407 West State Street, Trenton, NJ 08618  (609)695-3481
 NJLM logo 

William G. Dressel Jr, Executive Director - Michael J. Darcey, CAE, Asst Executive Director

photo - Edward J. Kologi

An Update
Governing the Police Department


Edward J. Kologi, Esq
League Associate Counsel

Since New Jersey Municipalities last ran an article on this topic ("Civilian Control


Despite recent rulings, ambiguity still exists over the role of civilian leaders in managing the police force.

Over Police - Legal Considerations) back in May 2001, there has been additional activity in both the judicial and legislative arenas which is worthy of review.

It is now axiomatic that all governing body/ police department issues rise and fall under NJSA 40A:14-118, often referred to as the "Police Chief's Bill of Rights." A thorough familiarity with this statute and the significant case law arising thereunder is critical to sustaining any regulatory action over the Police Department and/or the Police Chief. NJSA 40A:14-118 establishes the respective duties and responsibilities of the governing body vis a vis those of the Chief and the Department, as well as the requirements which all local ordinances must satisfy to be legally viable. As many of these issues have been treated extensively in prior articles, this one will be confined to pertinent updates.

The statue itself has not been the subject of any recent revisions. However, in 2004, Assemblyman Peter Barnes (District 18) and Gordon Johnson (District 37) sponsored A-3161 which, as of this writing, has not been released from Committee. This proposed legislation would modify NJSA40A:14-118 in several important respects. First, it provides that "[I]n the absence of the Chief of Police, the next highest ranking sworn police officer shall be responsible for the efficiency and routine day to day operations of the police force, including carrying out the duties specified in subsections a through e of the preceding paragraph." This new section would effectively overrule the Appellate Division's holding in Policeman Benev. Association North Brunswick Local 160 v. Township of North Brunswick 318 N.J. Super. 544 (App. Div. 1999), certification denied 161 N.J. 150 (2000), which held that where a municipality opted not to name a Chief, all of the powers belonging to the Chief under the statute could instead be vested in a Police Director or, presumably, other civilian appropriate authority.

The remaining changes proposed by A-3161 focus on establishing limitations upon the "appropriate authority" (i.e. civilian authority) over the department. The bill clearly states the appropriate authority does not acquire actual police powers by that designation, and may not "operate a police patrol car; conduct a motor vehicle stop; engage in patrol activities . . .; answer calls for service; stop detain or arrest persons, wear a law enforcement uniform or otherwise exhibit evidence of authority; obtain criminal history information without proper authorization; [or] carry a firearm unless otherwise authorized by law." Additionally, the appropriate authority "shall not establish any title or position that has not been approved by the Department of Personnel or appoint a civilian to control the day to day operations of the police force." A somewhat obscure additional provision states that "any exclusive bargaining representative may directly appeal such violation to the Appellate Division of the Superior Court." These prescriptions were in apparent response to problems in certain municipalities where members of the governing body, police directors, or other non-sworn individuals allegedly sought to actively engage in actual police functions. Although A-3161 has not been enacted, it clearly evidences a legislative intent to clarify certain portions of NJSA 40A:14-118 which have the subject of so many "turf war" lawsuits. These legislative efforts underscore one of the primary difficulties with the current statute, i.e. defining where the policy making power of the appropriate authority ends, and the day to day control power of the Chief begins. This dilemma is in no way recent, as was recognized in the leading case of Gauntt v. City of Bridgeton 194 N.J. Super 468 (App. Div. 1984) over 20 years ago:

. . . there will be instances where that which one believes is the fixing of 'policy' or that which another believes is a proper exercise of one's authority to run the day to day operations of a police department will shade off into 'gray' areas. Thus, substantial difficulty is encountered in analyzing such acts and accurately characterizing them within the meaning of the statue. [Id. t 486]

A decision involving the promulgation of departmental rules and regulations was rendered by the Appellate Division in Grubb v. Borough of Hightstown, 353 N.J. Super. 333 (App. Div. 2002). While NJSA 40A:14-118 unequivocally states that any implementing ordinance must provide, inter alia" . . . 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 Grubb Court held that the Police Chief's expertise could be called upon to assist or actually prepare such rules and regulations. However the power to revise and give final approval is reserved for the civilian authority. This practical decision obviously recognizes that the input or participation of the Chief in such a specialized area is entirely desirable, subject to the right of modification and final acquiescence by the appropriate authority over the department.

