Police Directors: No police powers
For Law Enforcement Agencies in New Jersey,
there must be a designation of a chief administrative officer of some nature for the department.
Generally, this comes in the form of a Chief of
Police. However, some municipalities assign this
responsibility to a civilian, usually in the form of
a civilian police director or Public Safety
STUART
Director. In these cases, the director is appointed
ALTERMAN to supervise the administration of the police
force. We have been dealing with these issues and
are about to initiate litigation to overturn a municipal ordinance
providing a Police Director with Ultra Vires authority, or powers
which are prohibited by statute. N.J.S.A. 52:17B-67 specifically
states that municipal governments may not give police powers
to civilian directors, as a police officer is “any employee of a
law enforcement unit… other than the civilian
heads thereof.” No municipality may circumvent
the law by passing local ordinances; such ordinances are voidable.
perform police duties including conducting motor vehicle stops,
engaging in patrol activities, answering calls for service and stopping or detaining individuals. A director may not wear a uniform
or badge or carry a firearm, nor may he or she operate a motor
vehicle which is equipped as a police car, including police band
radios. Likewise, they have no powers of arrest and may not issue
firearms permits.” N.J.S.A. 40A:14-152; N.J.S.A. 2C:58-3.
The daily administrative authority of a director is permissible. Directors have general
authority, which permits them to make certain policy decisions. However, the civilian
police director does not possess any
authority to exercise any police powers
or to perform police duties. State
statutes clearly distinguish between law
enforcement officers and other municipal
employees that may be employed to exercise supervision of the police force. Specific state statutes for the
appointment of regular officers apply here. Any officer
that exercises an actual law enforcement function must
attend, and successfully complete, a basic police training
course approved by the Police Training Commission. N.J.S.A.
52:17b-68. With or without a chief, regular officers exercise certain powers and duties that are reserved to them by statute. The
police directors possess no such authority.
Permitting such an appointment would also
enable the municipality to evade the statutory
requirement that police chiefs be appointed
by promotion from within the department,
as required in In re Police Chief, 266
N.J.Super. 101 (App.Div.1993). In that case,
the village of South Orange appointed a
police captain on leave from another
municipality, to the “unclassified position
of civilian Police Director.” Id. at 103.
When two police unions complained that
the director was performing the duties of a chief, the
Attorney General issued an opinion that he could not do
so and could not receive pension credit for service as police
director. Essentially, the court emphasized that the director
could not be used as a de-facto method of skirting state law.
The state has extensively regulated the appointment of officers
and the exercise of police powers. It is well-settled by state regulation that the particular issue preempts any sort of police
authority being undertaken by a civilian police director. Given
the extensive regulation over the exercise of police authority and
the performance of police duties, and the need for uniformity
among the state’s multitude of law enforcement agencies, the
state leaves only certain administrative power to a police
director. Administration of the department proceeds as it would
under a chief for policy-making purposes. However, the director
cannot perform arrests, carry a duty weapon, question suspects
or engage in other law-enforcement activities such as directing
investigations, reviewing reports or conducting internal affairs
investigations.
In fact, there is a specific statutory prohibition on a police
director’s exercising police powers: “A civilian director may not
Given the above issues, it is important to note that the case of
Jordan v. Harvey, 381 N.J.Super. 112 (App. Div. 2005) speaks on the
issue. That is, police directors have no actual law enforcement
authority, nor do they qualify as law enforcement officers. The
Appellate Division has held that municipalities are preempted
by state law from conferring law enforcement powers on a civilian police director. The court affirmed the court’s Law Division
ruling that the city could not accord law enforcement powers
to an employee without specific statutory authority permitting a civilian police director to engage directly
in law enforcement activity. Id. at 116.
Furthermore, the Police and Fireman's Retirement System
(PFRS) Statute does not permit a person appointed to be a police
or fire director to enroll to the PFRS if the person was not already
enrolled in the pension system. Kossup v. Bd. of Trustees, Police &
Fireman's Ret. Sys., 37 ȁ8