D.R. NO. 80-32

STATE OF NEW JERSEY

PUBLIC EMPLOYMENT RELATIONS COMMISSION

BEFORE THE DIRECTOR OF REPRESENTATION

In the Matter of

BOROUGH OF MONTVALE,

Public Employer-Petitioner,

-and-	Docket No. CU-78-38

MONTVALE SUPERIOR OFFICERS

ASSOCIATION,

Petitioner.

Appearances:

For the Public Employer-Petitioner

Gerald L. Dorf, P.A.

(Richard M. Salsberg, of counsel)

For the Employee Representative

Osterweil, Wind & Loccke, attorneys

(Alfred G. Osterweil, of counsel)

DECISION

On February 22, 1978, a Clarification of Unit Petition was filed with the Public Employment Relations Commission (the "Commission") by the Borough of Montvale (the "Borough") seeking a determination that the chief of police and police captain, who comprise a recognized collective negotiations unit of police superior officers, are managerial executives within the meaning of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. (the "Act"), and are not entitled to negotiations rights under the Act. The chief and the captain are represented by the Montvale Superior Officers Association (the "Association").

Pursuant to a Notice of Hearing, a hearing was held before Commission Hearing Officer J. Sheldon Cohen on October 20, 1978, and before Dennis J. Alessi on March 15, 1979,1/ at which all parties were given the opportunity to examine and cross-examine witnesses, to present evidence, and to argue orally. Both parties filed post-hearing briefs by May 7, 1979. The Hearing Officer issued his Report and Recommendations on September 21, 1979, a copy of which is attached hereto and made a part hereof. The Borough filed exceptions to the Hearing Officer's Report; the Association filed a memorandum in opposition to the exceptions filed by the Borough.

The undersigned has considered the entire record herein, including the Hearing Officer's Report and Recommendations, the transcript, the exhibits and the exceptions, and on the basis thereof finds and determines as follows:

1.	The Borough of Montvale is a public employer within the meaning of the Act, is the employer of the employees who are the subject of this proceeding and is subject to the provisions of the Act.

2.	The Montvale Superior Officers Association is an employee representative within the meaning of the Act and is subject to its provisions.

3.	The Borough has filed a Petition for Clarification of Unit seeking a determination that the police chief and the police captain are managerial executives under the Act.

Alternatively, the Borough contends that because the chief directly supervises the captain, an inherent conflict of interest exists when both these titles are in the same unit, and accordingly, the chief should be removed from the unit. Inasmuch as removing the chief from the superior officers unit would result in a unit comprised of one individual (the captain), the Borough contends that the unit should thus be declared inappropriate for collective negotiations.

The Association argues that neither the chief nor the captain are managerial executives but that the police department is managed by elected officials. The Association argues that no evidence was adduced which would indicate that a conflict or potential conflict of interest has arisen from having the chief and the captain in the same negotiations unit and further argues that no such conflict or potential conflict exists. Accordingly, the Association argues that the superior officers unit should remain intact.

4.	The Hearing Officer concluded that neither the chief nor the captain are managerial executives within the meaning of the Act. The Hearing Officer further concluded that, inasmuch as any actual or potential conflict of interest between the chief and the captain is de minimis, the Petition should be dismissed.

The Borough has excepted to the Hearing Officer's findings of fact and conclusions of law. More specifically, the Borough excepts to the Hearing Officer's factual findings that: (1) the mayor retains final authority to mitigate discipline as determined by the chief; (2) the chief does not have discretion to determine the type of patrol cars, weapons or uniforms, which should be purchased for the department; (3) the chief does not have authority to determine when additional patrolmen should be hired; (4) the mayor, police commissioner and deputy police commissioner closely monitored many of the day-to-day operations of the department and their actions thus circumvented and undermined the chief's command authority; and (5) major policy decisions are made without the chief's input or contrary to his recommendations.

