                  NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                        SUPERIOR COURT OF NEW JERSEY
                                        APPELLATE DIVISION
                                        DOCKET NO. A-3191-14T2

STANLEY E. WILLIAMS,
                                            APPROVED FOR PUBLICATION
      Plaintiff-Respondent,
                                               October 16, 2015
v.
                                              APPELLATE DIVISION
BOROUGH OF CLAYTON,

     Defendant-Appellant.
________________________________

           Argued September 16, 2015 - Decided October 16, 2015

           Before    Judges     Sabatino,      Accurso,      and
           O'Connor.

           On appeal from the Superior Court of New
           Jersey, Law Division, Gloucester County,
           Docket No. L-24-15.

           William M. Tambussi argued the cause for
           appellant (Brown & Connery LLP, attorneys;
           Mr. Tambussi and William F. Cook, on the
           briefs).

           Thomas A. Cushane argued the cause for
           respondent (The Cushane Law Firm, LLC,
           attorneys; Mr. Cushane and David P. Hiester,
           on the brief).

      The opinion of the court was delivered by

SABATINO, P.J.A.D.

      This declaratory judgment action concerns the application

of   N.J.S.A.   40A:14-129    and   -130,   statutory     provisions   that

impose certain hiring and promotional restrictions upon police
departments in smaller New Jersey cities that are not of the

"first class" or "second class"1 in population and which are not

civil service jurisdictions.         In particular, the statutes direct

that   promotions   to   "superior    position[s]"   within   such    police

departments be restricted to officers who have served in those

departments for at least three years.        Ibid.

       The precise legal issue presented to us —— one which has

not been the subject of a prior reported appellate opinion —— is

whether an applicant for Police Chief in such a jurisdiction is

statutorily eligible for that appointment if he or she has not

served as an officer within that police department for three

years.    We concur with the trial court that where one or more


1
  "For legislative purposes, cities shall be classified as
follows based upon population as ascertained by the most recent
Federal decennial census:

     a. First class —— cities having a population of more than
150,000;

     b. Second class —— cities having a population of not less
than 12,000 but not more than 150,000;

     c. Third class —— all cities which are not first- or
second-class cities except cities bordering on the Atlantic
ocean being seaside or summer resorts;

     d. Fourth class —— cities bordering on the Atlantic ocean
which are seaside or summer resorts."

[N.J.S.A. 40A:6-4.]




                                      2                              A-3191-14T2
qualified    applicants    meet      those    statutory     requirements,     the

Police Chief must be appointed from within the ranks of the

municipality's current police force.                We therefore affirm the

issuance    of   declaratory    relief       in   this   case   confirming   that

limitation.

                                       I.

      The main statute implicated by this case, N.J.S.A. 40A:14-

129, was first adopted in 1927.             See L. 1927, c. 194, § 1.         The

law was recodified in 1971, and presently reads as follows:

            In any municipality wherein Title 11 (Civil
            Service) of the Revised Statutes is not in
            effect, and except in cities of the first
            and second class, a promotion of any member
            or officer of the police department or force
            to a superior position shall be made from
            the membership of such department or force.
            Due consideration shall be given to the
            member or officer so proposed for the
            promotion, to the length and merit of his
            service   and  preference  shall   be  given
            according to seniority in service.        No
            person shall be eligible for promotion to be
            a superior officer unless he shall have
            previously served as a patrolman in such
            department or force.

            [N.J.S.A. 40A:14-129 (emphasis added).]

A companion provision, which was first enacted in 1940 and which

was   recodified    in   1971   as    N.J.S.A.       40A:14-130,    imposes    an

additional three-year service requirement, as follows:

            In any municipality wherein Title 11 (Civil
            Service) of the Revised Statutes is not in
            operation, except as otherwise provided by



                                        3                               A-3191-14T2
            law, a member or officer of the municipal
            police department or force shall not be
            promoted until he has served at least 3
            years in such department or force.

            [N.J.S.A. 40A:14-130 (emphasis added).]

