SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-246-97T2
POLICEMEN'S BENEVOLENT
ASSOCIATION, NORTH
BRUNSWICK, LOCAL 160,
Plaintiff-Appellant,
v.
TOWNSHIP OF NORTH
BRUNSWICK and THOMAS
MALTESE, DIRECTOR OF POLICE,
Defendants-Respondents.
Argued December 15, 1998 - Decided March 4,
1999
Before Judges Brochin, Kleiner, and Steinberg.
On appeal from the Superior Court of
New Jersey, Law Division, Middlesex County.
James M. Mets argued the cause for appellant
(Schneider, Goldberger, Cohen, Finn, Solomon,
Leder & Montalbano, attorneys; Mr. Mets, of
counsel and on the brief).
Thomas J. Savage argued the cause for
respondent Township of North Brunswick
(Savage & Serio, attorneys; Mr. Savage, on
the brief).
Gary F. Stowell, Sr., argued the cause for
respondent Thomas Maltese (Helmer, Kassel &
Stowell, attorneys; Todd J. Gelfand, on the
brief).
The opinion of the court was delivered by
KLEINER, J.A.D.
In this declaratory judgment action, plaintiff Policemen's
Benevolent Association ("PBA") filed a complaint in lieu of
prerogative writs seeking to invalidate defendant Township of
North Brunswick's ("Township") Ordinance 97-4 which created a
police department without creating a position for a chief of
police. Plaintiff's complaint asserted that the ordinance
enacted by defendant violated the 1981 amendment to N.J.S.A.
40A:14-118 (L. 1981, c. 266).See footnote 1 On the return date of an order
to show cause issued coincident with the filing of plaintiff's
complaint, Assignment Judge Robert A. Longhi considered oral
argument. The judge reserved decision, but in a subsequent
written opinion declared Ordinance 97-4 valid and accordingly
dismissed plaintiff's complaint.See footnote 2 Plaintiff appeals. We
affirm.
Ordinance 97-4 (the "Ordinance") was enacted on April 7, 1997, and delineated the authority of the Director of Police.See footnote 3 Under the Ordinance, the Director of Police is appointed by the Mayor and may be removed by the Mayor, unless the Council disapproves of the removal by a two-thirds majority vote. On the date the Ordinance was enacted, the Director of Police was defendant Thomas Maltese, a civilian, who had been appointed in 1995.
Apparently in anticipation of the passage of the Ordinance, on March 31, 1997, Maltese issued a directive instructing all bureau commanders of the Township police department to report directly to him, rather than to Captain Stanke, the highest ranking officer on the police force. This directive was apparently designed to comply with the municipal ordinance, and N.J.S.A. 40A:14-118, requiring that a municipality provide for a line of authority through which the appropriate authority adopts rules and regulations for the governance of the police force and for the discipline of its members. The designation of the "appropriate authority" is required, whereas the office of police chief is optional.See footnote 4 Id.
The Director of Police is appointed by the Mayor and may be removed by the Mayor, unless the Council disapproves of the removal by a two-thirds majority vote. Article II, Section 2A of the ordinance names the appropriate authority:
The North Brunswick Police Department shall come under the jurisdiction of the Appropriate Authority, which is hereby created pursuant to N.J.S.A. 40A:14-118. Said Appropriate Authority shall be the Director of Police. The Appropriate Authority shall be directly responsible to the Mayor of the Township. The Director of Police, in addition to those powers and duties enumerated in section 5See footnote 5 of this article, shall be responsible for the operation of the police department pursuant to policies established by said Director and shall be responsible for the promulgation, updating, and/or ratification of the Rules and Regulations for police personnel which shall be known as the Rules and Regulations for the Police Department of the Township of North Brunswick.
[emphasis added.]
It is apparent from the record that Maltese's directive in
anticipation of the enactment of the Ordinance prompted the PBA
to initiate this litigation. PBA's primary contention is that
the Ordinance empowers the Director of Police to promulgate rules
and regulations, a legislative function. It thus asserted that
the Ordinance which also empowers the Director with authority to
control the daily functions of the police force, an executive
function, impermissibly entrusts both a legislative function and
an executive function to the same person. PBA therefore contends
that two separate individuals must perform these two distinct
functions.
PBA also contends entrusting one person with the
responsibility for the duties of a police chief and of the
"appropriate authority" contradicts Hartmann v. Police Dep't of
Ridgewood,
258 N.J. Super. 3 (App. Div. 1992) and In re
Baldinger,
220 N.J. Super. 267 (Law Div. 1987). The judge
rejected this contention and specifically noted that both
Hartmann and Baldinger addressed the power struggle between the
appropriate authority and the chief of police where the
municipality had opted to create the position of a chief of
police. We also note that N.J.S.A. 40A:14-118 has been construed
in Quaglietta v. Haledon,
182 N.J. Super. 136 (Law Div. 1981);
Gauntt v. City of Bridgeton,
194 N.J. Super. 468 (App. Div.
1984), overruled in part, Falcone v. DeFuria,
103 N.J. 219
(1986); and more recently in Grasso v. Borough of Glassboro,
205 N.J. Super. 18 (App. Div. 1985), certif. denied,
103 N.J. 453
(1986). Quaglietta, Gauntt, and Grasso similary involved
municipalities having a police chief. That, of course, is not
the scenario created by Ordinance 97-4 and as such, those
decisions have little applicability to the issues raised in this
litigation.
