On appeal from the Superior Court of New Jersey, Law Division, Cumberland County.
Morton I. Greenberg and Trautwein. The opinion of the court was delivered by Trautwein, J.A.D.
Richard H. Gauntt, the Chief of Police of the City of Bridgeton, appeals from an order dismissing his complaint in lieu of prerogative writs which sought the entry of a restraining order against the city's director of the Department of Police and Fire from further interference with plaintiff's duties as chief of police. Plaintiff argues that the trial judge erred in dismissing his complaint because the actions of the director constituted an improper infringement upon the duties and responsibilities granted to a chief of police pursuant to N.J.S.A. 40A:14-118. Plaintiff further contends that the director's attempt to divest him of his duties as chief of police constitutes a demotion in rank in violation of N.J.S.A. 40A:14-147.
On December 29, 1981 plaintiff, as chief of police of the City of Bridgeton, filed a complaint in lieu of prerogative writs in the Superior Court, Law Division, against the City of Bridgeton, its mayor and council, and the director of Bridgeton's Department of Police and Fire, Donald Maurer. Count I of the complaint alleged that Ordinance No. 71-10 of the City of Bridgeton created the position of chief of police and placed the chief in charge of the police department, subject to direction. This ordinance also set forth the chief's duties which included formulating rules and regulations for the police department, determining the department's internal organization and assigning its members. The complaint also alleged that Section 2-10.1 of the Revised Ordinances of the City of Bridgeton established a Department of Police and Fire which included the Division of Police; that defendant Maurer, the director of the Department of Police and Fire, had on numerous occasions transferred police personnel and interfered with plaintiff's powers
to assign police personnel to specific hours and duties thereby violating Ordinance No. 71-10. It was further alleged that by exercising these powers, defendant Maurer deprived plaintiff of the privilege of exercising the duties of his office and had in effect removed plaintiff from his office or reduced him in rank in violation of N.J.S.A. 40A:14-147. Thus plaintiff demanded that defendant Maurer be restrained from exercising any of the powers or duties given to the chief of police by Ordinance No. 71-10.
Count II of the complaint alleged that by letter dated September 22, 1981, defendant Donald H. Rainear, mayor of the City of Bridgeton, issued "policy directives" which purported to amend the rules and regulations governing the Division of Police. Said "policy directives" provided that no interdivisional assignments or transfers shall be made without prior approval of the director of the department of police and fire and excluded the chief of police from those persons eligible to act as hearing officers in police disciplinary matters. Plaintiff demanded that the amendment to the rules and regulations created by the mayor's letter be declared null and void as being in direct contravention of N.J.S.A. 40A:14-118 which sets forth the powers and duties of police chiefs.
Count III of the complaint alleged that the director of the Department of Police and Fire was exercising powers and performing duties which may only be exercised and performed by a chief of police pursuant to N.J.S.A. 40A:14-118. Thus, plaintiff demanded that the director of the Department of Police and Fire be enjoined from exercising any of the functions granted to a chief of police by N.J.S.A. 40A:14-118.
Thereafter, plaintiff and defendant filed cross-motions for summary judgment. Following oral argument, the trial judge entered an order on September 17, 1982 denying both motions.
Trial was held on April 26, 1983. The trial judge issued a written opinion on June 23, 1983 wherein he found that the actions of the director of the Department of Police and Fire
were ". . . entirely proper and within the framework of his proper sphere. . ." Accordingly, an order was entered on July 5, 1983 dismissing the complaint with prejudice.
Plaintiff filed his notice of appeal on August 22, 1983.
The record discloses that the City of Bridgeton is a Faulkner Act Community with a mayor-council form of government. (N.J.S.A. 40:69A-1 et seq.) The executive power is exercised by Mayor Donald H. Rainear, who has been mayor of the city since July 1, 1978. The city has nine departments and the mayor has the power to appoint and remove the department heads subject to confirmation by the city council. In turn, the department heads have the authority to appoint and remove employees within their departments subject to the mayor's approval.
Section 2-10.1 of the Revised Ordinances of the City of Bridgeton, dated November 4, 1970, provides for a Department of Police and Fire, the head of which shall be a director. Section 2-10.2 of the Revised Ordinances provides that the division of police shall be organized according to such table of organization as shall be prescribed by the director with the approval of the mayor.
On October 19, 1971, the Bridgeton City Council adopted Ordinance No. 71-10 which created the position of police chief and repealed all prior inconsistent ordinances. The Department of Civil Service, at the request of the city council, prepared a schedule of the civil service positions within the city with their accompanying duties. This schedule of duties was adopted by the city council in Ordinance No. 71-10 as the appropriate duties to be performed by individuals holding civil service positions within the city. Pursuant to this ordinance, the position of police chief was defined as follows: "Under direction, has charge of the Police Department; does related work as required." Among the examples of work to be performed by a police chief are the giving of assignments to other members of the police department; planning police work so as to make the best use of available funds, personnel and equipment; determining
the internal organization of the department and formulating police rules and regulations.
