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In re Lakewood Twp. Bd. of Educ.

Superior Court of New Jersey, Appellate Division
Aug 2, 2023
No. A-2340-21 (App. Div. Aug. 2, 2023)

Opinion

A-2340-21

08-02-2023

IN THE MATTER OF LAKEWOOD TOWNSHIP BOARD OF EDUCATION, Respondent-Respondent, and LAKEWOOD EDUCATION ASSOCIATION, Petitioner-Appellant. NEW JERSEY PUBLIC EMPLOYMENT RELATIONS COMMISSION, Respondent.

Edward A. Cridge argued the cause for appellant (Mellk Cridge LLC, attorneys; Arnold M. Mellk, of counsel; Edward A. Cridge, on the briefs). Erik L. Harrison argued the cause for respondent Lakewood Board of Education (Methfessel &Werbel, attorneys; Eric L. Harrison, of counsel and on the brief). Ramiro A. Perez, Deputy General Counsel, argued the cause for respondent New Jersey Public Employment Relations Commission (Christine Lucarelli, General Counsel, attorney; Ramiro A. Perez, on the statement in lieu of brief).


This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

Argued February 14, 2023

On appeal from the New Jersey Public Employment Relations Commission, PERC No. 2022-33.

Edward A. Cridge argued the cause for appellant (Mellk Cridge LLC, attorneys; Arnold M. Mellk, of counsel; Edward A. Cridge, on the briefs).

Erik L. Harrison argued the cause for respondent Lakewood Board of Education (Methfessel &Werbel, attorneys; Eric L. Harrison, of counsel and on the brief).

Ramiro A. Perez, Deputy General Counsel, argued the cause for respondent New Jersey Public Employment Relations Commission (Christine Lucarelli, General Counsel, attorney; Ramiro A. Perez, on the statement in lieu of brief).

Before Judges Messano, Gilson and Rose.

PER CURIAM

The Lakewood Education Association (Association) filed a petition with the Public Employment Relations Commission (PERC) contesting the transfer of one of its members, an administrative secretary identified as R.C., alleging the transfer violated the New Jersey Employer-Employee Relations Act (the Act), N.J.S.A. 34:13A-1 to -64. The Association specifically asserted that R.C.'s transfer from one school in the district to another violated N.J.S.A. 34:13A-25, which provides: "Transfers of employees by employers between work sites shall not be mandatorily negotiable except that no employer shall transfer an employee for disciplinary reasons."

Under the Act, "[d]iscipline includes all forms of discipline, except tenure charges . . . or the withholding of increments pursuant to N.J.S.A. 18A:29-14." N.J.S.A. 34:13A-22. If PERC "determines that the basis for a transfer is predominately disciplinary, [it] shall have the authority to take reasonable action to effectuate the purposes of th[e A]ct." N.J.S.A. 34:13A-27(b).

The Association contended R.C.'s transfer was for disciplinary reasons, and the Board filed an answer effectively denying that claim. The Association requested an evidentiary hearing, which the Board opposed. PERC denied the request for an evidentiary hearing and notified both sides the petition would be decided on briefs. See N.J.A.C. 19:18-3.10(a) (noting an evidentiary hearing is warranted "[i]f . . . it appears to the Chair or such other Commission designee that there are substantial and material disputed factual issues").

At the time, there was one vacancy on PERC's seven-person commission. See N.J.S.A. 34:13A-5.2. We were advised at oral argument that at least since 2018 there has been at least one vacancy on the commission.

For reasons that follow, we need not discuss the facts alleged by each side regarding R.C.'s transfer. PERC's February 24, 2022 draft decision concluded "the Association ha[d] not sufficiently established, by a preponderance of evidence, that the Board transferred R.C. as discipline for following her supervisor's directive" and dismissed the petition. Here, the six commissioners considering the matter split evenly, three in favor of and three against PERC's draft decision. In a letter dated the same day, PERC's chairperson notified the parties' counsel of the vote and advised: "In cases of a tie vote, the status quo between the parties prior to the Association's filing of the contested transfer petition stands."

The Association filed this appeal, arguing PERC's action was arbitrary, capricious, and unreasonable because it "failed to actually adjudicate the subject controversy." It also contends that PERC should have ordered an evidentiary hearing "to break the deadlock." The Board argues otherwise as to the merits of PERC's dismissal of the petition, its denial of an evidentiary hearing, and the procedure PERC employed of leaving the dispute in its "status quo" prior to the petition's filing.

Although it anticipated the parties would adequately represent their particularized interests in the dispute, PERC nevertheless filed a statement in lieu of a brief, Rule 2:6-4(c), that explained its "long[-]standing policy in the case of an 'unbreakable' tie vote." Citing a December 23, 2014 public notice posted on its website and an administrative decision rendered in another matter, PERC asserted its "'tie-vote' policy [wa]s logical and reasonable, and not arbitrary or capricious."

More significantly, PERC challenged the Association's position that the draft decision was a final agency decision. PERC stated it "could not and did not issue a final agency decision in this matter. The draft decision presented to the Commission failed to obtain the necessary votes, and therefore, [PERC] was unable to take any action." Lastly, PERC contended the Association failed to establish substantial, disputed facts justifying an evidentiary hearing.

