Opinion
DOCKET NO. A-1353-13T2
05-04-2015
CAPTAIN AND FORMER ACTING CHIEF RAYMOND COX, Plaintiff-Respondent, v. JENNIFER BLUMENTHAL, CITY MANAGER, and THE CITY OF BRIGANTINE, Defendants-Appellants.
Eric M. Bernstein & Associates, L.L.C., attorneys for appellants (Mr. Bernstein, of counsel; Mollie F. Hartman, on the brief). Jacobs & Barbone, P.A., attorneys for respondent (Louis M. Barbone, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Ashrafi, and O'Connor. On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-3514-13. Eric M. Bernstein & Associates, L.L.C., attorneys for appellants (Mr. Bernstein, of counsel; Mollie F. Hartman, on the brief). Jacobs & Barbone, P.A., attorneys for respondent (Louis M. Barbone, on the brief). PER CURIAM
Defendants City of Brigantine and its City Manager, Jennifer Blumenthal, appeal by our leave from an interlocutory order of the Law Division granting partial summary judgment to plaintiff Raymond Cox and ordering that he be reinstated as Acting Chief of Police of Brigantine until a new Chief is appointed. We affirm in part and reverse in part.
The City of Brigantine operates under the council-manager form of municipal government pursuant to N.J.S.A. 40:69A-81 to -98. The City Manager is appointed by the City Council. See N.J.S.A. 40:69A-89 to -93. Her powers and duties are enumerated in N.J.S.A. 40:69A-95.
The pertinent facts are not in dispute. Plaintiff has been a member of the Brigantine Police Department since 1990. He was promoted over the years and has held the rank of Captain since 2009. In 2013, the Chief of Police, John Stone, took a terminal leave of absence leading to his retirement at the end of September 2013. Chief Stone's April 3, 2013 memorandum notified City Manager Blumenthal that he was appointing plaintiff to serve as Acting Chief of Police in his absence effective April 19, 2013, and "until you promote the next Chief of Police." Blumenthal did not object to the temporary appointment.
On his first day as Acting Chief, plaintiff issued a memorandum to the department advising its members of his command and reaffirming all the orders already in effect for the department. On April 29, 2013, while Blumenthal was away on vacation, plaintiff made four temporary appointments of supervisory officers into "acting out of title" promotional assignments.
Upon her return, Blumenthal did not agree with those appointments and stripped plaintiff of his temporary assignment as Acting Chief. Blumenthal's May 14, 2013 memorandum to plaintiff stated:
Please be advised that after a review of the issues involving your filing [sic] of various titles on an acting basis within the Police Department in contravention of my instructions not to do so while I was on vacation and without my approval, your designation as Acting Police Chief is hereby rescinded effective immediately and you are returned to the rank of Captain. Furthermore, all of the other acting appointments made by you are hereby rescinded, as well, effective immediately.
On June 28, 2013, plaintiff filed a complaint in lieu of prerogative writs in the Law Division alleging in the first count that Blumenthal's action was a demotion of him in violation of Brigantine Police Department rules and regulations, the New Jersey Administrative Code, and N.J.S.A. 40A:14-147, and seeking his reinstatement as Acting Chief. The second count of the complaint alleged violation of New Jersey's Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, and sought both injunctive relief and money damages.
After filing his complaint, plaintiff immediately moved for partial summary judgment on the first count. The Law Division heard oral argument and granted the motion by written decision and order dated October 28, 2013. Defendants were ordered to reinstate plaintiff "as the Acting Chief of Police until a new Chief of Police is hired; or until Captain Cox is removed from that position in accordance with N.J.S.A. 40A:14-147." The court also ordered that plaintiff receive "differential in back pay from the time he was removed as Acting Chief of Police." Defendants filed a notice of appeal and subsequently a motion for leave to appeal, which we granted on March 7, 2014.
On review of a summary judgment, we apply the same standard under Brill v. Guardian Life Insurance Company of America, 142 N.J. 520, 540 (1995), as applicable in the trial court. Nicholas v. Mynster, 213 N.J. 463, 477-78 (2013); Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012). Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c).
Here, the parties dispute whether plaintiff or defendant Blumenthal had final authority to make temporary appointments of subordinate officers, but resolution of that question is not determinative of the legal issues before us. There are no genuine factual disputes with respect to application of the relevant statutes and local regulations that apply to plaintiff's appointment and removal as Acting Chief.
The trial court held that N.J.S.A. 40A:14-147 restricts the City Manager's power to remove plaintiff as Acting Chief. The court viewed Blumenthal's action as a demotion of plaintiff and stated that the statute entitles plaintiff to notice of the allegations against him and a hearing, and furthermore requires that "just cause" be established for his removal as Acting Chief. The court relied heavily on another statute, N.J.S.A. 40A:14-118, which establishes the authority of police chiefs, and also relied on case law affording broad protection to police chiefs from outside interference by elected officials and other employees of the municipality. See Gauntt v. Mayor & Council of Bridgeton, 194 N.J. Super. 468 (App. Div.), certif. denied, 99 N.J. 148 (1984). On appeal, defendants argue the trial court erred in its application of N.J.S.A. 40A:14-147 to the position of Acting Chief.
The trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any deference on appeal. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Questions of statutory interpretation are legal questions that we review de novo. Real v. Radir Wheels, Inc., 198 N.J. 511, 524 (2009). The primary goal of statutory interpretation is to determine the Legislature's intent. State v. Rangel, 213 N.J. 500, 508, (2013). When determining legislative intent, we begin by looking to the plain language of the statute, "giving words 'their ordinary meaning and significance.'" Id. at 509 (quoting DiProspero v. Penn, 183 N.J. 477, 492 (2005)). "We do not view words and phrases in isolation but rather in their proper context and in relationship to other parts of a statute, so that meaning can be given to the whole of an enactment." Ibid.
N.J.S.A. 40A:14-147 (hereinafter "section 147") provides in pertinent part:
Except as otherwise provided by law, no permanent member or officer of the police department or force shall be removed from his office, employment or position for political reasons or for any cause other than incapacity, misconduct, or disobedience of rules and regulations established for the government of the police department and force, nor shall such member or officer be suspended, removed, fined or reduced in rank from or in office, employment, or position therein, except for just cause as
hereinbefore provided and then only upon a written complaint setting forth the charge or charges against such member or officer.
Stressing the word "permanent" in the beginning of this statute, defendants contend its plain language does not apply to plaintiff's temporary appointment as Acting Chief of Police. Plaintiff responds that "permanent" only modifies "member or officer of the police department" and not "office, employment or position." He contends "permanent" distinguishes between temporary and permanent employees of the department, not between temporary and permanent positions that a permanent police officer within the department holds.
We agree with plaintiff that the word "permanent" in section 147 means the statute does not protect temporarily employed police officers. There is no dispute that plaintiff is a permanent employee of the Brigantine Police Department. The issue we must decide, however, is whether plaintiff's "office, employment or position" is Acting Chief or Captain.
This court decided that issue fifty-five years ago, and no case or other authority in the intervening years has altered or called into question that decision. Applying the predecessor of section 147, we held in Capibianco v. Civil Service Commission, 60 N.J. Super. 307, 312 (App. Div. 1960), that the statutory protection did not apply to a deputy chief appointed as acting chief while the chief was on a five-month sick leave. In that case, the permanent chief retired before returning to active duty and the deputy chief continued as acting chief. Ibid. After the city took action to fill the chief's position, the acting chief sued and claimed that hiring a new chief would require his demotion and violate the procedural protections to which he was entitled under the statute. Id. at 313-15.
The version of N.J.S.A. 40:47-6 in effect in 1960 is the predecessor statute of section 147 and was essentially the same as the current statute for purposes of the issues we must address.
--------
We rejected the acting chief's arguments, stating that "[a]t best," the plaintiff's assignment "may be construed as nothing more than a temporary appointment to the duties and authority pertaining to the permanent position of chief of police." Id. at 315. "The designation 'acting chief' connotes, in common acceptance, one who acts in place of the chief, but is not the chief himself . . . ." Ibid. We also noted that "acting chief" was not a position that existed in the city's police department, and a letter appointing the plaintiff to that position "cannot be considered as creating such a position," because that could only be done by statute or ordinance. Ibid. We concluded that the statute applies only "to persons holding permanent positions" and is "inapplicable to temporary appointments." Id. at 320. We see no reason to depart from the holding of Capibianco.
The chain of command established for the Brigantine Police Department does not include the position of Acting Chief. Section 3-44(B) of Brigantine's ordinances lists the ranks and positions in the police department. It does not list any acting positions. The position plaintiff seeks to maintain is not actually a position within the departmental organization and therefore has no protection under section 147.
Plaintiff remained a Captain while temporarily given additional powers in the Chief's absence. Plaintiff never ceased being a Captain and never became the Chief. The temporary powers granted to plaintiff could be revoked at any time without complying with the requirements of section 147.
Plaintiff argues that section 147 restricts removal or demotion of a permanent member of the department even from a temporary assignment, but this argument cannot be a correct reading of the statute. If it were, even Chief Stone could not remove plaintiff from his temporary position as Acting Chief without meeting the requirements of section 147. Moreover, the "acting out of title" assignments that plaintiff himself made on April 29, 2013, would be irrevocable if he became dissatisfied with the performance of one of the appointed officers, and he would have to establish "just cause" for the termination of those designations. If the word "acting" does not mean that the officer has no claim to the position, and no claim to the protections of section 147, then police chiefs and other municipal officials would be strictly limited in operating the department whenever a superior officer was absent from duty and another officer was needed to perform the duties of the superior officer.
The trial court relied heavily on the legislative history of N.J.S.A. 40A:14-118 (hereinafter "section 118"), and plaintiff also seizes upon that statute to argue that the Legislature intended a broad application of section 147. The legislative history of a different statute, however, does not aid in understanding the scope of section 147.