      The Borough's Efforts to Select a New Police Chief

      The     circumstances      in    this      case   involve     efforts     by

defendant, the Borough of Clayton ("the Borough"), to select a

new Police Chief.     The parties stipulate that the Borough is not

a city of the first class or second class, and that it is not a

jurisdiction subject to the civil service laws under Title 11A.

      The Borough has approximately 8,000 residents.                As the name

suggests, the municipality is organized under the borough form

of government, N.J.S.A. 40A:60-1 to 8.1, with a governing body

composed of a Mayor and six Council members.                      As of January

2015,   the    Borough's      police     force      numbered   fifteen      police

officers, consisting of eleven patrol officers, three sergeants,

and one special law enforcement officer.

      The Borough's need to select a new Police Chief arose when

its   previous    Chief   took    a    leave   of    absence   early   in   2014,

evidently for health reasons.                Consequently, in May 2014 the




                                         4                               A-3191-14T2
Gloucester County Prosecutor's Office ("GCPO") took over control

of the Borough's Police Department, through a supersession.2

       When the GCPO took over, it appointed Detective William

Perna to serve as supervisor of the Borough's police department

until further notice. Perna has twenty-seven years of experience

with the New Jersey State Police.        For reasons that are not

entirely clear from the record, in September 2014 Perna was

replaced by GCPO Sergeant Ronald Koller.3

       On October 9, 2014, the Borough passed Ordinance #16-2014,

thereby creating the position of "Acting Chief of Police" during

the supersession.4    Both Perna and plaintiff Stanley E. Williams

applied for the Acting Chief position.

       Plaintiff is a long-time resident of the Borough who has

worked in its police department for at least twenty-one years.

He is a patrol officer who has served as the department's head

firearms instructor and its head use-of-force instructor for the


2
  See Passaic Cnty. PBA Local 197 v. Office of the Passaic Cnty.
Prosecutor, 385 N.J. Super. 11, 16-17 (App. Div.) (explaining
the County Prosecutor's supervisory authority over county and
municipal police officers), certif. denied, 188 N.J. 217 (2006).
In essence, a supersession is a period of time where the office
of a county prosecutor directly supervises the day-to-day
operations of a local police department within that county.
3
  We were advised at oral argument that Koller continues to
manage the department under the ongoing supersession at present.
4
    The ordinance has not been challenged in this litigation.



                                  5                        A-3191-14T2
past eleven years.         Prior to embarking on his career in law

enforcement, plaintiff played professional basketball with the

Boston Celtics for several years.

     The Borough decided not to fill the position of Acting

Chief.     Instead, it elected to proceed with the appointment of a

permanent new Chief.          The Borough therefore circulated a job

advertisement for permanent Police Chief internally within the

department on October 31, 2014, and posted the ad publicly two

days later.       Among other qualifications, the posting requires

applicants with a Bachelor's Degree in police science, criminal

justice,     or   other   related   field,    with   a    preference     for    a

Master's Degree.      The posting also requires applicants to have

at   least    five    years    of   "increasingly        responsible    police

supervisory experience directly related to the operations of a

police department."

     The Borough received five applications in response to the

job advertisement.        Two candidates were immediately eliminated

due to their failure to satisfy the advertised educational or

licensing     requirements.         The      remaining     applicants      were

plaintiff, Perna, and a third candidate, Preston Forchion.                     Of

these remaining three candidates, only plaintiff has served as a

police officer in the Borough.




                                      6                                A-3191-14T2
      As part of the selection process, the Borough created a

testing procedure consisting of three parts:                              a written exam

administered       by    the      New       Jersey        State     Chiefs          of    Police

Association ("NJSCPA") worth 40% of the applicant's score; an

oral exam, also administered by the NJSCPA, and also worth 40%;

and   an   interview     with     a    panel       of     public    officials        from      the

Borough, worth the remaining 20%.                       None of those testing steps

have proceeded in this case.

      The Litigation

      On   January      12,    2015,     two       days    before       the   start      of    the

formal hiring process, plaintiff filed in the Law Division an

action in lieu of prerogative writs, see Rule 4:69-1, seeking

declaratory relief under the Uniform Declaratory Judgments Act

("UDJA"),    N.J.S.A.         2A:16-50      to     -62,    and     permanent        injunctive

relief under Rule 4:52.               The complaint asserted that Perna and

Forchion    were    statutorily          ineligible         to     be    appointed        Police

Chief,     given   their       lack    of    experience          within       the    Borough's

police force.

