This action in lieu of prerogative writs has as its objective either the securing of a departmental hearing for plaintiff as a policeman, pursuant to N.J.S.A. 40A:14-147, or a judicial declaration that a resignation submitted by him was invalid because it was the result of coercion.
Plaintiff was a patrolman with the Atlantic City Police Department for approximately four years prior to January 17, 1974. On that date he and Officer Phillips, his radio car partner, went to an unoccupied building during daylight hours to remove copper wire installed as part of the electrical system in order to sell same to a junkyard and thereby obtain extra money. Both men were in civilian garb. Phillips had with him a police radio tuned into police department calls. He had formerly been a member of the major crime squad and as such been entitled to have the radio with him at all times. However, not being a member of the squad on January 17, 1974, he had no authority to have the radio in his possession.
While plaintiff and Phillips were in the building and engaged in dismantling the copper wire someone reported to the police department that juveniles had broken into the building. Two radio-car policemen entered the building and questioned plaintiff and Phillips concerning their activities there. Phillips told them they had the owner's permission to take the wire.
The police were somewhat skeptical about the truth of this explanation. As a result they immediately reported the
incident to their street sergeant, who in turn caused a report to be made to the deputy commissioner of public safety who, with the commissioner, was charged with the supervision of the police department.
At the direction of the deputy commissioner plaintiff and Phillips were told to meet with him later in the evening. They arrived at his office between 6:30 and 7:00 P.M. that same evening, January 17, 1974.
The deputy commissioner instructed plaintiff and Phillips to make reports as to what had occurred concerning the afternoon entry into the premises. A tape recorder was in operation during the conversation. Plaintiff's statement was later typewritten and signed by him. He was asked to submit to a urinalysis and his arms were checked for needle marks, none of which were found. The deputy commissioner advised him that he was suspended and to return the following day at 11 A.M. He was obliged to turn in his gun, badge and night stick. While doing so he asked Sergeant White, to whom the incident was reported by the investigating police officers that afternoon and who was present at the evening meeting, why his paraphernalia was taken from him and why he was suspended. Sergeant White told him that he was in a lot of trouble and that he had better return on the following day as directed.
Unfortunately, the recording was not complete, due to a breakdown in the recording device. It is obvious, however, that he had been questioned concerning his role in removing the copper wire and the fact that he obtained $17 from the sale of it to a junk dealer after he and Phillips had burned off the insulation.
The next day he, along with Phillips, reported as directed to the office of the commissioner of public safety. Present were Commissioner Floriani, Deputy Commissioner Ordille and Police Sergeants White, Nelson and Rifice.
Floriani told them that he had met with the prosecutor and the prosecutor was willing to drop criminal charges against them if both plaintiff and Phillips resigned. He
therefore was offering them the choice of resigning for personal reasons or meeting criminal charges that would be filed against them. The commissioner ...