After the briefs were filed and shortly before we heard argument on this appeal, the Board notified us and opposing counsel that effective January 23, 2023, it had transferred R.C. back to her original school, thereby mooting the appeal because the Association had now received the relief it sought. The Association, however, argued the appeal was not moot, because the "voluntary, discretionary transfer" of R.C. could be reversed or modified at any time and lacked the authority of an order from PERC. The Association also argued the Board's alleged violation of N.J.S.A. 34:13-25 was "capable of repetition, yet evading review." Additionally, the Association noted that by its terms, the notice of R.C.'s transfer back to her original school had a termination date of June 30, 2023.

"Mootness is a threshold justiciability determination rooted in the notion that judicial power is to be exercised only when a party is immediately threatened with harm." Stop &Shop Supermarket Co. v. Cnty. of Bergen, 450 N.J.Super. 286, 291 (App. Div. 2017) (quoting Betancourt v. Trinitas Hosp., 415 N.J.Super. 301, 311 (App. Div. 2010)). "As a general matter, '[appellate] courts normally will not entertain cases when a controversy no longer exists and the disputed issues have become moot.'" Int'l Brotherhood of Elec. Workers Loc. 400 v. Borough of Tinton Falls, 468 N.J.Super. 214, 224 (App. Div. 2021) (quoting De Vesa v. Dorsey, 134 N.J. 420, 428 (1993)). "An issue is 'moot when [the appellate court's] decision sought in a matter, when rendered, can have no practical effect on the existing controversy.'" Redd v. Bowman, 223 N.J. 87, 104 (2015) (quoting Deutsche Bank Nat'l Tr. Co. v. Mitchell, 422 N.J.Super. 214, 221-22 (App. Div. 2011)).

"In limited instances, a court will address the merits of appeals that have become moot, electing to do so 'where the underlying issue is one of substantial importance, likely to reoccur but capable of evading review.'" Int'l Brotherhood of Elec. Workers, 468 N.J.Super. at 224 (quoting Zirger v. Gen. Accident Ins. Co., 144 N.J. 327, 330 (1996)). "We will typically do so when the matter evading review poses a significant public question or affects a significant public interest." Ibid.

We cannot predict the likelihood of recurring tie votes among PERC's commissioners. PERC's statement in lieu of a brief indicated that another commissioner had resigned leaving five sitting commissioners as of August 2022. PERC's website currently indicates that two vacancies remain.

The typical remedy in contested transfer cases is to return the employee to the former worksite. See In re Wayne Twp. Bd. of Educ., H.E. NO. 2021-8, 47 N.J.P.E.R. ¶ 107, 2021 N.J. PERC LEXIS 41, at *36 (2021). That has already occurred, meaning that even if the Association were to prevail on the merits of this appeal, our judgment "can have no practical effect on the existing controversy." Redd, 223 N.J. at 104 (quoting Mitchell, 422 N.J.Super. at 22122).

We have considered the parties' arguments. PERC's "tie-vote" procedure poses serious issues of public importance, and we briefly discuss our concerns below. Nonetheless, we are convinced it would be imprudent to dispositively address those issues in the context of an appeal that is without question moot. We therefore dismiss the appeal and add the following.

The December 2014 public notice posted on PERC's website and referenced in its statement in lieu of a brief provides two possible scenarios for "resolving tie votes in certain scope of negotiations cases." If a tie vote results because one or more commissioner is disqualified based on a conflict of interest, the tie is deemed "unbreakable[,]" and "the Commission's final action is either an interim or recommended decision made by a Commission designee or officer (e.g. Hearing Officer) or the status quo of the parties' dispute that existed at the time the proceeding before the Commission was initiated." If, however, the tie vote results because a commissioner is absent, then the Commission "will place the matter on the agenda at its next regular meeting, or, if necessary, convene a special meeting to take up the case again."

See Notice to Interested Parties from the Public Employment Relations Commission on Resolving Tie Votes in Certain Scope of Negotiations Cases (Dec. 23, 2014), www.nj.gov/perc/documents/ProtocolResolvingVotes.pdf. Because the appeal is moot, we need not digress and decide if PERC's 2014 public notice is a rule pursuant to N.J.S.A. 52:14B-2, i.e., an "agency statement of general applicability and continuing effect that implements or interprets law or policy, or describes the organization, procedure or practice requirements of any agency[,]" and whether PERC's use of the protocol amounts to de facto rulemaking that violates the Administrative Procedures Act. See Metromedia, Inc. v. Dir., Div. of Tax'n, 97 N.J. 313, 328-31 (1984).