The Borough functions under a mayor-council form of government. The mayor and council are elected officials who serve on a part-time basis. Upon appointment by the mayor, council members also serve as heads and deputy heads of the various departments of the Borough. Thus, one council member is appointed police commissioner and another council member is appointed deputy police commissioner. They serve as liaison between the mayor and council and the department and as the mayor's representatives to the department. The commissioner is designated by the Borough police ordinance as the titular head of the department and the commissioner furnishes written monthly reports concerning the department to the mayor and council.

Pursuant to the Borough police ordinance, the police chief is designated the commanding officer of the police department. The chief is subject and subordinate to the police commissioner. The chief is responsible for the efficiency, general conduct, appearances and good order of the department. The chief takes personal charge of police functions during civil disorders, keeps personnel records of the members of the department, maintains the police blotter, deploys and schedules police officers, temporarily suspends (subject to the approval of the police commissioner) department members for willful violation of law, temporarily appoints (subject to council action) special officers, grants temporary leaves of absence, and enforces or prescribes temporary suspensions not exceeding five days.

There is one captain in the Montvale Police Department. The captain reports to the chief. In the absence of the chief, the captain assumes command of the department. The remaining ranks within the department are lieutenants, sergeants and police officers. These employees are represented in a rank and file collective negotiations unit.

Functions & Responsibilities of the Chief of Police

In the instant matter, the undersigned has carefully reviewed the record evidence with respect to the factual findings of the Hearing Officer to which exceptions have been filed.

A.	Hire -- The hiring process begins with the acceptance of applications and the arrangement for physical and intellectual testing of the applicants. Thereafter, a Selection Committee, usually comprised of the police commissioner, the deputy commissioner, another council member, the chief and two PBA members, screens and eliminates certain candidates. Background investigations are then conducted on the remaining applicants. The investigation reports are forwarded by the Selection Committee to the mayor and council. The mayor and council then interview the candidates and make their selections from this screened group of applicants.

After the most recent hiring selections were made by the mayor and council, the background investigation on one of these candidates revealed certain problems which caused the chief to recommend to the mayor and council that the candidate in question be asked to resign or, alternatively, that he be terminated immediately. The mayor and council did not act upon this recommendation. Eventually, this candidate was terminated from employment when he failed several courses at the police training academy. The chief has no independent authority to hire. On those occasions when he has spoken with the police commissioner about hiring additional police personnel, he has not been successful in securing same.

Based upon the above, the record reveals that the chief's role in the hiring process is quite limited, and that his recommendations have been accorded little weight by the mayor and council. Accordingly, the undersigned rejects the Borough's exception to the Hearing Officer's finding that the chief lacks authority to determine when additional police officers will be hired.

B.	Discipline -- The record indicates that during the past several years there have been very few disciplinary actions taken against police officers in Montvale. However, the chief has been almost wholly excluded from the decision-making process in the few situations where discipline has been meted-out by the Borough.

In one situation, which involved the conduct of a police investigation and the subsequent handling of a controversial murder case, the judge and the prosecutor sent various general recommendations to the mayor and council suggesting that an officer be disciplined and that certain internal departmental procedures be adopted. Thereafter, the mayor and council held a hearing, concluded that the officer was negligent in the performance of his duties and determined that discipline was warranted. The mayor and council also concluded, after considering the officer's good work record, that the discipline they initially decided upon, a 12 day suspension, should be tempered to a 6 day suspension. The mayor sent a letter to the chief telling the chief to convey this determination to the officer. This was the extent of the chief's involvement in the disciplinary process.

Further, the prosecutor and the Borough attorney developed a set of recommended investigation and case-handling procedures for internal police department use. The mayor forwarded these to the chief, and told him to institute the newly developed procedures in the department. The chief had no input in the development of the procedures to be utilized in the police department.

In another incident, two police vehicles collided, one of which was damaged beyond repair. Before the chief had taken any action, the mayor called a meeting to inquire into the facts of this incident. The meeting was attended by the mayor, the police committee, the chief, the two officers involved in the incident and representatives of the PBA. Subsequent to the meeting, the chief was instructed to and did discipline the two officers. Subsequently, the chief was criticized by the mayor for leniency of the discipline which the chief imposed. The chief testified that he was in disagreement with the manner in which this matter was handled by the mayor and police committee.

The undersigned concludes from the record that while the chief has some role in the disciplinary process, that role is quite limited. The direct and extensive involvement of the mayor and council in this area has led to the virtual exclusion of the chief from serious matters of discipline. Accordingly, the undersigned rejects the Borough's exception to the Hearing Officer's finding that the mayor retains final authority in disciplinary matters.

C.	Departmental Operations

1.	Scheduling -- Under the Borough police ordinance, the chief is given the responsibility for scheduling tours of duty, vacations, holidays, etc. Until recently, the captain planned the duty and vacation schedules under the direction of the chief. Given certain fixed conditions -- the number of officers in the department, the area to be patrolled, and the level of police service desired -- the chief determines the number of officers on each shift.

However, there has been a significant and regular intervention in this function by the elected Borough officials. The mayor testified that it was the responsibility of the mayor and council to insure a proper schedule. In undertaking that responsibility, the mayor, police commissioner and deputy commissioner have issued various orders and directives to the chief and the captain concerning how the schedule should be drafted, and how and when vacations could be taken. In addition, the mayor, commissioner and deputy commissioner have required advance submission of schedules to them for initial approval and for approval of alterations.

The chief, or in his absence, the senior officer on the shift, may unilaterally decide to hold over an officer into the next shift where circumstances are appropriate in order to complete required tasks. However, in arranging for coverage when an officer calls in sick, the chief's authorization of overtime has been closely scrutinized, questioned and severely criticized. The mayor and police commissioner have issued several directives limiting the chief's ability to authorize overtime. The police commissioner at one point instructed the chief to clear all overtime with him, the mayor or the deputy commissioner prior to authorizing it. When this system proved impossible to administer, it was abandoned.

2.	Personnel Assignments & Deployment -- Pursuant to the Borough police ordinance, the chief is given responsibility for personnel assigned to deployment. However, the mayor and police commissioner have taken an active role in this area: they have removed scheduling duties from the captain and given them to a lieutenant; on numerous occasions they have directed that an officer be placed at a specific location at a certain time in order to direct traffic; they have directed that traffic duty officers be removed from certain posts; they have directed that an officer be placed at a specific location at a certain time in order to direct traffic; they have directed that traffic duty officers be removed from certain posts; they have directed that traffic regulation signs be posted at certain locations; they have ignored many recommendations of the chief regarding placement of traffic signs; they have directed that certain incidents which occurred in the Borough be investigated, and when dissatisfied with the results of initial investigations, have ordered re-investigations; they have issued directives on how to handle certain emergency situations; they have countermanded training authorizations issued by the chief; they have ignored several recommendations of the chief regarding personnel training; and they have rejected leave of absence requests which the chief had recommended they approve.

The chief testified that he is not permitted to independently run the department, and that there is regular intervention by the mayor, police commissioner and deputy commissioner in even the everyday operation of the department. The mayor and police committee often directly contact police officers and give them orders without going through the chief. The mayor issued a directive to the department that requires the chief or, in his absence, the senior officer in charge of the shift, to immediately inform either the mayor, police commissioner or the deputy commissioner of any "unusual events" which occur in the Borough during a shift.

Clearly, the mayor and police commissioner have taken a broad and active role in departmental functions. Based upon the entire record and the above discussion the undersigned finds that the mayor, the police commissioner and the deputy commissioner have closely scrutinized the day-to-day operations of the department, have regularly intervened in numerous departmental functions and, thus, on many occasions have exercised the chief's command authority. Accordingly, the undersigned rejects the Borough's exception to the Hearing Officer's finding that the actions of the mayor and the commissioners interfered with the chief's command authority.

D.	Other Responsibilities -- In the past, the chief and the police commissioner had jointly formulated the initial department budget for submission to the mayor and council. For the most recent budget, the chief was instructed to independently formulate the initial police department budget. Historically, the mayor and council revise and cut the initial submission extensively. The final budget is very different from the initial recommendation.

