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Rusignuolo v. Orechio

Decided: December 3, 1973.

FRANK RUSIGNUOLO, PLAINTIFF,
v.
CARMEN A. ORECHIO, COMMISSIONER OF PUBLIC SAFETY OF THE TOWN OF NUTLEY, AND FRANCIS T. BUEL, CHIEF OF POLICE OF THE TOWN OF NUTLEY, DEFENDANTS



Michels, J.s.c.

Michels

[126 NJSuper Page 107] Plaintiff, a police officer of the Town of Nutley, instituted this action against defendants, the Director of Public Safety and the Chief of Police of the Town of Nutley, challenging the validity of (1) a special order issued by the Chief of Police requiring all members of the Police Department to have a telephone in their residences, and (2) Disciplinary Rule 6:16 providing that "Department members shall neither neglect nor refuse to pay their just debts." Plaintiff seeks an order of this court to permanently enjoin the Director of Public Safety from holding a departmental hearing on the charges of violating the above special

order and disciplinary rule. The complaint was filed by the Chief of Police. Plaintiff also contends that his suspension without pay from July 5, 1973 to July 16, 1973 was improper, and seeks to be reimbursed for back pay for the period of his suspension.

Plaintiff contends that the Chief of Police did not have authority to issue the special order requiring him and other members of the department to have a telephone in his residence, and that Disciplinary Rule 6:16 was not adopted by ordinance, as required by statute, and is vague and an unlawful intrusion on judicial jurisdiction. The thrust of plaintiff's argument is that rules and regulations governing a police department can only be adopted by ordinance, not by resolution, or by special order of the police chief.

The Police Department of the Town of Nutley has been regulated and controlled since 1928 by Ordinance 357, entitled "A Supplement To An Ordinance Entitled 'An Ordinance to Establish, Regulate and Control A Day and Night Police Force In The Town of Nutley, in the County of Essex, and To Regulate And Define The Manner Of Their Appointment And Removal, Their Duties and Compensation,'" dated August 7, 1928. This ordinance was adopted pursuant to L. 1917, c. 152, Art. XVI, ยง 1, N.J.S.A. 40:47-1.

Under section 1 of Article 1 of the 1928 ordinance the Director of Pubic Safety was given full executive, judicial and administrative control of the Police Department, including the power to enforce the rules and regulations provided by the ordinance. The Director was also given power to promulgate administrative rules for the efficient management of the police department not inconsistent with these rules and regulations. Under section 2 of Article II the Chief of Police was given the power to promulgate orders to the police force not inconsistent with any of the orders or rules established therein, or administrative orders of the Director. Under section 32, relating to General Rules, each member of the police force was required to devote his whole time and attention

to the service of the Department, and to be at all times subject to call for duty.

Thereafter, on February 6, 1968 the governing body of Nutley adopted by resolution the 1967 Rules and Regulations governing the Police Department. These rules included Rule of General Conduct 3.2.1, pursuant to which the order requiring telephones was issued, and which provides:

Duty Requirement. Police officers shall be always subject to duty even when periodically relieved from regularly scheduled duty.

and Disciplinary Rule 6:16, which provides:

Department members shall neither neglect nor refuse to pay their just debts.

The authority for the enactment of the 1928 ordinance supplementing the ordinance creating the Nutley Police Department is found in ...


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