In another case, discipline against a police officer was overturned because the township's disciplinary rules were not validly adopted. While the ordinance provided that the Director of Public Safety may promulgate such rules and regulations pursuant to NJSA 40A: 14-118, the municipality did not have a Director of Public Safety at the time the ordinance was adopted, and thus the statutory requirement that only the appropriate authority could perform this function was not met. Majarum v. Township of Hamilton 336 N.J. Super. 85 (App. Div. 2000).

In an unreported decision, Miliano v. Gregorio etal. (Docket No. UNN-L-0042-03) the Mayor (who serves as appropriate authority under the City form of government) issued a policy directive mandating that all members of the Police Department wear uniforms at all times, with the exception of Detectives or Officers who have been given a specific exemption by the Mayor. The Police Chief challenged this directive, arguing that allowing the Mayor the unfettered discretion to grant such exceptions interfered with the Chief's right to make assignments and run the day to day operations of the Department. In a somewhat ambiguous bench opinion, then Assignment Judge Edward Beglin, Jr. upheld the Mayor's right to give such a directive, but ruled that the Chief, not the appropriate authority should be able to authorize exceptions based upon a legitimate law enforcement need, such as where the Chief himself may decide to utilize plain clothes to visit an area which is subject of undercover activity. The ruling was not appealed by either side, and was recognized locally as an attempt by the Court to provide a pragmatic rather than a legalistic resolution to yet another of many long standing disputes between the same parties regarding NJSA 40A: 14-118.

In conclusion, it is evident that NJSA 40A:14-118 has generated considerable controversy in the approximately 24 years since its enactment, and will continue to do so. Until or unless additional case law or legislative action lends greater clarity (and finality) to its many nuances and gray areas, municipal officials on both sides must continue their efforts to act reasonably and cooperatively so that the municipal law enforcement function is not compromised. Public confidence in local government simply demands nothing less.

The author is an Associate Counsel of the New Jersey State League of Municipaliti NJLM - Governing the Police Department

407 West State Street, Trenton, NJ 08618  (609)695-3481
 NJLM logo 

William G. Dressel Jr, Executive Director - Michael J. Darcey, CAE, Asst Executive Director

photo - Edward J. Kologi

An Update
Governing the Police Department


Edward J. Kologi, Esq
League Associate Counsel

Since New Jersey Municipalities last ran an article on this topic ("Civilian Control


Despite recent rulings, ambiguity still exists over the role of civilian leaders in managing the police force.

Over Police - Legal Considerations) back in May 2001, there has been additional activity in both the judicial and legislative arenas which is worthy of review.

It is now axiomatic that all governing body/ police department issues rise and fall under NJSA 40A:14-118, often referred to as the "Police Chief's Bill of Rights." A thorough familiarity with this statute and the significant case law arising thereunder is critical to sustaining any regulatory action over the Police Department and/or the Police Chief. NJSA 40A:14-118 establishes the respective duties and responsibilities of the governing body vis a vis those of the Chief and the Department, as well as the requirements which all local ordinances must satisfy to be legally viable. As many of these issues have been treated extensively in prior articles, this one will be confined to pertinent updates.

The statue itself has not been the subject of any recent revisions. However, in 2004, Assemblyman Peter Barnes (District 18) and Gordon Johnson (District 37) sponsored A-3161 which, as of this writing, has not been released from Committee. This proposed legislation would modify NJSA40A:14-118 in several important respects. First, it provides that "[I]n the absence of the Chief of Police, the next highest ranking sworn police officer shall be responsible for the efficiency and routine day to day operations of the police force, including carrying out the duties specified in subsections a through e of the preceding paragraph." This new section would effectively overrule the Appellate Division's holding in Policeman Benev. Association North Brunswick Local 160 v. Township of North Brunswick 318 N.J. Super. 544 (App. Div. 1999), certification denied 161 N.J. 150 (2000), which held that where a municipality opted not to name a Chief, all of the powers belonging to the Chief under the statute could instead be vested in a Police Director or, presumably, other civilian appropriate authority.