The chief has the authority to purchase items provided in the department budget. His "discretionary fund" is modest and he does not have complete control over that. Any purchasing decisions which will lead to relatively large expenditures of Borough funds require prior review and approval by the mayor and council. The chief has some discretion concerning the selection and purchase of equipment used by the department. However, even in this area there has been review by the mayor and council which has resulted in the restriction or preemption of the chief's discretion.

Also, with regard to equipment purchase, in 1979, the chief submitted a report detailing the poor condition of the department's vehicles. Subsequently, the chief was informed by the mayor and council that the department would receive three new vehicles, but of a different model than those which the department was then using. The record does not indicate that the chief had any input into that decision. The chief testified that he was unhappy with the decision to change the model but he did not express his opinion to the mayor and council.

Further, the record shows that the present police uniform was selected by the police commissioner. While the chief stated that the current uniform is serviceable, he was quite critical of the uniform hat and indicated that he would have selected a different hat had the decision been his to make. The chief did not, however, express his dissatisfaction with the hat to the commissioner.

The record is unclear concerning the chief's authority to select and purchase the weapons utilized by the department.2/

Based upon the foregoing, the undersigned concludes that the chief's discretion to determine whether to purchase certain equipment and the type of equipment to be purchased is quite limited. Accordingly, the undersigned rejects that portion of the Borough's exception to the Hearing Officer's finding that the chief lacks authority to determine the type of patrol cars and uniforms which should be purchased by the department. With regard to the finding that the chief does not have discretion to determine the type of weapons which should be purchased for the department, the undersigned concludes that the record is unclear on this issue and that no determination may be made at this time. However, the inability to reach a conclusion on this issue does not foreclose the ability of the undersigned to reach a conclusion as to the issues presented herein.

ANALYSIS

The instant matter requires an examination of the definition of "managerial executive" as contained in N.J.S.A. 34:13A-3(f). This subsection provides:

"Managerial executives" of a public employer means persons who formulate management policies and practices, and persons who are charged with the responsibility of directing the effectuation of such management policies and practices, except that in any school district this term shall include only the superintendent or other chief administrator, and the assistant superintendent of the district.

The Commission has applied this definition, which was added to the Act in 1975,3/ in one previous matter, In re Borough of Avon, P.E.R.C. No. 78-21, 3 NJPER 353 (1977). In Avon, the managerial executive issue was asserted by the respondent as a defense to an unfair practice "a(3)" discrimination charge. The Commission, in agreement with the Hearing Examiner, determined that a lifeguard captain was not a managerial executive. The captain prepared the budget for beach operations, authorized and modified lifeguard work rules, authorized work schedule changes for lifeguards, added lifeguards to the payroll to cover emergencies, caused the mayor to reverse his rain day policy, participated in management meetings with the mayor, directed the lifeguard's work and managed the beach operation on a day-to-day basis. However, the mayor regularly changed work rules and terms and conditions of employment of the lifeguards without consulting the captain and, in fact, reversed several of the work rule decisions already made by the captain. On several occasions, the mayor rejected hiring recommendations from the lifeguard captain. The Commission, referring to the relevant experience of the National Labor Relations Board, concluded that a wider range of discretion than that possessed by the captain was necessary for a finding that the employee is a managerial executive.

Consistent with the urging of the Supreme Court that the Commission seek reference to the experience and adjudications of the NLRB and sister labor relations agencies, Lullo v. IAFF, 55 N.J. 409 (1970), Bd. of Ed. W. Orange v. Wilton, 57 N.J. 404 (1971), and In re State of N.J. & Prof. Assn. of N.J. Dept. of Ed., 64 N.J. 231 (1974), the undersigned has reviewed the resolution of managerial executive issues before other administrative bodies.

