Opinion
DOCKET NO. A-4937-10T2 A-4998-10T2
03-06-2013
HILLSIDE FIREMEN'S MUTUAL BENEVOLENT ASSOCIATION, LOCAL NO. 35, and HILLSIDE FIREMEN'S MUTUAL BENEVOLENT ASSOCIATION, LOCAL NO. 235, Plaintiffs-Respondents, v. MAYOR JOSEPH G. MENZA, Defendant-Respondent, and STATE OF NEW JERSEY CIVIL SERVICE COMMISSION, Defendant-Appellant. TOWNSHIP OF HILLSIDE, TOWNSHIP COUNCIL OF THE TOWNSHIP OF HILLSIDE, and TOWNSHIP CLERK JANET VLAISAVLJEVIC, Plaintiffs-Respondents, v. MAYOR JOSEPH G. MENZA, Defendant-Respondent, and STATE OF NEW JERSEY CIVIL SERVICE COMMISSION, Defendant-Appellant.
Jeffrey S. Chiesa, Attorney General, attorney for appellant New Jersey Civil Service Commission in A-4937-10T2 and A-4998-10T2 (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Lisa Dorio Ruch, Deputy Attorney General, on the brief). Diktas Schandler Gillen, P.C., attorneys for respondent Mayor Joseph G. Menza (Christine Gillen, on the brief). Fox and Fox, L.L.P., attorneys for respondent Hillside Firemen's Mutual Benevolent Association, Local Nos. 35 and 235 in A-4937-10T2 (David I. Fox, of counsel; Jennifer Heiner Pisano, on the brief). Kologi Simitz, attorneys for respondents Township of Hillside, Township Council of Hillside, and Township Clerk Janet Vlaisavljevic in A-4998-10T2 (Edward J. Kologi and Michael S. Simitz, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Ashrafi and Hayden.
On appeal from Superior Court of New Jersey, Chancery Division, Union County, Docket Nos. C-133-10 and C-132-10.
Jeffrey S. Chiesa, Attorney General, attorney for appellant New Jersey Civil Service Commission in A-4937-10T2 and A-4998-10T2 (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Lisa Dorio Ruch, Deputy Attorney General, on the brief).
Diktas Schandler Gillen, P.C., attorneys for respondent Mayor Joseph G. Menza (Christine Gillen, on the brief).
Fox and Fox, L.L.P., attorneys for respondent Hillside Firemen's Mutual Benevolent Association, Local Nos. 35 and 235 in A-4937-10T2 (David I. Fox, of counsel; Jennifer Heiner Pisano, on the brief).
Kologi Simitz, attorneys for respondents Township of Hillside, Township Council of Hillside, and Township Clerk Janet Vlaisavljevic in A-4998-10T2 (Edward J. Kologi and Michael S. Simitz, of counsel and on the brief). PER CURIAM
The State of New Jersey Civil Service Commission appeals from two judgment orders of the Chancery Division declaring that the mayor of Hillside Township was not authorized to submit a layoff plan for municipal employees without first obtaining the consent of the Hillside Township Council. Initially, we reject respondents' contention that the appeals are moot and also the Commission's challenge to the subject matter jurisdiction of the courts. On the merits of the dispute, we reverse the Chancery Division's judgments. We hold that a municipality operating under the mayor-council form of government pursuant to the Optional Municipal Charter Law, N.J.S.A. 40:69A-1 to -210, more commonly known as the Faulkner Act, may not require by ordinance that its mayor obtain the council's approval for a layoff plan pertaining to all municipal employees.
We decide in one opinion the Commission's appeal in A-4937-10 from judgment granted to plaintiffs Hillside Firemen's Mutual Benevolent Association, Local Nos. 35 and 235 ("the union") and in A-4998-10 from judgment granted to the Hillside Township Council and the Township Clerk ("the council").
I.
The relevant facts are not disputed. In June 2010, the mayor of Hillside, Joseph Menza, presented to the township council a plan to lay off twenty police, fire, and public works employees. The mayor concluded that the township could not afford their continued employment, and he maintained that township officials were not able to obtain financial concessions from the unions representing the employees. The council rejected the mayor's plan and asked him to provide further budgetary information to justify the layoffs.
The mayor did not comply with the council's demand and instead submitted a layoff plan to the Commission on July 15, 2010, without first obtaining the council's consent. The mayor's plan called for the layoff of twenty-eight fire, police, and public works employees and twenty-two clerical employees.
