On appeal from the Superior Court of New Jersey, Law Division, Passaic County, L-4471-06.
The opinion of the court was delivered by: Winkelstein, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 23, 2008
Before Judges Winkelstein, Yannotti and LeWinn.
In this appeal, the court is asked to decide the validity of an ordinance that authorizes the mayor of the Borough of Hawthorne to appoint and promote Borough police officers. Plaintiff, the officers' collective bargaining representative, claims that police officers may only be appointed and promoted by an ordinance enacted by the governing body, which is the Borough council. The controversy implicates the interplay between the Optional Municipal Charter Law, commonly referred to as the Faulkner Act, N.J.S.A. 40:69A-1 to -210, and N.J.S.A. 40A:14-118, a general law that addresses the creation of municipal police departments and their internal structures. Judge Thomas Brogan found that the ordinance was valid. We agree. We conclude that under the Borough's mayor-council form of government, the governing body may, by ordinance, delegate to the mayor the authority to make appointments to and promotions within the municipal police department.
Chapter 11 of the Borough Code establishes a Department of Public Safety, within which is included, "under the direct supervision and control of the Mayor," both the police department and the fire department. In 1999, the Borough council adopted chapter 44 of the Borough Code, which states that the head of the police department, to be known as the "Chief of Police," would be directly responsible to the mayor as the "appropriate authority." The ordinance vests the mayor with the power to appoint and promote police officers.
On May 17, 2006, the Borough Code was amended by Ordinance 1871-06. The ordinance restated that the head of the police department is the chief of police, who is directly responsible to the mayor as the appropriate authority. Although the ordinance continued to vest the powers of appointment and promotion in the mayor, it placed limits on that authority, precluding the mayor from promoting any member of the police department "to a rank other than the rank immediately succeeding the rank then held by the member." The ordinance also identified the number of persons eligible to hold each rank.
In October 2006, plaintiff filed suit seeking to set aside Ordinance 1871-06, asserting that only the Borough council had the authority to appoint and promote police officers. The Borough responded that appointments and promotions of police officers were an executive function of the mayor, not a legislative function of the Borough council. The Borough further asserted that plaintiff's complaint was procedurally barred, as not having been filed as a prerogative writ action within forty-five days of the passage of the ordinance.
See R. 4:69-6(a) ("[n]o action in lieu of prerogative writs shall be commenced later than 45 days after the accrual of the right to the review").
The trial court addressed the issues on cross-motions for summary judgment. In its oral decision on March 16, 2007, memorialized in an order of that date, the court concluded that appointment of police officers was "a permissible allocation of power to the mayor." The court determined not to dismiss the complaint as untimely, observing that "if there is . . . an improper, or an invalid statute on the books," the complaint challenging that statute should be addressed substantively.
We begin our discussion with the Borough's procedural argument that because plaintiff failed to file a timely action in lieu of prerogative writs, the complaint should be dismissed.
Challenges to municipal action are generally brought by actions in lieu of prerogative writs. See R. 4:69-1 to -7; Pressler, Current N.J. Court Rules, comment 1 on R. 4:69-1 (2008). Even though plaintiff's complaint was not so designated, it may be characterized as such because it challenges the Borough's action in authorizing the mayor to appoint and promote police officers. Consequently, as it is the substantial equivalent of a complaint in lieu of prerogative writs, the Borough claims it should be dismissed because it was filed more than forty-five days after the accrual of the right to review. R. 4:69-6(a).
The trial judge rejected that argument and determined to address the complaint on its merits because it concerns an important public rather than private interest. See R. 4:69-6(c); Borough of Princeton v. Bd. of Chosen Freeholders, County of Mercer, 169 N.J. 135, 152-53 (2001) (appropriate to relax forty-five day time limit for filing the complaint where "important public rather than private interests . . . require adjudication or clarification") (quoting Brunetti v. Borough of New Milford, 68 N.J. 576, 586 (1975)). Judge Brogan's decision to relax the limitations period was a proper ...