CAMPBELL v. DEPT. OF CIVIL SERVICE
39 N.J. 556 (1963)
189 A.2d 712
BERNARD A. CAMPBELL, APPELLANT, v. DEPARTMENT OF CIVIL SERVICE, STATE OF NEW JERSEY, RESPONDENT.
The Supreme Court of New Jersey.
Decided April 1, 1963.
Mr. Perry E. Belfatto argued the cause for the appellant.
Mr. Milton Diamond, Deputy Attorney General, argued the cause for the respondent ( Mr. Arthur J. Sills, Attorney General of New Jersey, attorney).
The opinion of the court was delivered by JACOBS, J.
The respondent Department of Civil Service sustained the dismissal of appellant Bernard A. Campbell as deputy director of the Division of Workmen's Compensation. Mr. Campbell appealed to the Appellate Division and we certified before argument in that court.
In April 1958 the appellant was notified that he had received a service rating of unsatisfactory for the period from October 1, 1957 to March 31, 1958. His rating was 1.0 which was the lowest possible rating. He conferred with Mr. Ned J. Parsekian, then Director of the Division of Workmen's Compensation and was told, according to Mr. Parsekian's testimony, that the rating was a serious matter, that it indicated Mr. Campbell had not performed his duties with sufficient satisfaction, and that "it meant that he would have to improve markedly in the future and soon." Mr. Parsekian also testified he then informed Mr. Campbell that two consecutive unsatisfactory ratings would be basis for dismissal. On December 3, 1958, a service rating of unsatisfactory (1.0) for the period from April 1, 1958 to September 30, 1958 was sent to Mr. Campbell. Both of the
On December 5, 1958 the Division of Workmen's Compensation served a preliminary notice of disciplinary action on Mr. Campbell. The notice advised him that, pending hearing, he was removed from his position of deputy director because of incompetency and inefficiency in the service and because of the service ratings. It also advised that before final action was taken a hearing would be held on December 22, 1958 at which time Mr. Campbell could appear and offer any evidence or testimony in his defense. On December 22 the hearing was begun and it continued during February and March 1959 before George S. Pfaus, Acting Commissioner of the Department of Labor and Industry. On the Department's behalf, the service ratings were presented and testimony was introduced in support of ten specific charges of incompetency and inefficiency. In addition, evidence was introduced relating to two matters which occurred while the proceeding before the Acting Commissioner was pending and which bore on Mr. Campbell's fitness to continue as deputy director. He was advised that the Acting Commissioner would consider these matters and chose not to introduce any evidence to meet them. However, he did appear and introduced evidence bearing on the ten specific charges. After the close of the hearing, Acting Commissioner Pfaus rendered his opinion which dealt fully with the ten charges and the two additional matters. He concluded that the charges of incompetency and inefficiency had been sustained and that the appellant should be removed permanently from the position of deputy director.
On July 24, 1959 Mr. Campbell appealed to the Department of Civil Service from his dismissal as deputy director. A hearing de novo was held before Civil Service Commissioner Gilroy. It was begun on September 24, 1959, was continued during 13 additional days, and was finally concluded on June 30, 1960. Extensive testimony was introduced
In its first charge, the Department of Labor and Industry asserted that on his assignment to hear informal matters, Mr. Campbell failed to record necessary information and his recommendations, with resulting embarrassment to the Department in that at least on one occasion it was obliged to ascertain from the insurance carrier what had been the disposition of the matter. As indicative of Mr. Campbell's attitude, the Department pointed out that he had walked out on his training session in informal matters; his explanation is that he had been called out by another deputy director. The Commission stated that it did not consider the walking out as a major issue but it did find that Mr. Campbell had failed to record necessary information as charged. It expressed the
The second charge carried implications of greater significance. In a proceeding which may here be described as the Lowe case, an award of 1/2 of 1% was rendered. Counsel for the insurance carrier testified that Mr. Campbell stated that he would have made it 1/4 of 1% "if it were not so difficult to figure it out." Mr. Parsekian testified that when the unusual award came to his attention, he made inquiry and was told by Mr. Campbell that since the petitioner was a colored person he did not want him to think that he was being discriminated against and "so rather than dismiss the case I gave him a half per cent of total." During the hearing before Commissioner Gilroy, Mr. Campbell gave testimony which sheds further light on the award.