Because the current versions of the two statutes were enacted years apart, the legislative history of one cannot properly be used to show the Legislature's intent in enacting the other. A version of section 147 has been in force since 1917, L. 1917, c. 152, Art. XVI, § 3, and has seen little substantive amendment over the years. Amendments made in 1981 to section 118 shed little light on the Legislature's intent in enacting section 147. See also Gauntt, supra, 194 N.J. Super. at 480-85 (discussing the previous version of N.J.S.A. 40A:14-118 and the history of 1981 amendments to that statute).
Plaintiff also argues that his removal as Acting Chief was a removal or demotion under Article X of the Brigantine Police Manual, which also entitled him to notice and a hearing. We disagree. Nowhere does Article X state it applies to temporary appointments. Like section 147, the local regulation only applies to a permanent title.
We conclude that Brigantine was not required to comply with the requirements of section 147 to rescind plaintiff's temporary appointment as Acting Chief. The trial court mistakenly ordered plaintiff's reinstatement under that statute.
That conclusion, however, does not end our analysis. We also conclude that section 118 restricted City Manager Blumenthal's authority to remove plaintiff from his temporary appointment as long as Chief Stone remained the Chief and did not take that action himself.
Under Brigantine ordinance section 3-23(A)(3), the City Manager has the power to "[a]ppoint and remove . . . all department heads and all other officers, subordinates, and assistants . . . ." This power, however, cannot supersede a statute that also addresses the powers of a police chief. Section 118 provides in part that the chief of police shall:
pursuant to policies established by the appropriate authority:Blumenthal infringed on Chief Stone's authority as established by these provisions when she countermanded his order delegating the powers and authority of police chief to plaintiff.
. . . .
c. Prescribe the duties and assignments of all subordinates and other personnel;
d. Delegate such of his authority as he may deem necessary for the efficient operation of the force to be exercised under his direction and supervision . . . .
Section 118 removes city officials from the operations of the police department when the police chief acts to delegate his authority. In Gauntt, supra, 194 N.J. Super. at 471-72, 490-91, a police chief sued to prevent a number of intrusions on his authority by various town officials. Among his complaints was that the director of public safety in the municipality appointed an officer to be acting chief while the chief was away on vacation. Id. at 490-91. We agreed that such an appointment infringed on the chief's right under section 118(d) to delegate authority. Ibid.
Chief Stone's delegation of powers and duties was authorized by section 118(d). He had the authority to determine which subordinate officer would act in his absence while he was on leave. Defendants have not pointed to any policy established by Brigantine that prevented Chief Stone from exercising that authority.
Defendants could not revoke the delegation without Chief Stone's participation or without otherwise disqualifying plaintiff from holding the temporary position, such as through the procedures and substantive provisions of section 147. The trial court was correct to return plaintiff to the temporary position of Acting Chief so long as Chief Stone remained the permanent Chief and had not rescinded his April 3, 2013 order.
But the trial court erred in extending the reinstatement beyond Chief Stone's tenure as Chief. The sole source of plaintiff's authority as Acting Chief was Chief Stone's memorandum that delegated his powers and duties to plaintiff. Chief Stone did not and could not appoint plaintiff to a new position. He merely exercised his power under section 118 as well as Brigantine ordinance section 3-44(C), which provides:
The subordinate officers, in order of rank and designation and according to the priority among offices of equal rank so established by the Chief of Police, the Director of Public Safety and the [City] Manager, shall assume the command of the Department of Police in the absence of the Chief of Police. . . .Chief Stone's memorandum in effect "set a priority among" the Captains to determine that plaintiff would assume command in the Chief's absence.
However, once Chief Stone retired as of October 1, 2013, he no longer had any powers and duties to delegate to plaintiff or any other officer in the department. He had no authority to name an Acting Chief beyond the time of his own service as Chief. After Stone's retirement, there was no longer any conflict between section 118 and the powers granted to Blumenthal by the Brigantine ordinance section 3-44(D), which provides that "[v]acancies in all ranks of the Police Department shall be filled by the Manager." As a result of a vacancy in the position of Chief of Police and in the absence of statutory authority of the police chief to delegate his powers, Blumenthal had authority under the local ordinance to replace plaintiff as Acting Chief.
The trial court erred in including in its order of October 28, 2013, that plaintiff was entitled to remain as Acting Chief until a new permanent Chief is hired. Likewise, it erred in granting plaintiff differential pay beyond the September 30, 2013 retirement of Chief Stone.
In sum, defendants did not violate section 147 in removing plaintiff from his position as Acting Chief. However, section 118 restricted their authority to countermand the Police Chief's order as long as the Chief retained that position and did not himself rescind the order. Defendants had authority to replace plaintiff as Acting Chief when their action in doing so no longer conflicted with the powers and authority of the Police Chief. Where the Police Chief did not himself rescind his order appointing plaintiff as Acting Chief, plaintiff was entitled to remain in that temporary position until the date of the Chief's retirement.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this decision. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION