March 04, 1999
POLICEMEN'S BENEVOLENT ASSOCIATION, NORTH BRUNSWICK, LOCAL 160, PLAINTIFF-APPELLANT,
TOWNSHIP OF NORTH BRUNSWICK AND THOMAS MALTESE, DIRECTOR OF POLICE, DEFENDANTS-RESPONDENTS.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 15, 1998
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, Gauntt, and Grasso similarly involved municipalities having a police chief. That, of course, is not the scenario created by Ordinance 97-4 and as such, those decisions have little applicability to the issues raised in this litigation.
Citing Falcone v. Defuria, 199 N.J. Super. 549 (Law Div. 1984), aff'd, 199 N.J. Super. 554 (App. Div. 1985), aff'd, 103 N.J. 219 (1986), the Judge noted in his opinion that N.J.S.A. 40A:14-118 was enacted as a legislative amendment designed "to provide a system for checks and balances in the position of Chief of Police, so that one person could not become a tyrant." Falcone particularly noted the tensions that exist between the appropriate authority and the chief of police where a municipality has opted to create a police force with a chief of police. Unlike other reported decisions interpreting N.J.S.A. 40A:14-118, see Section I, supra, here Ordinance 97-4 involves the somewhat unique, but clearly permissible, example of a municipality exercising its option of creating a police force without designating a chief of police. "The ordinance may provide for the appointment of a chief of police . . . as the governing body shall deem necessary for the effective government of the force." N.J.S.A. 40A:14-118 (emphasis added).
In construing the Ordinance and N.J.S.A. 40A:14-118, the Judge rejected PBA's argument and specifically concluded:
There is nothing in the Township ordinance which is inconsistent with the statute or case law. The governing body, the township council, as well as the state legislature, create the laws. The police are part of the executive branch and enforce the laws. As the executive administrator, the Director of Police is responsible for rules and regulations within the department which will help the department in fulfilling its duty to execute the laws. This is an appropriate function of the executive branch, and the North Brunswick ordinance is an appropriate use of the municipality's power to create and maintain a police force.
It is fundamental that "`the meaning of a statute must . . . be sought in the language in which the act is framed, and if that is plain, . . . the sole function of the courts is to enforce it according to its terms.'" Sheeran v. Nationwide Mutual Ins. Co., Inc., 80 N.J. 548, 556 (1979) (quoting Caminetti v. United States, 242 U.S. 470, 485, 37 S. Ct. 192, 194, 61 L. Ed. 442, 452 (1917)); see Board of Educ. of Tp. of Neptune v. Neptune Tp. Educ. Ass'n, 144 N.J. 16, 25 (1996); State v. Maguire, 84 N.J. 508, 529 (1980); Vreeland v. Byrne, 72 N.J. 292, 302 (1977); Finn v. Mayor and Council of Norwood, 249 N.J. Super. 230, 232 (App. Div. 1991); DeHart v. Bambrick, 177 N.J. Super. 541, 549 (App. Div. 1981); Raubar v. Raubar, 315 N.J. Super. 353, 360 (Law Div. 1998) (citing Matter of Resyn Corp., 945 F.2d 1279, 1283 (3d Cir. 1991) (stating that, where the legislature has expressed its intention in plain language and the legislative history does not demonstrate a contrary purpose, the court is bound to follow the statutory provision as written)); see also 2A Sutherland Statutory Construction § 46.01 5th Ed. (1992).
N.J.S.A. 40A:14-118 clearly requires that a municipality must have an appropriate authority to oversee the police department. The appropriate authority may be one of the enumerated persons or groups (mayor, executive officer, director, governing body, etc.) or the municipality may create a body specifically to become the appropriate authority. N.J.S.A. 40A:14-118. The appropriate authority adopts rules and regulations for the department, and the discipline of the members; additionally, the appropriate authority establishes policies for the daily operations of the department. The appropriate authority is a civilian position.
By its challenge to the Ordinance, PBA questions whether a Director of Police in a municipality that has opted not to name a chief of police may assume some of the duties normally assigned to the chief of police in the daily operations of the police department. We think it obvious that, where a municipality has opted not to name a chief of police, the Director of Police is vested with such authority.
North Brunswick has designated the Director of Police as the "appropriate authority" within the framework of the statutory scheme envisioned by the Legislature in enacting the amendment to N.J.S.A. 40A:14-118. Without a chief of police, all police officers are subordinate to the Director of Police in accordance with rank, as delineated in the Ordinance, Article II, Section I, and the Director is entitled to assume duties ordinarily assigned to a chief of police, including directing daily operations of the police department. In fact, the Ordinance provides that the Director of Police be responsible for the operation of the police department, establish policies for the department, and promulgate rules for the personnel. These responsibilities include prescribing duties and daily assignments of police officers. It is abundantly clear that the Legislature recognized that if a municipality opted not to create the position of chief of police, a municipality's police department would require leadership in the daily operations of the department. N.J.S.A. 40A:14-118 does not prohibit the Director of Police from also being the "appropriate authority," despite the fact that the Director of Police is also required to report to the Mayor. *fn6
On appeal, PBA also raises an argument, rejected in the Law Division, that the daily operations of the police force should be the responsibility of the highest ranking certified police officer. However, that argument is specifically rejected by the clear legislative mandate which permits a municipality to opt not to have a chief of police and to designate an "appropriate authority" to supervise the police department. N.J.S.A. 40A:14-118 does not include the highest ranking certified police officer in a police department as being entitled to be named as "appropriate authority." We therefore agree with the Law Division Judge that PBA's contention is without legal merit.