      Plaintiff named only the Borough as a defendant and did not

name Perna and Forchion as co-defendants.                          Nor did the Borough

implead Perna and Forchion as third-party defendants.                                Perna and

Forchion did not move to intervene in the litigation, either in

the trial court or in this appeal.




                                               7                                         A-3191-14T2
    Foregoing discovery, the Borough and plaintiff each filed

motions    for    summary       judgment.            After    hearing     oral    argument,

Judge   David      W.    Morgan       granted        plaintiff's       cross-motion           for

summary    judgment       and    declaratory          relief     under    the    UDJA,        and

denied the Borough's motion.                  A corresponding order was entered

on February 25, 2015.

    In      interpreting          the      applicable         statutes     in     his        oral

opinion,    Judge       Morgan    concluded          that     those    laws     are    "fairly

clear" in prescribing that "individuals that are eligible for

selection to the superior office of Chief of Police [in the

Borough] are those individuals that are members of the [f]orce

. . . for three years."                    Judge Morgan also found that the

legislative       history        of     the     statutes       supported        plaintiff's

position    that    the    municipality             must     "pick    somebody    from       the

Department,"       and     that       in-house        applicants       should         "not     be

competing        with     some        other         [potentially]        very     qualified

candidates outside the Department."

    During        the    course       of      his     oral    opinion,        Judge     Morgan

mentioned the need to "enjoin the [Borough] from taking the

steps [it] did [and not] let the process play out such that

external    individuals          would     be   eligible[.]"            However,       in     his

signed order implementing his oral ruling (which was apparently

drafted by plaintiff's counsel) the judge refers explicitly only




                                                8                                     A-3191-14T2
to declaratory relief.        The order generically refers to granting

plaintiff's summary judgment motion5 on the issue of declaring

plaintiff the sole statutorily eligible candidate, and denying

the summary judgment motion of the Borough.                The order contains

no provision imposing injunctive relief upon the Borough.                        In

any event, the Borough has deferred proceeding further with the

testing    or   appointment    process,     pending   the   outcome      of   this

appeal.

                                      II.

      On appeal, the Borough argues that the trial court erred in

its   ruling    for      several   reasons,     two   of    them   essentially

procedural in nature and one of them substantive.

      In particular, the Borough procedurally contends that the

declaratory order should not have been issued without a showing

by plaintiff of irreparable harm.           The Borough also procedurally

contends    that   the    court    erred   in   declaring   the    two   outside

applicants statutorily ineligible without them having been named

as co-defendants in the complaint.              Substantively, the Borough

contends that the court's interpretation of N.J.S.A. 40A:14-129

5
  Counsel have furnished at our request copies of their summary
judgment submissions in the trial court. The submissions reveal
that plaintiff's notice of cross-motion for summary judgment did
not refer to injunctive relief.    Nor did plaintiff's brief in
support of summary judgment request injunctive relief, although
plaintiff had sought such a remedy in an earlier brief when he
filed an initial order to show cause with his complaint.



                                       9                                 A-3191-14T2
and    -130    is        fundamentally        flawed,     that      the    statutes       are

anachronistic,           and   that      it    is     arbitrary,        capricious,       and

unreasonable         for    the    law    to        deprive   the      Borough    in     this

situation of the ability to consider external candidates for the

position.

                                               A.

       The Borough's procedural arguments can be readily rejected.

The UDJA provides a well-established mechanism for resolving an

actual legal dispute that arises between adversarial parties.

The purpose of the UDJA is "to settle and afford relief from

uncertainty and insecurity with respect to rights, status and

other legal relations."               N.J.S.A. 2A:16-51.               Toward that end,

the UDJA is to be "liberally construed and administered" to

effectuate         its   general     purpose.          Ibid.;    see    also     N.J.    Home

Builders Ass'n. v. Div. on Civil Rights, 81 N.J. Super. 243, 251

(Ch. Div. 1963), aff'd, 45 N.J. 301 (1965).                         In particular, the

UDJA   is     an    especially       appropriate        method    for     resolving      "any

question of construction or validity arising under . . . [a]

statute."          N.J.S.A. 2A:16-53; see also Finkel v. Twp. Comm. of

Hopewell, 434 N.J. Super. 303, 317 (App. Div. 2013) (citing this

same provision in an opinion resolving the disputed meaning and

application         of     various     election        statutes      involving         ballot

questions).