Regulations promulgated under the Civil Service Act, N.J.S.A. 11A:1-1 to 12-6, require that the New Jersey Civil Service Commission review and approve the layoff of government employees protected under the State's civil service laws. N.J.A.C. 4A:8-1.1 to - 1.6.
The Commission approved the mayor's plan in early August 2010. At about the same time, plaintiff firemen's union filed an objection with the Commission, which the Commission processed as an administrative appeal.
The mayor, the township council, and the union then began negotiating toward a resolution of the dispute. Pending the negotiations, the mayor wrote to the Commission to withdraw his layoff plan temporarily. Subsequently, when the negotiations did not seem to progress, the mayor wrote again to the Commission resubmitting his July 15, 2010 plan and seeking re- approval. The Commission approved the plan again and authorized the layoffs to take effect as of October 15, 2010.
On October 7 and 8, 2010, the township council and the union separately filed verified complaints in the Superior Court, Chancery Division, challenging the authority of the mayor to lay off municipal employees without the council's approval. They obtained orders to show cause with temporary restraints that halted the imminent layoffs. The mayor and the Commission then moved in the Superior Court to dismiss the court actions for lack of subject matter jurisdiction. The Chancery Division heard argument and denied the motions to dismiss the court actions. The court concluded that it had jurisdiction to hear plaintiffs' complaints and that plaintiffs did not need to exhaust administrative remedies before the Commission.
While the two Superior Court actions were pending, the parties negotiated again to address the township's financial difficulties. In January 2011, they submitted a proposed consent order to the court to permit the township to lay off seven employees. The Chancery Division executed the consent order on January 19, 2011.
The litigation in the Chancery Division continued after the consent order. Counsel briefed and orally argued the merits of plaintiffs' claims. The court issued a written decision dated March 9, 2011, concluding that the mayor was not authorized to submit a layoff plan to the Commission without prior approval of the township council, and it continued the injunctive relief previously granted to plaintiffs. On March 30, 2011, the court entered judgment orders in each of the two actions declaring that legal authority to initiate any layoff plan in Hillside Township is vested jointly in the mayor and the township council and that any layoff plan submitted to the Commission solely by the mayor was invalid.
The Commission filed notices of appeal before us. The union moved to dismiss the appeal of its judgment as moot, contending that the matter had been settled by the consent order of January 19, 2011. We denied the union's motion by order dated February 8, 2012. The Commission then filed its briefs on the merits of the appeals, and the union and the council filed their briefs in opposition. Although designated a respondent in the appeals, Mayor Menza filed briefs supporting the Commission's position and seeking to reverse the Chancery Division's judgments.
II.
All issues disputed on appeal are questions of law. We do not owe "any special deference" to the Chancery Division's "interpretation of the law and the legal consequences that flow from established facts." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). The primary issue requires our interpretation of statutes and a municipal ordinance. See Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973) (statutory interpretation is "strictly legal issue"); Wyzykowski v. Rizas, 132 N.J. 509, 518 (1993) (interpretation of ordinance is a question of law).
A.
In its brief on the merits of the appeal, the union repeats its contention that the Commission's appeals are moot because the matter was settled in January 2011 by agreement to a layoff plan for seven employees.
"An issue is 'moot' when the decision sought in a matter, when rendered, can have no practical effect on the existing controversy." Greenfield v. N.J. Dep't of Corrs., 382 N.J. Super. 254, 257-58 (App. Div. 2006) (internal quotation marks omitted); see also De Vesa v. Dorsey, 134 N.J. 420, 428 (1993) (Pollock, J., concurring); Pressler & Verniero, Current N.J. Court Rules, comment 1.2.1 on R. 2:8-2 (2012) (reviewing cases dismissing appeals as moot).
We reject the union's mootness argument because it was not presented to the trial court, and because the parties did not consider the consent order of January 19, 2011, to resolve all disputed issues. They treated the consent order as a partial settlement of their dispute and continued with the litigation. The consent order expressly states:
The entry of this Order is without prejudice to the rights of any party with respect to the litigation presently pending in the Superior Court of New Jersey as to any legal and factual issue contained therein, and shall not be deemed an admission, settlement, or otherwise preclude any party from fully pursuing their respective positions . . . .The consent order modified the preliminary injunctive relief granted to plaintiffs and permitted the laying off of a limited number of employees while the disputed issues in the case continued toward resolution by the court.
