McGeehan, Jayne and Wm. J. Brennan, Jr. The opinion of the court was delivered by William J. Brennan, Jr., J.A.D.
The Borough of Jamesburg appeals from a judgment entered in the Middlesex County Court reversing the conviction and dismissal of Hubbs, a police officer, after a hearing upon written charges preferred by the chairman of the police committee. R.S. 40:47-10; and see Borough of Jamesburg v. Hubbs , 6 N.J. 578 (1951). The judgment directs Hubbs' reinstatement with back pay.
The borough has a population of 2300 and an area of one square mile. Hubbs has been for 18 years its only full time salaried police officer. He is assisted by a part-time salaried officer; special officers are also employed on an hourly basis as occasions for their services arise. Hubbs acts as supervisor of the other officers and since 1935 has had the title of chief of police. Hubbs and his family live in the borough hall. They service the building in lieu of paying rent. Requests by citizens, in person or by telephone, for municipal services or to make complaints are taken by Hubbs or one of his family. These concern not police matters alone but fire calls, ambulance calls, health matters and a variety of
other services. Many non-police matters are referred by Hubbs to other municipal employees for attention, but frequently are handled by Hubbs personally. In addition to his routine police work, Hubbs acts as clerk of the magistrate's court, drives the fire engine on occasion, posts contagious signs for the board of health, assists with or does the dog catcher's work, works with the county probation department and the welfare agencies and the hospitals, escorts funerals, and checks and arranges for repair of street lights. He and his wife also feed prisoners in the jail, receiving 50 cents a meal for the service. These various activities substantially occupy Hubbs' daytime hours.
In December, 1948, following a number of night robberies, a group of citizens petitioned the mayor and council "to furnish police protection between the hours of 12 midnight and 8 a.m." The chairman of the police committee took office on January 2, 1950. He and his committee made a study of methods which would provide "night protection without a great additional expenditure of money." After completing this study the committee recommended the scheduling of fixed night patrol assignments to officers by name. A resolution was passed by the governing body adopting the proposed schedule. Hubbs was assigned to patrol from midnight to 5 A.M., on four nights, and from 6 P.M. to 5 A.M., on two nights, of each week. The part-time salaried officer was assigned the hours from 6 P.M. to midnight on four nights and from 6 P.M. to 5 A.M. on one night. Named special officers were given week end assignments.
Hubbs never worked the night schedule. It was to have become effective on May 1, 1950, but on pleas of illness Hubbs obtained leaves of absence until May 23. On that night, following an examination by the borough physician and a report that he was physically fit for duty, Hubbs was ordered by the chairman of the police committee to report at midnight, per the schedule. Hubbs nevertheless failed to report, acting on his own doctor's advice that there was danger that the "butterflies in his stomach," which described
his ailment, would develop into a nervous breakdown. His doctor testified, "I felt at the time that he shouldn't go back to work at all, because he was so upset at that time." The "precipitating factor" bringing on his nervousness was the "changing of his hours."
The core of the difficulty was that Hubbs felt aggrieved by the night assignment. He considered that the Democratic majority of the council instigated the move as political reprisal upon him for entering his name as a Republican candidate for sheriff, and that the action accomplished his demotion, demeaning his stature in the community. We discern no substantial basis for his feeling of insult. There is no significant evidence that the action was taken to embarrass his aspirations for elective office or for any reason except to give the borough the night patrol service demanded by its citizens without adding a measurable financial burden upon the borough. And the assignment was not a demotion; the chairman of the police committee expressly instructed the other officers to continue their duties under Hubbs, as before.
Of course a police officer is not free to choose his working hours. He may not accept the benefits entirely discharged from the burden of his employment. Ryan v. City of Marlborough , 318 Mass. 610, 63 N.E. 2 d 902 (Sup. Jud. Ct. 1945). The 1932 borough ordinance establishing the Jamesburg Police Department expressly provides that officers shall "obey the rules and regulations of the Police Department as may be from time to time laid down by the Council." Hubbs is obliged to accept assignments as to working hours which make reasonable provision for off-duty periods. Indeed, he is not wholly free of the responsibilities implicit in his office even in off-duty periods. Ward v. Keenan , 3 N.J. 298, 310 (1949).
If Hubbs' illness indefinitely incapacitated him from doing night patrol duty the borough would not for that reason be obliged to make other arrangements for the doing of the work ...