The remaining changes proposed by A-3161 focus on establishing limitations upon the "appropriate authority" (i.e. civilian authority) over the department. The bill clearly states the appropriate authority does not acquire actual police powers by that designation, and may not "operate a police patrol car; conduct a motor vehicle stop; engage in patrol activities . . .; answer calls for service; stop detain or arrest persons, wear a law enforcement uniform or otherwise exhibit evidence of authority; obtain criminal history information without proper authorization; [or] carry a firearm unless otherwise authorized by law." Additionally, the appropriate authority "shall not establish any title or position that has not been approved by the Department of Personnel or appoint a civilian to control the day to day operations of the police force." A somewhat obscure additional provision states that "any exclusive bargaining representative may directly appeal such violation to the Appellate Division of the Superior Court." These prescriptions were in apparent response to problems in certain municipalities where members of the governing body, police directors, or other non-sworn individuals allegedly sought to actively engage in actual police functions. Although A-3161 has not been enacted, it clearly evidences a legislative intent to clarify certain portions of NJSA 40A:14-118 which have the subject of so many "turf war" lawsuits. These legislative efforts underscore one of the primary difficulties with the current statute, i.e. defining where the policy making power of the appropriate authority ends, and the day to day control power of the Chief begins. This dilemma is in no way recent, as was recognized in the leading case of Gauntt v. City of Bridgeton 194 N.J. Super 468 (App. Div. 1984) over 20 years ago:

. . . there will be instances where that which one believes is the fixing of 'policy' or that which another believes is a proper exercise of one's authority to run the day to day operations of a police department will shade off into 'gray' areas. Thus, substantial difficulty is encountered in analyzing such acts and accurately characterizing them within the meaning of the statue. [Id. t 486]

A decision involving the promulgation of departmental rules and regulations was rendered by the Appellate Division in Grubb v. Borough of Hightstown, 353 N.J. Super. 333 (App. Div. 2002). While NJSA 40A:14-118 unequivocally states that any implementing ordinance must provide, inter alia" . . . 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 Grubb Court held that the Police Chief's expertise could be called upon to assist or actually prepare such rules and regulations. However the power to revise and give final approval is reserved for the civilian authority. This practical decision obviously recognizes that the input or participation of the Chief in such a specialized area is entirely desirable, subject to the right of modification and final acquiescence by the appropriate authority over the department.

In another case, discipline against a police officer was overturned because the township's disciplinary rules were not validly adopted. While the ordinance provided that the Director of Public Safety may promulgate such rules and regulations pursuant to NJSA 40A: 14-118, the municipality did not have a Director of Public Safety at the time the ordinance was adopted, and thus the statutory requirement that only the appropriate authority could perform this function was not met. Majarum v. Township of Hamilton 336 N.J. Super. 85 (App. Div. 2000).

In an unreported decision, Miliano v. Gregorio etal. (Docket No. UNN-L-0042-03) the Mayor (who serves as appropriate authority under the City form of government) issued a policy directive mandating that all members of the Police Department wear uniforms at all times, with the exception of Detectives or Officers who have been given a specific exemption by the Mayor. The Police Chief challenged this directive, arguing that allowing the Mayor the unfettered discretion to grant such exceptions interfered with the Chief's right to make assignments and run the day to day operations of the Department. In a somewhat ambiguous bench opinion, then Assignment Judge Edward Beglin, Jr. upheld the Mayor's right to give such a directive, but ruled that the Chief, not the appropriate authority should be able to authorize exceptions based upon a legitimate law enforcement need, such as where the Chief himself may decide to utilize plain clothes to visit an area which is subject of undercover activity. The ruling was not appealed by either side, and was recognized locally as an attempt by the Court to provide a pragmatic rather than a legalistic resolution to yet another of many long standing disputes between the same parties regarding NJSA 40A: 14-118.

In conclusion, it is evident that NJSA 40A:14-118 has generated considerable controversy in the approximately 24 years since its enactment, and will continue to do so. Until or unless additional case law or legislative action lends greater clarity (and finality) to its many nuances and gray areas, municipal officials on both sides must continue their efforts to act reasonably and cooperatively so that the municipal law enforcement function is not compromised. Public confidence in local government simply demands nothing less.

The author is an Associate Counsel of the New Jersey State League of Municipalities, serves as Municipal Attorney for the City of Linden and the Township of Berkeley Heights, and has litigated extensively in this area of the law.

 

 

 

Article in May 2005, New Jersey Municipalities