Ard, Morton I. Greenberg and Trautwein. The opinion of the court was delivered by Morton I. Greenberg, J.A.D.
This matter is before this court on appeal and cross-appeal from a decision of the Civil Service Commission issued May 12, 1983. The facts which we set forth at some length were developed at a hearing before an administrative law judge.
Appellant John J. Steinel had been an engineering aide in the Division of Engineering of respondent City of Jersey City since January 11, 1972. Until 1978 he worked on a survey team but in that year he was transferred to an office job. In 1981 Jersey City engaged a contractor to resurface Old Bergen Road. Although appellant ordinarily did not do inspection work, he was assigned as inspector of this project because other engineering aides were either busy or on vacation. Appellant thus became responsible for ensuring compliance with the specifications for repaving as set forth in the division of engineering manual.
The project was started in September 1981 and appellant began inspecting it on September 22, 1981. Almost immediately appellant informed Joseph Slattery, his direct supervisor, that the contractor was using the wrong expansion-joint filler material for repaving. The problem, however, was not resolved as the contractor continued to use the wrong material. Appellant again informed Slattery but did not otherwise attempt to prevent the problem. Instead he waited for a person with more authority to stop it. In addition appellant failed to determine properly if the depth of the expansion joints in the concrete and the depth of the driveway drop curb and sidewalks complied
with the specifications. Instead of using appropriate tools to make these determinations appellant relied on inadequate visual inspections. Nevertheless, appellant believed that he was performing the necessary tests and making the required observations. Appellant submitted inspection reports detailing the progress of construction which did not indicate that the contractor was deviating from the construction specifications.
On October 21, 1981 William Globe, Director of Engineering for Jersey City, accompanied by other engineering employees, conducted an inspection of the project. This inspection revealed that improper expansion-joint material was being used, the depth of the joints in the concrete was improper and the depth of the drop curbs was improper. On October 23, 1981 Globe notified the contractor of the deficiencies which he had discovered. On October 27, 1981 Globe and other of respondent's employees discovered from a detailed inspection of the Old Bergen Road project that 120 expansion joints were of insufficient depth and that 6 driveways picked at random were also of insufficient depth.
On or about November 9, 1981 respondent filed a preliminary notice of disciplinary action with the Department of Civil Service seeking appellant's removal for neglect of duty and incompetence. Appellant was suspended on that day. Gerald Nissen, respondent's assistant director of engineering, by memorandum informed appellant that he had failed to bring to the attention of his supervisor deficiencies on the Old Bergen Road project or to record them in his daily inspection reports.
A hearing was scheduled on the charges. After several postponements, on January 12, 1982 Edward A. Flynn, respondent's assistant business administrator, conducted the hearing. He found appellant guilty of neglect of duty and incompetence. Flynn recommended that appellant's employment be terminated in light of the fact that he had six prior minor disciplinary charges sustained against him. This recommendation was adopted by Frederick J. Tomkins, respondent's business administrator,
who by letter dated April 12, 1982 informed appellant that he was terminated from employment effective April 16, 1982. A final notice of disciplinary action dated April 16, 1982 providing for appellant's removal effective April 16, 1982 was filed with the Department of Civil Service.
By letter dated April 19, 1982 appellant appealed to the Department of Civil Service from the action of Jersey City. The Civil Service Commission directed that a hearing be held on the appeal by the Office of Administrative Law. On January 6, 1983 George Perselay, an administrative law judge, conducted a hearing on this matter. Judge Perselay in his initial decision dated March 21, 1983, after a comprehensive review of the matter, concluded:
The appellant was not guilty of neglect of duty in failing to notify his immediate supervisor that improper joint ...