Rusignuolo v. Orechio

The opinion of the Court was delivered by

Sullivan, J.

This is a companion case to Jansco v. Waldron, 70 N. J. 320 (1976), also decided this day, and involves the same basic question decided therein, whether the governing body of a municipality, in creating and establishing a police department and force under the authority of N. J. S. A. 40:47-1, now 40A:14-118, must itself and by ordinance, adopt rules and regulations for the government of the department and force and for the discipline of its members, or whether this statutory power may be sub-delegated to a subordinate body or official.

The Police Department of the Town of Nutley exists and is regulated and controlled by Ordinance #357 adopted on August 7, 1928 pursuant to N. J. S. A. 40 :47-l, now N. J. S. A. 40A:14-118. The ordinance, inter alia, vests in the Director of Public Safety full executive, judicial and administrative control of the department including the power to enforce the rules and regulations provided by the ordinance as well as the power to promulgate such administrative rules as, in his judgment, may from time to time be proper for the efficient management of the department. Under the ordinance the Chief of Police is given the power to promulgate orders to the police force not inconsistent with any of the orders or rules established in the ordinance or any administrative orders made by the Director pursuant to the enabling ordinance.

Article II of the ordinance contains general rules applicable to the members of the police force, one of which, Section 32, provides:

* * * Although certain hours are allotted for the performance of regular tours of duty all members of the Department are considered to be at all times subject to call for duty and must act promptly at any time that their services are required.

Article IY of the ordinance, which deals with Control, Discipline and Removal from Office, lists in Section 3 the disciplinary charges to be heard before the Director of Public Safety. Included therein is the following:

(7) Neglect in paying just debts, contracted while a member of the force.

On February 6, 1968 the governing body of the Town of Hutley adopted by resolution a set of Rules and Regulations governing the Police Department of Hutley which had been compiled by the Chief of Police under the supervision of the Director of Public Safety. These rules include Rule of General Conduct Ho. 3:2.1:

Duty Requirement. Police officers shall be always subject to duty even when periodically relieved from regularly scheduled duty.

and Disciplinary Rule Ho. 6:16:

Department members shall neither neglect nor refuse to pay their just debts.

Plaintiff is a Nutley police officer. On June 15, 1973 the defendant Police Chief of the Town of Nutley issued an order requiring all police officers to “have a telephone at their residency in order that they are accessible to the call of the Department, and in cases of dire emergency.” The order referred to Rule 3 :2.1, supra. Plaintiff, who did not have a telephone in his home, refused to comply with the order although notified by the Director of Public Safety that unless he did. so charges would be preferred against him.

On July 19, 1973 a departmental complaint was filed charging plaintiff with violating the order of June 15, 1973, as well as disobeying direct orders from the Director of Public Safety and the Deputy Police Chief that plaintiff secure a telephone. The complaint also charged plaintiff with a violation of Nutley Police Department Rules and Regulations, Chapter YT, Rule 6.16, Payment of Just Debts, in that plaintiff owed a debt of $199.41 to Janette Shop. A notice fixing a time and place for hearing accompanied the complaint.

Upon being served with the charges and notice of hearing-plaintiff filed the instant suit seeking basically to have the charges against him dismissed on the ground that the June 15, 1973 order and Rule 6.16 had no legal standing, not having been provided for by ordinance. The trial court ruled that the Legislature, in granting the power to the governing body of a municipality under N. J. S. A. 40 :47 — 1, to establish, maintain, regulate and control a police department and force and to prescribe and establish rules and regulations for the government and discipline thereof, “expressly proclaimed” that such power be exercised through the instrumentality of an ordinance and not by resolution. Accordingly, it was held that the June 15, 1973 order and Disciplinary Rule 6.16 of the 1967 Rules and Regulations of the Nutley Police Department, not having been promulgated by ordinance, were invalid and unenforceable.

On appeal, the Appellate Division upheld the principle that rules and regulations for the government and discipline of a police department had to be adopted and promulgated by ordinance. However, the Appellate Division ruled that the daily administration of a police department can be delegated to its department head and that such a practice enhances departmental efficiency and is in the public interest.

Turning to the particular order and rule challenged, the Appellate Division noted that the Nutley ordinance establishing a police department did provide by rule that all policemen were at all times subject to call for duty and had to act promptly at any time their services were required. It found that the June 15, 1973 order requiring a home telephone implemented the ordinance rule and was lawful since the subject matter was one committed to the expert judgment of the Director of Public Safety and the Chief of Police. Accordingly, the Appellate Division reversed the dismissal of the charges based upon the violation of the June 15, 1973 order.