Mr. Campbell testified that in another matter he had rendered an award of 2% which was reversed on appeal and that at that time a deputy told him that if he had not awarded as much the chances were that he "would not have been taken up in the first place." When asked whether he believed that it would be improper to consider the possibility of reversal in fixing the amount of the award, he said, "not necessarily" since the employee had some injury for which he should be compensated and "you are certainly not doing him a favor if you give him an award that invites an appeal because of the size of it." He indicated that he viewed workmen's compensation legislation simply as a matter of favor to the employee. But cf. Danek v. Hommer, 9 N.J. 56, 58 (1952). He rejected the rule of preponderance of evidence saying, "if the evidence leaves you in such a conclusion that it is equally consistent with the verdict in favor of the petitioner as well as a dismissal, then you must give an award in your determination for the petitioner." The law is otherwise. See Parker v. John A. Roebling's Sons Co., 135 N.J.L. 440, 442 (Sup. Ct.), aff'd 136 N.J.L. 635 (E. & A. 1947); Page v. Federated Metals Div., Amer. Smelt. & Ref. Co., 71 N.J.Super. 59,
The third charge related to the Camburn case in which the petitioner was awarded permanent partial disability of 15% of total in addition to 21 weeks of temporary disability. During the noon hour following the hearing, the petitioner told Mr. Campbell that he wanted medical treatment rather than a monetary award and, according to his testimony, Mr. Campbell replied, "How stupid can you be? You go to the lawyer about that." The petitioner testified further that at a later meeting he told Mr. Campbell that he could not understand the kind of hearing he had received and that he was then told, "You are not supposed to ____ that's what the lawyer goes to college for." The petitioner then wrote to Mr. Parsekian and thereafter the matter was brought on before another deputy director who entered an award suspending the permanent disability payments and ordering further medical treatment. The Commission considered the third charge of some significance not because of the award rendered by Mr. Campbell but because of the attitude evidenced by him in his conversations with the petitioner.
The fourth charge related to the Caucci case in which an application for benefits from the One Per Cent Fund came on for hearing before Mr. Campbell, was voluntarily discontinued, and was followed by a second application. Mr. Parsekian testified that he reviewed all One Per Cent Fund
The fifth charge related to the Turner case in which Mr. Campbell made an award to the petitioner of 12 1/2% of total permanent disability. Thereafter the petitioner made application for benefits from the One Per Cent Fund. See N.J.S.A.
The sixth charge (Throckmorton) was not pressed and the next related to the Tocci case in which an employee, while warming up for an inter-shop soft ball game, attempted to backhand a fly ball and injured himself. He filed his claim petition for compensation in the Division and the matter came on before Mr. Campbell who dismissed the petition upon the finding, inter alia, that the employee had been "willfully negligent." Negligence is not a defense to a petition for workmen's compensation. See Belyus v. Wilkinson, Gaddis & Co., 115 N.J.L. 43, 49 (Sup. Ct. 1935), aff'd 116 N.J.L.
The Commission, after referring to the Division's position that the Tocci decision was a source of embarrassment since "it revealed a lack of knowledge of the basic concepts of the Workmen's Compensation Law," made the brief finding that Mr. Campbell had dismissed the petition because of willful negligence "though no such defense is admissible." More troublesome than his original action was Mr. Campbell's failure, as late as the hearing before the Commission, to acknowledge what he should by then have recognized as a settled concept in workmen's compensation proceedings. When he was asked whether willful negligence was a defense against a workmen's compensation claim brought in the Division, he said that the question could not be answered "yes or no" and later said that he was sure that there was a "difference of opinion as to willful negligence."
