Opinion
DOCKET NO. A-1315-12T2
08-19-2013
FRATERNAL ORDER OF POLICE - NEW JERSEY LABOR COUNCIL, INC., on behalf of the PENNSVILLE POLICE OFFICERS' ASSOCIATION, FOP LODGE NO. 6, Plaintiff-Appellant, v. TOWNSHIP OF PENNSVILLE, Defendant-Respondent.
Thomas A. Cushane argued the cause for appellant (The Cushane Law Firm, LLC, attorneys; Mr. Cushane, on the briefs). Walter J. Ray argued the cause for respondent (Masten and Ray, attorneys; Mr. Ray, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Accurso.
On appeal from Superior Court of New Jersey, Chancery Division, Salem County, Docket No. C-10-12.
Thomas A. Cushane argued the cause for appellant (The Cushane Law Firm, LLC, attorneys; Mr. Cushane, on the briefs).
Walter J. Ray argued the cause for respondent (Masten and Ray, attorneys; Mr. Ray, on the brief). PER CURIAM
Plaintiff Fraternal Order Of Police - New Jersey Labor Council, Inc., on behalf of the Pennsville Police Officers' Association, FOP Lodge No. 6 (FOP), appeals from a final order of the Chancery Division dismissing its complaint by which it sought to vacate an arbitration award. We affirm.
This appeal grows out of defendant Township of Pennsville's (Township) reprimand of a Township police officer, Patrolman Michael Gibison, for failure to attend a scheduled grand jury hearing for which he had been subpoenaed. Following an internal affairs investigation, the Township determined that Gibison had violated the Pennsville Police Department's (the Department) Rules and Regulations and issued him a written reprimand, which became a permanent part of his file.
Although acknowledging that the discipline imposed was appropriate and based on just cause, Gibison nevertheless grieved it, contending that he had been denied due process because the Department's Rules and Regulations had not been adopted by municipal ordinance. Following the denial of Gibison's grievance, the FOP filed a petition for grievance arbitration on his behalf before the Public Employment Relations Committee (PERC). The FOP challenged the validity of the Rules and Regulations under which Gibison had been disciplined and sought dismissal of the charge and removal of the written reprimand from Gibison's file.
The parties stipulated before PERC that Pennsville had duly adopted Ordinance A-29-96 (the Ordinance) providing for the creation of the Pennsville Police Department. The Ordinance designates the mayor as the civilian supervisory authority responsible for the overall performance of the police department, and directs that the mayor "shall, at all times, act with the advice and consent of the Township Committee." Twp. of Pennsville, N.J., Ordinance A-29-96, §13A.1-4 (1996). In the section entitled "Rules and Regulations" the Ordinance provides:
In addition to the other requirements of law and this Ordinance, the Police Department and the force shall be governed by the Rules and Regulations adopted by Resolution of the Township Committee. These Rules and Regulations may be amended, revised or repealed from time to time as the Township Committee shall determine by further Resolution.The parties further stipulated that the Pennsville Township Committee had adopted the Department's Rules and Regulations by Resolution No. 87-97.
[Id. at §13A.1-6.]
The matter proceeded to PERC on a stipulated record. Following the submission of briefs, the arbitrator determined that Gibison had not been denied due process because the Department's Rules and Regulations had been adopted by resolution of the Township Committee and not by further ordinance. Relying on several cases of this court and our Supreme Court interpreting N.J.S.A. 40A:14-118, the controlling statute, the arbitrator determined that the Township could validly adopt the Department's Rules and Regulations by resolution as expressly contemplated by Ordinance A-29-96, and that no separate ordinance was required. The arbitrator declined to consider, as unnecessary, Pennsville's alternate argument that Gibison's conduct constituted misconduct punishable apart from any departmental rule or regulation.
The FOP thereafter filed a verified complaint seeking to set aside the arbitrator's award. After hearing argument, Judge McDonnell found that the several cases interpreting N.J.S.A. 40A:14-118 clearly provide that an ordinance establishing a police department may designate a mayor as the appropriate supervisory civilian authority and need not require the adoption by ordinance of rules and regulations for the government of the force and the discipline of its members. She further found that the only way for the mayor of Pennsville to adopt and promulgate such rules and regulations "in a manner that would acknowledge their enforceability" was through a resolution by the governing body of the municipality. Finding therefore that Gibison had been disciplined pursuant to Rules and Regulations validly enacted, Judge McDonnell dismissed the FOP's complaint. This appeal followed.
A court may set aside a public-sector arbitration award only for the limited grounds specified in the Arbitration Act, N.J.S.A. 2A:24-8, or because the award is contrary to public policy, or a result of a mistake of law. Policeman's Benevolent Ass'n, Local 292 v. Borough of N. Haledon, 158 N.J. 392, 400-01 (1999). The FOP contends that both the arbitrator and the Chancery judge erred in holding that N.J.S.A. 40A:14-118 permits the promulgation of a municipal police department's rules and regulations by resolution instead of by ordinance.
N.J.S.A. 40A:14-118 provides in pertinent 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.
