Borough of Belmar Policemen's Benev. Ass'n of Local No. 50 v. Borough of Belmar
| Decision Date | 10 May 1982 |
| Citation | 445 A.2d 1133,89 N.J. 255 |
| Court | New Jersey Supreme Court |
| Parties | The BOROUGH OF BELMAR POLICEMEN'S BENEVOLENT ASSOCIATION OF LOCAL # 50, Richard Lynch, Andrew Donate and Mrs. Nettie Anne Aker, Individually as Plaintiffs, Plaintiffs-Respondents and Cross-Respondents, v. BOROUGH OF BELMAR and Lawrence A. Vola, Chief of Police, Defendants-Appellants and Cross-Respondents, and Judith A. Yaskin, Acting Attorney General of New Jersey, Intervenor-Cross-Appellant. |
Frederick P. DeVesa, Asst. Atty. Gen., for intervenor-cross-appellant (Irwin I. Kimmelman, Atty. Gen., attorney; Frederick P. DeVesa, Larry R. Etzweiler, Deputy Atty. Gen., John DeCicco, Asst. Atty. Gen. and Robert E. Rochford, Deputy Atty. Gen., of counsel; Larry R. Etzweiler, on the briefs).
Joseph Hillman, Jr., Belmar, for defendants-appellants and cross-respondents (Hillman, Carey, Badach & Sullivan, Belmar, attorneys).
Jacob Green, East Orange, for amicus curiae New Jersey State Special Police Ass'n, Inc. (Green & Dzwilewski, East Orange, attorneys; Ellen Harrison, East Orange, on the briefs).
Mark S. Ruderman, Rahway, for amicus curiae New Jersey State League of Municipalities (Dorf and Glickman, Rahway, attorneys).
Laurence M. McHeffey, West Long Branch, for plaintiffs-respondents and cross-respondents (Hanlon, Dempsey & McHeffey, West Long Branch, attorneys).
Kenneth I. Nowak, Newark, for amicus curiae New Jersey State Policemen's Benev. Ass'n (Zazzali & Kroll, Newark, attorneys).
The opinion of the Court was delivered by
This case raises important questions concerning the status and powers of special police officers employed by municipalities. The particular issues are whether the Borough of Belmar, a resort community, may use special police officers during the busy summer season to supplement the regular staff, and whether special police officers may carry weapons while on duty and exercise the same authority to arrest as regular police.
The Borough of Belmar Policemen's Benevolent Association of Local # 50 (PBA), the duly authorized collective bargaining agent for the members of the regular police force, filed a complaint in lieu of prerogative writ to enjoin the Borough from using special policemen to perform the usual duties of regular police officers and from issuing sidearms to special police. Three individual residents and taxpayers of the Borough subsequently joined in the suit as parties plaintiff. The Attorney General and the New Jersey State Policemen's Benevolent Association intervened as amici curiae. After a plenary hearing the trial court enjoined the defendant from utilizing special police.
The trial court's judgment was stayed pending appeal. The Appellate Division, 178 N.J.Super. 473, 429 A.2d 427, modifying, 174 N.J.Super. 370, 416 A.2d 926, affirmed the judgment, though rejecting that part of the trial court's opinion relating to the applicability of the Police Training Act. The Attorney General's petition for a rehearing was denied. The Borough and the Attorney General, whose motion for leave to intervene as a defendant had been granted by this Court, filed petitions for certification. We granted both petitions. 87 N.J. 424, 434 A.2d 1096 (1981), and 87 N.J. 425, 434 A.2d 1097 (1981). We granted the New Jersey State Special Police Association, Inc. and the New Jersey State League of Municipalities leave to intervene as amici curiae.
The facts underlying this action are not disputed. Belmar maintains a regular police force of twenty-one members, composed of a chief, three captains, four sergeants and thirteen patrolmen. Police are assigned to three eight-hour shifts and one relief shift. On each shift four officers are assigned to four designated posts: one officer patrols the business district either on foot or by motor scooter; one mans the desk at headquarters; and two ride in patrol cars. They rotate from post to post on a weekly basis following a schedule fixed by the Chief of Police. Two officers are assigned to the detective division.
