On appeal from a determination of the Civil Service Commission.
Milmed, Morton I. Greenberg and Furman. The opinion of the court was delivered by Morton I. Greenberg, J.A.D.
The background and procedural history of this matter should be set forth so that the issues are clearly understood.
Petitioners John Coppla and Thomas Festa became employed by respondent Town of Belleville in September 1977 as laborers on a water truck in Belleville's Department of Public Works. The department was responsible for overseeing, checking and repairing Belleville's water distribution system.
In October 1978 petitioners were promoted to provisional water repairers. When each accepted this position he was expected to know how to check water leaks. Specifically, their duties included "[r]epair of all pipes, checking the water leaks, any kind of cuttings which come under the mains, hydrants, services." Each held his position on a temporary basis until November 5, 1979, when apparently at the direction of the Director of Public Works, they were returned to the position of laborer. Petitioners concede that such action was lawful. Shortly thereafter, on November 17, 1979, when petitioners were the only two men on the water truck, they were requested to respond to a call about a possible water leak in the town. When they did not go to the place of the leak an assistant superintendent of public works investigated to find out the problem. Petitioners told him they did not know how to check a water leak. The assistant superintendent did not believe them. Petitioners did offer to go with him if he checked on the leak, but in fact did not respond to the call.
On November 19, 1979 the Director of Public Works sent letters of termination to petitioners. These letters were not sent in accordance with Civil Service procedure. Upon learning
the correct procedure the Director properly terminated petitioners as employees, effective December 4, 1979. Coppla was charged with neglect of duty, incompetency or inefficiency, and insubordination or serious breach of discipline. Festa was charged with neglect of duty and insubordination or serious breach of discipline.*fn1
Petitioners challenged their removal before the Civil Service Commission (hereinafter Commission). The matter was assigned to an administrative law judge, who held an evidentiary hearing on June 10, 1980. On September 26, 1980 the judge issued his written initial decision. He made detailed findings of fact, including the following:
The appellants did know how to check for a water leak, and they were fully capable of doing so. Their claim of ignorance was tantamount to a refusal to perform an assigned task. It was a wrongful and contrary demonstration of pique motivated by their seemingly unjustified demotion five days earlier.
Though the judge concluded that both men "should be subject to disciplinary action and imposition of a penalty because of the . . . violation," he decided that the penalty imposed was too harsh. Specifically he stated:
Considering the level of the appellants' titles as laborers, the two-year length of their employment, and the fact that their records were completely clear of prior disciplinary problems, the penalty of removal for the above single violation is unreasonably severe. A six-month suspension is more appropriate and is a sufficiently strong penalty under the circumstances.
Thus, the judge ordered that the town's action be modified by reducing the penalty to a six-month suspension beginning December
4, 1979. He further ordered back pay for the period between November 19, 1979, when the men were removed in fact, and December 4, 1979, when their removal became properly effective -- reduced and mitigated by income earned during that time. Finally, he ordered petitioners reinstated retroactively as of the expiration of the six-month suspension period. Petitioners were to be considered during the time between then and the actual date of reinstatement as having been on a leave of absence without pay.
The matter was then considered by the Commission at its November 6, 1980 meeting. At that time it adopted the judge's findings of fact.*fn2 However, the Commission concluded that a 60-day suspension was a more appropriate penalty. In reaching this conclusion the Commission noted that each petitioner had an unblemished work record from 1977 until November 19, 1979. The Commission further ordered that back pay be awarded for the period from the end of the 60-day suspension to the actual reinstatement date. This award was to be reduced and mitigated by income earned during that period.
On January 28, 1981 the town filed a timely notice of appeal to this court.
Belleville, in its brief on this appeal, filed December 1, 1981, states "that John Coppla has not returned to employment, and that Thomas Festa has been reinstated." No further details have been supplied. We presume that Coppla, for reasons unrelated to this case, has not ...