The next charge related to the Novatin matter, where during the course of a workmen's compensation proceeding against two respondents, it appeared that the petitioner had been involved in an earlier accident and had received an award of 7% against the first respondent. When Mr. Campbell found the petitioner disabled to the extent of 25%, he ordered that 18% be paid by the second respondent thus leaving in status quo, the first respondent who had paid the 7%. Counsel for the second respondent contended that his client should only pay 12 1/2% of the 25% award, and when he persisted in his contention, Mr. Campbell stated that since the second respondent was objecting to any credit which had been
The next charge related to the Smith matter where an application seeking increased benefits was scheduled to be heard on January 13, 1958. Though it was near the head of the list for that day, and though the petitioner was ready with his doctors on telephone call, the case was never called for hearing. Mr. Campbell passed it by, heard another matter which consumed the day, and marked the case "not reached." Counsel for the petitioner in the Smith case testified that Mr. Campbell indicated to him that since his application was one for increased benefits rather than an original application, it should be deferred in favor of another case which was scheduled to be heard for the first time. Mr. Parsekian testified that there was no such Division policy and that he considered it improper for the case to have been marked "not reached" since it had in fact been reached although not heard. Mr. Campbell testified that the doctor in the Smith case was not in court when it was reached and that he accordingly proceeded with the Throckmorton case which involved an old man in poor physical condition who would have been greatly inconvenienced if his case had not then been heard. The Commission found that Mr. Campbell had passed over a case when it was ready, had improperly marked it "not reached" and had "erred in judgment in adopting a policy that cases being reopened were not as important as original cases in which there had not been a previous judgment"; however it
The next charge related to the Lynch matter in which Mr. Campbell had made a miscalculation in an award. The insurance carrier wrote to Mr. Campbell about the matter under date of September 18, 1958 but never received any reply from him. Its follow-up letter was dated January 14, 1959 and received the attention of another deputy director. Mr. Campbell testified that he was ill about the time in question but the Commission found from the Division's records that he had "more than a month in which to answer the letter before he became ill."
The Commission made no further comments with respect to the aforementioned charges but proceeded in its decision to deal with three items which it described as (1) the successive unsatisfactory service ratings received by Mr. Campbell, (2) the injudicious conduct of Mr. Campbell which was cited by Judge Leonard in the case of Burkley v. Atlantic City and (3) Mr. Campbell's improper conduct in practicing before the Division while he was under suspension. It found these items to be sufficiently serious in themselves to justify the appointing authority's removal of Mr. Campbell as deputy director.
Mr. Parsekian testified at length with respect to his handling of the service ratings of Mr. Campbell and the other deputy directors. The Department of Civil Service had prepared a performance rating manual and had forwarded performance rating forms to the Division. In addition, it had sent a representative who addressed supervisors in the Department of Labor and Industry on the pertinent rating elements including matters of promptness, attendance to duties, courtesy, ability to get along with coworkers and similar items. Mr. Parsekian stated that his opinions as to the performance of his deputy directors were based on his supervisory activities including discussions with Division personnel, examination of transcripts and files, investigation of complaints, and complete familiarity with the One Per Cent Fund proceedings,
After the first rating of unsatisfactory was sent to Mr. Campbell in April 1958, he conferred with Mr. Parsekian who testified that he then informed him that two unsatisfactory ratings in sequence would mean that he could be dismissed from service and that perhaps he felt that workmen's compensation was not his field and that he would "be interested in something else in the state government." The reply, according to Mr. Parsekian, was "I guess this isn't my cup of tea, and perhaps I could do something else more adequately," or words to that effect. Mr. Parsekian later suggested specific openings but he was apparently not interested in them. The second rating of unsatisfactory was sent in December 1958 and was followed by the preliminary notice of disciplinary action.
The Commission stated that Mr. Parsekian presumably acted in good faith and that it would not substitute its evaluations of Mr. Campbell's performance for that of the Director who actually supervised his work. It pointed out that under the performance rating manual issued by the Department of Civil Service pursuant to R.S. 11:13-1, "all permanent and temporary officers and employees in the State Classified service who have worked at least three months during the period" are rated; this included Mr. Campbell who under R.S. 11:4-3 and N.J.S.A. 11:4-4(g) was in the classified service. The Commission referred to the fact that the service ratings were not filed with the Civil Service Department until long after they were sent to Mr. Campbell but it determined that this did not impair their effect or invalidate the proceedings. Nor did it place any weight on technical deficiencies in their preparation since it was satisfied that the ratings were fairly executed and served.
