On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-1124-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R.B. Coleman and Graves.
On February 9, 2007, Martin R. Hellwig (Hellwig), Plainfield's Director of Public Affairs and Safety, issued a reassignment order requiring the rotation of the five bureau commanders within the Plainfield Police Division immediately and again every thirty months. Plaintiff Edward G. Santiago (Santiago), then Chief of Police,*fn1 sued Hellwig and the City of Plainfield, arguing the reassignment order violated N.J.S.A. 40A:14-118. N.J.S.A. 40A:14-118 provides, in pertinent part, "the chief of police . . . shall be the head of the police force and . . . shall be directly responsible to the appropriate authority for the efficiency and routine day to day operations thereof." Santiago appeals from an order granting summary judgment in favor of defendants. We affirm.
Santiago argues on appeal that the reassignment order does not create a policy, but rather deprives him of his ability to "oversee and manage the day to day operations"; "to assign and delegate to subordinate personnel"; and "to alter assignments before the expiration of the 30-month period, even with sufficient cause." Santiago relies on Hellwig's deposition testimony that his permission was required for Santiago to change the assignments before the expiration of the thirty month-period. Hellwig also stated at his deposition that the order required his permission before Santiago could return captains to their previous bureaus after thirty months. However, later in his deposition, Hellwig repudiated that statement and testified Santiago did have the authority to make such a reassignment after thirty months without his permission. Santiago contends that Hellwig's inconsistent testimony reflects the "arbitrary, capricious, and unreasonable nature" of the reassignment order.
In Gauntt v. City of Bridgeton, 194 N.J. Super. 468 (App. Div.) certif. denied, 99 N.J. 148 (1984), the plaintiff police chief argued that the Director of the Department of Police and Fire (Director) had interfered with his duties as police chief in violation of N.J.S.A. 40A:14-118, and sought to restrain the Director from exercising powers and performing duties which allegedly could only be exercised and performed by a chief of police. Id. at 472. The Director's alleged intrusions included assigning specific officers and detectives to certain investigations, schools, and training programs, and removing others from other assignments and programs. The trial court found the Director's activities were within his authority and dismissed the police chief's complaint. This court reversed and remanded for the issuance of an injunction to restrain the Director from interfering with the police chief's authority to make "interdivisional assignments and transfers without [the Director's] approval." Id. at 491. We also found that the Director's appointment of the head of the detective division was "an infringement of [the police chief's] authority to prescribe the assignments of all subordinates within his department." Id. at 488.
However, the Supreme Court has stated, "[t]o the extent that Gauntt implies that the chief's power to assign includes the power to designate the head of the detective division, we reject it." Falcone v. De Furia, 103 N.J. 219, 225 (1986). The Court reasoned that "the difference[s] in status, compensation, and duties of a patrol officer and of a detective" demonstrate that "the designation of a detective is more like an appointment or a promotion" by the municipal governing body, rather than an assignment "of a subordinate within the police force" by the chief. Id. at 224.
Similarly, in Hawthorne PBA Local 200 v. Borough of Hawthorne, 400 N.J. Super. 51 (App. Div. 2008), this court upheld the validity of an ordinance that granted the mayor the power to appoint and promote police officers. Id. at 59-60. The court found that by enacting N.J.S.A. 40A:14-118, "[t]he Legislature has vested municipal authorities with the discretion to determine the powers, duties, functions, and efficient operation of police departments." Id. at 60 (citing In re Jersey City v. Jersey City Police Officers Benevolent Ass'n, 154 N.J. 555, 572 (1998)). Accordingly, we determined that the decision by the borough "to authorize the mayor . . . to appoint and promote police officers [was] a valid exercise of municipal discretion." Ibid.
We therefore conclude that Falcone, supra, 103 N.J. at 225, and Hawthorne PBA Local 200, supra, 400 N.J. Super. at 60, have substantially undermined Gauntt, supra, 194 N.J. Super. at 491, which held that the Director's acts of ordering interdivisional assignments and transfers of specific officers exceeded the scope of the Director's authority. Moreover, in Falcone, the Court held that the designation of the head of a detective division "should be viewed not as an assignment" by a police chief, "but as an appointment or promotion" by the governing body of a municipality. Falcone, supra, 103 N.J. at 225.
In this case, the court found that the reassignment order requiring the rotation of the bureau commanders immediately and again every thirty months did not interfere with the day-to-day operations of the police division, but instead established a policy. As the court stated, "one of the goals of the statute [N.J.S.A. 40A:14-118] was to eliminate or prohibit undue interference, and . . . the operative word here is undue." The court also found Gauntt offered a good example of when the statute is violated: "the person who was making the decision actually made the assignments of individual police officers to the school, just totally took over that function of the police [chief], making the decision as to who would go to school and when and what for."
Moreover, the court observed that the reassignment order issued by Hellwig did not require "specific officers . . . to be reassigned" to new positions, but rather it "was applicable to all of [the bureau commanders]." The judge ultimately determined that the reassignment order "does not so clearly violate the statute in question as to provide a basis for [a] permanent injunction in this case."
As the motion judge correctly concluded, the reassignment order did not restrict Santiago's authority to decide which officers to place in which positions, but only required the rotation of the bureau commanders immediately and again every thirty months. Accordingly, the reassignment order established a general policy that did not interfere with the routine day-today operations of the police department, and the challenged order did not violate N.J.S.A. 40A:14-118. Consequently, there was no valid basis ...