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Summary of Opinion — Falcone v. Defuria

Factual and Procedural Background

Little Falls Township adopted Ordinance 500 (1983, amended 1984), creating a detective bureau and providing that "Detectives shall be appointed by the Chief of Police with the approval of the Township Committee." A dispute arose when the Township Committee and Police Commissioner twice disapproved the Chief's choices for detectives. The Passaic County Prosecutor filed an action seeking a declaratory judgment that Ordinance 500 was invalid; the Little Falls Chief of Police later joined as a plaintiff. The Law Division found the ordinance valid (199 N.J. Super. 549), the Appellate Division affirmed (199 N.J. Super. 554), the Supreme Court granted certification (101 N.J. 291), and this Court affirmed the Appellate Division's judgment.

Legal Issues Presented

  1. Whether the designation of a detective is an appointment or promotion within the governing body's power to appoint and promote, or an assignment within the police chief's statutory authority to prescribe assignments and conduct day-to-day operations.
  2. Whether the Passaic County Prosecutor has standing to challenge the validity of Ordinance 500.

Arguments of the Parties

Plaintiffs (Passaic County Prosecutor and Chief of Police)

  • The Passaic County Prosecutor sought a declaratory judgment declaring Ordinance 500 invalid.
  • The Prosecutor and Chief contended the Appellate Division's decision conflicted with Gauntt v. City of Bridgeton (194 N.J. Super. 468), as they invoked that decision in support of their position.

The opinion does not contain a more detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Smith v. Township of Hazlet, 63 N.J. 523 Historical proposition that a chief's powers derived from municipal ordinances and regulations prior to statutory amendment. Used to describe pre-1981 allocation of authority between governing bodies and chiefs of police.
199 N.J. Super. 549 (Law Div.) Law Division ruling that permanent appointment of detectives is within governing body's authority. Noted as the trial-court decision upon which the Appellate Division relied and which the Supreme Court reviewed.
199 N.J. Super. 554 (App. Div.) Appellate Division affirmation that Ordinance 500 was valid for reasons stated in the Law Division opinion. Its judgment was affirmed by the Supreme Court.
N.J.S.A. 40A:14-118 Statutory allocation of authority: governing bodies may provide for police forces and ordinances; where a chief is established, statute prescribes chief's duties including prescribing duties and assignments of subordinates. Central statutory framework for determining whether detective designation is an appointment/promotion or an assignment.
City Council of Garfield v. Perrapato, 117 N.J. Super. 184 Illustration that detectives often perform more sensitive investigative functions and may receive higher pay. Supported the Court's conclusion that detective designation is more akin to appointment/promotion than a routine assignment.
Gauntt v. City of Bridgeton, 194 N.J. Super. 468 Appellate Division statement that governing body formulates broad policy while chief makes day-to-day assignment decisions; held director had infringed when overruling chief's choice for head of detective division. Court distinguished and rejected Gauntt to the extent it implies that the chief's assignment power includes the power to designate the head of the detective division or to make detective appointments.
In re Boardwalk Regency Corp., 90 N.J. 361 Technically moot issues may be judicially reviewed where the matter is one of public interest. Accepted as authority permitting review despite joinder/mootness concerns.
New Jersey State Chamber of Commerce v. New Jersey Election Law Enforcement Comm'n, 82 N.J. 57 When a question is of substantial public interest, a slight private interest suffices for standing. Used to support the conclusion that the Passaic County Prosecutor had standing.
Salorio v. Glaser, 82 N.J. 482 Example where parties had standing despite minimal private impact because of substantial public interest. Also cited in support of the Prosecutor's standing to bring the action.

