Lora, Handler and Tarleton.
Plaintiff, Patrolman Frank Rusignuolo, filed a verified complaint seeking to have disciplinary charges made against him by defendant, the director of public safety of the Town of Nutley, dismissed and any hearing on the charges permanently enjoined. The trial judge ruled in favor of plaintiff in a reported decision. Rusignuolo v. Orechio, 126 N.J. Super. 106 (Ch. Div. 1973).
Plaintiff had been a police officer in the Town of Nutley for approximately eight years. On June 15, 1973 defendant Francis T. Buel, chief of police, issued a special order to police personnel requiring all members of the police department to have telephones at their residences. This order, which referred to Rule 3:2.1 of the Rules and Regulations of 1967 of the Nutley Police Department, indicated that a telephone at the residence was necessary so that policemen "are accessible to the call of the Department, and in cases of dire emergency." Chief Buel then issued a special bulletin to plaintiff advising him that the director of public safety had issued an order regarding the purchasing of a telephone at plaintiff's residence so that he could be reached in an emergency and be accessible to the Department in time of need. On the same date, the director issued a letter to plaintiff stating that unless he negotiated for a telephone by
June 26, 1973, the department would prefer formal charges against him.
Plaintiff did not comply with the orders and as a result, on July 5, 1973, a special order was issued by Chief Buel suspending plaintiff without pay for not complying with the order of June 15, 1973, "until a formal hearing on the matter" could be held. On July 16, 1973 he was reinstated and ordered to report for duty. On July 19, 1973 formal charges against plaintiff were served and a hearing of the matter was scheduled for July 25, 1973. The complaint charged plaintiff with violation of the Nutley Police Department order of June 15, 1973 requiring a home telephone, and also for a violation of the department's Rules and Regulations, Chap. VI, Rule 6:15, for failure to pay just debts, in that plaintiff owed $199.41 to Janette Shop. By consent the hearing date was adjourned until August 2, 1973, and prior to that date adjourned until the issues in the matter were resolved in court.
The trial judge determined that the order of June 15, 1973, requiring all members of the police department to have telephones at their residences, is invalid on the ground that it "exceeds the power and authority of the administrative heads of police departments to issue orders in the day-to-day administration of the Department." The judge considered the order to be "a rule of regulation within the intendment of N.J.S.A. 40:47-1, now N.J.S.A. 40A:14-118, [which] must be promulgated by municipal ordinance." 126 N.J. Super. at 110-111.
The police department of the Town of Nutley is maintained, regulated and controlled by Ordinance 357 adopted on August 7, 1928. It was adopted pursuant to L. 1917, c. 152, Art. XVI, § 1, N.J.S.A. 40:47-1 (superseded by N.J.S.A. 40A:14-118). Under the 1928 ordinance, the director of the Department of Public Safety was expressly given, in § 1, full executive, judicial and administrative control of the police department, its officers and all members of the force. He was given the power to enforce the rules and regulations
provided by the Ordinance and the power to promulgate such administrative rules as, in his judgment, may from time to time be proper for the efficient management of the police department. The chief of police was given the power to promulgate orders to the force not inconsistent with any of the orders or rules established by the ordinance or any of the administrative orders made by the director.
The ordinance also contained under § 32 of its General Rules applicable to the police department the following:
Each member of the Police Force shall devote his whole time and attention to the service of the Department, and is expressly prohibited from following any other calling, or being engaged in any other business. Although certain hours are allotted for the performance of regular tours of duty, all members of the Department are considered to be at all times subject to call for duty, and must act promptly at any time that their services are required.
Additionally, Rule 3:2.1 of the 1967 Rules and Regulations of the department, which was mentioned in the initial special order, provided that "[p]olice officers shall be always subject to duty even when ...