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Torres v. Municipal Council of the City of Paterson


June 15, 2007


On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-900-05.

Per curiam.


Argued April 25, 2007

Before Judges Lefelt, Parrillo and Sapp-Peterson.

Plaintiff James Durkin, a Paterson police officer, filed a complaint seeking to block disciplinary proceedings that were referred by the Mayor and brought against him by Paterson's Chief of Police. The disciplinary proceedings charged that Durkin fraudulently continued to report his ex-wife as an eligible dependent so she would qualify for City-paid employment benefits such as health insurance. Durkin appeals from the following rulings by Judge Passero permitting the disciplinary action to proceed: (1) the Town Council could not designate itself as the "appropriate authority" to discipline police officers pursuant to the Optional Municipal Charter Law, N.J.S.A. 40A: 69A-1 to -210, commonly known as the Faulkner Act; (2) any ordinance provisions purporting to appoint the Council as the "appropriate authority" were null and void; (3) Paterson's Police Director was the "appropriate authority"; (4) the 45-day limitation for disciplining police officers, N.J.S.A. 40A:14-147, did not apply to the action against Durkin; (5) Durkin's challenge to the eligibility of the Police Director for appointment to that position was barred by the 45-day limitation of R. 4:69-6; (6) City funds could be expended for attorneys' fees incurred in representing the Mayor, Council, and certain individual defendants who were sued by Durkin in their official capacities; and (7) the various relevant City ordinances, as interpreted by the court, do not preclude disciplinary proceedings from continuing against Durkin. We affirm all of Judge Passero's rulings and remand solely to amend the language in one paragraph of the Order of Judgment.


This dispute began in June 2004 when "a concerned taxpayer" wrote the Mayor and charged that Durkin was "ripping off the city by saying he is married but he's been divorced for a couple of years." An internal affairs investigation at that time disclosed that Durkin married his wife in 1990 and was divorced in 2000. In August of 2004, after Durkin explained that he remarried his wife that same year, the investigation was closed and Durkin "exonerated."

Subsequently, the City discovered that between 2000 and 2004, Durkin never advised the Division of Personnel of his divorce, and his wife remained covered as his spouse under his employment benefit package. In February 2005, the Acting Chief of Police filed charges against Durkin relating to the misrepresentations pertaining to his ex-wife, and sought to suspend Durkin for 180 days.

Durkin filed a complaint in March 2005, seeking restraints against the prosecution of the disciplinary charges. He named as defendants the City of Paterson, the Mayor, Police director, and acting Chief of Police. During consideration of this complaint, the trial court was asked to interpret various ordinances the City had passed in 2003, which were in effect during the investigation and disciplinary action taken against Durkin. The status and meaning of these ordinances became critical to the disposition of Durkin's complaint. Before October 2003, Paterson's governmental structure included a Department of Public Safety, headed by the Public Safety Director, containing a Police Division and a Fire Division. Paterson Ordinance No. 03-060, signed by the Mayor on November 7, 2003, purported to amend Chapter 5 of Paterson's municipal code to eliminate the Public Safety Department, and instead create a separate Department of Police, headed by a Police Director and a Department of Fire, headed by a Fire Director. Under this ordinance, the Police Division would be headed by the Chief of Police, who "shall be directly responsible to the Police Director."

Ordinance No. 03-060 also provided the following new language, as a new subsection 5-75.D., retaining in the City Council "the power pursuant to N.J.S.A. 40A:14-118 to provide for the appointment of committees or commissions to conduct investigations of the operation of the police force . . . or to conduct such hearing or investigation authorized by law." The provision further allowed that nothing was intended to prevent the "appropriate authority" from examining the performance of the police force or of any officer. At the same time that Ordinance No. 03-060 was proposed by Council and signed by the Mayor, Ordinance No. 03-059 followed that same path, purporting to amend Chapter 81 of Paterson's municipal code to make this section consistent with the creation of the Police Department.

Although imprecise language and several clerical errors remained in the final version of the ordinances, all parties agree the major purpose in their passing was to abolish the Department of Public Safety and separate the Police Department from the Fire Department. The amendments were to remove from the pre-existing Public Safety Director the supervisory responsibilities for both of these Departments and, with regard to the police, replace the Public Safety Director with the Police Director as the head of the new Police Department.

