On appeal from Superior Court of New Jersey, Law Division, Gloucester County, L-2258-99.
Before Judges Keefe, Eichen and Steinberg.
The opinion of the court was delivered by: Keefe, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Defendant Gerald Luongo, who at the time relevant to this appeal was the mayor of the Township of Washington, appeals from the entry of summary judgment holding, in essence, that his appointment of an interim Chief of Police (Interim Chief) was void. The judgment under review has been stayed pending appeal.
The material facts are undisputed. The Township of Washington has a form of government established in accordance with the Faulkner Act. N.J.S.A. 40:69A-26 to - 210. The Washington Township Code (Township Code) provides in §§2-9.2 and 2-9.3 that the Director of Public Safety (Director) shall also be the Chief of Police.
On November 23, 1999, the Director/Chief of Police, Wilbert Sowney, announced his retirement. His resignation as Director/Chief of Police was effective on December 1, 1999. When he retired both positions were left vacant. On November 30, 1999, Mayor Luongo appointed Edmund Giordano the Interim Chief, effective December 1, 1999. Giordano had served in the Washington Township Police Department (Police Department) for over twenty years and was promoted to Interim Chief from the rank of corporal. No appointment was made to the position of Director.
At the time, plaintiff, James R. Murphy, was the Deputy Chief of Police (Deputy Chief). He had served in that position since 1995, having succeeded Frank J. Toma. Toma had served in that position since August 4, 1983. According to the record, the Washington Township Council (Township Council) appointed Toma as Deputy Chief.
Following the appointment of Giordano as Interim Chief, Mayor Luongo eliminated the position of Deputy Chief. Murphy was informed he would be returned to the rank of lieutenant. Within two weeks, Murphy's pay was reinstated at the level of Deputy Chief, though he remained a lieutenant. Presumably, in response to the actions taken by the Mayor, the Township Council passed a resolution on December 16, 1999, stating:
NOW THEREFORE, BE IT RESOLVED by Washington Township Council on the 16th day of December, 1999 that Council recognizes that under Statute, Code, and policy, the Deputy Chief of Police is the office and person to act in the absence of the Chief of Police negating the necessity for any appointment by either Mayor or Council for an "interim" or "acting" Chief.
BE IT FURTHER RESOLVED that without conceding that the Mayor or Council has the power or ability to appoint an "interim" or "acting" Chief, that any consent, actual, express or implied, is specifically withheld and denied by Council as to any attempted action by the Mayor to appoint an "interim" or "acting" Chief of Police by the Mayor.
BE IT FURTHER RESOLVED that any personnel or department changes made by any person under the auspices of being the "acting" or "interim" Chief as erroneously appointed by the Mayor are hereby determined and declared to be null and void as if never made.
Murphy filed a complaint on December 23, 1999, in the Law Division, alleging he was wrongfully denied his position, salary, and benefits as Deputy Chief in violation of the Fifth and Fourteenth Amendments of the United States Constitution and in violation of 42 U.S.C. §1983 (count one); that Murphy's liberty interest in his good name and good standing in the community were infringed upon by being deprived of the opportunity to confront the charges against him (count two); that removal from the position of Deputy Chief was done in a manner contrary to N.J.S.A. 40A:14-128 and N.J.S.A. 40A:14-147 in that the Township Council did not provide advice and consent, and the action was done with political motivation and otherwise in bad faith (count three); and the Mayor did not have the required advice and consent of the Township Council to appoint an Interim Chief (count four).
Mayor Luongo moved for summary judgment on counts three and four. The motion judge held that the position of Deputy Chief was not a position provided for by the Police Department Police Manual (Police Manual) to exist within the Police Department, and, therefore, the Mayor's elimination of the position was proper. The judge also ruled that the Police Manual did not provide for the position of ...