Citing Falcone v. Defuria, 199 N.J. Super. 549 (Law Div. 1984), aff'd, 199 N.J. Super. 554 (App. Div. 1985), aff'd, 103 N.J. 219 (1986), the judge noted in his opinion that N.J.S.A. 40A:14-118 was enacted as a legislative amendment designed "to provide a system for checks and balances in the position of Chief of Police, so that one person could not become a tyrant." Falcone particularly noted the tensions that exist between the appropriate authority and the chief of police where a municipality has opted to create a police force with a chief of police. Unlike other reported decisions interpreting N.J.S.A. 40A:14-118, see Section I, supra, here Ordinance 97-4 involves the somewhat unique, but clearly permissible, example of a municipality exercising its option of creating a police force without designating a chief of police. "The ordinance may provide for the appointment of a chief of police . . . as the governing body shall deem necessary for the effective government of the force." N.J.S.A. 40A:14-118 (emphasis added).
In construing the Ordinance and N.J.S.A. 40A:14-118, the judge rejected PBA's argument and specifically concluded:
There is nothing in the Township ordinance which is inconsistent with the statute or case law. The governing body, the township council, as well as the state legislature, create the laws. The police are part of the executive branch and enforce the laws. As the executive administrator, the Director of Police is responsible for rules and regulations within the department which will help the department in fulfilling its duty to execute the laws. This is an appropriate function of the executive branch, and the North Brunswick ordinance is an appropriate use of the municipality's power to create and maintain a police force.
It is fundamental that "`the meaning of a statute must . . . be sought in the language in which the act is framed, and if that is plain, . . . the sole function of the courts is to enforce it according to its terms.'" Sheeran v. Nationwide Mutual Ins. Co., Inc., 80 N.J. 548, 556 (1979) (quoting Caminetti v. United States, 242 U.S. 470, 485, 37 S. Ct. 192, 194, 61 L. Ed. 442, 452 (1917)); see Board of Educ. of Tp. of Neptune v. Neptune Tp. Educ. Ass'n, 144 N.J. 16, 25 (1996); State v. Maguire, 84 N.J. 508, 529 (1980); Vreeland v. Byrne, 72 N.J. 292, 302 (1977); Finn v. Mayor and Council of Norwood, 249 N.J. Super. 230, 232 (App. Div. 1991); DeHart v. Bambrick, 177 N.J. Super. 541, 549 (App. Div. 1981); Raubar v. Raubar, 315 N.J. Super. 353, 360 (Law Div. 1998) (citing Matter of Resyn Corp., 945 F.2d 1279, 1283 (3d Cir. 1991) (stating that, where the legislature has expressed its intention in plain language and the legislative history does not demonstrate a contrary purpose, the court is bound to follow the statutory provision as written)); see also 2A Sutherland Statutory Construction § 46.01 5th Ed. (1992).
N.J.S.A. 40A:14-118 clearly requires that a municipality must have an appropriate authority to oversee the police department. The appropriate authority may be one of the enumerated persons or groups (mayor, executive officer, director, governing body, etc.) or the municipality may create a body specifically to become the appropriate authority. N.J.S.A. 40A:14-118. The appropriate authority adopts rules and regulations for the department, and the discipline of the members; additionally, the appropriate authority establishes policies for the daily operations of the department. The appropriate authority is a civilian position.
By its challenge to the Ordinance, PBA questions whether a Director of Police in a municipality that has opted not to name a chief of police may assume some of the duties normally assigned to the chief of police in the daily operations of the police department. We think it obvious that, where a municipality has opted not to name a chief of police, the Director of Police is vested with such authority.
North Brunswick has designated the Director of Police as the "appropriate authority" within the framework of the statutory scheme envisioned by the Legislature in enacting the amendment to N.J.S.A. 40A:14-118. Without a chief of police, all police officers are subordinate to the Director of Police in accordance with rank, as delineated in the Ordinance, Article II, Section I, and the Director is entitled to assume duties ordinarily assigned to a chief of police, including directing daily operations of the police department. In fact, the Ordinance provides that the Director of Police be responsible for the operation of the police department, establish policies for the department, and promulgate rules for the personnel. These responsibilities include prescribing duties and daily assignments of police officers. It is abundantly clear that the Legislature recognized that if a municipality opted not to create the position of chief of police, a municipality's police department would require leadership in the daily operations of the department. N.J.S.A. 40A:14-118 does not prohibit the Director of Police from also being the "appropriate authority," despite the fact that the Director of Police is also required to report to the Mayor.See footnote 6
On appeal, PBA also raises an argument, rejected in the Law Division, that the daily operations of the police force should be the responsibility of the highest ranking certified police officer. However, that argument is specifically rejected by the clear legislative mandate which permits a municipality to opt not to have a chief of police and to designate an "appropriate authority" to supervise the police department. N.J.S.A. 40A:14-118 does not include the highest ranking certified police officer in a police department as being entitled to be named as "appropriate authority." We therefore agree with the Law Division judge that PBA's contention is without legal merit.
