John Reuter v. The Borough Council of the Borough of Fort Lee

JOHN REUTER and BERNARD HART,

Plaintiffs-Respondents,

v.

THE BOROUGH COUNCIL OF THE
BOROUGH OF FORT LEE,

Defendant-Respondent,

and

JOHN ORSO, individually and
as Chief of Police of the
Borough of Fort Lee, NEW
JERSEY DEPARTMENT OF
PERSONNEL and WILLIAM
PEPPARD,

Defendants,

and

JEREMIAH J. O'SULLIVAN,

Defendant-Appellant.

_____________________________

JEREMIAH J. O'SULLIVAN,

Plaintiff-Appellant,

v.

Defendants-Respondents,

and

THE NEW JERSEY DEPARTMENT OF
PERSONNEL,

Defendant.

_______________________________

LaVECCHIA, J., concurring and dissenting.

The majority rightfully recognizes that there has been long-term doubt about the necessity of an ordinance to create new police positions and declines to disrupt appointments to police department positions, like O'Sullivan's appointment to deputy chief, heretofore made by a governing body's resolution instead. Ante at ___ (slip op. at 5). I agree with the majority that O'Sullivan is not precluded from occupying the position of chief of police. However, I disagree with the majority's reading of N.J.S.A. 40A:14-118.
N.J.S.A. 40A:14-118 authorizes the creation of municipal police departments. It was last amended in 1981 and 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. 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.
 

The statute is ambiguous. Two alternative constructions are possible. One construction, embraced by the majority, would require that all positions in a police department be created by ordinance. Another construction, advanced by the Attorney General, acting through the Police Bureau of the Division of Criminal Justice, would allow for creation and changes in positions within police departments to be accomplished by resolution once the police department is established initially by ordinance. Resolutions are, of course, a more flexible tool than ordinances, which require two readings, publication, and hearing before passage. N.J.S.A. 40:49-1. Resolutions, by contrast, may be introduced and passed at the same meeting. Ibid.
Because the Attorney General is charged with overseeing the coordination and guidance of municipal police departments, N.J.S.A. 51:17B-98, -101, -112, or -113, because his interpretation of N.J.S.A. 40A:14-118 is longstanding, and because, as the majority recognizes, positions in many police departments have been created by resolution over the years, I would defer to the Attorney General's construction of the statute and to his policy choice that the resultant flexibility accorded municipal government is desirable. I therefore respectfully dissent.

If such a decision is made, the statute prescribes how the police department is to be created. That must be accomplished by way of an ordinance. The statute further prescribes what the ordinance must minimally contain by the inclusion of the word shall :
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.
 

In 1981 the statute was amended extensively, and prominent in the changes was the above language requiring that the municipal governing body provide by ordinance for an established line of authority between the police department and the governing body. The amendments, it appears, were intended to properly structure the relationship between the police department and the governing body. As the legislative history elucidates, there had been instances of improper influence between local governing bodies, or their individual members, and the local police force:
The Assembly Committee Substitute would clarify the responsibility for the conduct of municipal police forces by providing for a line of authority with respect to the exercise of the police function in municipalities and by providing for the duties and responsibilities of chiefs of police in those instances where that position is established by the municipal governing body.