The NLRB has developed a definition of managerial employees through numerous adjudications. Managerial employees have been defined as (1) executives who formulate, determine and effectuate management policies by expressing and making operative the decisions of their employer4/ or (2) those employees who have discretion in the performance of their job independent of their employer's established policy5/ or (3) those employees who are so integrally related to or so closely aligned with management as to place the employee in a position of potential conflict of interest between the employer on the one hand and his fellow workers on the other.6/

Managerial status is reserved for ". . . those in executive-
type positions, those who are closely aligned with management as true representatives of management."7/

The Board has stated that:

The determination of "managerial" is to some extent necessarily a matter of the degree of authority exercised.8/

The Board has further stated that ". . . even the authority to exercise considerable discretion does not render an employee managerial where his decision must conform to the employer's established policy."9/

The New York Public Employee Fair Employment Act (the Taylor Law)10/ defines managerial employees as:

Employees may be designated as managerial only if they are persons (I) who formulate policy or (ii) who may reasonably be required on behalf of the public employer to assist directly in the preparation for and conduct of collective negotiations or to have a major role in the administration of agreements or in personnel administration provided that such role is not of a routine or clerical nature and requires the exercise of independent judgment. (Section 201)

The New York Public Employment Relations Board, construing the meaning of "policy" and "formulate", has stated

Policy is defined in a general sense as "a definite course or method of action selected from among alternatives and in the light of given conditions to guide and determine present and future decisions". In government, policy would thus be the development of the particular objectives of a government or agency thereof in the fulfillment of its mission and the methods, means and extent of achieving such objectives.

The term "formulate" as used in the frame of reference of "managerial" would appear to include not only a person who has the authority or responsibility to select among options and to put a proposed policy into effect, but also a person who participates with regularity in the essential process which results in a policy proposal and the decision to put such a proposal into effect. It would not appear to include a person who simply drafts language for the statement of policy without meaningful participation in the decisional process, nor would it include one who simply engaged in research or the collection of data necessary for the development of a policy proposal.

In re State of New York, 5 PERB 3001, 3005 (1972).

In In re City of Elmira, 6 PERB ¶4016 (1973), PERB applied the statutory definition in finding that the City's chief of police was a managerial employee. PERB noted that under police department regulations, the city manager governed and controlled the department's affairs. However, PERB found that the chief was the effective operating head of the department and was held responsible for its governance by the city manager. PERB found that the chief organized the department in the manner best suited to serve the public interest, coordinated policy activity with other city departments and other law enforcement agencies, initiated public relations programs, issued departmental rules, was responsible for manpower deployment, issued commendations, meted out discipline, and was the second step of the grievance procedure in the police officer labor contract. Additionally, the chief prepared estimated police department budgets for submission to the city manager who had final authority to determine the budget that was presented to the city council. The city manager sometimes consulted with the chief concerning budget matters.

The city manager stated that because of his lack of expertise in police matters, he relied on the chief's judgment and advice in determining city policy in police affairs. The chief viewed himself as a supervisor with authority to determine only matters of a technical police nature. He cited instances where the city manager or the city council took action in police matters without consulting him or directed departmental changes over his disapproval. The chief stated that he would seek the city manager's approval on any matter likely to have broad community impact.

In reaching the conclusion that the chief was a managerial, PERB's Director of Representation set forth these observations on managerial status in law enforcement agencies:

Law enforcement is one of the fundamental objectives of any government charged with insuring the public safety. The governmental body to which this task is entrusted is the police department. The police chief, as operating head of the department and the top police professional in city government, bears primary responsibility for this employer's "development of . . . the methods, means and extent" of reaching this objective. The record shows that the chief "formulates" policy in both senses of the term. Thus, he is the "person who has the authority or responsibility to select among options and to put a proposed policy into effect" with regard to a wide spectrum of matters affecting the operation of the police department, such as setting working hours, fixing the number of men on a shift (an established managerial prerogative), deciding to have police officers counsel school children on safety as part of a public relations program, and instructing police officers on the constitutional rights of citizens in a dispute with another agency of city government.

