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Hoover v. Township Committee of Township of East Brunswick

Decided: September 18, 1961.

ROBERT J. HOOVER, JOHN J. FRANKOSKY, EUGENE MCGUIRE, DANIEL PALLITTA, JOSEPH TAKACS, JR., AND JOSEPH PINNIZOTTO, PLAINTIFFS,
v.
THE TOWNSHIP COMMITTEE OF THE TOWNSHIP OF EAST BRUNSWICK, MIDDLESEX COUNTY, NEW JERSEY, DEFENDANT



Convery, J.c.c. (temporarily assigned).

Convery

This is an action in lieu of prerogative writs by former members of the Police Department of the Township of East Brunswick, New Jersey, in which the plaintiffs assert the right of reinstatement to their former positions.

On June 8, 1954 the then governing body of the defendant township adopted an ordinance establishing a full time township police department and thereafter the plaintiffs and others not parties to the present action were appointed as members of the said department. On December 14, 1954 an ordinance establishing rules and regulations for the department was adopted.

On February 8, 1955 an ordinance was introduced and subsequently adopted repealing the ordinance of June 8, 1954, and a further ordinance was adopted repealing that of December 14, 1954. Upon the adoption of the repealing ordinances and pursuant to the provisions of R.S. 40:149-2, the members of the former police department were offered the opportunity to be appointed as police officers in the part-time department established on February 22, 1955. This offer was not accepted and subsequently a resolution was adopted by the township committee appointing others as police officers.

Thereafter, ten of the former members of the police department, including the plaintiffs herein, filed a complaint in lieu of prerogative writs in the Superior Court of New Jersey, Law Division, Middlesex County, wherein they

sought to set aside the ordinance which repealed the previous ordinance establishing the police department and to be reinstated as members of said department. This suit proceeded to a hearing and judgment was entered in favor of the defendant township.

On November 19, 1959, allegedly upon information that a new full-time department was to be established, plaintiffs sent a letter to the township committee requesting reinstatement should such department be established. On February 23, 1960, five years after the abolition of the previous department, the township committee adopted an ordinance establishing a new police department in and for the said township and thereafter, on the basis of competitive examinations, certain persons were appointed to the police department created by such ordinance. The plaintiffs in this action allege a right of reinstatement to the present department under the provisions of R.S. 40:47-11, 40:11-10, 40:11-11, 40:11-12, 40:47-6, 38:16-1 and 11:27-7.

R.S. 40:47-11 provides:

"When the governing body of a municipality shall for reasons of economy, decrease the number of policemen * * * in the municipality, any policeman * * * so removed shall be carried on a special list and if any new appointments are made to such department, the policeman * * * so removed shall be appointed thereto before any other person."

R.S. 40:11-10 provides:

"When the governing body * * * for reasons of economy, find it necessary to decrease the * * * officers or members of any police * * * department * * * they shall proceed in the following manner: * * * All dismissals or removals from the department shall be made from the last person or persons appointed to the department regardless of the rank of such person at the time of decreasing the number of employees."

R.S. 40:11-11 provides:

"If any * * * member of any such department shall be demoted to a lower rank or grade such * * * member shall be carried on a special list and ...


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