On appeal from Merit System Board, Department of Personnel.
Pressler, Skillman and D'Annunzio. The opinion of the court was delivered by D'Annunzio, J.A.D.
This appeal arises out of a disciplinary proceeding against two police officers employed by the Village of Ridgewood (Village). The Village alleged that the officers, Carl Hartmann and Steven Smith, and other Village police officers, were attending a class on January 5, 1990, that they left the class early, without permission, and that they went to a nearby restaurant-bar. The officers spent approximately two hours at the bar, during which Smith and Hartmann became involved in a heated argument. Attempts by some of the other officers to defuse the conflict were unsuccessful, and eventually Smith and Hartmann left the premises in Hartmann's vehicle "to settle the matter."
Hartmann and Smith drove to an isolated property, known as the pump house, owned either by the Village or by the Ridgewood Board of Education. At the pump house they engaged in a fistfight and wrestling match. During the fight, the officers rolled down an embankment toward a creek. Smith allegedly disengaged and climbed up the embankment. According to Smith, he then heard a shot, began running from the scene and heard two more shots.
Investigation revealed a bullet hole in a no trespassing sign at the pump house site. The police also found a spent shell casing at the site. Subsequent investigation supported an inference that the casing was ejected from Hartmann's off-duty handgun which Hartmann carried concealed in a leg holster. Apparently the handgun had the capacity to hold seven live rounds. When it was confiscated by the police, it contained only four live rounds.
Hartmann alleged that he fell into the creek as the result of his fight with Smith and that his gun became dislodged from the holster. According to Hartmann, the gun discharged accidently while it was under water as he was attempting to retrieve it from the bottom of the creek. Hartmann denied that more than one shot was fired.
Disciplinary charges were brought against Hartmann and Smith and were heard by the village manager. The manager found them guilty as charged. He suspended Smith for 20 days, ordered Smith's loss of ten days vacation time, and ordered Smith to engage in a six-month program of alcohol counselling. The village manager dismissed Hartmann from the force.
Both officers appealed to the Merit System Board. Their appeal was heard by an administrative law Judge who did not reach the merits. The Judge determined that the Village's ordinance creating the police department, under which the department's rules and regulations were established, was ineffective because it violated N.J.S.A. 40A:14-118. He reversed the disciplinary action taken and "further ordered that these matters are remanded to respondent, Village of Ridgewood, for further appropriate action in accordance with law." The Merit System Board adopted the findings and Conclusions of the administrative law Judge.
The Village appeals and we now reverse and remand to the Merit System Board for further proceedings.
N.J.S.A. 40A:14-118 provides:
The governing body of any municipality, by ordinance, may create and establish, as an executive and enforcement function of municipal government, a police force, whether as a department or as a division, bureau or other agency thereof, and provide for the maintenance, regulation and control thereof. Any such ordinance shall, in a manner consistent with the form of government adopted by the municipality and with general law, 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 determination of their terms of office, the fixing of their compensation and 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 the Disposition and discipline of the ...