On appeal from the Civil Service Commission.
Conford, Pressler and King. The opinion of the court was delivered by Pressler, J.A.D.
[164 NJSuper Page 422] In this civil service matter, the appointing authority, New Jersey Department of Corrections (Department), appeals from the determination of the Civil
Service Commission (Commission) reducing the penalty imposed by the Department upon its employee, Jesus Torres, a corrections officer assigned to Trenton State Prison. The Department, on a finding that Torres had fallen asleep while on mess hall guard duty, removed him from service. The Commission, on Torres' appeal, sustained the disciplinary finding but modified the penalty to a 60-day suspension.
The Department's appeal would appear to implicate nothing more than a relatively routine exercise of the appellate review function, namely the determination as to whether the Commission's decision was supported by sufficient credible evidence on the record as a whole and was neither arbitrary, capricious nor unreasonable. That is, of course, the classic standard of review applicable to quasi -judicial determinations of administrative agencies, including the Civil Service Commission. See, e.g., Campbell v. Civil Service Dep't , 39 N.J. 556, 562 (1963); In re Darcy , 114 N.J. Super. 454, 463 (App. Div. 1971). What has, however, emerged in our review of this matter is the existence of an aberrant line of case-law authority applying a different and substantially stricter standard of review to penalty-modification determinations of the Civil Service Commission. We regard this authority as having so effectively and erroneously permeated this category of Commission jurisdiction as to necessitate as prompt and pervasive a rectification as possible.
We start our reconstruction of the applicable law in mid-point with Justice Hall's opinion for a unanimous court in West New York v. Bock , 38 N.J. 500 (1962). One of the primary issues there involved was the appointing authority's contention that "the Civil Service Commission may not modify disciplinary action taken by the appointing authority in municipal service cases absent a clear abuse of discretion." Id. at 514. In making this contention the municipality was patently relying on Newark v. Civil Service Comm'n , 115 N.J.L. 26, 30 (Sup. Ct. 1935), whose express holding was that under the then existing statutes the power of the Civil Service Commission to modify the penalty of a
local appointing authority was limited to such local discipline as was "so utterly disproportionate to the offense as to constitute an arbitrary and unreasonable exercise of power * * *." The import of Justice Hall's painstaking historical analysis in West New York v. Bock, supra , 38 N.J. at 514 to 518, was to demonstrate that by reason of statutory amendment this standard of review had had, since 1930, no applicability to the state service, and was furthermore, since 1946, no longer applicable to the local service either. The legislative event which occurred in 1930 was the amendment of what is now N.J.S.A. 11:15-6, then applicable only to the state service. That amendment conferred de novo penalty review jurisdiction upon the Commission by providing that
The commission may, when in its judgment the facts warrant it, modify or amend the penalty imposed by the appointing authority or substitute another penalty for that imposed, except that removal from the service shall not be substituted for a lesser penalty.
The legislative event which occurred in 1946, and which vitiated the Newark v. Civil Service Comm'n, supra , standard in respect of the local service as well, was the amendment of N.J.S.A. 11:2A-1. That amendment extended to the local service the full jurisdictional scope accorded the Commission by the 1930 amendment of N.J.S.A. 11:15-6. As Justice Hall further noted, the statement appended to the bill resulting in the 1946 amendment explained its purpose as expressive of the legislative intention to give the Civil Service Commission authority to substitute a lesser penalty than discharge when "it is of the conclusion that the penalty imposed is inequitable and is not appropriate to the violation charged." Thus, Justice Hall concluded as follows:
We think this legislative history, culminating in the 1946 enactment with the statement of purpose just recited, conclusively establishes that since that date the Commission has been required, on a de novo hearing on appeal from municipal action, to redetermine the penalty just as it must redetermine guilt and that this
is so even where the only issue may be the propriety of the penalty imposed below. The former rule of the overriding effect of punishment fixed by the appointing authority, absent a clear abuse of discretion, no longer lives and the town's contention ...