Plaintiff, a policeman in the Mount Holly Police Department, was dismissed by defendant George W. Sylvester, who, by written direction of the municipal manager, Robert Van Deusen, had been named assistant to the municipal manager, and directed as his first assignment to take charge of the police department as director of public safety. After receiving a complaint against the plaintiff, Sylvester decided the plaintiff should be suspended for five days without pay, and to give effect to the suspension served a written notice on the plaintiff setting forth the reasons for the suspension and its duration.
The plaintiff brings this action in lieu of prerogative writs, alleging that Sylvester had no legal authority to suspend a police officer, and further, that no written charges were preferred or served, and no hearing was held by the appropriate authority as required by N.J.S.A. 40:47-6. The plaintiff seeks to invalidate the suspension and to recover the compensation for the period he was suspended.
The parties agreed to submit the issues on stipulation and briefs.
The defendant, Mount Holly Township, is governed under the "council-manager plan A" of the Optional Municipal Charter Law, N.J.S.A. 40:69 A -1 et seq. , and subject to the provisions of N.J.S.A., Title 11, " Civil Service."
The municipal manager, Van Deusen, appointed Sylvester director of public safety, and on that appointment rests the determination of this issue. It is agreed that there was no action by the municipal council.
Certain statutory provisions are relevant:
"Each municipality governed by an optional form of government pursuant to this act shall, subject to the provisions of this act or other general laws, have full power to:
(a) organize and regulate its internal affairs, and to establish, alter, and abolish offices, positions and employments and to define the functions, powers and duties thereof and fix their term, tenure and compensation;
(b) adopt and enforce local police ordinances of all kinds and impose penalties of fine not exceeding five hundred dollars ($500.00) or imprisonment for any term not exceeding ninety days or both for the violation thereof; to construct, acquire, operate or maintain any and all public improvements, projects or enterprises for any public purpose, subject to referendum requirements otherwise imposed by law, ...