The Appellate Division, however, held that the charge against plaintiff of failure to pay his just debts, an alleged violation of Rule 6.16 of the 1967 Rules and Regulations of the Nutley Police Department, must be dismissed as the particular rule was not promulgated in the 1928 Ordinance or otherwise included in the rules and regulations then adopted for the government of the police department. Since it was part of the Rules and Regulations adopted in 1968 by resolution of the governing body, the Appellate Division held that the method of adoption, by resolution, did not satisfy the statutory requirement of adoption by ordinance. The Appellate Division also concluded that the rule did not relate to the day-to-day activities of police officers or involve the routine and regular administration of the department. It therefore upheld the trial court’s decision that the rule was invalid and could not serve as the basis of a disciplinary charge against plaintiff. This Court granted plaintiff’s petition and defendants’ cross-petition for certification. 68 N. J. 481 (1975).

In Jansco v. Waldron, supra, we held that N. J. S. A. 40:47-l, now 40A :14-118, empowering a municipality by ordinance to establish a police department and to adopt and promulgate rules and regulations for the government and discipline thereof, permitted the municipality by ordinance to subdelegate such rule-making power to subordinate authority. To the extent applicable, we incorporate the Jansco holding into this opinion and sustain the authority of the governing body of the Town of Nutley, by ‘ordinance, to subdelegate to the Director of Public Safety the power to promulgate administrative rules not inconsistent with any of the orders or rules established in the ordinance and to subdelegate to the Chief of Police the power to promulgate orders to the police force not inconsistent with orders or rules established in the ordinance or by the Director of Public Safety.

We therefore affirm that part of the Appéllate Division ruling which upheld the legality of the June 15, 1973 order of the Chief of Police requiring a home telephone. The ordinance establishing the Nutley Police Department contains a general rule that all members of the department are considered to be subject to call for duty at all times and must act promptly at any time that their services are required.¹ The ordinance also empowers the Chief of Police to promulgate orders to the police force not inconsistent with any of the orders or rules established in the ordinance. The June 15, 1973 order of the Chief of Police implements the general rule contained in the ordinance and is a vaEd exercise of the administrative power vested in him.

We disagree with the factual basis of the Appellate Division’s holding that Rule 6:16 of the 1967 Rules and Regulations of the Nutley Police Department requiring payment of just debts was invalid because adopted by resolution rather than ordinance. The ordinance establishing the Nutley Police Department, in Article IY, dealing with Control, Discipline and Removal from Office, in fact specifically lists in Section 3 (7), “Neglect in paying just debts, contracted while a member of the force,” as one of the disciplinary charges to be heard before the Director of Public Safety. Rule 6:16, therefore, has its genesis in an ordinance provision and is not subject to attack on the ground that it was not “promulgated by ordinance.”

As we noted in Jansco, supra, however, disciplinary rules are always subject to considerations of due process and reasonableness. Eailure to pay just debts has been upheld as a basis for police disciplinary action. Cleu v. San Francisco Police Com’rs, 3 Cal. App. 174, 84 P. 672 (1906); Nodes v. City of Hastings, 284 Minn. 552, 170 N. W. 2d 92 (Sup. Ct. 1969); Sayles v. Bd. of Fire and Police Com’rs, 25 Ill. App. 2d 262, 166 N. E. 2d 469 (App. Ct. 1960). See Moorestown Tp. v. Armstrong, 89 N. J. Super. 560 (App. Div. 1965), certif. den. 47 N. J. 80 (1966). Cf. McEachern v. Macy, 233 F. Supp. 516 (W. D. S. C. 1964), aff’d 341 F. 2d 895 (4 Cir. 1965).

We agree with the principle reflected by these decisions. Inexcusable failure to pay ordinary debts places the police officer in a position of diminished respect by the community which could detract from his effectiveness as a law enforcement officer. Moreover, merchant creditors of a neighborhood police officer, understandably, might be reluctant to press for collection of the debt against the officer.

We therefore sustain the facial validity of the just debt rule which should be read in the light of this opinion. The legality of the rule, as applied, would depend on the facts of the particular case. Certainly, it would be improper to use the disciplinary power to resolve a bona fide dispute as to payment, quality of merchandise and the like. We are not, of course, passing upon the issue of plaintiff’s guilt or innocence. This is for the Director of Public Safety to decide based on the proofs to be adduced at the disciplinary hearing.

The judgment of the Appellate Division is affirmed insofar as it sustains the disciplinary charges against plaintiff growing out of the June 15, 1973 order. That part of the Appellate Division judgment which holds that Rule 6.16 was promulgated contrary to statutory authorization is reversed and the disciplinary charge against plaintiff based on Rule 6.16 is hereby reinstated.

1 Rule 3:2.1 of the Rules and Regulations of the Nutley Police Department, referred to in the initial order issued by the Chief of Police, is substantially identical in this respect to the ordinance rule.