Borough Solicitor's Legal Opinion regarding
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January 13, 1999
Re: Appointment Status of Police Chief Joseph G. Kownacki Dear Mayor and Council Members: The single issue which will be addressed in this Memorandum is the appointment status of Joseph G. Kownacki. The following documents have been reviewed in preparation of this opinion: 1) August 6, 1996 letter from Mayor Edward G. Campbell III to Joseph G. Kownacki offering a temporary appointment as Police Chief. 2) Resolution 96-8-124 authorizing a one year temporary appointment as Police Chief to Joseph G. Kownacki. 3) July 23, 1998 minutes of the Gibbsboro Borough Council (unapproved). 4) Reorganization Agenda of January 1998. For the purposes of this letter memorandum, it has been represented that there are no official documents and/or contracts between the Borough of Gibbsboro and Chief Joseph G. Kownacki. FACTUAL HISTORY On or about August 6, 1996, correspondence was directed to Chief Kownacki outlining a one year temporary appointment as Chief of Police for the Borough of Gibbsboro at an annual salary of $35,000, which would be paid in semi-monthly installments. The letter signed by Mayor Campbell and copied only to the Borough Clerk outlined the terms of the employment contract between the Chief of Police and the Borough of Gibbsboro. This letter agreement outlined the terms and conditions of the Police Chief's employment which included a provision indicating that the Police Chief's position was not to be covered through the Police and Fireman's Retirement System (PFRS). However, the letter contract indicated that the position of Chief of Police was a part-time position only requiring the Police Chief to work 24 hours per week. At the conclusion of the one year probation period, the August 6, 1996 letter contract indicated that Chief Kownacki's employment status would become that of a permanent employee of the Borough of Gibbsboro. Subsequent to this letter contract, on August 14, 1996, Resolution 96-8-124 was passed, giving a one year temporary appointment as Police Chief of the Gibbsboro Police Department to Joseph G. Kownacki. Following the Resolution and letter contract, the Police Chief, along with all other acting police officers for the Borough of Gibbsboro, appeared on the Gibbsboro Reorganization Agenda in January 1997 and January 1998 reflecting one year terms expiring the last day of that calendar year. The Reorganization Agenda indicated that the Police Chief, along with all other individual police officers, were to be reappointed at each and every Reorganization, for a one year term expiring on December 31 of that same calendar year. The misconception that the Police Chief and Police Officers were subject to annual appointments is manifested in the July 23, 1998 Gibbsboro minutes. In the minutes it is reflected: Mayor Campbell commented that the Borough has not appointed a permanent, full time police officer since Officer Joseph Mingori. The officers have been appointed for one year periods which was modeled after the Hi-Nella Police Department, which was approved by the Attorney General. The benefit is when a police officer knows that as of January 1st, if he is not doing his job, he may not be reappointed. An issue has arisen as to whether or not the Police Chief is a permanent employee or an employee whose term expires at the end of each calendar year.
LEGAL OPINION
Gibbsboro Ordinance 32-1 et seq establishes a Police Department pursuant to N.J.S.A. 40A:14-118 et seq. This Statute outlines the power of a Municipality, by Ordinance, to create and establish a Police Department, and among other things, determine the terms of office for Police Officers and other members of the Police Department. The Borough Ordinances, and more specifically, Borough Ordinance 32-141 indicates appointments of a Patrolman to the Police Department after a probationary period of one year from the date of appointment. If at any time during that probationary period Council is not satisfied with the conduct or the capacity of the Police Officer, the Officer can be terminated by Resolution of the governing body without Trial. The Gibbsboro Ordinance is silent as to all other issues surrounding employment status for the Police Chief and Police Officers. Accordingly, New Jersey Statute 40A:14-118 et seq dictates employment status in this case. N.J.S.A. 40A:14-128 states "the employment of said members and officers shall be indeterminate and continuous during good behavior and efficiency". N.J.S.A. 40A:14-147 indicates "no permanent member or officer of the Police Department or Force shall be removed from his office, employment or position . . . only upon a written complaint setting forth the charge or charges against such member or officer". The Statute further indicates that an officer so charged shall have a designated Hearing with proper authorities within the time prescribed by Statute. Specifically, 40A:14-147 indicates that any Police Officer, or member of the Police Department, shall not be removed from his employment without charges being filed and subsequent due process. It should be very clear Council has the authority to terminate any member of the Police Force, including the Police Chief. However, in order to effectuate termination, it is necessary to follow N.J.S.A. 40A:14-147 which outlines the notice and due process requirements necessary to effectuate dismissal. Grounds for dismissal and disciplinary action are specifically outlined in the Borough Ordinance as well as State Statute. A review of the attached documents seems to indicate the misconception that all Police Department employees are temporary employees. This misconception is highlighted by the appearance of the Police Chief and the Police Officers on the yearly Reorganization Agenda reflecting a one year term of appointment ending December 31st of that calendar year. The appearance of the Police Chief and the Police Officers on any Reorganization Agendas, including those individual Police Officers listed on the January 1999 Agenda was nothing more than a formality. Gibbsboro Police Officers, including the Chief of Police, are permanent employees once probation is satisfied. Reappointment is not necessary and this practice of placing these reappointments on the Reorganization Agenda can be abolished. It is recommended, with this information, that Police Chief Joseph G. Kownacki remain a permanent employee of the Borough of Gibbsboro until such time as the Mayor and Council should decide that there is just cause for his removal. If that event should occur, it is suggested that Mayor and Council follow the Statues as outlined.
Respectfully, CAROL A. FABIETTI
CAF:dl enc. cc: Anne D. Levy, RMC, w/enc. |