In Burkley v. Atlantic City, an appeal was taken to the county court from an award rendered in the petitioner's favor by Mr. Campbell. Judge Leonard, sitting in the Atlantic County Court, examined the record and declined to determine the merits because he agreed with counsel for the respondent's contention that the manner in which Mr. Campbell had conducted the proceeding in the Division had deprived him of a full, fair and impartial hearing. He remanded the case to the Division for a new hearing, noting that at one point Mr. Campbell had told counsel for the respondent to "sit down and shut up," at another point had engaged in an off-the-record discussion with a witness, notwithstanding counsel's objection, and had throughout the proceeding "unduly interfered with counsel and witnesses; harassed them; was impatient, discourteous" and had otherwise disregarded elemental guideposts which, in the judicial process, may be found set forth in the canons of judicial ethics.
In his defense, Mr. Campbell stated that he was endeavoring to control counsel and shorten trial time. He denied
While the departmental proceeding before Acting Commissioner Pfaus was pending, Mr. Campbell actually engaged in practice before the Division on behalf of petitioners. Thus in Richards v. Lit Brothers, he filed a claim petition resulting in an award which included a counsel fee in his favor. The original judgment in Richards was filed on June 18, 1959 and an amended judgment was filed on June 23, 1959. Mr. Campbell was advised that Richards would be considered in the proceeding before Acting Commissioner Pfaus but chose not to introduce anything to meet it. In his decision dated July 22, 1959, the Acting Commissioner expressed the view that Mr. Campbell's representation of a petitioner before the Division was highly improper and inconsistent with the position
On June 16, 1959, Mr. Campbell filed a claim petition in the Division in the matter of Fiore v. Belmont Iron Co. On October 13, 1959, a motion was made before the Civil Service Commission for dismissal of Mr. Campbell's appeal on the ground that his conduct in practicing before the Division barred its further prosecution. On the following day a stipulation to substitute attorney in Fiore was filed with the Division. On November 23, 1959 Mr. Campbell wrote a letter to Deputy Director Neutze, stating that he had received a listing of cases which included Fiore and, after referring to the substitution of attorney, advised that "he had no connections with this matter." On December 9, 1959 the hearing in Fiore was held before the Division and an award was rendered in the petitioner's favor. The judgment which was filed in the Division on December 17, 1959 included provision for $700 counsel fee in favor of David Roskein, petitioner's substituted attorney.
In the course of his testimony before the Commission, Mr. Campbell stated that during the hearing in Fiore he did not take part although he sat in the back of the room, and that he received "some compensation, but not a fee." Mr. Roskein testified that after he received the fee of $700 in Fiore, he mailed a check on January 26, 1960 in the sum of $350 to Mr. Campbell and delivered another $350 check to him on February 22, 1960. When asked why, he replied as follows: "It was his case. It was his fee. I merely did it as an accommodation to Mr. Campbell as I would to any other attorney in his position." Both of the checks were cashed. The Commission refused to grant the motion to dismiss the appeal but it did note that in reaching its decision, it gave full consideration "to the implications of Mr. Campbell's two appearances before the Workmen's Compensation Division." In its conclusion, it stated that it was satisfied that Mr. Campbell
In support of his appeal, Mr. Campbell attacks the jurisdiction of the Commission as well as its procedures and its actual findings. He claims that since he was appointed under L. 1939, c. 111 (N.J.S.A. 11:7-7) he was not to be viewed as a classified civil service employee subject to service ratings, and that the Commission lacked jurisdiction in connection with his dismissal. This latter attack is made though he was the one who sought relief from the Commission (cf. Marro v. Civil Service Dept., 57 N.J.Super. 335, 343 (App. Div. 1959)) and it seems to rest on the wholly fallacious notion that he stood in the same position as a judge within the judicial department of government. Though the Legislature recently changed the title from deputy director to judge of compensation (L. 1960, c. 58; N.J.S.A. 34:1A-12), the change was only one of nomenclature without any alteration of status. It is firmly settled that, although the judges of compensation exercise functions which are somewhat akin to those exercised in the courts, they are in no sense members of the judicial department but are rather members of an administrative agency within the executive department. See Mulhearn v. Federal Shipbuilding & Dry Dock Co., 2 N.J. 356, 360 (1949); Nagy v. Ford Motor Co., 6 N.J. 341, 349 (1951); DiMarcello v. American Bridge Co., 76 N.J.Super. 329, 334 (App. Div. 1962), certif. denied 38 N.J. 498 (1962); New Amsterdam Casualty Co. v. Popovich, 27 N.J.Super. 40, 43 (App. Div. 1953). The out-of-state decisions are to the same effect; many of them may be found collected in 100 C.J.S. Workmen's Compensation § 379b (1958).
