Before Judges Brochin, Kleiner, and Steinberg.
The opinion of the court was delivered by: Kleiner, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.
In this declaratory judgment action, plaintiff Policemen's Benevolent Association ("PBA") filed a complaint in lieu of prerogative writs seeking to invalidate defendant Township of North Brunswick's ("Township") Ordinance 97-4 which created a police department without creating a position for a chief of police. Plaintiff's complaint asserted that the ordinance enacted by defendant violated the 1981 amendment to N.J.S.A. 40A:14-118 (L. 1981, c. 266). *fn1 On the return date of an order to show cause issued coincident with the filing of plaintiff's complaint, Assignment Judge Robert A. Longhi considered oral argument. The Judge reserved decision, but in a subsequent written opinion declared Ordinance 97-4 valid and accordingly dismissed plaintiff's complaint. *fn2 Plaintiff appeals. We affirm.
Ordinance 97-4 (the "Ordinance") was enacted on April 7, 1997, and delineated the authority of the Director of Police. *fn3 Under the Ordinance, the Director of Police is appointed by the Mayor and may be removed by the Mayor, unless the Council disapproves of the removal by a two-thirds majority vote. On the date the Ordinance was enacted, the Director of Police was defendant Thomas Maltese, a civilian, who had been appointed in 1995.
Apparently in anticipation of the passage of the Ordinance, on March 31, 1997, Maltese issued a directive instructing all bureau commanders of the Township police department to report directly to him, rather than to Captain Stanke, the highest ranking officer on the police force. This directive was apparently designed to comply with the municipal ordinance, and N.J.S.A. 40A:14-118, requiring that a municipality provide for a line of authority through which the appropriate authority adopts rules and regulations for the governance of the police force and for the discipline of its members. The designation of the "appropriate authority" is required, whereas the office of police chief is optional. *fn4 Id.
The Director of Police is appointed by the Mayor and may be removed by the Mayor, unless the Council disapproves of the removal by a two-thirds majority vote. Article II, Section 2A of the ordinance names the appropriate authority:
The North Brunswick Police Department shall come under the jurisdiction of the Appropriate Authority, which is hereby created pursuant to N.J.S.A. 40A:14-118. Said Appropriate Authority shall be the Director of Police. The Appropriate Authority shall be directly responsible to the Mayor of the Township. The Director of Police, in addition to those powers and duties enumerated in section 5 *fn5 of this article, shall be responsible for the operation of the police department pursuant to policies established by said Director and shall be responsible for the promulgation, updating, and/or ratification of the Rules and Regulations for police personnel which shall be known as the Rules and Regulations for the Police Department of the Township of North Brunswick.
It is apparent from the record that Maltese's directive in anticipation of the enactment of the Ordinance prompted the PBA to initiate this litigation. PBA's primary contention is that the Ordinance empowers the Director of Police to promulgate rules and regulations, a legislative function. It thus asserted that the Ordinance which also empowers the Director with authority to control the daily functions of the police force, an executive function, impermissibly entrusts both a legislative function and an executive function to the same person. PBA therefore contends that two separate individuals must perform these two distinct functions.
PBA also contends entrusting one person with the responsibility for the duties of a police chief and of the "appropriate authority" contradicts Hartmann v. Police Dep't of Ridgewood, 258 N.J. Super. 3 (App. Div. 1992) and In re Baldinger, 220 N.J. Super. 267 (Law Div. 1987). The Judge rejected this contention and specifically noted that both Hartmann and Baldinger addressed the power struggle between the appropriate authority and the chief of police where the municipality had opted to create the position of a chief of police. We also note that N.J.S.A. 40A:14-118 has been construed in Quaglietta v. Haledon, 182 N.J. Super. 136 (Law Div. 1981); Gauntt v. City of Bridgeton, 194 N.J. Super. 468 (App. Div. 1984), overruled in part, Falcone v. DeFuria, 103 N.J. 219 (1986); and more recently in Grasso v. Borough of Glassboro, 205 N.J. Super. 18 (App. Div. 1985), certif. denied, 103 N.J. 453 (1986). Quaglietta, ...