(concurring). I agree with the result reached in the opinion of the court but for the reason stated in “I” below.
It having thus been found that Zimmerman did not have tenure, we need not, for the purposes of this case, consider the manner in which the proceedings were handled, but since for the reasons in “II” below I believe our mandate on the prior appeal was grossly disregarded, I think we should say so, lest what happened here be repeated in another matter.
I.
As a general proposition, powers vested in local government must be exercised reasonably and the judiciary will review local action for arbitrariness. Hertz Washmobile System v. South Orange, 41 N. J. Super. 110, 132 (Law Div. 1956), affirmed 25 N. J. 207 (1957). The question is whether probationary employments are beyond that proposition.
*80The Legislature intended wide latitude in the employing authority to determine fitness for permanent employment. It is clear that public employment may not be refused upon a basis which would violate any express statutory or constitutional policy. A simple example would be discrimination for race or religion. But I am not sure such specific limitations are the only restraints. If the employing agency, for an absurd example, thought blondes were intrinsically too frivolous for permanent employment, a court would find it difficult to withhold its hand.
.-(But if we may inquire into “unreasonableness,” it would seem to follow that there must be a “reason,” i. e., “cause” for refusal to continue the teacher into a tenure status. That course has its difficulties. It would not mean the court' woüI9TYmU'fét!(5gníz§'‘a’ wide range of “reasons” or would lightly disagree with the employer’s finding that the “reason” in fact existed. But it would follow that upon demand the teacher would be entitled to a statement of the grounds, with the right to a hearing and to a review as to whether the grounds are arbitrary in nature or devoid of factual support. But see Vitarelli v. Seaton, 359 U. S. 535, 539, 79 S. Ct. 968, 3 L. Ed. 2d 1012, 1016 (1959); cf. Cafeteria and Restaurant Workers Union v. McElroy, 367 U. S. 886, 81 S. Ct. 1743, 6 L. Ed. 2d 1230 (1961). Such individual inquiries could involve some practical prob-1 pmh in the administration orYscEobU^steim
I think the question might well be left for another day, since here the reason was given and I cannot say it is arbitrary in nature or unfounded in fact.
It is clear the Board would not continue Zimmerman because he pleaded the Fifth Amendment before the House subcommittee when his connection with communism was the subject of inquiry. As we held in Laba v. Newark Board of Education, 23 N. J. 364 (1957), the assertion of a federal constitutional right does not constitute “cause” for the dismissal of a teacher with tenure. Nor can that assertion support an inference that the teacher is disloyal. Here, *81however, we are dealing with a refusal to accord permanency to a probationary employee.
The question is whether it is unreasonable to refuse to employ an individual because he claimed the privilege from self-incrimination. Like it or not, the fact is that-many people do draw from the claim of the privilege the very inference which legally may not be drawn. Even some who are tutored in law will privately draw the inference or harbor a doubt, albeit they understand that in public matters they must be faithful to what the Constitution commands. And as to many laymen, the plea of the Fifth Amendment does envelop a teacher in suspicion or worse. He becomes a controversial figure.
Thus the issue is whether a school board may refuse to employ a teacher so situated when to employ him may involve the board in a controversy with an appreciable segment of the public. The question is not whether as an individual I would applaud a different decision. Rather the question is whether as a judge I can denounce that decision as arbitrary. I do not see how I can. I believe the Board, taking into account the climate of the times and the fears, however unwarranted, of the parents of students, could conclude it is the course of prudent management to employ someone else. That, it seems to me, was the decision the Board made. The Board went too far when it attempted to terminate the existing annual contract of employment because of the claim of privilege, but I cannot say it exceeded its discretionary power when it refused to re-engage him thereafter.
II.
Our holding that Zimmerman did not have tenure makes academic the finding of the Board that, if he had tenure, there nonetheless was cause for dismissal. But the way in which the matter was handled so palpably violated the principles laid down in Loba and was so fundamentally *82unfair that we should not let it pass without an expression of disapproval.
In Laba we held that the plea of self-incrimination before the House subcommittee justifies an inquiry before the local Superintendent with respect to present loyalty. We said that in the inquiry the teacher must cooperate, and that if he refuses to answer pertinent questions so that a decision as to present loyalty cannot be made, he may be dismissed for refusing to answer. Thus the target issue is present loyalty, but the teacher may be dismissed without a decision on the target issue if it cannot be reached because he bloclcs the inquiry by silence. In the words of Laba (23 N. J., at p. 389) :
“* * * If after the inquiry it appears that the teachers are now members of the Communist Party or are now subject to its ideologies and disciplines * * * or that they have willfully refused lo anstoer pertinent questions fairly submitted by their administrative superiors * * then there would seem to be ample basis for board action within the broad and valid statutory standard embodied in R. ¡S. 18 :13-TT.” (Emphasis added)
Zimmerman appeared before the Superintendent. He answered every question put to him. Nonetheless, the Superintendent made no finding upon the target issue of present loyalty. Nor did the Superintendent find (and he could not) that Zimmerman refused to answer any question. Rather the Superintendent filed supplementary charges that:
(1) Zimmerman “failed to fulfill his duty of cooperation” in the interview.
(2) He “failed to give frank and full disclosures as to past association with the Communist Party and affiliated organizations.”
(3) He “deliberately failed to accord to the Superintendent of Schools the frankness and cooperation which were due to the Superintendent” in the inquiry.
(4) He “failed to fulfill the affirmative burden which was his * * * in the establishment of his fitness to teach.”
(5) “The aggregate responses of the said Perry Zimmerman and his general demeanor and conduct in the said interview, evidenced a conscious purpose to evade, equivocate, and confuse.”