Court's Reasoning and Analysis

The Court examined statutory and factual context. It noted the 1981 amendment to N.J.S.A. 40A:14-118 which explicitly grants chiefs authority to prescribe duties and assignments and limits undue governing-body interference. The Court analyzed the functional differences between patrol officers and detectives (sensitivity of investigative work, plainclothes work, differential compensation) and found detectives occupy a distinct status resembling appointment or promotion rather than an ordinary assignment. The ordinance confers a permanent designation and a stipend for detectives, and requires Township Committee approval of the Chief's appointments—features characteristic of appointments/promotions. The Court concluded the ordinance represents a permissible sharing of appointment power between the governing body and the chief rather than undue interference with police operations. The Court rejected, to the extent applicable, Gauntt's implication that the chief's assignment authority includes the designation of detective heads. Finally, the Court addressed standing: because the issue raised substantial public interest and the county prosecutor's official duties involve law enforcement, the Prosecutor has standing to bring the action.

Holding and Implications

The judgment of the Appellate Division is affirmed.

Direct effect: Ordinance 500 is valid; the designation/appointment of detectives as structured (appointment by the Chief with Township Committee approval, permanent status, stipend) is upheld as within the governing body's appointment authority shared with the chief. The Passaic County Prosecutor has standing to challenge the ordinance. The Court rejected Gauntt to the extent that it would classify detective designation as necessarily within the chief's assignment power. The opinion does not purport to announce a broader new rule beyond its application to the allocation of appointment and assignment authority in the facts presented.

JOSEPH A. FALCONE, PASSAIC COUNTY PROSECUTOR, AND BERNARD TERRANOVA, CHIEFOF POLICE, TOWNSHIP OF LITTLE FALLS, PLAINTIFFS-APPELLANTS, v. FREDERICK DEFURIA, MAYOR OF THE TOWNSHIP OF LITTLE FALLS, AND THE TOWNSHIP COMMITTEE OFLITTLE FALLS, DEFENDANTS-RESPONDENTS.

The opinion of the Court was delivered by POLLOCK, J.

This case questions the validity of an ordinance that provides for appointment of detectives by the police chief with the approval of the governing body. In reported decisions, both the Law Division, 199 N.J. Super. 549 (1984), and the Appellate Division, 199 N.J. Super. 554 (1985), found the ordinance to be valid. We granted certification, 101 N.J. 291 (1985), and now affirm the judgment of the Appellate Division.

Before 1981, N.J.S.A. 40A:14-118 gave municipal governing bodies broad authority to regulate the internal affairs of police departments, including the authority to prescribe the duties and functions of police officers. The powers of a chief of police derived not from a statute, but from municipal ordinances and regulations. Smith v. Township of Hazlet, 63 N.J. 523 , 526-27 (1973). During this period, a Little Falls ordinance had empowered the Township Committee to appoint members of the police department, to prescribe duties of the members, and had established a detective bureau, to which members were assigned by the chief of police with the approval of the police commissioner.

In 1981 the Legislature amended N.J.S.A. 40A:14-118 to redefine the relationship between a municipal governing body and the chief of police. The amendment states that municipalities by ordinance shall "provide for a line of authority relating to the police function * * *." The statute further states that the ordinance may provide

N.J.S.A. 40A:14-118 provides in relevant 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. Any such ordinance, or rules and regulations, shall provide that the chief of police, if such position is established, shall be the head of the police force and that he shall be directly responsible to the appropriate authority for the efficiency and routine day to day operations thereof, and that he shall, pursuant to policies established by the appropriate authority:
a. Administer and enforce rules and regulations and special emergency directives for the disposition and discipline of the force and its officers and personnel;
b. Have, exercise, and discharge the functions, powers and duties of the force;
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; and
e. Report at least monthly to the appropriate authority in such form as shall be prescribed by such authority on the operation of the force during the preceding month, and make such other reports as may be requested by such authority. * * *

for the appointment of a chief of police and such and; as 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.

Furthermore, the statute declares that if the governing body establishes the position of chief of police, the chief "shall be the head of the police force and that he shall be directly responsible to the appropriate authority for the efficiency and routine day to day operations" of the police force. Pursuant to policies established by the appropriate authority, the chief shall "[p]rescribe the duties and assignments of all subordinates and other personnel." N.J.S.A. 40A:14-118c. By granting chiefs of police express statutory authority, the statute sought to avoid undue interference by a governing body into the operation of the police force.

