On appeal from the Superior Court, Law Division, Essex County.
Milmed, Morton I. Greenberg and Furman. The opinion of the court was delivered by Morton I. Greenberg, J.A.D.
[187 NJSuper Page 392] This matter comes before this court on appeal from a final judgment entered by Judge Thompson December 21, 1981 declaring L. 1979, c. 163 (N.J.S.A. 40:69A-60.7) to be special legislation enacted in violation of N.J. Const. (1947), Art. IV, § VII, par. 9(13). The judgment followed a letter opinion of Judge Thompson dated July 22, 1981.
The circumstances giving rise to this appeal are not complicated. The City of Newark has adopted a Mayor-Council Plan C form of government under the Optional Municipal Charter Law. N.J.S.A. 40:69A-1 et seq. The city has also adopted Title 11 of the Revised Statutes, "Civil Service," and thus employment in the city government is subject to the provisions of that title. In 1976 its chief of police retired. Under the Civil Service Law then in force a new police chief should have been selected in accordance with the procedures of classified civil service. The new police chief would then have been within the classified civil service. Plaintiff Newark Superior Officers Association, an organization consisting of deputy police chiefs in Newark, urged the Department of Civil Service to schedule a promotional examination for the position of police chief. The city was of the view that the police chief should be placed in the unclassified service. For several years no permanent appointment of a police chief was made. Instead, the position was filled on a temporary basis.
On January 26, 1978 legislation was introduced into the Senate which provided that the governing body of any city of the first class which had adopted or would thereafter adopt the Mayor-Council Plan C form of government could provide by ordinance that the mayor could appoint a police director or director of public safety and a police chief to serve during the term of office of the mayor appointing them. S. 687 (1978). These officers were to be in the unclassified civil service. A city of the first class has a population in excess of 150,000 persons. See N.J.S.A. 40A:6-4. Since Jersey City and Newark are the only cities of the first class in New Jersey and have both adopted the Mayor-Council Plan C form of government, the bill, if enacted, would have been applicable in those municipalities and in no others. Subsequently, the bill was amended in the Senate so as to limit its application to a police chief and to require that the chief appointed have at least five years' administrative and supervisory police experience. The bill as amended was passed in both the Senate and General Assembly and
became law on August 6, 1979. L. 1979, c. 163; N.J.S.A. 40:69A-60.7.
The Assembly Municipal Government Committee prepared a statement accompanying the bill on June 21, 1979 which reads as follows:
The Senate committee statement adequately expresses the provisions of this bill.
The bill applies to Newark and Jersey City; it comes at the request of Newark. In that city, the police director carries out long term administrative and planning policies; the police chief is responsible for the day to day implementation of those policies. The director and the chief must work closely together. The police director, in the unclassified civil service, must be responsive to the mayor and council. The police chief, on the other hand, in the classified service with tenure, may be unresponsive to the administration. By placing the office of police chief in the unclassified service, cooperation between the chief and the city administration will be assured.
The committee reports this bill with the understanding that legislation to be received by the Assembly, will deal with the problem of the relationship of the police chief to elected officials in more general terms.
Jersey City has voiced no objections to this bill.
Plaintiffs, on October 10, 1979, brought this action.*fn1 In addition to the Newark Superior Officers Association, 11 individual plaintiffs joined in the action. All are or were deputy police chiefs in Newark. Defendants are the City of Newark, Kenneth Gibson, mayor of the City of Newark, Hubert Williams, police director of the City of Newark, and the municipal council of the City of Newark (collectively hereinafter called "municipal defendants"). In addition, the State of New Jersey, Department of Civil Service, Howard Woodson, president of the Civil Service Commission, and Joseph M. Ryan, acting chief examiner and secretary of the commission (collectively hereinafter called "state defendants") were made defendants.
Plaintiffs in their complaint set forth that the police chief had retired, that they requested that the city ask the state defendants
to conduct a promotional examination for the position, that certain of the individual plaintiffs had requested the state defendants to conduct the examination, that a grievance was filed with the city over the failure of the municipal and state defendants to hold the examination and that an attempt was made to settle the dispute. Plaintiffs further alleged that they requested an investigation of the situation by the Attorney General of New Jersey, that no examination was ever scheduled and that the municipality introduced an ordinance on August 23, 1979 to appoint a police chief in the unclassified service.*fn2
Plaintiffs alleged in the first count of their complaint that defendants' conduct deprived plaintiffs of salary and fringe benefits due them. In the second count plaintiffs asserted that N.J.S.A. 40:69A-60.7 had been adopted in violation of N.J. Const. (1947), Art. IV, § VII, par. 9(5), precluding the passage of private, special or local laws creating, increasing or decreasing the emoluments, term or tenure rights of public officers or employees. The third count of the complaint charged that plaintiffs' collective bargaining rights under their agreement with the municipal defendants had been violated by defendants' failure to hold the promotional examination. Plaintiffs further stated that N.J.S.A. 40:69A-60.7 impaired plaintiffs' contract with the city, contrary to N.J. Const. (1947), Art. IV, § VII, par. 3. Plaintiffs sought compensatory and punitive damages, an order compelling defendants to schedule a promotional examination and an injunction restraining the municipal defendants from appointing a police chief without an examination.
The municipal and state defendants answered separately. They admitted certain of the factual allegations of the complaint, denied others and asserted that they lacked knowledge or information sufficient to form a belief as to other allegations.
Both groups of defendants denied that plaintiffs were entitled to relief.*fn3
The parties served cross-motions for summary judgment. They were heard by Judge Villanueva on May 1, 1981. The only affidavit submitted on the motion was that of defendant Hubert Williams, Newark police director. He indicated that he had overall responsibility for the delivery of police services within the city. He stated that he established policy and issued directives to the police department. He said that he performed community relation functions requiring the utmost sensitivity to the needs, fears and problems of the people in Newark. He pointed out that as police director of a city of 329,248 people, the largest in New Jersey, composed of persons of diverse ethnic, racial and social backgrounds, he regularly deals with "conflicts and tensions typical of large urban areas." He stated that the riots of 1967, 1968 and 1974 stood as a testament to the volatile nature of the community and that he was required to rely heavily on the police chief in performing his duties. Williams said that it is imperative that he have confidence in the police chief and that the chief "be able to act with sensitivity to community problems and tensions, that he exercise good judgment in decision making and in assisting in the formulation of policy, all of which qualifications are not measurable by the application of Civil Service standards." Williams further said that removing the office of police chief from the classified service would improve the operation of the police department and the delivery of police services and would ensure a greater degree of accountability from the top echelon of the department in carrying out policy and objectives. Finally, Williams pointed out that he requested that the mayor propose legislation excluding the police chief from the classified service, that the legislation was enacted as L. 1979, c. 163 and that Newark had adopted
an ordinance pursuant to the legislation providing for appointment ...