In April 2005, about one month after Durkin had filed his complaint trying to stop the disciplinary action against him, the Mayor sued the City Council alleging that by hiring its own attorneys for the Durkin litigation Council was usurping Corporate Counsel's authority. Judge Passero ruled that because of the adversarial positions taken by the Mayor and Council in the litigation, Corporate Counsel was conflicted from representing either branch of government. The court therefore held that both parties could hire their own counsel and in an April 2005 order directed that Council "shall pass a resolution authorizing reasonable payment for said services." As a result, Council hired Stephen Edelstein, Esq., and the Mayor hired Genova Burns & Vernoia, to represent them in the Durkin litigation. In June 2005, the Mayor's suit against Council was consolidated with the Durkin complaint.

Upon consideration of Durkin's application for restraints, the trial court initially restrained the disciplinary action against Durkin and concluded that City Council was the "appropriate authority," as defined by N.J.S.A. 40A:14-118, to bring disciplinary charges against police officers. After conducting a multi-day evidentiary proceeding in July 2005, however, the court found instead that the Faulkner Act's separation of powers structure prevented such a result and that the "appropriate authority" was the Police Director. The court, after interpreting the 2003 amendments to the Paterson ordinances, vacated its restraints and ruled that Durkin was "subject to administrative disciplinary hearings."


In the following discussion, we address each of Durkin's appellate arguments in which he attempts to preclude the disciplinary action from being taken against him.


In Durkin's view, Council was permitted to appoint itself as the appropriate authority. In the alternative, he argues that if the ordinances were conflicted as to which person or entity was the appropriate authority, any disciplinary action against him must be dismissed because Paterson has failed to establish the "appropriate authority."

It is basic municipal law that no township may "contradict a policy the Legislature establishes," and, therefore, "an ordinance will fall if it permits what a statute expressly forbids or forbids what a statute expressly authorizes." Summer v. Twp. of Teaneck, 53 N.J. 548, 554 (1969).

Paterson has adopted the Faulkner Act's mayor-council plan of government. Fitzgerald, Legislative Manual 1019 (2004). This form of government is similar to the federal presidential form as the "concentration of power [is] in the hands of a highly-visible, independently-elected Chief Executive who has substantial power over the administration." McCann v. Clerk of Jersey City, 167 N.J. 311, 330 (2001) (quoting 34 New Jersey Practice, Local Government Law § 4.15, at 107 (Michael A. Pane) (rev. 3d ed. 1999). Under this form of government, "any administrative or executive functions assigned by general law to the governing body shall be exercised by the mayor, and any legislative and investigative functions assigned by general law to the governing body shall be exercised by the council." Mun. Council of Newark v. James, 183 N.J. 361, 364 (2005) (quoting N.J.S.A. 40:69A-32(b)).

Despite the clear separation of powers present in the Faulkner Act's Mayor-Council form of government, Durkin argues that its provisions must give way to the "controlling" language of the applicable "general law" found in N.J.S.A. 40A:14-118. That statute, in pertinent part, establishes that any ordinance creating a police force shall, "consistent with the form of government adopted by the municipality and with general law, provide for a line of authority relating to the police function and for the adoption and promulgation by the appropriate authority of rules and regulations for the government of the force and for the discipline of its members." Ibid.

The statute goes on to define "appropriate authority" as "the mayor, manager, or such other appropriate executive or administrative officer, . . . or the governing body or any designated committee or member thereof." Ibid. The statute requires an ordinance establishing the appropriate authority to do so "in a manner consistent with the degree of separation of executive and administrative powers from the legislative powers provided for in the charter or form of government either adopted by the municipality or under which the governing body operates." Ibid. Furthermore, should a chief of police be established, the chief "shall be the head of the police force and . . . be directly responsible to the appropriate authority for the efficiency and routine day to day operations . . . pursuant to the policies established by the appropriate authority." Ibid.

Considering N.J.S.A. 40A:14-118 within the context of the Faulkner Act, the trial court was completely correct in precluding Council from being the appropriate authority. The governing body in Paterson is not City Council or the Mayor, but rather both component entities. Furthermore, for Council to appoint itself as the appropriate authority would not be consistent with the degree of separation of executive and administrative powers from the legislative powers provided for in Paterson's form of government. As the court correctly found, the general law in N.J.S.A. 40A:4-118 and the Faulkner Act were "not in conflict but are complementary to each other." Miller v. Twp. of Wayne, 154 N.J. Super. 247, 257 (Law Div. 1977); see also Borough of Highlands v. Davis, 124 N.J. Super. 217, 225 (Law Div. 1973).