Affirmed.
Footnote: 1 N.J.S.A. 40A:14-118 provides:
The governing body of any municipality,
by ordinance, may create and establish, as an
executive and enforcement function of
municipal government, a police force, whether
as a department or as a division, bureau or
other agency thereof, and provide for the
maintenance, regulation and control thereof.
Any such ordinance shall, in a manner
consistent with the form of government
adopted by the municipality and with general
law, provide for a line of authority relating
to the police function and for the adoption
and promulgation by the appropriate authority
of rules and regulations for the government
of the force and for the discipline of its
members. The ordinance may provide for the
appointment of a chief of police and such
members, officers and personnel as shall be
deemed necessary, the determination of their
terms of office, the fixing of their
compensation and the prescription of their
powers, functions and duties, all as the
governing body shall deem necessary for the
effective government of the force. Any such
ordinance, or rules and regulations, shall
provide that the chief of police, if such
position is established, shall be the head of
the police force and that he shall be
directly responsible to the appropriate
authority for the efficiency and routine day
to day operations thereof, and that he shall,
pursuant to policies established by the
appropriate authority:
a. Administer and enforce rules and regulations
and special emergency directives for the
disposition and discipline of the force and its
officers and personnel;
b. Have, exercise, and discharge the functions,
powers and duties of the force;
c. Prescribe the duties and assignments of all
subordinates and other personnel;
d. Delegate such of his authority as he may deem
necessary for the efficient operation of the force
to be exercised under his direction and
supervision; and
e. Report at least monthly to the appropriate
authority in such form as shall be prescribed by
such authority on the operation of the force
during the preceding month, and make such other
reports as may be requested by such authority.
As used in this section, "appropriate
authority" means the mayor, manager, or such
other appropriate executive or administrative
officer, such as a full-time director of
public safety, or the governing body or any
designated committee or member thereof, or
any municipal board or commission established
by ordinance for such purposes, as shall be
provided by ordinance in a manner consistent
with the degree of separation of executive
and administrative powers from the
legislative powers provided for in the
charter or form of government either adopted
by the municipality or under which the
governing body operates.
Except as provided herein, the municipal
governing body and individual members thereof
shall act in all matters relating to the
police function in the municipality as a
body, or through the appropriate authority if
other than the governing body.
[emphasis added.]
Footnote: 2 A judgment memorializing Judge Longhi's decision was
entered July 28, 1997, by the Acting Assignment Judge, Judson
Hamlin.
Footnote: 3 One pertinent section of the Ordinance is Article II,
Section 1 delineating the composition of the police department:
Said Police Department shall consist of one
(1) Director of Police and one (1) Police
Inspector, and such Captains, Lieutenants,
Sergeants, Police Officers, and civilian
employees as deemed necessary and appropriate
by the Director of Police in his discretion
and judgment with the approval of the Mayor
and Township council . . . . The express
purpose for renaming these offices is to
establish a statutory line of authority from
all police employees to a higher elected
authority. . . . No personnel may be
appointed to the North Brunswick Police
Department until they have satisfied all
statutory requirements and have complied with
the selection process and standards
established by the Rules and Regulations
adopted by the Appropriate Authority to
govern said Police Department.
Footnote: 4 As we interpret N.J.S.A. 40A:14-118, if the municipality
chooses to create the position of police chief, the duties of the
police chief are limited to those enumerated in the statute;
however, the police chief is subordinate to the "appropriate
authority" in that the police chief must be responsible to and
report to the "appropriate authority."
Footnote: 5 It is clear that Article II, Section 2A when read in
conjunction with Article II, Section 5 gives the Director of
Police the authority to bring disciplinary charges against
members of the police department and the power to oversee all
disciplinary proceedings.
Article II, Section 5 enumerates the powers of the Director
of Police:
The Director of Police for the Township of
North Brunswick shall:
A. Administer and enforce the Rules and
regulations of the police department and any
special emergency directive for the
disposition and discipline of the department
and its office and members;
B. Have, exercise and discharge the
functions, powers, and duties of the Chief
Executive Officer of the Police Department;
C. Prescribe the duties and assignments of
all members and officers;
D. Delegate such authority as may be deemed
necessary for the efficient operation of the
police department to be exercised under the
direction and control of the Director of
Police.
Footnote: 6 As noted, N.J.S.A. 40A:14-118 permits a municipality to designate the Mayor as the "appropriate authority." Here, by Ordinance 97-4, North Brunswick has designated the Director of Police as the "appropriate authority," yet the Ordinance also requires the Director of Police to report to the Mayor, who could have been, but is not under this Ordinance, the designated "appropriate authority."