Borough of Belmar Policemen's Benev. Ass'n of Local No. 50 v. Borough of Belmar
| Decision Date | 02 May 1980 |
| Citation | 416 A.2d 926,174 N.J.Super. 370 |
| Parties | BOROUGH OF BELMAR POLICEMEN'S BENEVOLENT ASSOCIATION OF LOCAL # 50 et al., Plaintiffs, v. BOROUGH OF BELMAR and Lawrence A. Vola, Chief of Police, Defendants. |
| Court | New Jersey Superior Court |
Laurence M. McHeffey, West Long Branch, for plaintiffs (Hanlon, Dempsey & McHeffey, West Long Branch, attorneys).
David A. Wallace, Rahway, for defendants (Gerald L. Dorf, Rahway, attorney; Joseph Hillman, Jr., Belmar, co-counsel and on the brief).
Larry R. Etzweiler, Deputy Atty. Gen., for amicus curiae John J. Degnan, Atty. Gen. (John J. DeCicco, Asst. Atty. Gen., on the brief).
James R. Zazzali, Newark, for amicus curiae New Jersey State Policemen's Benev. Ass'n (Zazzali, Zazzali & Whipple, Newark, attorneys; Francis J. Vernoia, Newark, on the brief).
The essential relief sought in this action in lieu of prerogative writs is a declaration that the Borough of Belmar, through its police chief, does not have the power to hire and assign "special" police officers to the usual duties of "regular" police officers. A resolution of that issue involves an understanding of what those terms mean and an interpretation of applicable statutes. The Attorney General and State P.B.A. have been admitted as amici curiae.
Belmar is a small community bordering on the Atlantic Ocean. Its year-round population is 5,782 (1970 census). The estimated 1978 population is 6,300. The borough has a police force of 21 members, comprised of a chief, three captains, four sergeants and 13 patrolmen. The terms and conditions of their employment are fixed by a collective bargaining agreement dated February 14, 1978 and currently in effect.
Outside of the summer months the size of the department is quite adequate to meet the need for a police function. A typical workday schedule for the 21 member department is as follows:
A) Four duty posts.
1) The Desk (headquarters) manned by a Sergeant.
2) A patrol car for general patrolling throughout the Borough.
3) A patrol car for general patrolling throughout the Borough.
4) Motorized Scooter for patrolling of the main business district of the Borough "F" Street.
These four posts manned for three shifts would occupy 12 men. Four men would be on their day off. (A five-day work week has been negotiated under the collective bargaining agreement.)
B) In addition, two men are assigned for the day to the detective division (essentially a two-shift post).
C) Two men would be on their annual vacation.
D) The Chief has no specifically designated duty post.
Men not scheduled for duty that day (either because it was one of their days off or because they were on annual vacation leave) could be pressed into service when needed and would then be paid overtime under the contract.
The summer season, with its very substantial influx of summer residents and visitors, gives rise to many problems requiring much more police activity than in the winter. Crowd control, particularly in the boardwalk area; concentration of people in local taverns; the increase in noise complaints stemming in part from group summer rentals, and an appreciable rise in disorderly persons and municipal ordinance violations, all point to the need for an increased police presence. Sensitive to that need but sorely constricted by fiscal ability and CAP law limitations, the response of the governing body in consultation with the chief was two-pronged. During the summers of 1977 and 1978 a "summer task force" was created. It consisted of four men and two police cars. Its purpose was to have a ready contingent of trained policemen to respond quickly to any emergent situation which might arise, such as a barroom brawl, a large and uncontrolled private party or a violent domestic quarrel. This task force was worked on a voluntary basis by the regular policemen. It existed on Friday, Saturday and holiday nights. Men who worked that detail were paid overtime under the collective bargaining agreement.
In addition to the "summer task force," and again in response to citizens' complaints, there was created, for the 1979 summer season, an "anti-noise detail." This consists of a police car with two men covering two shifts (2 p. m. to 10 p. m. and 10 p. m. to 6 a. m.), seven days a week, to patrol the borough and spot and respond to incipient trouble. The trouble spots center about parties conducted by group rentals and summer tenants, as well as premises licensed to dispense alcoholic beverages. The "anti-noise detail" was intended to be a permanent organizational change for the summer months, whereas the "summer task force" was a voluntary (though compensated) effort mounted on Friday, Saturday, and holiday nights only.
The police chief, quite properly, deems it necessary to have experienced "regular" officers handle this detail. The judgment to place experienced officers in that car cannot be faulted. Those men, above all, could be expected to regularly confront volatile, violent and ugly situations requiring skilled, well-trained officers with level heads. Each man assigned had to be familiar with local ordinances as well as state statutes, accustomed to making arrests and handling people, and trained in the use of a Decibel meter-since keeping the noise level down at night was one of the principal functions of the patrol.
To make up the "anti-noise" patrol the three regular officers usually assigned to the motorized scooter post on "F" Street and the business district were utilized. The patrol car would operate from 2:00 p. m. to 10:00 p. m. with one of these regulars in it, and from 10:00 p. m. to 6:00 a. m. with the other two. The three shift vacancies on the "F" Street post had to be filled that the. The method used was to hire "special" officers. Plaintiffs argue that the borough may not legally hire "specials" for that purpose.
The "F" Street, business district post, is a most important one. The concentration of retail stores in the borough is there. A bank is located in that area as well as a motel and all-night diner. During the day shoppers crowd the area. At night, restaurants attract other people. The police are responsible for store security after closing. Statistics show that more major crime is committed within the bounds of this post than in any other part of the borough. In the off-season months the post is covered by motorized scooter. In the summer it becomes a walking post.
To assist in controlling crowds along the beachfront area, the borough hires a number of other "special" officers. Some are posted at regular intervals along Ocean Avenue to cross pedestrians from the beach to the westerly side of Ocean Avenue where there is a large concentration of eating establishments, places of amusement and bars featuring music appealing to young adults. "Specials" are also used for walking patrols along the boardwalk and beach. They are there to maintain a police presence, keep the peace and enforce local ordinances and the disorderly persons laws. Should the situation arise, they are expected to make arrests.
From time to time during the summer a "special" may be assigned to ride with a "regular" in a patrol car to give the added strength of a two-man team. Whenever he does so a "special" is expected to perform exactly as a "regular" would.
The borough provides each "special" with a uniform, a 38-cal. Colt Special, handcuffs, six rounds of ammunition, a nightstick and a slapjack. The borough is aware of its potential civil liability under principles expressed in McAndrew v. Mularchuk, 33 N.J. 172, 162 A.2d 820 (1960). To that end all "specials" must complete a departmental 30-hour training course before being eligible for employment. The course consists of 26 hours of classroom instruction and four hours of firing instruction on the pistol range. No pay is given for the training time. By comparison, "regular" members of the department undergo a 14-week training at the Police Academy and qualify in weapons other than the pistol. When on duty, "specials" are subject to the same rules and regulations as are "regulars."
One last fact is worthy of note, although it is not relevant to the within decision. The borough is operating currently within very tight fiscal constraints. The proofs demonstrated that the 1979 budget was within 88cents of permitting spending limits under the so called "Cap Law," N.J.S.A. 40A:4-45.1 et seq. The police protection furnished by using "specials" is much less expensive than if it were provided by "regulars" paid in accordance with the collective bargaining agreement. To the extent that the use of "specials" is curtailed, police protection will be diminished because the borough may not increase expenditures.
The Legislature has enacted laws governing police departments and the appointment of regular and special police officers. The first comprehensive enactment of this sort was contained in L.1917, c. 152, broad legislation conferring and revising powers of municipalities. Therein (Art. XVI, § 1) the Legislature empowered each municipality to establish a police department and to employ "officers and men" therein (§ 3) who would, in general, be removable only for good cause. Each municipality was also empowered in the same section as follows:
. . . and provided, further, that it shall be lawful for the board, body or person in the respective municipalities of this State having authority to employ members of the police department therein, to employ officers or men 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.
Section 7 of the same legislation provided for special policemen as follows:
The governing body of every municipality shall have power to appoint special policemen for a term not exceeding one year; such special policemen shall not be members...
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