Furthermore, the trial court's conclusion that the Paterson ordinances should be read to mean that the Police Director is the appropriate authority is consistent with our reasoning in Hartmann v. Police Dept. of Ridgewood, 258 N.J. Super. 32 (App. Div. 1992). In that case, we found that Ridgewood's ordinances gave supervisory authority over the chief of police to the village manager, thereby assigning him the function of the "appropriate authority" even though the term had not been used in the ordinance. Id. at 38-39. Consistent with that role, the ordinance also correctly assigned the village manager the power to hear and determine disciplinary charges brought against a police officer. Id. at 39. Thus, in this case, even though not specifically referred to as such in the ordinances, we agree with Judge Passero, substantially for the reasons he explained, that the Police Director is the appropriate authority.

As we indicated in dictum in Hartmann, we further question "whether the absence of properly adopted disciplinary rules would preclude disciplinary action in this case." Ibid. Considering the high standards of behavior to which this State holds its armed police officers, see In re Phillips, 117 N.J. 567, 576 (1992), a method should be determined to permit disciplinary action to proceed against Durkin, even in the absence of a properly established appropriate authority.


Durkin further argues that the trial court erred by declining to hold that the charges against Durkin were barred by N.J.S.A. 40A:14-147, which precludes the filing of a "complaint charging a violation of the internal rules and regulations . . . later than the 45th day after the date on which the person filing the complaint obtained sufficient information to file the matter upon which the complaint is based." The record does not include a finding that Paterson failed to comply with the 45-day rule. Instead, the trial court concluded that the time period does not apply. We agree.

As the trial court noted, nine of the fourteen charges brought against Durkin dealt not with internal rules and regulations of the police department, but with "misconduct including, but not limited to, other violations, including violations of the criminal laws." In fact, of the fourteen charges, only two related to rule violations. Nine were criminal in nature and one charged insurance fraud. The 45-day time limitation pertains only to disciplinary actions for violations of the department's "internal rules and regulations." N.J.S.A. 40A:14-147.

Durkin claims that because Paterson defines "misconduct" within its internal rules as including the "commission of a crime or an offense" and "violation of departmental rules and regulations," the 45-day limitation pertains. However, Paterson's rules define misconduct as one of the categories of "inappropriate behavior." The rules do not reflect any intention to apply the 45-day statutory time limitation to all types of police conduct that may warrant discipline. In any event, Paterson may not promulgate an ordinance that differs from the statutory provision limiting its application to "internal" rule violations and excluding, for example, discipline for criminal violations, incapacity, other misconduct, and Administrative Code violations. See Summer, supra, 53 N.J. at 554.


Durkin further contends that the trial court erred by holding that the 45-day limitation of R. 4:69-6, governing actions in lieu of prerogative writs, required dismissal of his challenge to Michael Walker's appointment as Police Director. Durkin claims that because Walker was not living in Paterson and had been a captain for less than one year when he was appointed, he failed to meet the qualifications for Police Director. The City counters Durkin's charges by pointing to the ordinance permitting the Director to have equivalent experience and argues that Walker's experience made him the superior candidate and eminently qualified.

We need not deal with this factual dispute because we agree with the trial court that Durkin had adequate notice of the issue relating to Walker's credentials well before he attempted to assert his claim against Walker. A prior action had been brought by the then Police Chief against Walker and was widely publicized. The prior action was dismissed in December, 2004, and Durkin did not press his challenge until March 2005. Therefore, it is not unjust to hold Durkin to the 45-day time limit.

The potential for disruption of the municipality's work would be too great if employees against whom disciplinary charges were filed were perpetually free to challenge their supervisors' appointments. Under such circumstances, application of the 45-day time limit was necessary, and it was not error for the trial court to decline to extend the time frame in the interests of justice. R. 4:69-6(c).


Durkin also argues that the trial court erroneously ordered public funds be expended to pay counsel fees incurred in this dispute by the Mayor and Council. Without any action by Council and during the pendency of this appeal, the trial court found that Council had not abided by the court's prior April 2005 order and directed the City to make payments to the law firms involved in this dispute.