The increased summer population creates a demand for additional police services. The beaches and boardwalks are crowded and noisy parties are common during weekends, especially at group rentals. Conscious of fiscal constraints and of the Local Government Cap Law limitations, N.J.S.A. 40A:4-45 et seq., Belmar has used various mechanisms to increase police protection at minimal expense. It hired more than 30 special police officers pursuant to N.J.S.A. 40A:14-146 to augment its regular police force. During the 1978 summer season, the Police Chief assigned unmarked police cars, manned by regular officers in plainclothes, to respond to noise complaints between 10 p. m. and 6 a. m. on Friday and Saturday. These officers volunteered for this task force and received overtime pay for the work. On some occasions the number of volunteers was insufficient.
Because of complaints about inadequate police protection, the Police Chief decided to place another police car on duty on weekend nights during the summer of 1979. Under the new summer schedule, he substituted special police for the regular police who had previously patrolled the business district. These regular police in turn were assigned to patrol car duty between Wednesday and Sunday nights to handle noise complaints.
The Police Chief chose to use regular policemen rather than specials on this anti-noise detail because regulars knew the municipal ordinances, had more experience in multiple person contact, were more familiar with arrest and booking procedures, and understood how to operate the decimeter to measure noise levels.
The major functions of the special police officers assigned to the business district were to make certain that stores and buildings were secure, to check on the diner and hotel, to investigate suspicious activity, and to make any necessary arrests. The specials were instructed to contact headquarters if they encountered a situation that they were not sure how to handle, and the sergeants on desk duty were directed to supervise the areas patrolled by specials more closely than they normally would.
It was the assignment of special police to patrol the business district in place of regular officers that triggered this lawsuit. The assignment of regular officers to the anti-noise detail as regular duty deprived them of overtime pay which they had previously received for this work. The Police Chief because of the opposition of the PBA reassigned regular officers to the business patrol. A special policeman was designated to accompany a regular officer in each patrol car on the anti-noise detail.
The PBA was concerned that the Borough might at some future time again attempt to assign special police in place of regulars. 1 However, it had no objection to a special officer accompanying a regular policeman on the anti-noise detail. Nor did it object to the use of special police to patrol the boardwalk or to inspect parking meters during the summer months.
Despite these concessions the trial court enjoined defendants from utilizing special police (1) to patrol the business district, (2) to accompany a regular police officer in patrol vehicles, (3) to carry weapons, handcuffs, nightsticks or slapjacks, and (4) to exercise powers of arrest beyond those accorded any other citizen.
The State has delegated to municipalities the general authority to adopt such ordinances, rules and regulations as they may deem necessary and proper for the order and protection of persons and property and for the preservation of the public health, safety and welfare, and as may be necessary to carry into effect the powers and duties conferred on the municipality by any law. N.J.S.A. 40:48-2. Underlying this grant of authority is the right of people in a civilized society to live free from attacks on their persons and property, one of the basic justifications for government.
The Legislature, complementing the general authority delegated to municipalities, specified that a municipality may create a police force. N.J.S.A. 40A:14-118. The present statute carries forward the format of the police force that appeared in a general act governing municipalities enacted in 1917. L. 1917, c. 152, Art. XVI, §§ 1, 3 and 7. The Legislature empowered municipalities to employ three types of policemen, regular, temporary and special. The 1917 act listed the following qualifications for a regular police officer: good moral character, sound in body and in good health, and the ability to read and write the English language intelligently. It also provided that municipalities could hire officers "temporarily in case of emergency or for parts of years, in cases where their services are not needed throughout the entire year, and discharge them at the expiration of such temporary employment."
In addition, the statute granted the municipalities authority "to appoint special policemen for a term not exceeding one year; such special policemen shall not be members of the police force and their powers, rights and duties shall immediately cease and determine at the expiration of the term for which they were appointed." Their appointments were subject to revocation at any time without cause and they could be given a badge.
These provisions concerning regular, temporary and special police have been continued substantially in the same form to the present. 2 Under N.J.S.A. 40A:14-146 special police may not be members of the police force; their appointments may not exceed a one-year term; they may be fired at any time without cause; and they may carry a badge. The statutory qualifications of special police are comparable to those of regular police. These include (1) citizenship, (2) ability to read, write and speak the English language, (3) physical capability, and (4) good moral character. Compare N.J.S.A. 40A:14-146 with N.J.S.A. 40A:14-122. The Chief of Police, who supervises and directs the special...
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