Also, we may decline to dismiss an appeal as moot "if the issue in the appeal is an important matter of public interest." Reilly v. AAA Mid-Atl. Ins. Co. of N.J., 194 N.J. 474, 484 (2008). A case may implicate a matter of important public interest when it involves interpretation of a statute that would broadly affect persons governed by it. Nini v. Mercer Cnty. Comm. Coll., 202 N.J. 98, 105 n.4 (2010). The Commission's appeal presents issues of important public interest, namely, the respective powers of a mayor and township council as applied to economic decisions involving municipal employees.
We conclude that the appeals are not moot.
B.
Next, we consider the Commission's challenge to the subject matter jurisdiction of the Chancery Division to hear the dispute and to issue injunctive relief and declaratory judgments. The Commission and the mayor of Hillside argue that the Commission has primary jurisdiction over civil service disputes, in particular where plaintiffs did not exhaust administrative remedies that were potentially available to them. The township council and the union respond that the Superior Court had jurisdiction because the actions presented a "purely legal question" and did not require the Commission's special expertise or administrative fact-finding.
In Swede v. City of Clifton, 22 N.J. 303 (1956), a case not cited by the parties, the Court considered a similar jurisdictional question. Two municipal employees who had been denied promotion filed an administrative appeal before the Civil Service Commission and also an action in lieu of prerogative writs in the Superior Court. The court action challenged the authority of an acting city manager to promote other applicants ahead of the plaintiffs. Id. at 308-09. The Supreme Court distinguished between the Civil Service Commission's jurisdiction to review violations of the Civil Service Act and the Superior Court's jurisdiction to determine the authority of municipal officials under relevant laws. Id. at 313-14. The Court stated that the Legislature did not intend to endow the Civil Service Commission "with jurisdiction to make the ultimate determination of the basic question[] of . . . the de jure title of the officer presuming to exercise the appointing power as acting city manager. This judicial power resides in the Superior Court . . . ." Id. at 314.
Like Swede, the dispute in this case involves the powers of the mayor and the township council in accordance with interpretation and application of the Faulkner Act. To resolve that dispute, we must determine whether the mayor alone is the "appointing authority" of the township with power to hire and lay off employees, and whether the Faulkner Act permits a municipality to modify the powers of the mayor to require the sharing of that authority with the township council. Like the issue in Swede, which municipal official or body has authority to order layoffs is a question of statutory law.
The disputed question does not fall within the Commission's primary jurisdiction of interpreting the civil service laws or resolving disputes about the specific terms of a layoff plan. Unlike enabling statutes of other agencies, those of the Commission do not provide it with exclusive primary jurisdiction over any matter concerning layoffs. See N.J.S.A. 11A:2-6; see also Campione v. Adamar, Inc., 155 N.J. 245, 261 (1998) ("If the Legislature vests an administrative agency with exclusive primary jurisdiction, that agency may be the only forum in which a party initially may seek relief."). An administrative agency does not have exclusive primary jurisdiction "where the matter involves a question of law outside the purview of" the agency's statutory authority. Archway Programs, Inc. v. Pemberton Twp. Bd. of Educ., 352 N.J. Super. 420, 426 (App. Div. 2002). The dispute in this litigation does not require the agency's expertise. See Abbott v. Burke, 100 N.J. 269, 297-300 (1985); Boldt v. Correspondence Mgmt., Inc., 320 N.J. Super. 74, 82-83 (App. Div. 1999).
For the same reasons, the doctrine of exhaustion of remedies does not require that the court defer to the Commission. In any event, exhaustion of remedies is not a prerequisite to subject matter jurisdiction. Boldt, supra, 320 N.J. Super. at 82-83.
We conclude that the Chancery Division had subject matter jurisdiction to hear the actions.
C.
The Faulkner Act allows municipalities to select from among four structures of local government to meet the needs of their inhabitants. McCann v. Clerk of Jersey City, 167 N.J. 311, 330 (2001). The four alternatives allocate power and authority differently among elected and appointed officials. Hillside adopted the mayor-council plan of municipal government. N.J.S.A. 40:69A-31 to -67.2.
The mayor-council plan establishes a strong executive, concentrating the most authority of the four alternatives in the office of the mayor. 34 New Jersey Practice, Local Government § 5.15, at 122 (Michael A. Pane) (4th ed. 2007); see Thompson v. City of Atlantic City, 190 N.J. 359, 373-74 (2007). The mayor has "substantial" power under the mayor-council plan, and concomitantly, must stand for election by popular vote for the office of mayor. McCann, supra, 167 N.J. at 330.