The court reasoned that neither the Mayor nor Council opposed the attorneys' motions seeking payment of their attorneys' fees. Durkin was not privy to the contractual issues regarding the fee claims, he filed no pleading or motion challenging the original hiring of those attorneys, which was only opposed by Council, and he never sought court authority to pursue this claim on behalf of Paterson pursuant to N.J.S.A. 2A:15-18. Furthermore, the City has paid the fees, and Council has not appealed.

Although this appeal was pending at the time Judge Passero ordered the fees paid, Rule 2:9-1 provides for continuing jurisdiction by the trial court "to enforce judgments and orders." By ordering these fees, Judge Passero was enforcing his April 2005 order. For this reason, and the other reasons explained above, we reject this claim.


Finally, we address the several claims of error Durkin advances regarding the various amendments to the Paterson ordinances construed by the court. Durkin argues that the court erred: by voiding ordinance No. 03-059, which purported to amend Chapter 81; by reviving a repealed version of Chapter 81; and by upholding Chapter 5 and substantially rewriting Chapter 5 and the revived Chapter 81.

Preliminarily, we agree completely with the trial court's well founded conclusion that the purported amendments to Chapter 81 were procedurally flawed and too hopelessly confused to stand. The problem was best described by the trial court as relating "to the confusion emanating from the insertion of brackets surrounding many provisions of that Ordinance, the removal of those brackets, the re-insertion of those brackets, the underlining within brackets, and the inconsistency between the published version of the Ordinance and the final version of the Ordinance."

To illustrate this problem, Judge Passero explained that on the first reading, ordinance sections 81-16 and 81-18 each contained "brackets encompassing the entire section." In the newspaper publication that followed, the brackets remained, except for the beginning bracket of section 81-16, which was "an obvious typographical error." On the second and final reading, the brackets remained around the entirety of section 81-18, but had been removed from 81-16. Therefore, the court had virtually no choice but to void the entire amendment to Chapter 81. See Wolf v. Shrewsbury, 182 N.J. Super. 289, 295 (App. Div. 1981), certif. denied, 89 N.J. 440 (1982).

Ordinarily, however, "[t]he repeal of any statute or section of any statute, which statute or section repealed another statute or section of a statute, shall not of itself revive such other statute or section." N.J.S.A. 1:1-3.2; Middlesex County Bar Ass'n v. Parkin, 226 N.J. Super. 387, 392 (App. Div.), certif. denied, 113 N.J. 380 (1988). Paterson's own ordinance § 1-17 provides: "Whenever an ordinance that repeals an earlier ordinance or part thereof is itself repealed, such repeal shall not revive the former ordinance or part thereof, unless specific provision is made therefor."

In contrast, however, "the effect of an unconstitutional amendment is to leave the statute or ordinance in force as it existed prior to the adoption of the amendment." Shaw v. Mayor & Twp. Comm. of Wayne, 65 N.J. Super. 461, 471 (App. Div.), aff'd o.b., 35 N.J. 595 (1961). That is so because a finding of unconstitutionality renders the enactment "a nullity and therefore worked no change in the existing ordinance." Ibid.; see also Borough of Little Ferry v. Bergen County Sewer Auth., 9 N.J. 536, cert. denied, 344 U.S. 865, 73 S.Ct. 105, 97 L.Ed. 670 (1952).

As the trial court noted, because of the confusion emanating from the attempted amendment of Chapter 81, the legislative action was invalid and constituted a nullity. The consequence was similar to a finding of unconstitutionality and therefore revival of the pre-existing Chapter 81 was appropriate.

Durkin specifically contends that Judge Passero unlawfully "appointed itself the Legislative Branch of the City of Paterson" by rewriting the city's ordinances, particularly Chapters 5 and 81. The trial court found that the ordinance amending Chapter 5 did "not suffer from the same fatal defects" that affected Chapter 81, and the differences in language between the version in the first reading and publication as compared to the adopted version were "of a relatively minor nature" that did not require republication. The court reviewed these minor changes, noting that they essentially made the ordinance provision comport with the language of N.J.S.A. 40A:14-118. We agree with this assessment.

The trial court next announced numerous holdings regarding specific changes that it considered necessary for Paterson's ordinances. As set forth in the Order of Judgment, the trial court held as follow:

8. The pre-amended version of the Ordinance pertaining to The Code of Paterson, Chapter 81, Police Division (i.e. the version of the Ordinance which was in effect prior to the October 2003 passage of Ordinance No. 03-059) remains in full force and effect.