At other times, as when his counsel is sought by the city manager on law enforcement or public safety matters affecting the entire city, or when he fixes, with the city manager's approval, the number and rank supervisors on night duty during summer months (also an established managerial prerogative( or shepherds the publication, under his and the mayor's joint sponsorship, of a pamphlet on narcotics abuse, he is the "person who participates with regularity in the essential process which results in a policy proposal and the decision to put such a proposal into effect." In this regard, I have not overlooked the fact that the chief's recommendations are not always followed, or that he is subject to the direction of his superiors even as to internal departmental matters. However, these considerations are not relevant herein. Absolute discretion or authority to act (which falls within the job description of nobody of whom I am aware) is not a prerequisite to finding That an individual formulates policy. What matters is the fact of participation at a fundamental level in the decision making process, not the participant's batting average in having his views prevail. (footnotes omitted)

6 PERB at 4027.

In In re Borough of Wilkinsburg, 9 PPER 484 (1978), the Pennsylvania Public Employment Relations Board concluded that the chief of police in a department comprised of 44 officers was a managerial employee. The Board noted that the chief worked directly under a part-time mayor who was vested with complete authority to operate the police department. The mayor met with the chief to discuss policy matters and usually adopted the chief's opinions on managerial matters; the Borough council also met with the chief on policy matters. The chief evaluated police personnel, sent employees to training courses, prepared annual budgets for submission to the Borough secretary and generally implemented, guided and directed plicy matters in the department. The Board cited with concordance an earlier matter, In re Lower Allen Tp., 8 PPER 376 (1977), in which it concluded that the chief was "management's man in the police department and it would disrupt labor relations and personnel administration in the department to divide his existing allegiance to management by including him in this unit."11/

From the above review, the undersigned observes the following:

In general, "policy" may be defined as a "definite course or method of action selected from among alternatives and in light of given conditions to guide and determine present and future decisions." Websters Seventh New Collegiate Dictionary. In a public employment context, "policy" may further be defined as the development of particular sets of objectives of a governmental entity, designed to further the mission of the agency and the methods of achieving such objectives. Those who formulate policy are those who select a course of action from among the alternatives and those who substantially and meaningfully participate in the essential processes which result in the selection of a course from the alternatives available. Cf. In re State of New York, supra.

Managerial executives who direct the effectuation of policy are charged with overseeing or coordinating policy effectuation by line supervisors. Most importantly, those chosen for "directing the effectuation" of policy must necessarily be empowered with a substantial measure of discretion in deciding precisely how the policy should be effectuated.

The Commission's determination of managerial status may not be based upon a cursory review of the individual's employment title. Prior to the 1975 amendment to the Act, heads and deputy heads of departments were excluded from the definition of "employees." The legislature removed this per se exclusion from the Act simultaneously with its insertion of the definition of a managerial executive. Given the premise that the ultimate organization of all employees who desire collective negotiations is a logical objective of the public policy underlying the statute, State of Prof. Assn. of N.J. Dept. of Ed., 64 N.J. 231, 253 (1974), the changes to the Act may be interpreted as manifesting a legislative policy to minimize presumptions based upon job titles and to encourage examinations into the precise performance of job responsibilities.12/ Further, where public policy favors organization, it is improper for an agency to engage in a "presumption of manageriality" which does not in actuality conform to the statutory definitional criteria. See In re Civil Service Technical Guild, Local 375, District Council 37, AFSCME, AFL-CIO, N.Y. Supreme Court, Special Term, N.Y. County, 182 N.Y.L.J. No. 69 (Oct. 9, 1979).

Nevertheless, the agency would be derelict in its responsibilities if it did not, with reasoned thoughtfulness, approach a given issue by utilizing the administrative experience and expertise gained from the day-to-day administration of the Act. The Act's original provisions reflected the well premised logic that chief full time administrative officers of a public employer's various departments are those individuals who would be engaged in high level management practice. In addition, the Commission's experience, like that of New York, indicates that in the sensitive arena of effectuating law enforcement policy, the police chief usually bears primary responsibility for the employer's development of the methods, means and extent of reaching the objective. These considerations are still worthy touchstones for the initiation of an administrative investigation. However, where a managerial executive issue exists as the result of a dispute as to who in actuality bears the primary responsibility for the employer's development of the method, means and extent of accomplishing the governmental mission, the undersigned, in accordance with the new definition contained in the Act and in accordance with the spirit of the Act as expressed by the Supreme Court, is compelled to examine: (1) the specific functions and responsibilities of that individual (2) the relative position of that individual in the employer's organizational hierarchy; and (3) the extent of discretion accorded to that individual in his/her employment.