Effective August 24, 1981, N.J.S.A. 40A:14-118 was amended to provide that the governing body of any municipality may provide by ordinance for the appointment of a chief of police. If a chief of police is appointed, he shall be the head of the police force and shall be directly responsible to the appropriate authority for the efficiency and routine day-to-day operations of the force. Id. Moreover, pursuant to policies established by the appropriate authority, the chief of police shall administer and enforce rules and regulations for the discipline of the force and prescribe the duties and assignments of all subordinates. N.J.S.A. 40A:14-118(a) and (c).
Plaintiff has been the chief of police of the City of Bridgeton since November 23, 1977. Defendant Donald Maurer has been the part-time director of the City of Bridgeton's Department of Police and Fire since July 1978.
During his testimony, plaintiff set forth various examples of alleged interference by defendant Maurer in the performance of plaintiff's powers and duties as police chief. Plaintiff related an incident which occurred in November 1981 concerning the discovery that certain monies were missing from a safe located in the violations clerk's office. By letter dated November 10, 1981, Maurer informed plaintiff that he had assigned Detective Turner to "complete the investigation." Plaintiff had no prior knowledge of the investigation or assignment.
According to plaintiff, there have been several other instances when Maurer has made assignments and transfers of police officers in the City of Bridgeton in violation of N.J.S.A. 40A:14-118. Thus, plaintiff pointed to a letter dated March 5, 1982 which Maurer sent to the Public Safety Director of the City of Salem stating the following:
I am most happy to allow Lieutenant Erianne and Detective Turner (to) address your Neighborhood Crime Watch group on Wednesday, March 24, 1982. Lieutenant Erianne and Detective Turner have been involved in organizing and coordinating a Neighborhood Crime Watch Program in Bridgeton for approximately
one year and I am sure the experience they have gained will be helpful to you and your department
As another example, plaintiff referred to a letter dated March 18, 1982 which he wrote to Maurer wherein he stated:
In reference to our meeting and discussion of March 17, 1982, I wish to state for the record that I disagree with your decision and order placing Lieutenant Erianne in charge of the Detective Division.
As I stated to you, it was my intent, after careful review of the matter, to transfer Lieutenant Bondi to that position placing Lieutenant Erianne in charge of the Uniform Division.
I also wish to state for the record that this is in violation of my rights and privileges under N.J.S. 40A:14-118.
Plaintiff also pointed to a written directive which he received from Maurer dated February 1, 1983, which stated the following:
It has been brought to my attention that staff members of the Community Health Center are victims of verbal abuse, harassment, and general havoc during the V.D. Clinic which is held Wednesday from 4:30 to 5:30 P.M. Beginning Wed. Feb. 2nd an officer should be assigned to be present at the Clinic during those hours for a week or two and if that helps improve the situation, a periodic visit may surfice [sic] in the future.
Mayor Rainear explained that he had received complaints regarding the V.D. clinic and that he issued a "policy directive" to Maurer to provide police coverage at the clinic.
Plaintiff also testified as to a couple of instances when Maurer made assignments of police officers in the City of Bridgeton which occurred prior to the effective date of the amendment to N.J.S.A. 40A:14-118. Thus, plaintiff focused on a memorandum dated November 5, 1980 wherein Maurer advised him of the following:
In regards to your order dated November 3, 1980, on the reassignment of Officers Denby and Everingham. As we discussed at our Friday afternoon meeting on the 31st, I wanted the Officers assigned every other week. One week to be in the second ward area then split up in Safe Streets areas one (1) and three (3) on the opposite week. As I read your order it would appear you have them assigned permanently to areas one (1) and three (3).
Please correct this situation as of nexts [ sic ] weeks time to report to duty for the two officers.
Plaintiff also referred to a memorandum dated February 18, 1981, wherein Maurer stated:
Spoke to Lieutenant Erianne in regards to the Neighborhood Watch Program in the 4th Ward and have assigned him to familiarize [ sic ] and prepare himself to set the program into operation in the 4th Ward area.
Mayor Rainear and Director Maurer explained that this assignment was necessary because although the mayor had requested plaintiff to institute a neighborhood watch program in 1978 or 1979, plaintiff and other superior officers in the police department were not "committed" to the program and it was not being implemented.
According to plaintiff, Maurer also interfered with his assignments of police officers to various police training schools. Thus, by letter dated December 16, 1981, Maurer advised plaintiff that "[d]ue to the internal investigation related to the Morrison case, Det. Turner was pulled out of Homicide School in early December." Plaintiff had no knowledge prior to his receipt of this letter that Detective Turner was no longer attending school. Similarly, by letter dated April 12, 1982, Maurer informed plaintiff that he saw no reason for Detective Turner to attend a certain course and that Officer Stevens was to be assigned to attend the course. Moreover, by means of a written directive dated July 16, 1982, plaintiff was advised by Maurer that "[a]s of this date, notices pertaining to schools, seminars, or any type of schools of instructions; they are to be discussed with me before any assignments are made."
Maurer explained that he wanted to be informed of potential school assignments before they were actually made because of budgetary considerations and also to ensure that all officers on the force were given an equal opportunity to attend these courses. He further testified that he advised plaintiff to allow Officer Stevens to attend a breathalyzer course rather than Detective Turner because Turner was an Internal Affairs Officer and his duties did not involve the use of breathalyzers.
In addition, plaintiff alleged that Maurer had by-passed the chain of command by giving orders to subordinates without consulting the chief of ...