Heine, J.s.c. (temporarily assigned).
[104 NJSuper Page 91] This is an appeal by Leonard Gioglio, Jr., a police officer of the City of New Brunswick, pursuant to N.J.S.A. 40:47-10, to review his conviction after hearing upon written charges preferred by the chief of police. Two charges were preferred:
(1) Insubordination and absence without leave in that he failed to report for duty in uniform, as directed, at 9 P.M., July 15, 1968. (This charge was claimed to be in violation of sections 2 and 4 of the Police Rules and Regulations.)
(2) Breach of discipline in that he granted an interview to a newspaper reporter which was published in the Daily Home News on July 15, 1968. (This charge was claimed to be in violation of section 50 of the Rules and Regulations.)
In defense of the charges Gioglio now contends that
(a) The rules and regulations are invalid because they were adopted by resolution and not by ordinance of the board of commissioners (New Brunswick is governed by a board of commissioners operating under the provisions of N.J.S.A. 40-70-1 et seq.)
(b) As to the first charge, his absence was excusable
(c) As to the second charge, the rule is too vague and, therefore, unenforceable
(d) The rule violates his constitutional right of freedom of speech guaranteed by the First Amendment.
The court finds the following facts:
On May 26, 1967 the chief of police issued and served on Gioglio an order requiring him to return to duty with the uniformed patrol effective Monday, May 29, 1967. Upon receipt of this order Gioglio went to Commissioner Valenti, Director of the Department of Public Safety, and discussed with him the continuation of his assignment on a special detective squad. Commissioner Valenti conferred with the chief of police and as a result the order was withdrawn. Later on the chief discussed with the director the need for more officers in uniform to meet the increase in crimes of violence on the streets, with the result that Gioglio was ordered by the chief to report in uniform for patrol duty, commencing with the 9 P.M. shift on July 1, 1968. The order indicated that it was a temporary assignment. This order was not complied with because previous to the date thereof Gioglio
was given permission by his captain to take his vacation from July 1 to July 15.
On July 12 Gioglio received an order from the Chief to report in uniform to the lieutenant in charge of the 9 P.M. shift on Monday, July 15, for assignment to patrol duty. The assignment was to continue until further notice. Immediately after receipt of the order Gioglio again went to Director Valenti to complain about it. The director advised him that he was aware of the order, it was issued with his consent and that it should be obeyed. Gioglio complained about being required to return to patrol duty and said he would fight the order. He left the director with the impression that he would not obey the order.
On July 14 Gioglio wrote to the director stating that he had accumulated approximately 500 hours of overtime work in the course of his special detective work assignment and requested that he be given leave effective July 15 for this accumulated time, so that he could pursue opportunities for employment elsewhere. He was careful to state that the letter was not to be construed as a resignation. This would come if his pursuits bore fruit. The director turned the letter over to the chief, who responded in writing denying the request for leave and pointed out that plainclothesmen had never been granted leaves of absence to compensate for accumulated hours of overtime work.
On July 15, at about 8:40 P.M., Gioglio called police headquarters on the phone, spoke to the police dispatcher and advised him that he was not reporting for work. When asked by the dispatcher whether he was reporting off as sick, Gioglio replied, "No, I am just reporting off."
The next evening Gioglio appeared at the meeting of the board of Commissioners to complain publicly against the chief of police. While there he allowed himself to be interviewed by a reporter of the Daily Home News. The next day he issued a written statement to the press.
Police Rules and Regulations
As far as I can find, our courts have not specifically passed upon the question of whether the rules or regulations governing a police department can only be adopted by ordinance and not by resolution. The question was expressly by-passed by our Supreme Court in Borough of Jamesburg v. Hubbs, 6 N.J. 578, 584, 585 (1951). Cf. Alcutt v. Board of Police Comm'rs. of Trenton, 66 N.J.L. 173 (Sup. Ct. 1901), affirmed 67 N.J.L. 351 (E. & A. 1902); Hofbauer v. Board of Police Comm'rs. of City of East ...