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Board of Police Commissioners v. Olson

Decided: June 28, 1968.


Gaulkin, Lewis and Kolovsky. The opinion of the court was delivered by Kolovsky, J.A.D.


Appellant Olson, a patrolman in the police department of the Borough of Leonia, was found guilty, after a hearing on due notice before the board of police commissioners (board), of using "unnecessary force in the handling of a prisoner." A reprimand and a two-day suspension were imposed by the board.

Olson appealed to the Bergen County Court under N.J.S.A. 40:47-10, which provides that any member of a police department of a municipality which, like Leonia, has not adopted the Civil Service Law,

"who has been convicted of any violation of any of the rules or regulations of such departments by the official or board empowered to try members of such police department * * * in such municipality, may obtain a review of such conviction by the County Court of the county in which such municipality is situated. * * * The court shall retry such charge or charges de novo and either affirm or reverse such conviction. The court may order or adjudge that the applicant be returned to any office or position from which he may have been removed under such conviction and that he be restored to all things he may have lost thereby, and may make such other order or judgment as the court shall deem proper under the circumstances."

Appellant sought initially to have the County Court dismiss the charge because the board allegedly had no jurisdiction to hear it and to impose the penalty of a reprimand and two days' suspension, appellant contending that the ordinance granting it such power is invalid. The County Court did not rule on that contention nor reach the merits of the charge. It dismissed the appeal because it concluded that the right to review in the County Court granted by N.J.S.A. 40:47-10 is available only where the penalty imposed is removal, not when it is only a suspension. In so ruling, the court relied on Murley v. Raritan Township, 117 N.J.L. 357 (Sup. Ct. 1937), quoting the following from the opinion in that case:

"Suspensions are a matter of daily occurrence in the discipline of policemen. We think it was not the purpose of the act to give judicial review and trial de novo of every petty infraction of the police rules * * *." (at p. 358)

But Murley arose under a prior version of the act granting tenure to policemen. That version limited the right to review to cases in which the officer was "removed from office or employment." Whatever the merits of the policy considerations referred to in the quotation from Murley, and the County Court obviously deemed them persuasive, decision as to the policy of tenure statutes is for the Legislature, not for the courts. Cf. N.J.S.A. 11:2 A -1.

Both appellant and respondent agree that the present section, N.J.S.A. 40:47-10, authorizes a trial de novo by the County Court whenever a patrolman is convicted on charges, irrespective of the penalty imposed. We concur.

We turn next to a consideration of appellant's contention that the provisions of the Leonia ordinance, which concededly purport to grant the board of police commissioners jurisdiction to try the charge against Olson and to impose the penalty it did, are invalid. Since both parties ask that we resolve that issue, we note but pass the preliminary question of whether an attack on the validity of provisions of the police department ordinance may be made in the course of a statutory appeal to the County Court under N.J.S.A. 40:47-10. Cf. Valonis v. Mayor and Tp. Committee of Cinnaminson Tp., 54 N.J. Super. 567 (App. Div. 1959); Harvey v. Poole, 17 N.J. Misc. 165, 7 A. 2 d 630 (C.P. 1939).

Ordinance No. 600, "An ordinance to establish, maintain, regulate and control a police department in the Borough of Leonia, and to prescribe and establish just rules and regulations with respect to such department," provides for the appointment by the mayor of three or more councilmen to be known as the board of police commissioners, "to have charge of the police department." The board is given power to supervise and conduct all examinations for patrolmen and for

promotions, with appointments and promotions to be made by the board "only by and with the consent and approval of the Borough Council." With respect to ...

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