CONCLUSION

The Montvale Chief of Police is the highest ranking uniformed officer in the Montvale Police Department. The chief functions as the operational head of the department. The chief is directly subject and subordinate to the police commissioner, as well as the deputy commissioner and the mayor, all of whom are part-time elected Borough officials.

The chief becomes involved, in varying capacities, with several functions which touch upon many areas of the department's operations: Hire and discipline, personnel scheduling, personnel assignments and deployment, departmental rules and procedures, departmental security, maintenance of personnel records, keeping a police blotter, responsibility for equipment and the periodic issuance of reports to the mayor and council concerning the department's operations. However, the extent of discretion accorded the chief in many of the above listed areas is limited. The limitation on the chief's discretion in the performance of these and other functions results from, and is in direct relation to, the degree of involvement in the policy and operational aspects of the department by the mayor, police commissioner, deputy commissioner and other council members. As evidenced in the record, these elected officials have taken a regular and extensive role in the affairs of the department. The role of the chief is reduced to a routine and ministerial level.

The chief's functions have not included the development of objectives designed to further the mission of the department. Neither has the chief been accorded substantial or meaningful input into the essential processes which result in the selection of a course of action from among available alternatives.

The mayor and council have formulated, and in many cases, directed the effectuation of police policy in the Borough on myriad issues: hiring, discipline, scheduling, personnel deployment, personnel assignments, formation and approval of the budget, purchasing decisions, departmental security, conduct of investigations, regulation of interdepartmental matters, and traffic control. Because of the extensive involvement of the elected Borough officials herein, the chief has frequently been excluded from the policy decision process. Often he has not been permitted to announce and/or implement a policy pronouncement -- very often the mayor or police commissioner or deputy commissioner has issued a proclamation, written or verbal, to the appropriate officer(s). Indeed, the chief has at times been informed by rank and file police officers of action taken by the mayor and council which directly impacted the department.

The undersigned's consideration of this matter has not been to focus upon the chief's "batting average in having his views prevail."13/ Rather, the undersigned has looked for the chief's "participation at a fundamental level in the decision making process,"14/ and has found it lacking.

While the chief has been given some discretion by the Borough, his decisions have been closely scrutinized, on occasion criticized and sometimes reversed; there has been little rubber-
stamping of the chief's decisions -- clearly, the length of discretionary rope accorded the chief has been short.

Accordingly, the undersigned rejects the Borough's exception to the Hearing Officer's conclusion that major policy decisions are made without the chief's input or contrary to his recommendations.

The decisions concerning managerial employees which the undersigned has reviewed herein, whether based upon the formulation or effectuation of policy, or a close alignment with management, or an integral role in the employer's labor relations processes, have all been concerned with the degree of authority exercised or the extent of discretion in job performance. It appears that, whatever the circumstance, in the context of the governmental entity concerned, a managerial employee must possess and be permitted to exercise a certain minimal level of authority sufficient to broadly affect either that governmental entity's internal regulation or its external endeavors. In the instant matter, the chief has not been accorded that level of discretion and authority.

Therefore, based upon the entire record and the foregoing discussion, the undersigned determines that the chief of the Montvale Police Department is not a managerial executive within the meaning of the Act. By extension, the captain, who is the chief's subordinate, is not a managerial executive.

Lastly, the undersigned agrees with the Hearing Officer that the record does not demonstrate that a conflict of interest exists between the chief and the captain. The record establishes that the captain has distinct areas of responsibility which rarely interact with the chief's responsibilities. Furthermore, the captain has interacted directly with the mayor, police commissioner and deputy commissioner in the performance of his duties. Those officials have from time to time given direct orders or instructions to the captain. Based on the foregoing, the undersigned concludes that no actual conflict exists and the potential for conflict is de minimis.

Accordingly, the instant Clarification of Unit Petition is hereby dismissed.15/

BY ORDER OF THE DIRECTOR

OF REPRESENTATION

Carl Kurtzman, Director

DATED:	April 3, 1980

Trenton, New Jersey