*83(G) “Many of the responses * * * were incredible, indirect, or otherwise inadequate from the standpoint of forthrightness due from him in an inquiry to determine his fitness to teach.”
(7) He, “by his aggregate responses and by his total conduct in the said interview, impeded a fair and conscientious inquiry by the Superintendent of Schools to determine” whether he is or was a member or subject to the ideologies and discipline of the Communist Party; “and was guilty of insubordination and conduct unbecoming a teacher.”
Appended was a list of references to the transcript of the interview to which the Superintendent called “particular attention.”
Upon these nebulous charges a hearing followed before the School Board. It was an aimless affair, and understandably so, since there was nothing to aim at. The Board, after alluding to a series of responses to the Superintendent’s questions, joined in the characterizations embodied in the charges leveled by the Superintendent. The Board added some more of its own in the resolution it adopted after the hearing had ended, i. e., that Zimmerman before it “evidenced resentment of and hostility to the entire inquiry, and a lack of forthrightness and candor.”
The Board did disavow so much of charge No. 4 above as “implies that it was Mr. Zimmerman’s legal burden to prove his fitness in the within proceedings” and hence “Charge 4 is dismissed.” In this single respect, the Board was eminently correct, since Loba, although it referred to a teacher’s “burden” to cooperate, did not impose upon him the burden of proving fitness upon the pain of loss of tenure if he failed to persuade the interrogator. And since no testimony was taken as to Zimmerman’s “demeanor” before the Superintendent, the Board concluded that so much of charge No. 5 as rests thereon “is dismissed.” The Board added that it “has drawn no inferences as to present affiliation with or subservience to the Communist Party.” Nor, as we have said, did the Superintendent make any finding on that issue.
*84Laba was perfectly plain in its mandate. The target issue of present loyalty was to be decided, unless and only unless the teacher willfully refused to answer. Zimmerman having answered, it was the plain duty of the Board to make a forthright decision of the target issue. It did not. Instead it devised a new basis for dismissal. It held that if the answers given impressed it as “evasive” or “incredible” (whatever that means in this context), it follows there was a lack of “cooperation” constituting cause for destruction of tenure rights.
The quality of the answers given was simply a factor to be weighed in deciding the target issue of present loyalty. When in Laba we held that a willful refusal to ansiver would constitute a basis' for dismissal, I understood it to mean precisely that and nothing else. A refusal to answer blocks the inquiry. Here the inquiry was not blocked in the least. Indeed the Board did not find, and could not find, that the hearing was thwarted. The closest expression in that regard was its concurrence in the hazy charge (Ho. 7) of the Superintendent that Zimmerman “by his aggregate responses and by his total conduct in the said interview, impeded a fair and conscientious inquiry by the Superintendent.” What specific answers so “impeded” the inquiry, we are not told. The most I gather from the rambling resolution is that the Board believed “The conclusion is inescapable that both at the interview and at the Board’s hearing the whole truth as to Mr. Zimmerman’s past affiliation with and his reported withdrawal from the Communist Party was not disclosed by him.” How that “inescapable” conclusion was reached and how it “impeded” a decision upon present loyalty, are not revealed. The thinking of the Board is hidden in a bushel of words.
It is one thing to discount testimony as evasive or incredible and hence unequal to evidence on the other side of an issue; that is routine in the process of resolving factual disputes. It is quite another thing to charge that such testimony constitutes an act of misconduct and then *85to adjudge the witness guilty upon nothing more than the same appraisal of the questioned testimony. That is what happened here, and it cannot be obscured by calling the alleged misconduct a “failure to cooperate.” That mode of condemnation is foreign to our concept of justice.
Even perjured testimony “need not necessarily * * * obstruct or halt the judicial process. Eor the function of trial is to sift the truth from a mass of contradictory evidence, and to do so the fact finding tribunal must hear both truthful and false witnesses.” In re Michael 326 U. S. 224, 227-228, 66 S. Ct. 78, 80, 90 L. Ed. 30, 33 (1945); see People ex rel. Valenti v. McCloskey, 6 N. Y. 2d 390, 189 N. Y. S. 2d 898, 160 N. E. 2d 647 (Ct. App. 1959), appeal dismissed 361 U. S. 534, 80 S. Ct. 585, 4 L. Ed. 2d 537 (1960); People ex rel. Valenti v. McCloskey, 8 N. Y. 2d 959, 204 N. Y. S. 2d 188, 168 N. E. 2d 853 (Ct. App. 1960).
It may well be that perjury constitutes an independent cause for dismissal. But, if so, perjury must be charged, and willful falsity must be proved. Here there was no charge of perjury, and no evidence whatever was offered to prove that any answer was in fact untrue. Rather the Superintendent and the Board simply concluded that, in their wholly subjective evaluations, some of the answers were “incredible” or “evasive.” Ergo, there was “cause” for dismissal. I cannot agree that the tenure status of public employees may be destroyed by a process so vague and arbitrary.
We all know that some people cannot see too clearly when loyalty is in issue and especially when, as here, a man admits he was once a member of the Communist Party. Indeed the danger is real that the administrative hearing will be but the guise for a predetermined result. The basis for discharge the Board here devised would be obviously intolerable if a tenure-employee were charged with something less befogging than communism. If the inquiry related, for example, to “moonlighting,” I would think that *86no one would fail to see the injustice of a dismissal, not because of “moonlighting,” but because the hearer thought some answers were “incredible” or “evasive.” These are faceless words. A public employee is entitled to charges that can be nailed down and made the subject of a visible inquiry.