Opinion
DOCKET NO. A-1004-12T2 DOCKET NO. A-1018-12T2
08-13-2014
IN THE MATTER OF CAMDEN COUNTY POLICE DEPARTMENT PILOT PROGRAM.
Jessica L. Arndt argued the cause for appellant Camden Organization of Police Superiors in Docket No. A-1004-12 (Alterman & Associates, attorneys; Stuart J. Alterman, on the brief). Matthew D. Areman argued the cause for appellant Fraternal Order of Police, Camden Lodge No. 1 in Docket No. A-1018-12 (Markowitz and Richman, attorneys; Mr. Areman, on the brief). Lisa Dorio Ruch, Deputy Attorney General, argued the cause for respondent Civil Service Commission (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Ruch, on the brief). Bruce D. Leder argued the cause for Amicus Curiae Professional Firefighters Association of New Jersey in Docket No. A-1018-12 (Cohen, Leder, Montalbano & Grossman, LLC, attorneys; Mr. Leder, on the brief). Sherri L. Schweitzer, County Counsel, attorney for respondent Camden County, joins in the briefs of respondent Civil Service Commission in Docket Nos. A-1004-12 and A-1018-12.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Guadagno. On appeal from the Civil Service Commission, CSC Docket No. 2013-549. Jessica L. Arndt argued the cause for appellant Camden Organization of Police Superiors in Docket No. A-1004-12 (Alterman & Associates, attorneys; Stuart J. Alterman, on the brief). Matthew D. Areman argued the cause for appellant Fraternal Order of Police, Camden Lodge No. 1 in Docket No. A-1018-12 (Markowitz and Richman, attorneys; Mr. Areman, on the brief). Lisa Dorio Ruch, Deputy Attorney General, argued the cause for respondent Civil Service Commission (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Ruch, on the brief). Bruce D. Leder argued the cause for Amicus Curiae Professional Firefighters Association of New Jersey in Docket No. A-1018-12 (Cohen, Leder, Montalbano & Grossman, LLC, attorneys; Mr. Leder, on the brief). Sherri L. Schweitzer, County Counsel, attorney for respondent Camden County, joins in the briefs of respondent Civil Service Commission in Docket Nos. A-1004-12 and A-1018-12. PER CURIAM
In these consolidated appeals, the Camden Organization of Police Superiors (COPS) and the Fraternal Order of Police, Camden Lodge No. 1 (FOP), appeal from the October 3, 2012 final administrative action of the New Jersey Civil Service Commission (Commission), approving Camden County's application to establish a Camden County Police Department (CCPD) pilot program to staff the CCPD.
I.
Facing a "dire picture of increasing costs and projected budget shortfalls," in June 2011 the City of Camden (the City), issued a transition plan for the years 2011-2015, noting the City's intention to explore "regionalized or shared services for police and fire services as a long-term solution for public safety and the fiscal challenges confronting the City." See Redd v. Bowman, 433 N.J. Super. 178, 183-84 (App. Div. 2013), certif. granted, 217 N.J. 293 (2014). On August 9, 2011, the Camden City Council passed a resolution authorizing the City to enter into a memorandum of understanding with the New Jersey Department of Community Affairs and the County of Camden (the County) "for the purpose of preparing a plan for the creation of the Camden County Police Department[.]" Id. at 184.
In furtherance of this plan, the County requested that the Commission establish a Camden County Police Department pilot program "to provide for expeditious employment of qualified law enforcement officers to staff the new Camden County Police Department." The County sought the pilot program to avoid the "current statutory and regulatory authority [which] requires a lengthy screening process in order to effect permanent appointments."
On October 3, 2012, the Commission granted the County's application and issued a Final Administrative Action approving a one-year pilot program. Commission Chairman, Robert M. Czeck, explained the reasons for approving the program:
This plan will last for twelve months, and requires a waiver from certain regulations. The law authorizes the Civil Service Commission to approve these regulation waivers under a PILOT program, because it encourages alternative personnel approaches in the delivery of services to the public. No one knows if this program will succeed, but it is not the intent of the law, or the role of the Civil Service Commission, to guarantee failure before this effort even starts. In order to have qualified and experienced officers, available for appointment by the County, within this timeframe, certain regulation requirements must be waived.
The pilot program became effective on November 1, 2012, and continued for one year, until October 31, 2013. Since that time, the County has complied with all civil service requirements and regulations.
In their briefs, appellants present identical arguments:
POINT I
THE COMMISSION'S OCTOBER 3, 2012 DECISION IS ARBITRARY, CAPRICIOUS, AND UNREASONABLE BECAUSE IT FAILS TO COMPLY WITH THE CIVIL SERVICE ACT, N.J.S.A. 11A:1-1, ET SEQ.
POINT II
THE RECORD IS DEVOID OF ANY EVIDENCE TO SUPPORT THE FINDINGS UPON WHICH THE COMMISSION BASED ITS OCTOBER 3, 2012 DECISION.
The Commission urges that we dismiss the appeals as moot because the pilot program has expired. Appellants did not address the mootness issue in their merits briefs but in their reply briefs they argue that their appeals are not moot, as the Commission's action has impacted officers represented by them despite the expiration of the pilot program. The FOP also argues that even if this controversy is "technically moot," the issue is capable of repetition as similar pilot programs may be approved in the future by the Commission.
II.
