On appeal from Superior Court, Law Division, Hunterdon County.
Matthews, Kole and Milmed. The opinion of the court was delivered by Kole, J.A.D.
Plaintiff was an employee of the Road Department of defendant Township of Clinton (township), a non-Civil Service municipality. On December 18, 1975 he was summarily dismissed from his employment after having worked for the Department for about 15 years.
On January 19, 1976 plaintiff notified the township that he was a veteran entitled to the benefits of the Veterans' Tenure Act, N.J.S.A. 38:16-1 and 2 (the act). The trial judge properly held that until it had thus been made aware of plaintiff's veteran status, the township had no duty to proceed against plaintiff under that act before dismissing him; that its duty in this respect did not arise until January
19, 1976, and thus his dismissal or removal for the period from December 18, 1975 to January 19, 1976 was valid and legal, notwithstanding noncompliance with the provisions of the act.
Under the act plaintiff, as a veteran, could only be dismissed or removed for "good cause shown," after a fair and impartial hearing preceded by a written statement of charges. Absent such a procedure and finding of good cause for removal, he held his employment during good behavior.
After receiving notice of plaintiff's rights under the act, instead of immediately restoring him to his employment or filing and serving charges against him in connection with a dismissal or removal hearing, the township, by letter of February 6, 1976, stated that it was considering its earlier action a "suspension" without pay, "pending the outcome of an investigation which may or may not result in written charges and a hearing." It was not until plaintiff instituted this action to compel compliance with the act and after the court below, on March 12, 1976, so ordered, that the charges were filed and served and the hearing was held by the township committee.*fn1 On March 29, 1976 the original charges, as ordered by the court, were served on plaintiff. The statement of these charges provided that the township was treating plaintiff's original dismissal as a suspension pending the outcome of the hearing. More specific charges, directed by the court on plaintiff's motion, were sent to plaintiff on May 13, 1976. The township held the hearing on May 19, 1976. A delay in rendering its decision resulted in the issuance of a June 23, 1976 court order, on plaintiff's application, to the township to show cause as to why the matter should not be decided. The township's written decision was rendered July 22, 1976.
The township found plaintiff guilty of two of the five charges (Nos. 1 and 5). The effect of its decision was to uphold
his original dismissal, and his suspension without pay pending the hearing, as being "justified," and to direct that he not be reinstated to any position in the township.
Thereafter, plaintiff sought a review by the court below of his dismissal, together with other relief, including back pay. A de novo hearing on the record before the township committee was held by that court.
Among other things, the judge determined that plaintiff was guilty of charge No. 5 -- the "blacktop incident" -- but was not guilty of the other charge (No. 1). No appeal has been taken from the not guilty finding. The judge also decided that dismissal of plaintiff from employment was warranted by reason of the blacktop incident, but that, apparently because of the township's failure to comply with the act before dismissing plaintiff, plaintiff was entitled to recover his net back pay -- $3,586.45 -- without mitigation, from January 19, 1976 to July 22, 1976, the date of the township decision -- "the official date of his dismissal." He also awarded plaintiff interest on the $3,586.45, at 8% a year from July 22, 1976, together with costs. He denied plaintiff any counsel fees.
This appeal and cross-appeal followed.
From our review of the record we are satisfied that there was ample credible evidence to support the trial judge's determination that plaintiff violated his duty as a public employee when he misused township property in connection with the blacktop incident (charge No. 5). Accordingly, the finding of guilt of that charge is affirmed. State v. Johnson , 42 N.J. 146 (1964).
However, although we conclude that "Good cause" existed to penalize plaintiff for such misconduct, we do not agree that dismissal was an appropriate sanction under the circumstances disclosed by the record in the case. In our view, a penalty less than dismissal is authorized by the act and should have been imposed. Our determination also requires a modification of the back pay award.