On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-900-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...