Notably, the policy does not address the scenario in which there is a tie vote because of a vacancy or multiple vacancies on the Commission. It is clear PERC determined the vacancy in this case should be treated as a vacancy caused by a commissioner's disqualifying interest, because in his February 24, 2022 letter, the chairperson asserted the tie vote was "unbreakable." PERC opted not to refer the matter, consistent with the tie-vote protocol, to a hearing officer to make "an interim or recommended decision." Left undisturbed, the hearing officer's decision would have become PERC's "final action" reviewable by our court as of right. See Policemen's Benevolent Ass'n v. Pub. Emp. Rels. Comm'n, 187 N.J.Super. 202, 204 (App. Div. 1982) (noting the Commission's tie vote resulted in the affirmance of the hearing examiner's decision). Instead, PERC exercised its other option under the protocol when there was an "unbreakable tie" and left the parties in their positions status quo ante.

We intend to make clear that PERC's asserted inability "to take any action" because of the tie vote does not thwart this court's ability to have reviewed the Association's claims. As we have repeatedly noted:

Rule 2:2-3(a)(2) contemplates a
proceeding to review the action or inaction of a state administrative agency [shall] be by appeal to the Appellate Division .... Therefore, the Appellate Division has exclusive jurisdiction to consider a claim of state administrative agency inaction. If our determination of such a claim requires the development of a factual record, we can remand to the agency for a statement of reasons, for further action by the agency, or can permit the Law Division to create a record and make fact-finding.
[Caporusso v. N.J. Dep't of Health &Senior Servs., 434 N.J.Super. 88, 93 (App. Div. 2014) (alteration in original) (emphasis added) (quoting Hosp. Ctr. at Orange v. Guhl, 331 N.J.Super. 322, 329-30 (App. Div. 2000)).]

We accord PERC deference in its interpretation of the Act and adoption of procedures to effectuate its purposes. See, e.g., Newark Firemen's Mut. Benevolent Ass'n, Loc. No. 4 v. City of Newark, 90 N.J. 44, 55 (1982) ("The selection of procedures for the resolution of public sector labor disputes lies at the heart of PERC's expertise."). However, even a procedure codified by formal agency regulation may be set aside as arbitrary or capricious if it violates a "policy expressed or implied by the Legislature." N.J. Ass'n of Sch. Adm'rs v. Cerf, 428 N.J.Super. 588, 595-96 (App. Div. 2012) (citing N.J. Ass'n of Sch. Adm'rs v. Schundler, 211 N.J. 535, 548-49 (2012)). "'[O]ur role is to enforce the will of the Legislature' because '[s]tatutes cannot be amended by administrative fiat.'" In re Agric., Aquacultural, &Horticultural Water Usage Certification Rules, 410 N.J.Super. 209, 223 (App. Div. 2009) (second in original) (quoting TAC Assocs. v. N.J. Dep't of Env't Prot., 408 N.J.Super. 117, 124 (App. Div. 2009)).

The Legislature has invested PERC with "broad authority and wide discretion in a highly specialized area of public life." In re Hunterdon Cnty. Bd. of Chosen Freeholders, 116 N.J. 322, 328 (1989). The Act's

manifestations of legislative intent indicate not only the responsibility and trust accorded to PERC, but also a high degree of confidence in the ability of PERC to use expertise and knowledge of circumstances and dynamics that are typical or unique to the realm of employer-employee relations in the public sector.
[Ibid.]
N.J.S.A. 34:13A-25 was part of a series of amendments enacted in 1990 known as the "scope-of-negotiations amendments[] . . . intended to expand 'the scope of negotiations for public school employees in matters relating to extracurricular activities and discipline.'" Scotch Plains-Fanwood Bd. of Educ. v. Scotch Plains-Fanwood Educ. Ass'n, 139 N.J. 141, 154 (1995) (quoting Assembly Labor Committee, Statement to L. 1989, c. 269). When PERC determines some conduct by an employer was predominately disciplinary, other provisions of the amendments compel the submission of the dispute to bargained-for grievance procedures. See, e.g., N.J.S.A. 34:13A-27(c) (requiring submission of disciplinary withholding of salary increments to grievance procedures).

But, pursuant to N.J.S.A. 34:13A-25, when PERC determines "the basis for a transfer is predominately disciplinary," PERC "shall have the authority to take reasonable action to effectuate the purposes of th[e A]ct." N.J.S.A. 34:13A-27(b). In other words, the Legislature clearly intended PERC would take action to decide if the transfer were predominantly disciplinary and, if it was, order an appropriate remedy. PERC's own regulations for contested transfer determinations obligate the agency to "issue and serve on the parties its findings of fact and conclusions of law, including its determination as to whether the basis of the disputed transfer was predominantly disciplinary." N.J.A.C. 19:183.13. That never happened in this case. Simply put, PERC failed to uphold its obligations under the Act, and it may not cite to its tie-vote protocol as justification for this failure.


Summaries of

In re Lakewood Twp. Bd. of Educ.

Superior Court of New Jersey, Appellate Division
Aug 2, 2023
No. A-2340-21 (App. Div. Aug. 2, 2023)
Case details for

In re Lakewood Twp. Bd. of Educ.

Case Details

Full title:IN THE MATTER OF LAKEWOOD TOWNSHIP BOARD OF EDUCATION…

Court:Superior Court of New Jersey, Appellate Division

Date published: Aug 2, 2023

Citations

No. A-2340-21 (App. Div. Aug. 2, 2023)