The Faulkner Act expressly states that the mayor shall exercise the "executive power of the municipality." N.J.S.A. 40:69A-39. The mayor has authority to "[s]upervise, direct and control all departments of the municipal government[,]" and to "[s]upervise the development, installation and maintenance of centralized budgeting, [and] personnel . . . as may be authorized by ordinance[.]" N.J.S.A. 40:69A-40(c), (i) (emphasis added). "[T]he mayor specifically is charged with . . . determining, subject to limits, the hiring, firing, salary, wages and other compensation of municipal administrative employees." Mun. Council of Newark v. James, 183 N.J. 361, 365 (2005).
By contrast to the mayor's broad authority, the council's role is limited in matters of municipal employment. The council appoints the municipal clerk, N.J.S.A. 40:69A-38, and its own employees, N.J.S.A. 40:69A-36(j). Also, its advice and consent are required for the appointment of department heads selected by the mayor. N.J.S.A. 40:69A-43(b). However, "subordinate officers and employees" of the municipality may be appointed and removed by department heads with the approval of the mayor alone. N.J.S.A. 40:69A-43(d); see Hutt v. Robbins, 98 N.J. Super. 99, 103-06 (App. Div. 1967) (mayor through department heads has power to remove subordinate officer and does not require council approval), certif. denied, 51 N.J. 185 (1968). The mayor can also act alone, without the participation of department heads, to remove a subordinate officer or employee, such as for budgetary reasons. Faber v. Borough of Hawthorne, 365 N.J. Super. 54, 57 (App. Div. 2003).
Indicative of the council's limited role in matters of municipal employment, the council is generally prohibited from direct contact, action, or communication with municipal employees. N.J.S.A. 40:69A-37.1. The council may act officially to remove municipal officers for cause. N.J.S.A. 40:69A-36(e), -37(b). It may also express by resolution its "disapproval" when the mayor removes officers or employees. N.J.S.A. 40:69A-36(d). But it only has authority to block the mayor's decision to remove a "department head" or "other municipal executive officer" by "a two-thirds vote of the whole number of the council, disapproving the removal." N.J.S.A. 40:69A-43(c). It has no similar authority over subordinate administrative employees.
The Chancery Division reviewed these provisions of the Faulkner Act and correctly concluded that the mayor-council form of government placed power in the mayor to make employment decisions applicable to most municipal employees. The court concluded incorrectly, however, that the Faulkner Act permits the municipal government to modify by ordinance these statutory provisions and to require that the mayor share the powers of that office with the municipal council, and it concluded incorrectly that Hillside had done so by ordinance.
Hillside's Ordinance § 73-9B states in relevant part:
Layoff. Whenever there is a lack of work or a lack of funds requiring a reduction in the number of employees in a department of the Township government, the required reductions shall be made in such job classification as the Township may designate. As determined by the appointing authority, employees shall be laid off in the inverse order of their length of service within each affected jobThe Chancery Division stated that a "plain reading" of this ordinance, in particular its reference to "the Township," means that the approval of the township council is required to lay off municipal employees.
class in a particular department or division . . . .
[Emphasis added.]
The Faulkner Act, however, requires that statutes be construed such that "any administrative or executive functions assigned by general law to the governing body shall be exercised by the mayor, and any legislative and investigative functions assigned by general law to the governing body shall be exercised by the council." N.J.S.A. 40:69A-32(b). That general rule of construction must also apply to laws of lesser legal authority, such as local ordinances. The Supreme Court has stated that a non-specific reference to the phrase "governing body" in a statute should be interpreted as the governmental official or body vested with the power at issue. Stomel v. City of Camden, 192 N.J. 137, 148-49 (2007); In re Shain, 92 N.J. 524, 535 (1983). Here, the ordinance's reference to "the Township" is a non-specific reference that, like the phrase "governing body," should be interpreted to mean the official or governmental body with the authority to perform the function referenced.
The second quoted sentence of the ordinance addresses the power to lay off employees "[a]s determined by the appointing authority." Under civil service regulations, the phrase "appointing authority" means "a person or group of persons having power of appointment or removal." N.J.A.C. 4A:1-1.3. The Faulkner Act does not use the phrase "appointing authority," but courts determine which official or body of government has the power to appoint or remove employees by looking to the laws that create and control the governmental entity. See, e.g., Robertson v. Newcomb, 27 N.J. Super. 314, 319 (App. Div. 1953); Reilly v. City of Atl. City, 427 F. Supp. 2d 507, 520 (D.N.J. 2006), rev'd in part on other grounds, 532 F.3d 216 (3d Cir. 2008). Under the mayor-council plan, the mayor is the "appointing authority" of administrative municipal employees other than those specifically designated as also coming within the authority of the municipal council.