                                               10                                  A-3191-14T2
      As    we    recently      recognized         in   Finkel,        "the    remedy       of   a

declaratory        judgment        is     'circumscribed            by        the     salutary

qualification that the jurisdiction of the courts may not be

invoked in the absence of an actual controversy.'"                                  Id. at 318

(quoting     N.J.       Turnpike      Auth.     v.      Parsons,       3    N.J.     235,     240

(1949)).          Our    courts       generally         will     not       entertain        legal

questions that are purely "academic."                     Id. at 315.

      The   trial       court     correctly        recognized      that       the    important

issues of statutory construction under the police-appointment

statutes here are not "purely academic."                          There is an actual,

live controversy presented.                    For reasons that are not fully

apparent,        the    Borough    is    not    satisfied         with      the     fact     that

plaintiff is the sole applicant for Chief from its police force

who   apparently        meets     (subject      to      the     testing       and    interview

process) the educational, licensing, and experience criteria of

the job posting.            The Borough would prefer to also consider

external     applicants         for     the     position,         such      as      Perna     and

Forchion,        despite    their       not    having         served       three     years       as

officers within the Department.                    The Borough wishes to have all

three applicants sit for the written test and to complete the

other portions of the testing process.

      Plaintiff,        meanwhile,       contends        that    the       trial    court    was

correct in finding that the statutes restricting eligibility to




                                              11                                       A-3191-14T2
candidates from within the police force are clear on their face.

Plaintiff argues that it is a waste of time and public resources

to   have   ineligible    outsiders       included      in   the   testing     and

interview process.       Plaintiff also urges that the court reject

with finality the Borough's claims that these statutes are out

of date, arbitrarily restrictive, and unworthy of enforcement.

     We agree with plaintiff that there is a significant public

interest    to   be   served   by   resolving     now    the   merits   of     the

statutory   questions     presented       here   through     the   mechanism    of

declaratory relief.      It would be unwise to have the parties, the

police   force,   the    applicant       pool,   and   the   citizens   of     the

Borough left unsure about the contested statutory eligibility

criteria while the hiring process goes forward.                There is surely

an "actual dispute" here that warrants resolution at this time

in the public interest.

     We reject the Borough's argument that the court's issuance

of   a   declaratory     order      in    this    particular       setting     was

unjustified because of an alleged lack of irreparable harm.                    For

one thing, a demonstration of irreparable harm is not always

required to obtain declaratory relief.             In fact, nothing in the

UDJA, a statute that must be liberally construed, requires such

a demonstration.




                                         12                             A-3191-14T2
    Moreover,           even     if    irreparable           harm    were     a    necessary

element, the trial judge aptly recognized that prospective harm

in this situation stems from concerns                         that the Borough must

"comply with the law."                 See N.J. Dental Ass'n v. Metropolitan

Life Ins. Co., 424 N.J. Super. 160, 165 (App. Div. 2012) (noting

the propriety of a private cause of action that, in essence,

seeks     "to     compel       another       private    party       to    comply     with     a

statute"), certif. denied, 210 N.J. 261 (2012).

    We do not read Capibianco v. Civil Serv. Comm'n, 60 N.J.

Super. 307, 313 (App. Div. 1960), a case cited in the Borough's

reply    brief,       as    stripping        courts     of    the       ability    to    issue

declaratory relief that can help assure that a municipality is

guided by appropriate statutory mandates in appointing a Police

Chief.          Id.    at   312.         In     Capibianco,         the     plaintiff       was

temporarily       appointed       as    Acting       Chief    of    a    municipal       police

department.            Several       years     later,       the     municipality's        city

manager     requested          the     State        Civil     Service       Commission       to

administer an examination in order to evaluate other candidates

for the permanent position.                   Id. at 312-13.            Based on the test

results, the city manager appointed another candidate Chief of

Police.     Id. at 313.           The plaintiff filed an action in lieu of

prerogative writs in the Law Division, challenging the city's

actions     and       contending       that     his     own       appointment      had    been




                                               13                                    A-3191-14T2
permanent,     rather     than    temporary,         and   that    the      examination

process being used to replace him was invalid.                     Ibid.

       The   Law   Division      declined       in   Capibianco       to    enjoin     the

examination.       Ibid.      It then dismissed the complaint because

plaintiff had not exhausted his administrative remedies.                          Id. at

314.     The     Commission      thereafter      ruled      that     the    plaintiff's

position had only been temporary, despite a salary increase he

had received, and that the competitive processes used to appoint

a permanent Chief were valid.                Ibid.    On appeal, we upheld the

Commission's       determination        as      being      consistent        with      the

applicable laws.        Id. at 315-20.

       Although our opinion in Capibianco mentions in passing that

the Law Division judge had found that the plaintiff "would not

suffer   irreparable       harm    by     the    holding     and     taking      of    the

examination," that observation in dicta does not invalidate the

trial court's order in the present case.                    Id. at 313.         There is

no indication that the plaintiff's lawsuit in Capibianco was

brought under the UDJA.           Furthermore, that case did not involve

the statutes at stake here, N.J.S.A. 40A:14-129 and -130.                              Nor

did the plaintiff in Capibianco allege, as here, that the other

applicants     were   statutorily       ineligible         because    of    a   lack    of

prior service on the municipality's police force.                          In addition,

the    present     case    does     not      implicate       the      exhaustion       of




                                          14                                    A-3191-14T2
administrative remedies.          And, as we previously noted, the trial

court's order being appealed contains no injunctive provisions.

We   therefore      are   unpersuaded      by    the    Borough's      reliance     on

Capibianco.

      We also reject the Borough's contention that plaintiff's

omission     of   Perna     and   Forchion       as    co-defendants         requires

dismissal    of   the     complaint.       We   are    mindful      that    the   UDJA

provides that "[w]hen declaratory relief is sought, all persons 6

having or claiming any interest which would be affected by the

declaration shall be made parties to the proceeding."                        N.J.S.A.

2A:16-56.     See also Gotlib v. Gotlib, 399 N.J. Super. 295, 313

(App. Div. 2008) (implementing this principle).

      Although the Borough is correct that the court could not

adjudicate    the    individual    rights       of    the   other   candidates       in

their   absence,     plaintiff    brought       this   action    for   declaratory

relief under N.J.S.A. 2A:16-52 against the Borough.                        He clearly

did so to assure that the Borough itself would not pursue an

appointment process based upon an incorrect conception of the

applicable    statutes      and   their    appoint-from-within         eligibility

requirements.       The final declaratory order issued by the trial

court was directed at the Borough, not at any other applicants.


6
  The Borough qualifies as a "person" under N.J.S.A. 2A:16-50, as
it is a "municipal or other corporation of any character."



                                          15                                 A-3191-14T2
    To    be     sure,           it     would       have      been      more    prudent      and

comprehensive for plaintiff to have named Perna and Forchion as

additional defendants here, since their names and application

status were known.           Even so, we discern no actual prejudice from

their omission from this lawsuit or, for that matter, from this

appeal.

    This litigation has been pursued in an open                                  and public

manner.   We have little doubt that the case is a matter of some

notoriety within the Department and the Borough.                                  Perna and

Forchion surely are aware that their testing process has not

proceeded,     yet        they    have        not     sought       to    intervene    in     the

litigation.          We     do        not   fault      them     for      remaining    on     the

sidelines,     given       the        expense    and    burdens         of   taking   part    in

litigation of any kind.

    In sum, a declaration and reaffirmation of the statutory

restrictions that the Borough must heed in the hiring process

can be fairly issued without requiring the participation of the

other applicants.           We therefore proceed to a review of the trial

court's substantive decision on its merits.

                                                 B.

    As with any issue of statutory interpretation, courts must

first   examine      "[t]he           plain     language      of     [each]    statute"      and

"apply to the statutory terms the generally accepted meaning of




                                                 16                                   A-3191-14T2
the words used by the Legislature."                       L.A. v. Bd. of Educ., 221

N.J.   192,    201     (2015)     (quoting         Patel    v.    N.J.    Motor    Vehicle

Comm'n, 200 N.J. 413, 418 (2009)).                         "When the Legislature's

chosen    words      lead   to   one     clear      and    unambiguous      result,      the

interpretative process comes to a close, without the need to

consider extrinsic aids."              Ibid.       (quoting State v. Shelley, 205

N.J. 320, 323 (2011)).

       When, as here, an issue concerns more than one statutory

provision,     "[r]elated        parts    of       an   overall    scheme    can    .    .   .

provide relevant context."               Beim v. Hulfish, 216 N.J. 484, 498

(2014) (quoting N.J. Dep't of Children & Families v. A.L., 213

N.J. 1, 20 (2013)).          Put another way, in interpreting the plain

terms of a statute, a court must "read them in context with

related provisions so as to give sense to the legislation as a

whole."      Ibid.     (quoting DiProspero v. Penn, 183 N.J. 477, 492

(2005) (internal citations omitted)).

       The    plain     language         of     the       statutes       before     us       is

unequivocal.         As we noted at the outset, N.J.S.A. 40A:14-129

provides,     in     pertinent     part,       "[i]n      any    municipality      wherein

Title 11 of the Revised Statutes is not in effect, and except in

cities of the first and second class, a promotion7 of any member


7
  The applicable local ordinance, Clayton, N.J., Code § 21-1,
provides that "[t]he order of rank [in the police department]
                                                   (continued)


                                              17                                   A-3191-14T2
or   officer     of    the     police    department         .    .    .    to    a   superior

position shall be made from the membership of such department or

force."     (emphasis added).           N.J.S.A. 40A:14-130 drives the point

home, in that it requires that such candidates have worked for

the municipality's police department for at least three years.

      A common sense reading of these statutes dictates that any

candidate promoted to a superior position (here, the Chief of

Police)     must      currently     work        in    the       municipality's         police

department and have three years of experience on the force as a

police officer.         The statutory language is plain, direct, and

unqualified.

      We    find      unpersuasive       that        the    Borough's           reliance     on

selected    portions      of    Miller     v.    Township        of       Wayne,     154   N.J.

Super. 247 (Law Div. 1977) and Juliano v. Borough of Ocean Gate,

214 N.J. Super. 503 (Law Div. 1987), requires deviation from the

plain text of the statutes.

      Miller does not advance the Borough's position.                                At most,

Miller     can   be    read    to   solidify         the    legal     proposition          that

N.J.S.A. 40A:14-129 applies to the position of Chief of Police


(continued)
shall be in descending order:        Chief of Police, Captain,
Lieutenant,   Sergeant,    Corporal,   Patrolman,   Probationary
Patrolman and Special Officers."       We do not consider the
statutes inapplicable because they refer to a "promotion" rather
than an "appointment."     In fact, the Borough makes no such
argument.



                                           18                                         A-3191-14T2
in a non-civil service jurisdiction, such as the Borough here.

Miller, supra, 154 N.J. Super. at 260.                              In Miller, the Law

Division was asked to determine whether the mayor of Wayne could

appoint a Chief of Police from outside the municipality.                                Id. at

248.    Central to the discussion there, however, was whether the

position of Chief of Police was akin to a department head ——

upon which the mayor would have the power to appoint under the

Faulkner      Act,     N.J.S.A.      40A:69-1         to    -210    ––    or    whether       the

position of Police Chief was determined under N.J.S.A. 40A:14-

129.   Id. at 254-56.

       Citing     two        existing     ordinances            stating        that    Wayne's

business administrator (and not the mayor)                             had the right to

choose the Police Chief, the Law Division in Miller rejected

plaintiff's      argument       and     determined          that    the   two     provisions

(N.J.S.A. 40A:14-129 and the relevant provisions of the Faulkner

Act)   were     not     in    conflict.         Id.        at   260.      The    court       thus

concluded       that    the     Chief     of        Police's       position      was    to     be

determined by reference to N.J.S.A. 40A:14-129.                           Id. at 262.

       That   narrow     holding,       as     is     relevant      here,      applies       with

equal force.         As the Law Division noted in Miller, and contrary

to the Borough's argument, "N.J.S.A. 40A:14-129 does not purport

to   strip    [the      municipality]          of    [its]      power[,]       [but]    merely

defines    the    group       from    which     the        appointment     may    be    made."



                                               19                                      A-3191-14T2
Miller, supra, 154 N.J. Super. at 260 (emphasis added).                  The

fact that the Borough here may prefer to not be bound by those

constraints does not allow it to violate the law.

       The Borough's reliance on Juliano is also unavailing.              As

in Miller, Juliano dealt with a situation where the plaintiff

sought, among other things, to invalidate a municipality's Chief

of   Police   appointment   under   N.J.S.A.     40A:14-129.      Juliano,

supra, 214 N.J. Super. at 505.           Finding that neither the plain

text   of   N.J.S.A.   40A:14-129   nor   the   legislative    history   for

N.J.S.A. 40A:14-129's predecessor statute supported defendants'

position, the Law Division noted in Juliano that, "[t]he obvious

purpose of the statute is to reward good performance and inject

merit into the promotion process in those municipalities not

functioning under civil service regulations.             In effect, the

statute gives a protection similar to civil service procedures

to guard employees against arbitrary action by the employer."

Id. at 511.

       The court's opinion in Juliano went on to note that it is

"doubtful" that the Legislature intended to consider a candidate

from outside the municipality "under any circumstances."            Id. at

512.    However, the court observed that "[the] issue need not be

reached until it is determined by plenary hearing that there is




                                    20                             A-3191-14T2
no one within the [ ] Police Department who wants the job and is

qualified for it."        Ibid.    (emphasis added).

       Here, there is at least one applicant, i.e., plaintiff, who

has    the   requisite      three     years       of    experience       within       the

Department and thus is statutorily eligible for consideration.

We need not at this juncture pass upon whether extraordinary

principles akin to the "doctrine of necessity" might allow the

Borough to appoint a Police Chief from outside of its borders

when    no   qualified     internal    applicants             have   applied.         See

DePascale    v.   State,    211     N.J.    40,       44-45    (2012)    (recognizing

general principles of necessity); see also Williams v. State,

375 N.J. Super. 485, 528-29 (App. Div. 2005) (same).                      All we are

deciding here is that the Borough is bound by the strictures of

N.J.S.A.     40A:14-129     and     -130,       and     thus    must    confine       its

selection procedures to statutorily-eligible candidates.

       That said, we must make very clear what we are not deciding

in this opinion.     We do not presume to make any determination as

to whether plaintiff, despite his statutory eligibility derived

from   his   years   of    service     on       the    Borough's       police    force,

possesses     sufficient     and     appropriate          qualifications         to    be

appointed Chief of Police.

       Given that plaintiff is the only internal candidate who met

the criteria stated within the job posting, the Borough is free




                                           21                                   A-3191-14T2
to   start   the    process     anew   and   revise    the    qualifications    to

attempt to attract a wider span of internal applicants.                        The

Borough      also     may      wish,    with     the     County     Prosecutor's

acquiescence,        to     continue    with     the     extant     supersession

arrangement.        Or, as was suggested at oral argument before us,

the Borough may consider consolidating its small police force

with that of a neighboring town.               Other options not contrary to

N.J.S.A. 40A:14-129 and -130 also may well exist, and we need

not canvass them here exhaustively.

      In affirming the trial court's decision, we do not comment

on whether these statutes have become outdated or unwise with

the passage of time.          We also will not opine on whether it would

be preferable if the statutory scheme permitted smaller towns

such as the Borough to consider and appoint applicants who have

served in law enforcement in other jurisdictions.                   That policy

choice is reserved for the Legislature, which is, of course,

free to modify or repeal these statutes at any time in the

democratic law-making process.

      The    trial        court's   declaratory       order    is   consequently

affirmed.




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