Mr. Campbell's contention that he was not a classified civil service employee subject to service ratings is grounded
L. 1908, c. 156, which provided for the creation of a civil service commission, set forth that the civil service of the State shall be divided into the unclassified service and the classified service, and that the classified service shall in turn contain four subclasses designated as the exempt class, the competitive class, the non-competitive class and the labor class. See History of Civil Service Reform in the State of New Jersey, Appendix to Report of the New Jersey State Civil Service Investigating Committee (1917). Subsequently, the Legislature adopted a statute which directed that the Commission provide for the keeping of efficiency records for use in connection with promotions and reductions in staff. L. 1916, c. 129; cf. R.S. 11:22-37. In its 1919 compilation of rules, the Civil Service Commission provided for the establishment of "records of efficiency of all officers and employees in the classified civil service." It also provided for the periodic filing of service ratings which would become part of the permanent records of the Commission and would be used in connection with promotions, salary advancements, dismissals, layoffs and reductions in staff.
In 1930 a revision of the law relating to the civil service of the State was enacted. L. 1930, c. 176. It continued the
Section 29 of the 1930 revision directed that the chief examiner and secretary establish for each class of positions or groups of classes in the State classified service, standards of performance and output and a plan of service ratings based upon such standards. L. 1930, c. 176; R.S. 11:13-1. Rule 56 directs that the standards and the service rating plan shall be maintained current. The performance rating manual of the Department of Civil Service, issued pursuant to R.S. 11:13-1, provides for the rating of officers and employees in the classified service. Deputy commissioners of compensation, being in the classified service, were subject to service ratings. Sections 33 and 34 of the 1930 revision directed that the Commission provide by rule for suspensions and for the removal for cause of employees holding positions in the classified service. L. 1930, c. 176; R.S. 11:15-1 through R.S. 11:15-6. Rules 58 and 59 now implement the statutory provisions. See Marro v. Civil Service Dept., supra, 57 N.J. Super., at p. 343.
When the Legislature enacted Chapter 111 of the Laws of 1939 (N.J.S.A. 11:7-7) it undoubtedly had in mind that the appointment of deputy commissioners of compensation should be permitted without competitive examination, but it apparently ignored the fact that the exempt subclass as such had been eliminated from the State civil service. That it did
We recognize fully the danger that the rating system might be abused if invoked as a control over the deputy director's independent decision-making process. Mr. Parsekian testified that at no time did he ever seek to direct or interfere with a deputy's exercise of judgment as to the award in any particular case. He unequivocally acknowledged that he was never granted any such power and nothing in the record suggests to us that he ever improperly used his rating function to attain it. Nonetheless, as the Commission itself pointed out, a more suitable mode of supervision might well be considered for adoption by future legislative enactment or civil service regulation. Cf. Section 11 of the Administrative Procedure Act (5 U.S.C.A. § 1010); United States Civil Service Commission Rule § 34.11 (5 C.F.R., p. 221 (1961)).
