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Smith v. Township of Andover

August 9, 1995

GEORGE R. SMITH, PLAINTIFF-RESPONDENT, TOWNSHIP OF ANDOVER, DEFENDANT-APPELLANT. RICHARD O. MATTOON, II, PLAINTIFF-APPELLANT,
v.
BOROUGH OF PEAPACK AND GLADSTONE, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-RESPONDENT.



On appeal from Superior Court, Law Division, Sussex County. On appeal from Superior Court, Law Division, Somerset County.

Approved for Publication August 9, 1995

Before Judges Brody, Long and P.g. Levy.

PER CURIAM

The issue in these appeals, which we have consolidated for the purpose of this opinion, is how to interpret N.J.S.A. 40A:14-179 which provides:

Notwithstanding any other law to the contrary whenever there is a police department organized in any political subdivision of this State and a chief of police appointed to be the executive head of such department, the starting salary of said chief of police and the deputy chief shall be set at a rate not less than five percent above the highest salary of the ranking police officer next in command below the chief of police or deputy chief of police as appropriate. Thereafter, whenever new salary ranges are set by the governing body or appointive authority, unless the chief of police or deputy chief, shall consent to a lesser adjustment, the minimum and maximum salary range for the chief of police and his deputy chief shall be adjusted to reflect at least the same percentage of increase in base salary as is established for other ranking supervisory officers in the department.

The case arose as follows:

I

Smith

Plaintiff George R. Smith has been Chief of Police of the Andover Township Police Department since October 1983. Defendant Andover Township sets the salary for the chief on an annual basis and also fixes the salary range for that position. After negotiations, the Township adopted a resolution on June 19, 1991, which set the base salary for Chief Smith at $52,397. That amount, which represented a 17.5% increase over his 1990 base salary, was set to remedy past inequities. Because his subordinates' salaries are set by contract, they receive overtime pay, holiday pay and longevity. As a result, the next highest ranking officer, Sergeant Coleman, sometimes received a larger, or equivalent, actual salary than did the chief. Therefore, the large increase was given in 1991 to rectify that situation and "keep the chief ahead of salary increases for patrol officers and Sergeants which had been granted in a collective bargaining agreement adopted just prior to May 15, 1991." The subordinate officers received a 7% increase based on that agreement, bringing Sergeant Coleman's total base salary to $39,723 in 1991.

In 1992, the Township again adopted a resolution to set the police chief's salary but this time he was given only a 1.9% increase over his 1991 base salary. However, the other officers received an increase of 6% based on the two-year contract agreement reached in 1991. As a result, Chief Smith's base salary increased to $53,397 and Sergeant Coleman's, to $42,106.

In 1991, the New Jersey Legislature adopted the statute that is the subject of these appeals. It became effective after the 1991 salary adjustment for the subordinate officers but before the salary adjustment for the chief. Chief Smith brought an action to recover salary increases equal to those of his subordinates, pursuant to N.J.S.A. 40A:14-179. He claimed that the statute requires that he be given the same percent increase in base salary as was given to his subordinates, that is, 6%. In addition, Chief Smith sought to recover back pay for the five-day period in which he was denied a paid leave of absence to attend the New Jersey State Association of Chiefs of Police Convention.

N.J.S.A. 40A:14-177 provides:

The head of every department, bureau and office in the government of the various municipalities shall give a leave of absence with pay to every person in the service of the . . . municipality who is a duly authorized representative of the New Jersey Patrolmen's Benevolent Association, Inc., Fraternal Order of Police, American Federation of Police Officers, Inc., Bronze Shields, Inc., Batons, Vulcan Pioneers, a member organization of the New Jersey Council of Charter Members of the Black police Association, Inc., Firemen's Mutual Benevolent Association, Inc., the Uniformed Firemen's Association, or the New Jersey State Association of Chiefs of police, to attend any state or national convention of such organization . . . .

Leave of absence shall be for a period inclusive of the duration of the convention with a reasonable time allowed for time to travel to and from the convention.

The Township had denied Chief Smith paid leave to attend because it contended that he was not a duly authorized representative of the Association of Chiefs of Police, but only a member of that organization. In addition, the Township noted that although the chief had discussed with the Police Commissioner the idea of going to ...


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