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In re Referendum Petition to Repeal Ordinance 04-75

October 25, 2006

IN RE REFERENDUM PETITION TO REPEAL ORDINANCE 04-75


On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Mercer County, L-2716-04.

The opinion of the court was delivered by: Kestin, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted: February 7, 2006

Before Judges Kestin, Lefelt and Hoens.

The question posed in this matter involves the operational validity of petitions seeking the rejection by referendum, pursuant to N.J.S.A. 40:69A-185, of Ordinance 04-75 adopted by the Trenton City Council, establishing a table of organization for the police department. The litigation began with a declaratory judgment complaint filed by the Mayor and Council (collectively, plaintiffs), challenging a referendum petition that had been certified as complying with the requirements of N.J.S.A. 40:69A-185 and as a result of which the municipal clerk had ordered the question placed on the ballot. The Law Division held a portion of Ordinance 04-75 "not subject to the referendum provisions set forth in N.J.S.A. 40:69A-185[,]" and another portion of the same ordinance "subject to ratification by the voters as set forth in N.J.S.A. 40A:9-165." The committee of citizens that sponsored the petitions and a taxpayer member (collectively, the Committee) appeal from the first of these rulings. In addition to challenging the trial court's ruling, the Committee also argues that the ordinance is facially invalid.

The section of the ordinance the trial court held not subject to referendum, involving a new "table of organization" for Trenton's Police Department (Department), effectively eliminated the position of deputy chief of police, resulting in the layoff or demotion of three individuals; and restructured the ranks of the Department, allowing for a minimum and maximum number of available positions within those ranks, i.e., staffing ranges. The section of the ordinance the trial court held to be subject to referendum approval dealt with a salary increase for the position of Chief of Administrative Services.

We hold the trial court erred in its ruling that a portion of the ordinance is not subject to referendum. Accordingly, we reverse and remand for the entry of an order and judgment containing appropriate provisions for the scheduling of the required referendum.

In order to establish the context of the questions before us, we briefly review the history of Trenton's police department ordinances. Before June 1999, subsection 2-9.2 of Trenton's ordinances established a Division of Police within the City's Department of Public Safety. In addition to the Chief of Police, there were to be three deputy chiefs, ten captains, twenty-five lieutenants, twenty-four sergeants, and other officers as needed. The Division of Police was to be organized according to a table of organization prescribed by the Chief of Police with the approval of the Director of Public Safety and the Mayor.

At a special election on June 22, 1999, the voters adopted ordinance 99-52 by referendum. That ordinance, inter alia, amended section 2-9 of the Revised General Ordinances (Public Safety), eliminating the Chief of Police position and the Department of Public Safety, and creating a separate police department with a civilian police director to be appointed by the mayor. Subsection 2-9.1 as amended established a police department with the Police Director at its head. Subsection 2-9.2 provided that the Police Director was responsible for the day-to-day operations of the police department with the authority to:

a. Organize the department according to such table of organization as (s)he shall deem necessary and appropriate;

b. Adopt and promulgate such policies as are necessary and appropriate for the divisions within the department;

c. Adopt and promulgate rules and regulations for the government of the divisions under his/her supervision and for the discipline of their members;

d. Prescribe the duties and assignments of all subordinates and other personnel; and

e. Adopt and promulgate standard operating procedures for the efficient operation of the department.

Ordinance 99-52 also provided that "[t]he current text of Section 2.9 (Public Safety) is hereby repealed, but nothing in this ordinance shall be deemed to impinge on the ability of the Mayor and the City Council to adopt any future ordinance giving new powers and duties not inconsistent with this ordinance." In 2003, subsections 2-9.1 and 2-9.2 were redesignated as Sections 2-56 and 2-57, respectively.

On January 29, 2004, the Police Director issued General Order 2004-03, which "set forth a proposed reorganizational plan for the City of Trenton Police Department and a table of organization that included the elimination of three deputy chief positions." In a letter dated March 24, 2004 to the State Department of Personnel, Trenton's Personnel Officer explained that the proposal to abolish the rank of deputy police chief and to lay off the three existing deputy police chiefs was necessary in order to "increase the efficiency of the Police Department" ...


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