Anne C. Borger received a one-year probationary appointment to the Stone Harbor, New Jersey, police force. After serving as a police officer for several months, but less than a year, she was discharged, without stated reasons or a hearing. She then filed this suit, seeking reinstatement and damages. This opinion is written in response to an order to show cause obtained by her to enforce her demand for a hearing. The facts as to this issue are not in dispute and the question of procedural rights may be decided as a matter of law. Judson v. Peoples , 17 N.J. 67 (1954).
Plaintiff, relying upon Owen v. City of Independence , 445 U.S. 622, 100 S. Ct. 1398, 63 L. Ed. 2d 673 (1980), first argues that she was entitled to a hearing before being dismissed. That decision, however, requires a hearing only when the dismissal stigmatizes the discharged employee. In Owen a police chief was discharged in the course of an investigation of his department, during which a member of the city's governing body made a public statement implicating the chief in highly improper activities. In a later criminal proceeding against the chief the prosecutor failed to obtain an indictment. The stigma was obvious. In the present case plaintiff was discharged without comment. No publicity attended the termination of her employment contract. It is nevertheless argued that these circumstances,
coupled with an alleged failure on the part of the Stone Harbor Police Department to keep plaintiff informed as to the quality of her performance, created a stigma. I disagree. If this reasoning were applicable, any and every discharged public employee would be entitled to a hearing. This is not the law laid down in Owen. On the contrary, affirmative deprecatory action must occur which affects the reputation of the discharged employee before due process requires a hearing. Here, Borger was not the victim of such action. She is not entitled to a hearing on the theory of Owen.
She advances the further argument, however, that applicable New Jersey statutes require a hearing in her case. She was employed for one year as a probationary employee, as required by the existing collective bargaining agreement between the PBA and the Borough of Stone Harbor. In a Civil Service community a probationary police officer may be discharged without a hearing during the term of probation. N.J.S.A. 11:22-6 requires new appointees to serve a probationary period of 12 months and requires no hearing in the event of a discharge during that time; a written notice that a permanent appointment will not be made is sufficient. However, Stone Harbor is not a Civil Service municipality. Its authority to establish a police department is found in N.J.S.A. 40A:14-118, a part of a general revision of municipal statutes adopted in 1971. The revision authorizes only two municipal classifications for police officers: special police officers, N.J.S.A. 40A:14-146, and permanent officers, N.J.S.A. 40A:14-128. The appointment of "temporary employees in emergencies, or for certain specified parts of the year, as needed," is provided for in N.J.S.A. 40A:14-122. The revision does not authorize a non-Civil Service probationary appointment to a police force.
Stone Harbor suggests that the appointment was proper because it was required by reason of its collective bargaining agreement. While these agreements are enforceable, Stone
Harbor v. Wildwood Local, 59, P.B.A. , 164 N.J. Super. 375 (App.Div. 1978), certif. den. 81 N.J. 270 (1979), they cannot confer powers upon a municipality which are not established in the first instance by the Legislature. Under our Constitution, while powers granted to municipalities are to be construed liberally, those not granted are reserved to the State. Paramus v. Martin Paint Stores , 121 N.J. Super. 595 (Law Div. 1972), app. dism. 128 N.J. Super. 138 (App.Div. 1974). Consequently, the probationary requirement of the collective bargaining agreement must be disregarded unless it was authorized by statute.
Borger was permitted to carry a weapon when she was off duty. As a consequence, she could not have been a special officer, since N.J.S.A. 40A:14-146 provides that "no . . . special policeman shall carry a revolver or other similar weapon when off duty." It is clear that she was not a temporary officer hired on an emergency basis. Consequently, she would enjoy the only classification left, that of permanent officer. Under N.J.S.A. 40A:14-128 her employment would be "indeterminate and continuous during good behavior and efficiency," and, pursuant to N.J.S.A. 40A:14-147, she could be discharged only for just cause, after being served with a written complaint and receiving a hearing.
This analysis reflects Borger's position, but it fails to consider the effect of N.J.S.A. 52:17B-68 and 69. Section 68 provides:
Every municipality and county shall authorize attendance at an approved school by persons holding a probationary appointment as a police officer, and every municipality and county shall require that no person shall hereafter be given or accept a permanent appointment as a police officer unless such person has successfully ...