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Captain still hopes to regain chief's job; ruling in case not retroactive
[Fort Lee, NJ]

April 01, 2001
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Captain still hopes to regain chief's job; ruling in case not retroactive
[Fort Lee, NJ]

Peter J. Sampson, Staff Writer
March 30, 2001, FRIDAY
Copyright 2001 North Jersey Media Group Inc.
The Record (Bergen County, NJ)
March 30, 2001, Friday; All Editions

(FORT LEE, N.J.) -- The state Supreme Court said Thursday that from now on no appointment may be made to any police position that has not been created by local ordinance.

But ruling in a long and bitter controversy over who should be Fort Lee's top lawman, the high court said it would not seek to disturb police appointments that were made by resolution, a speedier process not requiring public hearings.

The 6-1 decision reversed, in part, a ruling that Capt. Jeremiah O'Sullivan was not entitled to be named chief in Fort Lee.

The case was remanded to the Appellate Division to sort out other issues the appeals court had not addressed in its decision last year.

"Although we agree that police positions should be established by ordinance, the interests of justice and fairness" require that the decision apply only to future appointments, the majority said in as even-page opinion.

"Thus from today forward, no appointment may be made to any police department position not created in accordance with state law. However, those appointments made prior to this date to positions created by resolution will continue to be valid," the justices said.

The opinion noted that as O'Sullivan has argued, there has been along-standing interpretation of state law to the effect that an ordinance was not required to create new police posts.

In fact, the state Attorney General's Office had promulgated a model police ordinance authorizing municipal councils to create police positions by resolution, the justices said.

The practice is so widespread, the court said, "that if we were to apply the rule in this case retroactively, our interpretation would have the effect of undermining many police appointments throughout the state.

No purpose is served by such an approach."

O'Sullivan could not be be reached Thursday, but his attorney, Dennis Calo, said the captain was"extremely pleased."

"It's been a long time coming and we feel the Supreme Court made the equitable and proper decision," Calo said.

Brian M. Chewcaskie, the borough's attorney, said he was "some what disappointed" that the majority agreed with his position that an ordinance was needed to create a new police position but decided not to apply it retroactively. He said he believes the borough will still prevail.

"I believe in the end, after the Appellate Court reviews the other issues, there will be no change," he said.

The controversy over O'Sullivan's appointment, from captain to deputy chief in September 1996 and to chief three months later, sparked four lawsuits that were consolidated.

1 In December 1997, Superior Court Judge Jonathan H. Harris set a side the promotions of O'Sullivan to deputy chief and of Capt. William Peppard, who has since died, to inspector.

Harris said they were improperly promoted by resolution to positions that did not legally exist in the absence of an ordinance providing for a third deputy chief and for the office of inspector.

Because a vacancy in the chief's position could be filled only by a deputy chief, Harris also voided O'Sullivan's appointment as chief.

Harris also found that the Republican-controlled Borough Council violated the state's Open Public Meetings Act and failed to give the mayor the required 30 days to fill a vacancy.

The appeals court upheld Harris last year in a narrow ruling that focused solely on O'Sullivan's appointment as deputy chief by resolution.

Justice Jaynee LaVecchia, in a dissenting opinion, said she agreed with the attorney general's view that once a Police Department has been established by ordinance, it is desirable to give municipal councils the greater flexibility afforded by resolutions in staffing their police forces.

The high court remanded the case to the Appellate Division to resolve other issues such as whether the council violated the Open Public Meetings Act and civil service rules and whether conflicts of interest existed.

"We're confident that the Appellate Division will find that there were no violations in those respects," Calo said. "I have every reason to think he will be reinstated as chief."

A lame-duck GOP majority named O'Sullivan as chief shortly before their terms expired, vaulting him over two other deputy chiefs. The promotion was rescinded when Democrats gained control, and they put command in the hands of all three men, who divided the chief's duties.

The department has been headed by Chief Thomas Tessaro since March1997. Tessaro said Thursday that he and O'Sullivan have maintained a close working professional relationship.

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