Although our review of the Chancery Division's interpretation of statutes is de novo, In re Liquidation of Integrity Ins. Co., 193 N.J. 86, 94 (2007), this question will not long detain us. Our Supreme Court determined nearly forty years ago that N.J.S.A. 40:14-118 empowers the governing body of a municipality to adopt an ordinance establishing a police department and delegating to others the authority to prepare rules and regulations for the control of that department and the discipline of its members, which the governing body could adopt, and subsequently change or modify, by resolution. Jansco v. Waldron, 70 N.J. 320, 326-27 (1976). In Jansco, the Court upheld Trenton's ordinance creating its police department and providing for the creation of rules and regulations for its operation. The City's Ordinance delegated the responsibility for promulgating the rules and regulations for the operation of the department to the Director of Public Safety, subject to the mayor's approval. Although not required by the ordinance, the City's governing body subsequently adopted, by resolution, the rules and regulations prepared by its Director of Public Safety. Id. at 327. Writing for a unanimous Court, Justice Sullivan stated "[w]e find the foregoing procedure to have been consistent with the statutory authorization." Ibid.
N.J.S.A. 40:14-118 has since been amended. The amendments, however, ratified the Court's decision in Jansco that a municipal government was free to adopt an ordinance providing for the promulgation of rules and regulations for its police department other than by subsequent ordinance. See Reuter v. Borough Council of Fort Lee, 167 N.J. 38, 46-47 (2001) (LaVecchia, J., concurring and dissenting).
A long line of cases has since reaffirmed the authority of a governing body under N.J.S.A. 40A:14-118 to adopt an ordinance allowing for the subsequent creation of rules and regulations for the operation of its police force without separate ordinance. See, e.g., Grubb v. Borough of Hightstown, 353 N.J. Super. 333, 350 (App. Div. 2002) (approving an ordinance allowing for the adoption by resolution of rules and regulations for the government and discipline of the police department); Marjarum v. Township of Hamilton, 336 N.J. Super. 85, 98-99 (2000) (acknowledging the Township's ability to enact an ordinance allowing the director of public safety to promulgate rules and regulations for the police department subject to approval by the mayor but invalidating the regulations because the Township did not have a director of public safety at the time the regulations were adopted), and Hartmann v. Police Dep't of Ridgewood, 258 N.J. Super. 32, 38 (App. Div. 1992) (approving an ordinance empowering the chief of police to adopt rules and regulations governing conduct within the police department subject to approval of the village manager). Accordingly, we agree with Judge McDonnell who affirmed the arbitrator's conclusion that N.J.S.A. 40A:14-118 permitted Pennsville to promulgate the challenged Rules and Regulations by Resolution No. 87-97.
The FOP in its brief cites only the Law Division opinion in Grubb v. Borough of Hightstown, 331 N.J. Super. 398 (Law Div. 2000), which may account for some of its confusion on this point. That opinion did not address the issue of the validity of the regulations under which Grubb was disciplined, which we resolved in the Borough's favor in a subsequent opinion reported at Grubb, supra, 353 N.J. Super. at 350-51.
The FOP's remaining point, that Pennsville's ordinance contravenes N.J.S.A. 40:14-118 by designating the Township's mayor as the "appropriate authority" responsible for the overall performance of the police department while simultaneously designating the Township Committee as the body responsible for adoption of the Department's Rules and Regulations, is likewise specious.
Pennsville is organized under a township form of government. N.J.S.A. 40A:63-1. The members of the Township Committee are elected at large and those members at their annual meeting
elect one of their number as chairman of the committee, who shall preside at all meetings of the township committee and who shall be known as the mayor of the township. The mayor shall have no additional authority by virtue of such designation, except as otherwise provided by law or this act.Pennsville's Ordinance A-29-96 creating its police department expressly provides that:
[N.J.S.A. 40A:63-3(f).]
The Mayor of the Township of Pennsville shall be designated as the "appropriateOrdinance A-29-96 further provides:
authority" as provided for in [N.J.S.A. 40A:14-118] as set forth in the preamble of this Ordinance. The Mayor shall be responsible for the overall performance of the Police Department, and he shall, at all times, act with the advice and consent of the Township Committee.
[Ordinance A-29-96 at §13A.1-4 (emphasis added).]
In addition to the other requirements of law and this Ordinance, the Police Department and the force shall be governed by the Rules and Regulations adopted by Resolution of the Township Committee. These Rules and Regulations may be amended, revised or repealed from time to time as the Township Committee shall determine by further Resolution.
[Id. at §13A.1-6.]
There is no dispute that the Township Committee, with the mayor participating, voted to approve Resolution No. 87-97 adopting the Rules and Regulations under which Gibison was disciplined. Far from being ultra vires, the mayor's action was consistent with his statutory authority and the requirements of Ordinance A-29-96. Like Judge McDonnell, we fail to see how the mayor could have acted to promulgate the Rules and Regulations governing the Department except through resolution by the Township Committee of which he is a member. The FOP's contention that the mayor is "an altogether different body" than the Township Committee of which he is a member is simply wrong.
As Patrolman Gibison was disciplined under Department Rules and Regulations validly enacted by the Township of Pennsville in accordance with N.J.S.A. 40A:14-118, we need not reach the Township's alternate argument that Gibison's failure to appear before the grand jury in response to a subpoena constituted misconduct punishable without reference to the violation of any particular Department Rule or Regulation.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION