Gioglio, In re

• Decision Date: 16 December 1968
• Docket Number: No. 6--68,6--68
• Citation: 248 A.2d 570,104 N.J.Super. 88
• Parties: In the Matter of Disciplinary Proceedings against Officer Leonard GIOGLIO, Jr.
• Court: New Jersey County Court

Page 88

104 N.J.Super. 88

248 A.2d 570

In the Matter of Disciplinary Proceedings against Officer Leonard GIOGLIO, Jr.

No. 6--68.

Middlesex County Court, New Jersey.

Dec. 16, 1968.

Gabriel Kirzenbaum, New Brunswick, for Officer Gioglio.

Joseph F. Bradshaw, New Brunswick, for City of New Brunswick.

HEINE, J.S.C. (temporarily assigned).

This is an appeal by Leonard Gioglio, Jr., a police officer of the City of New Brunswick, pursuant to N.J.S.A. 40:47--10, to review his conviction after hearing upon written charges preferred by the chief of police. Two charges were preferred:

(1) Insubordination and absence without leave in that he failed to report for duty in uniform, as directed, at 9 P.M., July 15, 1968. (This charge was claimed to be in violation of sections 2 and 4 of the Police Rules and Regulations.)

(2) Breach of discipline in that he granted an interview to a newspaper reporter which was published in the Daily Home News on July 15, 1968. (This charge was claimed to be in violation of section 50 of the Rules and Regulations.)

In defense of the charges Gioglio now contends that

(a) The rules and regulations are invalid because they wee adopted by resolution and not by ordinance of the board of commissioners, (New Brunswick is governed by a board of commissioners operating under the provisions of N.J.S.A. 40:70--1 et seq.).

(b) As to the first charge, his absence was excusable.

(c) As to the second charge, the rule is too vague and, therefore, unenforceable.

(d) The rule violates his constitutional right of freedom of speech guaranteed by the First Amendment.

The court finds that following facts:

On May 26, 1967 the chief of police issued and seved on Gioglio an order requiring him to return to duty with the uniformed patrol effective Monday, May 29, 1967. Upon receipt of this order Gioglio went to Commissioner Valenti, Directer of the Department of Public Safety, and discussed with him the continuation of his assignment on a special detective squad. Commissioner Valenti conferred with the chief of police and as a result the order was withdrawn. Later on the chief discussed with the director the need for more officers in uniform to meet the increase in crimes of violence on the streets with the result that Gioglio was ordered by the chief to report in uniform for patrol duty, commencing with the 9 P.M. shift on July 1, 1968. The order indicated that it was a temporary assignment. This order was not complied with because previous to the date thereof Gioglio was given permission by his captain to take his vacation from July 1 to July 15.

On July 12 Gioglio received an order from the chief to report in uniform to the lieutenant in charge of the 9 P.M. shift on Monday, July 15, for assignment to patrol duty. The assignment was to continue until further notice. Immediately after receipt of the order, Gioglio again went to Director Valenti to complaint about it. The director advised him that he was aware of the order, it was issued with his consent and that it should be obeyed. Gioglio complained about being required to return to patrol duty, and said he would fight the order. He left the director with the impression that he would not obey the order.

On July 14 Gioglio wrote to the director stating that he had accumulated approximate 500 hours of overtime work in the course of his special detective work assignment and requested that he be given leave effective July 15 for this accumulated time, so that he could pursue opportunities for employment elsewhere. He was careful to state that the letter was not to be construed as a resignation. This would come if his pursuits bore fruit. The director turned the letter over to the chief, who responded in writing denying the request for leave and pointed out that plainclothesmen had never been granted leaves of absence to compensate for accumulated hours of overtime work.

On July 15, at about 8:40 P.M., Gioglio called police headquarters on the phone, spoke to the police dispatcher and advised him that he was not reporting for work. When asked by the dispatcher whether he was reporting off as sick, Gioglio replied, 'No, I am just reporting off.'

The next evening Gioglio appeared at the meeting of the board of commissioners to complain publicly against the chief of police. While there he allowed himself to be interviewed by a reporter of the Daily Home News. The next day he issued a written statement to the press.

Police Rules and Regulations

As far as I can find, our courts have not specifically passed upon the question of whether the rules or regulations governing a police department can only be adopted by ordinance and not by resolution. The question was expressly by-passed by our Supreme Court in Borough of Jamesburg v. Hubbs, 6 N.J. 578, 584, 585, 80 A.2d 100 (1951). Cf. Alcutt v. Board of Police Comm'rs of Trenton, 66 N.J.L. 173, 48 A. 1006 (Sup.Ct.1901), affirmed 67 N.J.L. 351, 51 A. 1108) E. & A. 1902); Hofbauer v. Board of Police Comm'rs of City of East Orange, 133 N.J.L. 293, 44 A.2d 80 (Sup.Ct.1945). But see Antonelli Construction, Inc. v. Milstead, 34 N.J.Super. 449, 456, 112 A.2d 608 (Law Div.1955).

N.J.S.A. 40:47--1 provides,

'The governing body of every municipality may make, amend, repeal and enforce ordinances to establish, maintain, regulate and control a police department and force, and subject to the provisions of article 3 of this chapter (§ 40:47--21 et seq.), a paid fire department and force therein; to prescribe and establish rules and regulations for the government and discipline thereof; the appointment, terms and removal of the officers and members thereof, and to prescribe their duties and fix their compensation.'

The present rules and regulations governing the police department were adopted on March 3, 1925 by resolution of the board of commissioners. They were published in printed book form and presumably distributed to all present members of the police force.

The original ordinance establishing the New Brunswick police department was enacted in 1902. By ordinance adopted August 4, 1925 that ordinance was amended to provide for an enlarged police force. Section 2 thereof provided, among other things:

'The Detective Lieutenants, Lieutenants, Sergants and Patrolmen shall severally perform the duties imposed upon them respectively by the ordinances, orders, rules and regulations as have been or may from time to time, be adopted for the government and control of the Police Department.'

The city now contends that assuming the rules and regulations can only be adopted by ordinance and not by resolution and, therefore, are of questionable validity, they nevertheless had new life breathed into them by the amendatory ordinance of August 4, 1925. It argues that the rules and regulations were incorporated in the amendatory ordinance by reference and, therefore, satisfied the statutory requirement.

The validity of the enactment of the rules and regulations need not be resolved in this case.

Charge of Failure to Report for Duty

The first charge against Gioglio accuses him of insubordination and absence without leave in that he failed to report for duty in uniform as directed by his Chief.

'The finding of misconduct need not be predicated upon the violation of any particular regulation or rule.' Asbury Park v. Dept. of Civil Service, 17 N.J. 419, 429, 111 A.2d 625, 630 (1955); In re Emmons, 63 N.J.Super. 136, 140, 164 A.2d 184 (App.Div.1960).

The order to report for duty is, in the opinion of the court, not such a rule or regulation as is within the intendment of N.J.S.A. 40:47--1. That section has reference to rules and regulations of general tenor and application and does not apply to an order to work a special assignment of indefinite duration. Borough of Jamesburg v. Hubbs, 18 N.J.Super. 5, 11, 86 A.2d 597 (App.Div.1952). A police officer is not free to choose his working hours. He may not accept the benefits entirely discharged from the burden of his employment. Id. at p. 9, 86 A.2d 597.

I cannot accept Gioglio's belated excuse that he failed to report for duty because he was distraught by reason of the events that occurred on the afternoon of July 15. If he was neither physically nor mentally fit for duty that evening, he could very easily have informed headquarters when he called to report 'off' that he reported 'off' because of illness. When he called headquarters to report 'off' he was specifically asked whether he was reporting off 'sick' and he replied, 'No, I am just reporting off.'

In my opinion, his failure to report for duty was wilful. It was consistent both with his attitude expressed several days before that he intended to fight the order, and the impression he left with the director of the department that he did not intend to obey the order. This attitude is supported by the fact that the next evening, rather than attempting to make amends for his disobedience, he appeared at the meeting of the board of commissioners for the purposes of castigating the police chief and furthering his claim for paid time-off in lieu of compensation for overtime worked.

A police department is a military-type organization. City of Newark v. Massey, 93 N.J.Super. 317, 323, 225 A.2d 723 (App.Div.1967); Klein v. Civil Service Comm'n of Cedar Rapids, 152 N.W.2d 195, 200 (Iowa Sup.Ct.1967). Discipline must be enforced. An officer does not have the unbridled right to determine in his own mind whether a given order or assignment of duty should or should not be obeyed. This would lead to an entire breakdown in discipline and morale that could have very unfortunate results.

The conviction on the first charge is affirmed.

Charge of Interview and Statement to Newspaper

As to the second charge, we have a different problem. Here, Gioglio is charged with a breach of the rules and regulations in that he granted an interview to a newspaper reporter that was published.

Rule 50, claimed to have been breached, provides as follows:...