On certification to the Superior Court, Appellate Division (A-45 Henry v. Rahway State Prison).
Before Mr. Chief Justice Wilentz, Mr. Justice Sullivan, Mr. Justice Pashman, Mr. Justice Clifford, Mr. Justice Schreiber, Mr. Justice Handler, and Mr. Justice Pollock.
The opinion of the court was delivered by POLLOCK, J.
The primary issue on these appeals involves the standard of review to be applied by the Civil Service Commission in appeals de novo from decisions of state or local appointing authorities in disciplinary proceedings against employees.
Jesus Torres and Otis Henry are two employees who were dismissed by the New Jersey Department of Corrections in separate disciplinary proceedings. They assert that, on an appeal de novo, the Commission may conduct a hearing, make independent findings and substitute its judgment for that of the appointing authority.
The Department argues that review of its decisions by the Commission should be restricted to determining whether the Department committed a clear abuse of discretion. The argument is based on the premise that, whatever standard of review might apply to disciplinary proceedings of other agencies, there should be a separate standard of review of employee disciplinary proceedings conducted by law enforcement agencies.
In Henry v. Rahway State Prison, an unreported decision, one part of the Appellate Division accepted the abuse of discretion standard and reversed the Commission's decision that had reduced the penalty from removal to a 90-day suspension. In New Jersey Department of Corrections v. Torres, 164 N.J. Super. 421 (1978), another part of the Appellate Division adopted the substituted judgment test and affirmed the Commission's decision that reduced the penalty from removal to a 60-day suspension.
We granted certification in Henry, 81 N.J. 56 (1979), and Torres, 81 N.J. 64 (1979), to determine which standard of review is to be applied by the Commission in appeals de novo from decisions of the Department or other law enforcement agencies in employee disciplinary proceedings. We consider these appeals together because they present divergent holdings on the same issue of law.
The proceedings against Corrections Officer Torres stemmed from a charge that on August 16, 1977, he fell asleep while on guard duty in an elevated enclosed "cage" overlooking the mess hall at Trenton State Prison. The cage is hot and humid in the summer, and the temperature was estimated to be 100 degrees on the day in question. During his five years of employment, Torres had never been disciplined. Nonetheless, the Department found that he was guilty of neglect of duty and ordered his removal. The Commission reduced the penalty to a 60-day suspension.
Senior Corrections Officer Henry was charged with submitting a falsified report of his discovery of marijuana. In his report, Henry stated that he found the marijuana in the weightlifting shack at Rahway State Prison and that he did not know to whom it belonged. In fact, he had found the marijuana on an inmate's bed in the dormitory. The charges against him recited that he had deliberately falsified his report by misstating the place and manner of his discovery and by omitting the name of the inmate. The Department ordered his removal after finding him guilty of neglect of duty and conduct unbecoming a public employee.
The Commission adopted the findings of fact of the hearing examiner and concluded that Henry had acted in good faith. It found that he was not attempting to protect the inmate, but was conducting his own investigation of a scheme to sell marijuana. The Commission found further that Henry had no improper motives and was guilty only of exercising poor judgment. On that basis, the Commission reduced the penalty to a 90-day suspension.
We begin by recognizing that the declaration of the Commission's standard of review is a legislative matter. With reference to review of decisions of state appointing authorities, the Legislature has provided, in part:
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 ...