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There has long been a controversy regarding the use of
police directors versus police chiefs. There is a
continuing similar controversy regarding the authority
of a police director as it relates to the day-to-day
operations of a police department. Encompassing these
issues is a recent Appellate Division decision
involving the City of
Asbury Park,
where the issue was whether a municipality could grant
police powers to a police director.
In May, 2002, the City of
Asbury Park appointed a new police director. Shortly
thereafter, in response to an inquiry from the
Monmouth County Prosecutor’s Office, the Division of
Criminal Justice forwarded correspondence to the City,
indicating that the position of police director is a
civilian position, and therefore a police director:
(1) has no authority to exercise police powers; (2)
cannot perform police duties, including conducting
motor vehicle stops, engaging in patrol activities,
answering calls for service, and stopping and
detaining individuals; (3) does not, as a police
officer, have the authority to arrest individuals; (4)
cannot wear a uniform which leads the public to
believe that he or she is a police officer nor shall
he or she operate a motor vehicle which is equipped as
a police car, including police band radios; (5) shall
not have access to criminal investigative reports
without the express permission of the county
prosecutor or have access to criminal history record
information, and must refrain, unless otherwise
directed by the county prosecutor, from directing the
investigation of criminal activity; and (6) does not
have the authority to carry a firearm without a
permit.
In November, 2003, the City adopted an ordinance
which, among other things, authorized the police
director to “possess and exercise the powers of a
police officer.”
On appeal from a Superior Court decision, the
Appellate Division finally determined that a
municipality could not grant police powers to a police
director.
The first “prong” of the decision addresses the nature
of the position of police director. The Appellate
Division held that: “In addition to creating specific
requirements for the appointment of law enforcement
personnel in general, and police chiefs in particular,
the Legislature has implicitly recognized the civilian
character of the police director position.”
From this determination, the Appellate Division held
that if a civilian police director was able to
exercise the police powers, the distinction between
police director and police chief would be “blurred” to
the point of circumventing state statutes and the
statutory intent with respect to issues such as
promotion, retirement age, and pension rights.
In affirming the decision of the lower court, the
Appellate Division, in the second “prong” of this
decision, recognized the authority of the police
director within a municipal police department. In
addressing the issue as raised in PBA v. Township
of North Brunswick, also an Appellate Division
decision, the lower court indicated that the holding
in North Brunswick was that when a municipality opts
not to name a chief of police and instead names a
director of police, the director is vested with the
same administrative authority as a police chief in
supervising the daily operations of the department.
By doing so, the Appellate Division confirmed that a
police director, in the absence of a police chief, is
vested with the same administrative authority as a
chief of police regarding the day-to-day operations of
a police department, but that this authority ends
where the exercise of police powers begins.
The third “prong” of this decision relates to the
qualifications of a police director to exercised
police powers. In
Asbury Park, the police director was highly qualified
to exercise police powers. However, the Appellate
Division held that since the police director position
is a civilian position, even if the individual holding
that position is otherwise qualified to exercise
police powers, a municipality may not confer on that
individual the right to exercise police powers.
Based on the Appellate Division’s decision in the City
of
Asbury Park, a municipality must carefully weigh the
advantages and disadvantages of a police director
versus a police chief. In weighing these
considerations, a municipality must recognize that a
police director is: (1) a civilian position; (2) can
only assume the administrative authority of a chief of
police in supervising the daily operations of the
police department; and (3) cannot be vested with
police powers, even if qualified to do so, and is
therefore prohibited from engaging in the activities
outlined in the correspondence from the Division of
Criminal Justice as referenced above. |