In 1983, the Little Falls Township Committee adopted Ordinance 500, which established a detective bureau and provided that the police chief should appoint detectives with the approval of the Township Committee. A dispute arose between the Township Committee, Mayor and Police Commissioner, on the one hand, and, on the other, the Chief of Police about who had the authority to designate detectives. After the police commissioner and Township Committee twice disapproved the chief's choice of detectives, the Passaic County Prosecutor filed this action seeking a declaratory judgment that Ordinance 500 was invalid. Subsequently, the Chief of Police joined the action as a plaintiff.

Ordinance 500 was originally adopted on October 17, 1983. Sections 4 and 7 were amended on May 4, 1984. As amended, the ordinance reads:

AN ORDINANCE AMENDING CHAPTER IV OF THE REVISED GENERAL ORDINANCES OF THE TOWNSHIP OF LITTLE FALLS, CREATING A DETECTIVE BUREAU.
BE IT ORDAINED by the Township Committee of the Township of Little Falls as follows:
1. Section 4-13 of the ordinances, to which this ordinance is an amendment, is repealed.
2. A detective bureau is hereby established which shall consist of detectives appointed from time to time as hereinafter provided.
3. The position of detective is hereby established. A detective shall conduct criminal investigations while in civilian clothing and shall conduct preparation of cases for prosecution and perform such other duties as are from time to time assigned by the Chief of Police.
4. Detectives shall be appointed by the Chief of Police with the approval of the Township Committee.
5. A Patrolman appointed as a detective shall receive the same salary as he would receive as a Patrolman unless the Township Committee, by ordinance, provides additional or different compensation for a detective.
6. No person shall at any time serve as a member of the detective bureau unless and until he has been appointed in accordance with the provisions of the within ordinancee.
7. There shall be two (2) detectives in the detective bureau.
8. Within fifteen (15) days after final passage and publication of the within ordinance, the Chief of Police shall appoint two (2) patrolmen as detectives with the approval of the Township Committee and in accordance with the provisions of this ordinance.
9. The Chief of Police shall have the right in the case of an emergency to temporarily appoint a patrolman to the detective bureau, subject, however, to the approval of the Township Committeeman who is the Police Commissioner/Chairman of the Police Committee.
10. All prior ordinances inconsistent with the within ordinance are hereby rescinded.
11. This ordinance shall take effect upon final passage and publication in accordance with the provisions of law.

The parties filed cross-motions for summary judgment. Noting that detectives must possess greater skill and experience than patrol officers, the Law Division ruled that the permanent appointment of a detective is within the authority of the governing body. 199 N.J. Super. at 553-54. The Appellate Division affirmed substantially for the reasons set forth in the opinion of the Law Division. 199 N.J. Super. at 558.

The parties are in accord that under the statute the governing body has the power to appoint and promote members of the police force, and that the police chief has the power to assign members and conduct the day-to-day operations of the force. They disagree, however, whether the designation of a detective is included in the municipality's power to promote and appoint or in the chief's power to make assignments. Thus, the question becomes whether the designation of a detective should be considered to be an appointment or a promotion by the governing body or an assignment by the chief. In answering the question, we look to the difference in status, compensation, and duties of a patrol officer and of a detective.

Patrol officers, who often walk a beat or ride in a patrol car, are engaged primarily in preventing crime and protecting public safety. Detectives are entrusted with the more sensitive responsibility of detecting and investigating criminal activity. Unlike uniformed officers, detectives often work in plain clothes and may receive higher pay than patrol officers. See City Council of Garfield v. Perrapato, 117 N.J. Super. 184 , 194 (App.Div. 1971). From this, we conclude that the designation of a detective is more like an appointment or a promotion than an assignment of a subordinate within the police force.

