Edward Baldinger, a patrolman in the Township of Westampton, County of Burlington, was subjected to disciplinary proceedings initiated by the Westampton Township Committee. A hearing officer and a special prosecutor were appointed by the Committee for the purpose of conducting the disciplinary hearing. Most of the charges against Baldinger were sustained and penalties, consisting of a 120 day suspension without pay followed by a one year period of probation, were recommended and imposed. Baldinger now appeals.
His initial argument is that the governing body had no authority to conduct the disciplinary hearing. He is correct. The proceedings below were not authorized by proper legislation and are a nullity. The matter must be remanded for further appropriate action.
N.J.S.A. 40A:14-118 provides in pertinent part as follows:
The governing body of any municipality, by ordinance, may create and establish, as an executive and enforcement function of municipal government, a police force. . . . Any such ordinance shall . . . provide for a line of authority relating to the police function and for the adoption and promulgation by the appropriate authority of rules and regulations for the government of the force and for the discipline of its members. The ordinance may provide for the appointment of a chief of police and such members, officers and personnel as shall be deemed necessary, . . . the prescription of their powers, functions and duties, all as the governing body shall deem necessary for the effective government of the force. Any such ordinance, or rules and regulations, shall provide that the chief of police, if such position is established, shall be the head of the police force and that he shall be directly responsible to the appropriate authority for the efficiency and routine day to day operations thereof, and that he shall, pursuant to policies established by the appropriate authority:
a. Administer and enforce rules and regulations and special emergency directives for disposition and discipline of the force and its officers and personnel;
e. Report at least monthly to the appropriate authority in such form as shall be prescribed by such authority on the operation of the force during the preceding month, and make such other reports as may be requested by such authority.
As used in this section, "appropriate authority" means the mayor, manager, or such other appropriate executive or administrative officer, such as a full time director of public safety, or the governing body or any designated committee or member thereof, or any municipal board or commission established by ordinance for such purposes, as shall be provided by ordinance in a manner consistent with the degree of separation of executive and administrative powers from the legislative powers provided for in the charter or form of government either adopted by the municipality or under which the governing body operates.
Except as provided herein, the municipal governing body and individual members thereof shall act in all matters relating to the police function in the municipality as a body, or through the appropriate authority if other than the governing body.
The Assembly Judiciary, Law, Public Safety and Defense Committee Statement accompanying this legislation (Senate No. 1243-L.1981, c. 266) states: "Each municipality having a police force would be required . . . to designate an 'appropriate authority' which may be the mayor, manager or governing body, depending on the form of municipal government. The 'appropriate authority' shall adopt rules and regulations for the government of the police force which the chief of police shall be subject to."
It is apparent from the record in this case, that the Township Committee of Westampton Township has never designated an "appropriate authority" pursuant to this legislation and has not provided any disciplinary machinery of the kind used here. It is equally apparent that the Chief of Police, contrary to ...