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Loigman v. Township Committee of the Township of Middletown

August 5, 2009

LARRY LOIGMAN, PLAINTIFF-RESPONDENT,
v.
TOWNSHIP COMMITTEE OF THE TOWNSHIP OF MIDDLETOWN AND TOWNSHIP OF MIDDLETOWN, DEFENDANTS-APPELLANTS, AND MIDDLETOWN POLICE BENEVOLENT SOCIETY, MIDDLETOWN SUPERIOR OFFICERS ASSOCIATION, DEFENDANTS/INTERVENERS-RESPONDENTS, AND LT. BEST, SGT. SHAFFERY, SGT. DOLLINGER, SGT. MAGUIRE, SGT. DEICKMANN JR., SGT. TEREFENKO, DEFENDANTS/INTERVENERS, LT. WEBER AND DEPUTY CHIEF HANNAFEY, DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket NO. L-1570-06.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued March 16, 2009

Before Judges Lisa, Sapp-Peterson and Alvarez.

The dispositive issue in this appeal concerns the validity of the Middletown Township (Township) ordinance creating a police department. The trial court held that the ordinance did not comply with N.J.S.A. 40A:14-118, as interpreted in Reuter v. Borough Council of Fort Lee, 328 N.J. Super. 547, 554 (App. Div. 2000), aff'd in part, rev'd in part, 167 N.J. 38 (2001), because it did not contain a description of the duties of the various ranks or an organizational chart specifying a line of authority within the police department. We disagree and reverse.

In Reuter, the Supreme Court affirmed this court's decision that "the type and number of police positions [must be] created by ordinance." Reuter, supra, 167 N.J. at 41. The underlying rationale for that determination rested primarily on the fact that, because of the importance and cost of police positions, the positions should be created only through the formality and public involvement attendant to the adoption of an ordinance, as opposed to merely a resolution, and to inform the public of the approximate cost, based upon the maximum number of officers within each rank. Reuter, supra, 328 N.J. Super. at 553.

In the aftermath of the Reuter decisions, the Township amended its police ordinance to specify the order of rank and maximum number of officers within each rank. As amended, the ordinance provided for no more than the following within each rank: chief (1), deputy chief (2), captain (1), lieutenant (10), sergeant (13), patrol officer (81).

In March 2006, the Township again amended the ordinance.

The primary purpose of the amendment was to add to the "Organizational Structure" section of the ordinance a third entity to be known as the "Professional Standards Division," and to specify its functions. The two pre-existing divisions were the "Uniformed Division" and the "Technical Services Division." This ordinance, designated Ordinance No. 2006-2859, also amended the authorized membership of the department to delete the rank of captain, to increase the maximum number of deputy chiefs to three, and to reduce the maximum number of lieutenants to nine.

Prior to the introduction of Ordinance No. 2006-2859, consideration of the creation of the Professional Standards Division was discussed at a Township Committee meeting to which the public was not invited. Plaintiff filed this action on April 5, 2006. His original complaint contained four counts. The first two alleged violations of the Open Public Meetings Act, N.J.S.A. 10:4-6 to -21, and the third and fourth counts sought disclosure of records pursuant to the Open Public Records Act, N.J.S.A. 47:1A-1 to -13. Those counts were ultimately dismissed, and plaintiff has not cross-appealed from their dismissal.*fn1

Soon after filing his original complaint, plaintiff filed an amended complaint adding a fifth count, alleging that on April 17, 2006, the Township Administrator, acting as the Township's appointing authority, made certain promotional appointments pursuant to Ordinance No. 2006-2859 to the positions of deputy police chief and lieutenant. He alleged that Ordinance No. 2006-2859 did not comply with the requirements of Reuter, as a result of which "[s]ome of the appointments made by the appointing authority were to positions not created by a valid ordinance prior to the appointment." He sought judgment voiding such appointments.

On July 13, 2006, the court granted summary judgment to plaintiff on the fifth count. The circumstance that gave rise to that order dealt solely with the number of authorized officers within each rank with relation to the promotions made. The decision had nothing to do with the absence in the ordinance of an organizational chart or a description of the duties of the officers within each rank.

More particularly, this is what happened. A lieutenant had put in for retirement and was on "terminal leave," using accrued leave time prior to his actual retirement date. Another lieutenant was promoted to the new deputy chief position created by Ordinance No. 2006-2859. Two sergeants were promoted to the rank of lieutenant. One filled the vacancy of the individual who was promoted to deputy chief. The other filled the position of the lieutenant out on terminal leave. The court concluded that the ordinance authorized only nine lieutenant positions and, including the individual on terminal leave, there were currently ten lieutenants in the department.

To remedy the situation, in August 2006, the Township adopted another amendatory ordinance, Ordinance No. 2006-2889, which referenced in its preambles the litigation and order of the court. The ordinance added a section authorizing the permanent appointment of an officer to replace not more than one sergeant or one lieutenant no longer on active service who is on terminal leave pending resignation or retirement.

Plaintiff then expanded his Reuter argument. In an amended pretrial order of December 18, 2006, plaintiff's contention was broadened to contend that the ordinance was noncompliant with the Reuter requirements because it "does not delineate a table of organization or the duties of each position listed." The trial court ultimately agreed, based upon comments in this court's Reuter decision stating that an ordinance creating a police department "must establish the 'line of authority,' i.e., organizational chart, and, when it is determined such positions are necessary, provide for the appointment of a Chief and other department personnel. The ordinance must also establish the terms of office, compensation, and responsibility." Reuter, supra, 328 N.J. Super. at 554. The "line of authority" reference is from the enabling statute, N.J.S.A. 40A:14-118, which provides in relevant part:

The governing body of any municipality, by ordinance, may create and establish, as an executive and enforcement function of municipal government, a police force, whether as a department or as a division, bureau or other agency thereof, and provide for the maintenance, regulation and control thereof. Any such ordinance shall, in a manner 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. The ordinance may provide for the appointment of a chief of police and such members, officers and personnel as shall be deemed necessary, the determination of their terms of office, the fixing of their compensation and the prescription of their powers, functions and duties, all as the governing body shall deem necessary for the effective government of the force. Any such ordinance, or rules and regulations, shall provide that the chief of police, if such position is established, shall be the head of the police force and that he shall be directly responsible to the appropriate authority for the efficiency and routine day to day operations thereof, and that he shall, pursuant to policies established by the appropriate authority:

a. Administer and enforce rules and regulations...;

b. Have, exercise, and discharge the functions, powers and duties of the force;

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

d. Delegate such of his authority as he may deem necessary...; and

e. Report at least monthly to the appropriate authority....

As used in this section, "appropriate authority" means the mayor, manager, or such other appropriate executive or administrative officer....

Except as provided herein, the municipal governing body and individual members thereof shall act in all matters relating to the police function in the municipality as a body, or through the appropriate authority if other than the governing body.

....

[Emphasis added.]

The Township ordinance designated the Township Administrator as the "appropriate authority" pursuant to N.J.S.A. 40A:14-118. We think it helpful here to set forth at length the relevant portions of the ordinance, as amended by Ordinance No. 2006-2859 and Ordinance No. ...


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