The Chancery Division and plaintiffs relied on our decision in City Council v. Brown, 249 N.J. Super. 185, 189 (App. Div. 1991), for the proposition that "[a] municipality . . . may selectively change the delegation of authority where that authority is not mandated to be exercised by one part of government or the other." As this court did in Brown, ibid., the Chancery Division cited N.J.S.A. 40:69A-29 as the statutory provision that authorizes a municipality to modify by local ordinance the mayor's role and duties with respect to municipal employees.
N.J.S.A. 40:69A-29 states in part:
Each municipality . . . shall, subject to the provisions of this act or other general laws, have full power to:The general language of this statute does not authorize a municipality to modify the controlling provisions of the Faulkner Act and to require joint exercise of power granted to the mayor alone. A municipal council cannot override the State Legislature's statutory directives and acquire for itself powers it was not granted.
(a) Organize and regulate its internal affairs, and to establish, alter, and abolish offices, positions and employments and to define the functions, powers and duties thereof and fix their terms, tenure and compensation.
Our decision in Brown does not control the outcome of this case. In Brown, supra, 249 N.J. Super. at 190, the mayor had implemented layoffs of subordinate municipal employees and had included two subordinate employees of the municipal clerk, who is by statute the council's own employee. See N.J.S.A. 40:69A-38. A municipal ordinance pertaining to the appointment and removal of the subordinate city counsel employees stated that "[l]ayoffs and demotions in lieu of layoffs shall be ordered by the Mayor in accordance with Civil Service Procedures." Brown, supra, 249 N.J. Super. at 190. We concluded that the ordinance was a delegation of authority by the city council to the mayor as to its own subordinate employees and that the Faulkner Act did not prohibit such a delegation of authority. Id. at 190, 193-94. Here, rather than a delegation of authority, plaintiffs seek to expand the holding of Brown to confer a general power to a municipal council to take for itself a power granted by statute to the mayor. We reject such a broad reading of Brown.
In the mayor-council form of municipal government, the mayor's executive powers are analogous to the powers of the executive branch in gubernatorial or presidential forms of government. Mun. Council of Newark, supra, 183 N.J. at 364; McCann, supra, 167 N.J. at 330-31; see Governor's Statement to Senate, L. 1985, c. 374 ("Delineation between executive and legislative functions at the local level is compatible with the delineation that exists at the county level . . . and, indeed, at the State level itself between the powers of the Governor and the Legislature"), reprinted at comment to N.J.S.A. 40:69A-32.
At the state government level, the power to order layoffs falls squarely within the executive branch's powers and duties. Commc'ns Workers of Am. v. Florio, 130 N.J. 439, 464 (1992); accord Commc'ns Workers of Am., AFL-CIO v. Christie, 413 N.J. Super. 229, 257-59 (App. Div. 2010). The Court stated in Florio that the legislative branch of government may not interfere with that function of the executive branch:
Not only was the legislative mandate of how to make [layoffs] unnecessary for the effectuation of the statutory scheme, but the Legislature's attempt to "micromanage" the staffing and resource allocations in administering the appropriated funds was a serious intrusion on the Governor's authority and ability to perform his constitutionally-delegated functions.Similarly, the actions of the Hillside Township Council in this case intruded upon Mayor Menza's statutory authority.
[Florio, supra, 130 N.J. at 461.]
Although the constitutional doctrine of separation of powers does not apply to municipal government, Mun. Council of Newark, supra, 183 N.J. at 371; Casamasino v. City of Jersey City, 158 N.J. 333, 343 (1999); In re Shain, supra, 92 N.J. at 537, the provisions of the Faulkner Act create similar divisions and restrictions of authority.
We hold that the Faulkner Act grants power to the mayor in a mayor-council form of municipal government to make hiring and termination decisions as to "subordinate" municipal employees who are not employees of the township council itself. The Faulkner Act does not authorize a municipal governing body to adopt a binding local ordinance that alters that statutory grant of authority. Because the mayor alone is the "appointing authority" for "subordinate" municipal employees in the mayor- council form of local government, the mayor has the authority to submit a layoff plan with respect to such employees without first obtaining the approval of the municipal council.
Reversed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION