Before Judges Petrella, Conley and Coburn.
The opinion of the court was delivered by: Conley, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from Superior Court of New Jersey, Law Division, Bergen County.
These consolidated matters have been generated by a dispute in 1996 between the Mayor of the Borough of Fort Lee and the then Borough Council over the appointment of promotional positions in the Borough's Police Department. At issue before us are the Council's actions in creating a third position of Deputy Chief and appointing appellant Jeremiah O'Sullivan to that position in September 1996 and, in December 1996, appointing him to the then vacant position of Police Chief. *fn2 These actions were not effectuated by the ordinance and were challenged by the Mayor and by the two other competitors for the Police Chief position, John Reuter and Bernard Hart, in their respective complaints in lieu of prerogative writs. On motion for summary judgment in the consolidated actions that resulted, O'Sullivan's appointment to the position of Deputy Chief was set aside based upon the motion judge's determination that the position to which O'Sullivan was appointed did not legally exist as it had not been created by ordinance. The judge also determined that the permanent appointment of O'Sullivan as Deputy Chief was violative of a Fort Lee ordinance which gave the Mayor thirty days to fill a vacancy before the Council could act. Since the Police Chief vacancy was open only to Deputy Chiefs, O'Sullivan's appointment thereto was also set aside and O'Sullivan was restored to his position of Captain which he had held prior to the Deputy Chief appointment.
Various other issues were raised below, including alleged Open Public Meeting Act violations in connection with the December 1996 appointment and whether the Council's actions were violative of civil service rules and regulations. On appeal, O'Sullivan contends:
POINT I THE 1996 FORT LEE COUNCIL PROMOTED O'SULLIVAN TO A VALID AND VACANT DEPUTY CHIEF POSITION AND COMPLIED WITH THE CIVIL SERVICE ACT AND ALL OTHER PERTINENT STATE STATUTES IN EFFECTING THE PROMOTION AND THEREFORE THE TRIAL COURT SHOULD HAVE GRANTED SUMMARY JUDGMENT TO O'SULLIVAN ON THESE ISSUES.
POINT II THE 1996 FORT LEE COUNCIL DID NOT VIOLATE THE OPEN MEETINGS ACT IN PROMOTING O'SULLIVAN TO CHIEF OF POLICE AND THEREFORE THE TRIAL COURT SHOULD HAVE GRANTED SUMMARY JUDGMENT TO O'SULLIVAN ON THIS ISSUE.
POINT III THE 1996 FORT LEE COUNCIL COMPLIED WITH THE CIVIL SERVICE ACT AND THE REGULATIONS PROMULGATED THERETO IN PROMOTING O'SULLIVAN TO CHIEF OF POLICE AND THEREFORE THE TRIAL COURT SHOULD HAVE GRANTED SUMMARY JUDGMENT TO O'SULLIVAN ON THIS ISSUE.
POINT IV THE 1997 COUNCIL COULD NOT REMOVE O'SULLIVAN AS CHIEF OF POLICE AND PROMOTE TESSARO TO THAT POSITION WITHOUT GOOD CAUSE AND A HEARING AND THEREFORE THE TRIAL COURT SHOULD HAVE GRANTED SUMMARY JUDGMENT TO O'SULLIVAN ON THIS ISSUE.
POINT V THERE WERE NO MATERIAL ISSUES OF FACT ON THE ALLEGATIONS OF CONFLICTS OF INTEREST IN THE VOTES TO ADOPT ORDINANCE 96-30 OR THE PROMOTION OF O'SULLIVAN AND THEREFORE THE TRIAL COURT SHOULD HAVE GRANTED SUMMARY JUDGMENT TO O'SULLIVAN ON THESE ISSUES.
POINT VI THERE WERE NO GENUINE ISSUES OF MATERIAL FACT ON THE ALLEGATIONS OF AN ILLEGAL CONSPIRACY TO PROMOTE O'SULLIVAN TO CHIEF OF POLICE AND THEREFORE THE TRIAL COURT SHOULD HAVE GRANTED SUMMARY JUDGMENT TO O'SULLIVAN ON THIS ISSUE.
We have considered all of these arguments and the various responses thereto. We are convinced that the motion judge correctly concluded that O'Sullivan's appointment to the position of Deputy Chief was invalid because that position had not been created by ordinance as required by the governing statute, N.J.S.A. 40A:14-118. It was conceded during oral argument by O'Sullivan's counsel that if that is so then his appointment to the Police Chief position cannot stand. We therefore affirm the order returning O'Sullivan to his prior permanent position of Captain on the basis of the motion judge's construction of N.J.S.A. 40A:14-118. In doing so, we do not address the various other issues raised by the parties. Neither do we deem it necessary to engage in a recitation of the rather convoluted procedural and factual history of the present dispute between the parties. Suffice it to say that as of the time of O'Sullivan's appointment to a Deputy Chief position, and according to the then Fort Lee Police Department Organizational Chart, the Department consisted of one Chief, two Deputy Chiefs, four Captains, three Lieutenants, fourteen sergeants, sixty-nine Police Officers, and twenty-four Supervisors. *fn3 The O'Sullivan appointment was to a third Deputy Chief position.
It is unclear whether that position had been created before O'Sullivan's appointment or was created by his appointment. As presented to us, however, the parties seem to agree that the third Deputy Chief position to which O'Sullivan was appointed was created by a resolution pursuant to Ordinance #81-26. That ordinance, apparently adopted in 1981, provided for the establishment of a police department and, as to its "formation and rank," provided in § 2-15.2:
a. The police department shall consist of a chief, and such number of deputy chiefs, inspectors, captains, lieutenants, sergeants, patrolmen and special officers as may be determined from ...