Reuter v. Borough Council of Borough of Fort Lee , 167 N.J. 38 ( 2001 )

PER CURIAM.

In 1981, the Borough of Fort Lee enacted Ordinance 2:15.2(a) which provides that the number of positions in the police force may be established by resolution. In 1996, Captain Jeremiah O’Sullivan was appointed Deputy Chief, a position that had been created pursuant to resolution. Thereafter, he was promoted to Chief.

Subsequently, the mayor and two competitors for the Police Chief position filed a lawsuit challenging the legitimacy of O’Sullivan’s appointment as Deputy Chief. They argued that because the Deputy Chief position was not established according to law, O’Sullivan’s tenure in it was also illegal, thus eliminating him as a possible Chief. The trial court held that the Deputy Chief position to which O’Sullivan had been appointed was invalid because it was created by resolution and not by ordinance thus contravening N.J.S.A. 40A:14-118. That statute 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.

[N.J.S.A. 40A:14-118.]

As a result of the trial court’s ruling, O’Sullivan was removed as Chief and returned to the position of Captain. O’Sullivan appealed. The Appellate Division affirmed, holding that the plain language of N.J.S.A. 40A:14-118 and the policies underlying it require the type and number of police positions to be created by ordinance.

We affirm that determination substantially for the reasons expressed in the Appellate Division’s thorough and thoughtful opinion. 328 N.J.Super. 547, 746 A.2d 511 (App.Div.2000). That the Legislature would have insisted that police positions be established by ordinance is consistent with the significance of those positions and their importance to the public. Irvington PBA, Local # 29 v. Town of Irvington, 170 N.J.Super. 539, 546, 407 A.2d 377 (App.Div.1979) (observing that police officer is “ ‘a special kind of public employee’ ”) (quoting Moorestown Tp. v. Armstrong, 89 N.J.Super. 560, 566, 215 A.2d 775 (App.Div.1965), certif. denied, 47 N.J. 80, 219 A.2d 417 (1966)), certif. denied., 82 N.J. 296, 412 A.2d 801 (1980). Likewise, the continuing budgetary implications of the creation of police positions warrant the formality of an ordinance.

We part company from the Appellate Division in connection with its second conclusion — that O’Sullivan has no entitlement to the position of Chief. Although we agree that police positions should be established by ordinance, the interests of justice and fairness require that that decision be given prospective application.

Generally, decisions are retroactive. However prospective application may be appropriate when a decision establishes a new rule of law. State v. Afanador, 151 N.J. 41, 57, 697 A.2d 529 (1997). In order for a decision to be deemed a new rule of law for retroactivity purposes, “there must be a ‘sudden and generally unanticipated repudiation of a long-standing practice.’ ” Id. at 58, 697 A.2d 529 (quoting State v. Cupe, 289 N.J.Super. 1, 12, 672 A.2d 1233 (App.Div.), certif. denied, 144 N.J. 589, 677 A.2d 761 (1996)). That is, “there must be some ‘appreciable past from which the rule departs.’ ” Id. at 58, 697 A.2d 529 (quoting State v. Burgess, 298 N.J.Super. 254, 268, 689 A.2d 730 (App.Div.1997), aff'd by, 154 N.J. 181, 712 A.2d 631 (1998)). “Together with those considerations, we must weigh whether retroactivity furthers the underlying purpose of the rule and whether retroactive application could produce substantial inequitable results.” Montells v. Haynes, 133 N.J. 282, 295, 627 A.2d 654 (1993).

Here, there appears to have been a long-term interpretation of the law to the effect that an ordinance was not required to create new police positions. That is true not only in Fort Lee, but also in other municipalities and even on the part of the Attorney General who promulgated a model police ordinance authorizing the creation of positions by resolution. Model Rules and Regulations, 2d ed. (Nov.1992) (visited March 22, 2001) <http://www.state.nj.usAps/dcj/agguide.htm>. See also Hamill v. City of Clifton, 10 N.J. Misc. 843, 845, 160 A. 882 (1932) (holding that ordinance providing for appointment of city fireman by nomination of fire committee and confirmation by council was not invalid as ordinance did “not leave the number of fireman to be appointed to the caprice of the committee”).

Indeed, there has been reliance on the notion that police positions can be established by resolution such that if we were to a apply the rule in this case retroactively, our interpretation would have the effect of undermining many police appointments throughout the state. No purpose is served by such an approach.

Thus from today forward no appointment may be made to any police department position not created in accordance with N.J.S.A. 40A:14-118. However, those appointments made prior to this date to positions created by resolution will continue to be valid. In other words, O’Sullivan is not precluded from holding the position of Chief because the gateway position of Deputy Chief was created by resolution.

Because a number of other challenges to O’Sullivan’s entitlement to the position of Deputy Chief were not addressed by the Appellate Division (for example, whether his appointment violated the Open Public Meetings Act, N.J.S.A. 10:4-6 to -21), we remand the case to that court to dispose of those matters. If the court rules that there is an impediment to O’Sullivan’s appointment as Deputy Chief, other than that the position was created by resolution, he need not be reinstated. Contrariwise, if the Appellate Division rejects plaintiffs remaining contentions, O’Sullivan should be reinstated to the position of Chief with respect to which no independent objections have been advanced.

The judgment of the Appellate Division is affirmed in part and reversed in part, and the cause remanded.