By separate ordinance, Little Falls detectives receive a $250 annual stipend over a patrol officer's salary. Moreover, the Little Falls ordinance makes the appointment of detectives permanent, and not subject to changes at the discretion of the chief that typify assignments. Significantly, the ordinance provides that "[d]etectives shall be appointed by the Chief of Police with the approval of the Township Committee." Rather than constituting undue interference by the governing body in the operation of the police force, the ordinance represents the sharing of the power of appointment by the governing body with the police chief.

The Prosecutor and Chief of Police contend that the decision of the Appellate Division in this matter conflicts with Gauntt v. City of Bridgeton, 194 N.J. Super. 468 (App.Div. 1984). In Gauntt, the director of the Department of Police Fire, among other things, assigned policemen to perform certain tasks, ordered the police chief to consult with him before making any training assignments, suggested to the chief that he should assign policemen to patrol particular areas, and overruled the police chief's choice for supervisor of the detective division. Id. at 474-78. As a result, the police chief brought an action claiming that the director had usurped the chief's authority. In resolving that issue, the Appellate Division determined that the function of the governing body was to formulate "fundamental principles to serve as broad guides to the chief of police in making his decisions with respect to discharging his responsibility for the efficiency and routine day to day operation of the police department." Id. at 486. Using that approach, the Appellate Division found that the director's suggestion that officers patrol particular areas was an appropriate policy statement. In other instances, including the appointment of the head of the detective division, the Appellate Division found that the director had infringed on the chief's "authority to prescribe the assignments of all subordinates within his department." Id. at 488. Consistent with the earlier portion of this opinion, we believe that the designation of the head of a detective division should be viewed not as an assignment, but as an appointment or promotion. To 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.

In its decision in the present case, the Appellate Division noted that this action was originally instituted by the Passaic County Prosecutor and that the Little Falls Chief of Police was subsequently added as a plaintiff, apparently because of some doubt about the Prosecutor's standing to bring the action. 199 N.J. Super. at 556 n. 1. Although it recognized that the joinder of the Chief rendered the issue moot, the Appellate Division cast doubt on the Prosecutor's standing to bring this action. Id. We believe we must dispel that doubt. See In re Boardwalk Regency Corp., 90 N.J. 361 , 367-68 (technically moot issue may be judicially reviewed when matter is of public interest), appeal dismissed, 459 U.S. 1081, 103 S.Ct. 562, 74 L.Ed.2d 927 (1982).

When plaintiffs present a question of substantial public interest, any slight additional private interest will suffice to afford standing. See New Jersey State Chamber of Commerce v. New Jersey Election Law Enforcement Comm'n, 82 N.J. 57 , 68 (1980) (lobbyists have standing to challenge campaign finance reporting law, even though law's effect on them would be inconsequential); Salorio v. Glaser, 82 N.J. 482 , 490-93, cert. denied and appeal dismissed, 449 U.S. 874, 804, 101 S.Ct. 215, 49, 66 L.Ed.2d 94, 7 (1980) (New York residents have standing to challenge New Jersey transportation tax, even though tax will not increase plaintiff's total tax liability). Here, there is a substantial public interest in resolving the issue of who has authority to name police officers to a detective bureau. The proper allocation of responsibilities between a governing body and the chief of police is too important to be left in limbo. As the chief law enforcement officer in the county, the prosecutor has a legitimate interest in the relationship between a governing body and the chief of police on so significant a question. See N.J.S.A. 2A:158-5 (county prosecutor shall "use all reasonable and lawful diligence for the detection, arrest, indictment, and conviction of offenders against the laws"); Dep't of Law Public Safety, Division of Criminal Justice, County Prosecutors' Ass'n, New Jersey Prosecutor's Manual 7-1 (1984). Consequently, the Passaic County Prosecutor has standing, even in the absence of the Little Falls Chief of Police as a party, to bring the present action.

The judgment of the Appellate Division is affirmed.

For affirmance — Chief Justice WILENTZ and Justices CLIFFORD, HANDLER, POLLOCK, O'HERN, GARIBALDI, and STEIN — 7.

For reversal — None.

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FALCONE v. DE FURIA
(Jul 9, 1986)