We are satisfied that the Commission had ample jurisdiction to hear and determine Mr. Campbell's appeal and we turn now to his complaint about the formal procedures which were followed in the Department of Labor and Industry and the Civil Service Commission. He contends that there was a failure to comply with R.S. 11:15-3 which directs the Commission to distribute a form on which the appointing authority removing any employee shall enumerate the cause as set forth in the Commission's rules or other cause which constitutes the ground for removal and the act of the employee constituting such cause. The rules of the Commission list a group of nonexclusive causes for removal, including "incompetency or inefficiency in the service" as well as "inefficiency in the performance of the duties of his position so that his service rating as maintained in accordance with the civil service rules is less than 70%." The preliminary notice of disciplinary action which was served by the Department of Labor and Industry upon Mr. Campbell was on a form prepared by the Commission and referred to both of the quoted grounds for removal. While the notice might well have set forth the specifics supporting the general charges of incompetency and inefficiency, Mr. Campbell was made fully aware of them during the days of hearing before the Department and was afforded ample opportunity to meet them. Furthermore, his appeal before the Civil Service Commission was de novo and by that time Mr. Campbell was thoroughly familiar with the individual charges, including the additional charges of injudicious conduct in Burkley and improper practice before the Division during his suspension. He was undoubtedly entitled to fair notice and opportunity to be heard. See West New York v. Bock, 38 N.J. 500, 522 (1962). But he had that, he never made formal application for further particularization, and if there was any procedural irregularity it did not prejudice him. See Sullivan v. Roe, 18 N.J. 156, 162
The appellant asserts that the Department failed to introduce in evidence, either the preliminary notice of disciplinary action or the final notice of disciplinary action, both of which were on forms prepared by the Commission. He contends that this omission was fatal but we find no semblance of basis for this view. The notices were duly served on the appellant, he was at all times familiar with their contents, and he was in no sense prejudiced by the fact that there was a failure to incorporate them formally in the record before the Commission. The appellant also contends that charges outside the scope of the preliminary notice were improperly considered. This has reference to the charges of injudicious conduct in Burkley and improper practice before the Division during the period of suspension. These charges were duly raised before Acting Commissioner Pfaus and the appellant was then advised that they would be considered and that he could introduce evidence to meet them. The appellant chose to present nothing before the Acting Commissioner on the items in question. We hold the opinion that the matters may be viewed as within the broad scope of the general charges of incompetency and inefficiency in the service (see 67 C.J.S. Officers § 60d(5) (1950)) and that, in any event, the original notice may be considered as having been amended or supplemented to include them specifically. On his appeal, they were part and parcel of the charges heard de novo by the Commission which fairly received evidence with respect to them from both the Department and the appellant. We find no prejudice here. Cf. Stein v. Felden, 17 N.J.Super. 311, 316 (App. Div. 1952). See West New York v. Bock, supra, 38 N.J., at p. 521.
The appellant contends that the Commission exceeded its authority in considering the manner in which his cases were handled in the Division since his determinations were reviewable only by the courts. See N.J.S.A. 34:15-49; N.J.S.A. 34:15-66. The Commission was careful in
The appellant asserts that the appointing authority acted in bad faith and that his dismissal was motivated by the desire to create a vacancy which would enable a favored appointment. He refers to procedural deficiencies of technical nature but these have no bearing on good faith and motive. We have carefully examined the voluminous testimony with full awareness of the appellant's assertion but find no real support for it. On the contrary, the record lends credence to the Director's position that he acted conscientiously and for the good of the service as he saw it. Not all men are intellectually and emotionally equipped for all tasks. The appellant had been appointed as deputy director without prior examination and without any special qualifications in the workmen's compensation field. When the Director learned of the incidents
The appellant's final contention, i.e., that the Civil Service Commission's determination was contrary to the evidence, clearly lacks merit. The Commission received extensive testimony and rightly concluded that there had been no showing of bad faith or arbitrary action on the part of the Director. With respect to Burkley, it may be noted we have independently examined the record of the proceeding in the Division and subscribe to Judge Leonard's critical comments. The appellant suggests that since he has been determined not to be a part of the judicial department, he was not technically subject to the canons of judicial ethics upon which Judge Leonard relied. Those canons contain elemental guides which, even if they had never been codified into formal rules, would govern the conduct of judges in courts and triers in administrative agencies alike. The admonition that the judge be patient, considerate, courteous and attentive, and that he permit witnesses to testify and counsel to examine without his undue interference or his undue participation, has universal sweep; the Commission had ample ground for finding that it had been ignored in Burkley.
The purpose of our civil service law is to improve the efficiency of the public service of the State and its various subdivisions. To afford stability to that service, the law embodies tenure provisions designed to exclude considerations which are political, partisan or personal in nature. However, caution must be taken to avoid their use as a broad cover for individual incompetency or inefficiency. Here there was an express departmental finding of cause for removal which was sustained after full hearing before the Commission specially
For affirmance — Chief Justice WEINTRAUB, and Justices JACOBS, FRANCIS, PROCTOR, HALL, SCHETTINO and HANEMAN — 7.
For reversal — None.
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