's guilt of simple assault and battery, and removed him from his position of police officer.

That determination was appealed before the Civil Service Commission. The hearing officer recommended that appellant be reinstated as a police officer because, as a matter of law, simple assault and battery was not a criminal act or offense within the meaning of N.J.A.C. 4:1-16.9(a) (9). The Civil Service Commission, however, reviewed that hearing officer's report and determined that the hearing should be reopened because the hearing officer did not conduct the hearing "on the merits of the removal." The reopened administrative hearing de novo before a different hearing officer resulted in the recommendation that appellant's removal by the appointing authority be affirmed. He found as a fact that appellant had struck the prisoner while the latter was handcuffed and had been convicted of assault and battery. He concluded that appellant's conviction did constitute a conviction of a criminal offense within the meaning of N.J.A.C. 4:1-16.9(a) (9). The Commission adopted the second hearing officer's report and recommendation, and affirmed the appointing authority's removal of appellant.

Appellant appeals from that determination, contending that (1) the Commission had no right to reopen the administrative hearing after the first hearing officer rendered his report and recommendation; (2) a conviction for simple assault and battery (N.J.S.A. 2A:170-26) is insufficient to support removal by the appointing authority pursuant to N.J.A.C. 4:1-16.9(a) (9), and (3) the Commission violated certain procedural rules during the prosecution of this disciplinary action.

Administrative agencies in this State have an unquestioned power to reopen or modify or rehear any orders that have been entered in proceedings before them unless stated to the contrary by the Legislature. Skulski v. Nolan , 68 N.J. 179, 195 (1975). Also, Ruvoldt v. Nolan , 63 N.J. 171, 183 (1973); Burlington Cty. Evergreen Pk. Mental Hosp. v. Cooper , 56 N.J. 579, 600 (1970).

However, the crux of this appeal is whether proof of appellant's conviction of the disorderly persons offense of assault and battery and the factual finding that appellant committed an assault and battery as sufficient to warrant removal from his position as a police officer where the notice of the charge served upon him referred to the charge as one based on the conviction of a criminal ...


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