We consider an issue 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 Corr., 382 N.J. Super. 254, 257-58 (App. Div. 2006) (quoting N.Y. Susquehanna & W. Ry. Corp. v. State Dep't of Treasury, Div. of Taxation, 6 N.J. Tax 575, 582 (Tax 1984), aff'd, 204 N.J. Super. 630 (App. Div. 1985)). In New Jersey's jurisprudence, "[i]t is firmly established that controversies which have become moot or academic prior to judicial resolution ordinarily will be dismissed." Cinque v. N.J. Dep't. of Corr., 261 N.J. Super. 242, 243 (App. Div. 1993) (citing Oxfeld v. N.J. State Bd. of Educ., 68 N.J. 301, 303-04 (1975)). The rationale supporting dismissal is clear: "as a matter of judicial restraint, 'courts should not decide cases where a judgment cannot grant relief.'" Marjarum v. Twp. of Hamilton, 336 N.J. Super. 85, 92 (App. Div. 2000).
Occasionally, our courts will decline to dismiss a matter on grounds of mootness if the issue is "an important matter of public interest." Reilly v. AAA Mid-Atlantic Ins. Co. of N.J., 194 N.J. 474, 484 (2008). Before continued jurisdiction will be invoked in moot cases there must be an issue "of great public importance compelling definitive resolution despite mootness[.]" Oxfeld, supra, 68 N.J. at 303-04. We find no such compelling issues present here.
Appellants claim that many of their members were not hired by the CCPD because the Commission waived the selection and appointment procedures, including examinations and eligibility lists. The Commission found a need for an expedited hiring process in order to staff the CCPD that could not be accomplished through adherence to the traditional selection and appointment process.
Appellants also claim that officers who were laid off by the City and hired by the County did not retain their seniority. Any City police officer who was adversely affected by the layoffs had the right to challenge that action. The order establishing the pilot program provided that individuals holding positions of seniority such as police chief, deputy police chief, captain, lieutenant, sergeant, and police officer would be affected by the pilot program "as the County [would] not be acting in accordance with Commission promotional/hiring process for these positions in light of the fact that the [CCPD] is a new entity."
Both COPS and the FOP filed appeals challenging the Commission's approval of Camden's layoff plan. The COPS appeal was withdrawn and the FOP appeal was dismissed when the FOP failed to file a brief.
In addition, individuals hired by the CCPD were aware that their right of appeal to the Commission would be temporarily suspended. Upon the expiration of the pilot program, all Civil Service disciplinary procedures and associated appeal rights vested to all members of the CCPD.
Finally, the claim by the FOP that the issue presented should be resolved as it is "capable of repetition" is speculative. At oral argument, we were informed by counsel for the Commission that there are no pending applications for similar pilot programs.
As proof that the issue is capable of repetition, the FOP refers to a "similar 'pilot program'" that was the subject of an appeal. On August 26, 2013, we dismissed that appeal as moot "[b]ecause the pilot project has terminated and the program change has been made permanent[.] Order on Motion to Dismiss the Appeal, In the Matter of Probation Officer and Probation Officer, Bilingual in Spanish and English, Judiciary, No. A-5572-11 (App. Div. Aug. 26, 2013).
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As the CCPD pilot program expired on October 31, 2013, the appeal of the Commission's order establishing that program is now moot.
Even if we were to reach the merits, we would find that the Commission's decision to establish the pilot program was done in full compliance with the Civil Service Act, supported by substantial credible evidence in the record, and was neither arbitrary, capricious, nor unreasonable.
The Commission is empowered to establish pilot programs pursuant to N.J.S.A. 11A:2-11(i). In Communications Workers v. New Jersey Department of Personnel, 154 N.J. 121 (1998), the Court addressed administrative agency pilot programs and held that they must be established in a manner consistent with the particular program's enabling legislation. Id. at 127. The party challenging the validity of administrative agency regulations "bears the burden of proving that the regulations are arbitrary, capricious or unreasonable." N.J. State League of Municipalities v. Dep't of Cmty. Affairs, 158 N.J. 211, 222 (1999).
Appellants concede the Commission's authority to establish pilot programs but claim it exceeded that authority when it suspended the provisions of the Civil Service Act. We disagree.
The purpose of the Civil Service Act is "to ensure efficient public service for state, county, and municipal government . . . [and] to secure the appointment and advancement of civil service employees based on their merit and abilities." Commc'ns Workers, supra, 154 N.J. at 126. The pilot program was designed to ensure that well-qualified police officers were hired in expedited fashion to staff the newly-formed CCPD. The new hires were drawn from a pool of current or laid-off officers who had passed civil service or police training commission tests. Although some of the rights and protections afforded by N.J.S.A. 11A:1-2 were temporarily suspended, these suspensions were limited and, consistent with N.J.S.A. 11A:2-11(i), terminated after one year. The Court in Commc'ns Workers acknowledged that "the Commissioner may relax rules pertaining to civil service 'for good cause in a particular situation, on notice to affected parties, in order to effectuate the purpose of Title 11A, New Jersey Statutes.'" Commc'ns Workers supra, 154 N.J. at 127 (quoting N.J.A.C. 4A:1-1.2(c)). Given the compelling public safety concerns of expeditiously staffing the CCPD, the pilot program struck a balance by hiring well-qualified officers over a time frame that would not have been possible had all civil service provisions been strictly adhered to.
The appeals of COPS and the FOP are dismissed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION