dissenting.
Every Achilles has his heel. Chief Makwinskfis apparently was an irresistible desire to help the Knights of Columbus in their hour of need. In yielding to this desire he plainly violated the law by embarking upon a pattern of deliberate misconduct extending over almost a year. A jury convicted him of misconduct in office, on an indictment charging that appellant “unlawfully and willfully did fail, omit and neglect his public duty”, as Carteret Chief of Police, of “refraining, fro.m using public employees for private work at public expense and thereby did willfully and corruptly violate and betray” the duties of his public office “to refrain from using public employees for the private gain of any person at public expense”, and did willfully and corruptly violate and betray “the public trust and confidence reposed in him.”
*99The Consolidated Police and Firemen’s Pension Fund Commission, two of whose nine members are active policemen and two firemen (all four elected by their peers), twice denied Makwinski’s application for service retirement on the ground that the statutory requirement of honorable service had not been met. See N. J. S. A. 43:16-1. At his request appellant was given an administrative hearing in the Division of Pensions. The hearing officer, after reviewing the evidence including the testimony of a dozen witnesses appearing for Chief Makwinski, found as a fact that he (a) had “authorized the payment of a salary from public funds to a police officer under his command who did not render service to his employer, the public;” (b) had “permitted and allowed a police officer to do private work on public time;” and hence (c) “was guilty of misconduct in office * * * sufficient to render his service dishonorable.” The Commission reviewed the record and affirmed its earlier decision denying the application for service retirement with its accompanying pension.
The Appellate Division affirmed, in an opinion which pointed out that a pension is “an inducement to conscientious, efficient and honorable service;” that to bestow a pension “upon one whose record of public service is marred by a conviction for malfeasance in office would be to place a premium upon dishonesty and inefficiency [and] to burden the taxpayer with the necessity of providing for one who has betrayed the trust imposed upon him,” citing Walter v. Police & Fire Pension Commission of Trenton, 120 N. J. L. 39 (Sup. Ct. 1938). The court below determined that Makwinski’s conviction involved a crime of moral turpitude, inasmuch as “the result of his action was to defraud the borough by denying it the policeman’s services while he was employed at public expense;” and it found the Commission’s determination that petitioner’s service was dishonorable due to his misconduct in office to be supported by the record and in accord with legislative policy.
*100In reversing the judgment of the Appellate Division the Court readily concedes that Makwinski was “undoubtedly” guilty of misconduct touching the administration of his office (a conclusion shared by everyone else who has reviewed appellant’s actions —■ jury, hearing officer, pension commissioners (three times), and Appellate Division). In addition the majority correctly points out, ants at 90, that “[gjenerally, disenfranchisement of pension rights is found in cases where the criminal conduct touches the administration of the public employee’s office or position, or where the conduct involved moral turpitude,” citing Gauli v. Trustees Police & Firemen's Retirement Sys., 143 N. J. Super. 480, 482 (App. Div. 1976). Nevertheless the Court concludes that because Makwinski entertained no venal motive, his criminal misconduct in office was not tantamount to dishonorable service so as to result in forfeiture of his pension rights.
In superimposing consideration of this additional factor — motive — on the determination of whether a public official guilty of a crime touching the administration of his office has served honorably, the Court lurches conspicuously out of line with the established pension law of this state, effectively reads honorable service out of the statute, and disregards those policy considerations counseling against departure from a strict standard of performance for those entrusted with public office. The public’s current perception •of public officials, both elected and appointed, is hardly such as to encourage our looking the other way just because appellant stands to suffer a financial loss if we do otherwise. Police dishonesty should, after all, be treated as somewhat more serious than “a foot-fault in Scarsdale,” (to use the ■columnist Jimmy Breslin’s comparison).
Without pausing to decide whether Chief Makwinski’s illegal conduct involved moral turpitude (the authorities marshalled in O’Halloran v. DeCarlo, 156 N. J. Super. 249 (Law Div. 1978) support the Appellate Division’s affirmative con*101elusion on that issue), I think it plain beyond serious discussion that his misconduct in office was such as to render his service dishonorable. To view it as anything less — as amounting to no more than “misguided actions,” ante at 92 or an occasional “indiscretion,” ante at 91 — is badly to misgauge its serious nature. The offense before us goes to the very root of appellant’s public duty to uphold the law. The State’s brief makes the point well:
Here is involved a public employee who over the years gained the trust and confidence of the public to be appointed a municipality’s chief law enforcement officer and chief supervisor of men in an entire municipal department. At this high position of power, he betrayed the public trust imposed in him by flagrantly violating his sworn duty to enforce the laws. Moreover, he diverted a man under his control from his public duties to work for a private corporation during an extended period of time. This misconduct not only defrauded the public of the salary paid the patrolman for public services not rendered, but, more significantly, defrauded the public of the immeasurable value of vitally needed law enforcement protection.
It is all well and good to limit the holding of this case to its “unique facts”, but today’s determinations have a sometimes disquieting habit of surfacing tomorrow as established precedents. Indeed, one must wonder whether the Court’s attempt to reach what it perceives to be an equitable decision will result in pension entitlement to a band of latter-day Robin Hoods.1
Judicial ingenuity is not without its limitations, and it will be taxed to the utmost if whatever guiding principle may be extracted from this ease is to be squared with the body of case law preceding it. Moreover, reconciling today’s *102decision with sound public policy will become a formidable, if not impossible, task.
I would affirm.
Schreiber, J., and Coneord, P. J. A. D., concurring in the result.
For reversal and remandment — Chief Justice Hughes, Justices Sullivan, Pashman, Schreiber and Handler and Judge Conford — 6.
For affirmance — Justice Clifford — 1.
Consider, for instance, the government accountant who embezzles public funds for payment over to a charity; the road foreman who orders his crew to pave the local church’s parking lot; the government attorney who, during his work day, uses government facilities and personnel to furnish pro bono legal services to a charitable institution.