9. In the event an Appellate Court reverses any part of this decision and reinstates ordinance No. 03-059, amending Chapter 81, Sections 81-7(B) and (C) are inconsistent with N.J.S.A. 40A:14-118 and Sections 81-13 through 81-25 do not exist.

10. Ordinance No. 03-060, amending The Code of Paterson, Chapter 5, Administration of Government, is hereby held to be valid and in full force and effect.

14. As contained in the City of Paterson Ordinances in effect, the Police Director is hereby the appropriate authority pursuant to N.J.S.A. 40A:14-118.

16. In consideration of this Court's ruling that the Police Director is the appropriate authority pursuant to N.J.S.A. 40A:14-118, the following changes shall be made to the pre-amended version of the Ordinance pertaining to The Code of Paterson, Chapter 81, Police Division (i.e., the version of the Ordinance which was in effect prior to the October 2003 passage of Ordinance No. 03-059) which is the version that presently exists:

(a) In Section 81-7(B), the phrase "prescribed by the Council and the Public Safety Director" is to be replaced with "prescribed by the Police Director."

(b) In Section 81-7(C), the phrase "subject to orders of the Public Safety Director" is to be replaced with "subject to the policies of the Police Director."

(c) In Section 81-16(a), the term "Council" is to be replaced with "Police Director."

(d) In Section 81-16(C), the phrase "not inconsistent with the rules and regulations adopted by the Council" is to be replaced with "not inconsistent with the rules and regulations adopted by the governing body."

(e) Section 81-19, dealing with an officer's salary during a period of suspension after reinstatement, is inconsistent with N.J.S.A. 40A:14-149.2, as that statute provides for the recovery of an officer's salary withheld during an officer's suspension.

(f) Within the sections of Chapter 81, "Public Safety Director" is to be replaced with "Police Director," and "Public Safety Department" is t be replaced with "Police Department."

Before performing judicial surgery to save a particular enactment, a court must determine whether, considering the particular defect involved, the legislative body in question would prefer to have the enactment survive as corrected or die. See Chamber of Commerce v. State, 89 N.J. 131, 152 (1982); N.J. Chamber of Commerce v. N.J. Elec. Law Enforcement Comm'n, 82 N.J. 57, 75 (1980).

In the present matter, the trial court's analysis of what Council would have wanted was sound. The Council affirmatively created the position of Police Director, as the department head of the Police Department, a civilian administrative post overseeing the Chief of Police. The Police Chief was made "directly responsible" to the Police Director, which was the "line of authority related to the police function" contemplated by N.J.S.A. 40A:14-118. The Police Director assumed all police duties previously held by the Director of Public Safety. Under Chapter 81, as it existed before the aborted amendment attempt, the Public Safety Director was in charge of promulgating rules, regulations and orders and of conducting the disciplinary process. Had it been faced with the knowledge that Council could not act solely as the appropriate authority, it seems logical that Council would have preferred that the Police Director fulfill that role. This is so especially because Council, through its ordinance amendments, was trying to ensure that someone would undertake the appropriate authority role and would not have wanted that role to be vacant. If the trial court and this court are incorrect, Council is free to create another committee, body, or designate another appropriate person, to serve that function, consistent of course with Paterson's form of government and N.J.S.A. 40A:14-118.


Accordingly, we affirm the Order of Judgment substantially for the reasons explained by Judge Passero as supplemented by this decision, except for paragraph 16. That paragraph is sound in its reasoning, although unusual in its language. As Durkin argues, and as we are sure the trial court knows, courts are not super-legislative bodies capable of amending statutes or ordinances. We view the particular language contained in paragraph 16 as imprecise, and remand solely to modify that portion of the judgment to reflect that the referenced provisions shall be interpreted "as if" they contained the language set forth by the trial judge. In addition, the judgment shall be corrected to recommend that Paterson amend its ordinances to conform to the judgment's provisions.

In conclusion, except for the minor remand for modification of paragraph 16 of the Order of Judgment, we affirm all other rulings. To the extent we have not specifically mentioned any of Durkin's specific arguments, rest assured they have been carefully considered and rejected as lacking sufficient merit to be included in this opinion. R. 2:11-3(e)(1)(E). Lastly, we commend Judge Passero for a job well done under difficult circumstances.



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