Despite the seemingly directory language requiring a municipal governing body, in creating a police force, to pass an ordinance that promulgated rules and regulations governing the operation of that department, the Court in Jansco upheld Trenton's ordinance that had delegated that responsibility to the Director of Public Safety subject to the mayor's approval. Jansco, supra, 70 N.J. at 326-27. The Court was sympathetic to the local governing body's argument that it was preferable for it to delegate that important responsibility in order for the police force to operate in a modern and efficient manner. Id. at 327. The delegation was to an official more knowledgeable and able to act responsively to changing needs in police force management. Ibid.
In Jansco, the Court chose a reasonable construction of a statute, whose objective, the Court rightly discerned, is to enable local governing bodies and their police forces to operate sensibly with some flexibility. The Court could have, but chose not to, read the opening reference in the then version of the statute to require the governing body itself, acting only through an ordinance, to take all actions listed in N.J.S.A. 40A:14-118, including the act of promulgating rules and regulations for the police force.
That approach by the Court was ratified by the Legislature in the 1981 amendments. Although the statute previously had required the local governing body, by ordinance, to appoint and to promulgate rules and regulations for the operation of the police department it had created, the amendments to the statute provided differently. Now, a local governing body's ordinance creating a police force shall provide for the adoption and promulgation of rules and regulations for that department, and may provide for the appointment of a chief of police and such members, officers and personnel as shall be deemed necessary . . . . By eliminating the directory language in respect of how the governing body was to act, and by changing adopt and promulgate to provide for the promulgation of, the legislative amendments brought the statute in line with the flexible and practical approach taken by the Court in Jansco. The legislative amendments encompassed similar language for the appointment power as well, changing appoint to provide for the appointment of. That language bespeaks flexibility, including the flexibility to provide that future appointments be by resolution.
The Appellate Division decision principally relies on decisional law that involved challenges to local governing body appointments, but all cases discussed precede the 1986 amendments to N.J.S.A. 40A:14-118, and none involve statutory language akin to that amended statute. Those decisions are not controlling here in my view. I perceive a difference between a statute that authorizes a local governing body actually to appoint such members, officers, and personnel as are deemed necessary for a police force, and a statute that authorizes a local governing body to provide for the appointment of such members, officers, and personnel. The verb appoint, denoting direct action, is not the equivalent of providing for the appointment. Appointment is defined as the act of appointing. Webster's Third New International Dictionary 105 (1981). The statute thus would permit a local governing body to pass an ordinance creating a police force and authorizing the method for the act of appointing members, officers, and personnel. That is precisely the view taken by the Attorney General's Division of Criminal Justice in the longstanding advice it has rendered to municipalities across the state. The Attorney General's construction of the statute is a plausible reading. The Attorney General's interpretation allows for flexibility for local government. The potential for harm to the public apparently feared by the majority if a local governing body were permitted to establish police department positions - officer, member, and civilian positions alike - by resolution instead of by ordinance is not well grounded. Public notice of local government police appointments and scrutiny of local government expenditures on its police force would still occur through the annual appropriation process. See N.J.S.A. 40A:4-8 (requiring all appointments to be set forth annually in municipal budget).
Normally we defer to the interpretation ascribed to a statute by an administrative agency charged with responsibility for assisting in the implementation of the legislative design. Cedar Cove, Inc. v. Stanzione, 122 N.J. 202, 212 (1991) (noting that interpretation of statute is assisted by understanding of agency charged with responsibility for enforcement, and stating that [t]he meaning ascribed to legislation by the administrative agency responsible for its implementation, including the agency's contemporaneous construction, long usage, and practical interpretation, is persuasive evidence of the Legislature's understanding of its enactment ); Malone v. Fender, 80 N.J. 129, 137 (1979) (stating that in construing doubtful statute, an agency's construction of a statute over a period of years without legislative interference will under appropriate circumstances be granted great weight . . . . ). Here, the Attorney General, acting through the Police Bureau within the Division of Criminal Justice, is charged with general supervision of law enforcement in the State and, pursuant to that authority, provides regular guidance to police departments. The Police Bureau has been providing guidance since 1987, which included the development of a model ordinance allowing for subsequent appointments by resolution, recommended for use by municipal governing bodies when creating a police department for their communities. Model Rules and Regulations, 2d ed. (Nov. 1992) (visited March 10, 2001) A municipal governing body should not have to act by its most formal legislative process, passage of an ordinance after publication and two readings, each time a position on a police force is to be established. It could choose in its initial ordinance creating the police force to set forth a different mechanism by which it would take such action.
Furthermore, to the extent the decision below interprets the statutory reference to line of authority to mean that the municipal ordinance must establish a detailed organizational chart, it is in error. The legislative history plainly discloses that the line of authority language referred to the interaction between the police department and local government, not the police department's organizational chart. The statute, after all, was designed to end the problem of interference with the police function by elected officials. The 1981 amendments required the creation of a line of authority between the police function and the governing body by expressly providing for the duties and responsibilities of the chief of police when that position is established by the local governing body, and an appropriate authority to which the police chief, and the police function in its entirety, are subordinate. Grasso v. Borough Council of Borough of Glassboro, 205 N.J. Super. 18, 29 (App. Div. 1985), certif. denied, 105 N.J. 453 (1986).
Thus, the decision below that the majority affirms misconstrued the reference to line of authority and, I respectfully suggest, took too rigid an approach on how a municipality must act when creating police department positions. See Hamill v. City of Clifton, 10 N.J. Misc. 843, 845 (1932) (approving validity of ordinance that established method of appointment of employees to fire departments, permitting fire committees to nominate persons and city council to confirm thereafter by resolution). Accordingly, because I consider the statute to be susceptible to various constructions, I would follow the approach that affords more flexibility to the local governing body. In my view, the model resolution developed by the Attorney General for use by municipalities in creating police departments, and used by municipalities (albeit not Fort Lee) across the State for years, complies with N.J.S.A. 40A:14-118.

NO. A-117

JOHN REUTER and BERNARD HART,

Plaintiffs-Respondents,

v.

THE BOROUGH COUNCIL OF THE
BOROUGH OF FORT LEE,

Defendant-Respondent.

DECIDED March 29, 2001 Chief Justice Poritz