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Sullivan v. Burlington County Board of Chosen Freeholders

Decided: June 8, 1981.


On appeal from the Superior Court, Law Division, Burlington County.

Matthews, Morton I. Greenberg and Loftus. The opinion of the court was delivered by Morton I. Greenberg, J.A.D.


This action involves the interplay between the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. , the duties of the county freeholders with respect to the county budget and the powers of an assignment judge under N.J.S.A. 2A:158-7. The specific issue is whether if the freeholders refuse to fund an agreement reached between the prosecutor and an employee bargaining unit, the Superior Court, Law Division, in an action in lieu of prerogative writs, will compel the freeholders to appropriate money to implement the contract.

The germane facts underlying this appeal are not in substantial dispute. Plaintiff Sullivan at all times material to this case has been the Burlington County prosecutor. In 1979 plaintiff Council # 16, New Jersey Civil Service Association (Association), sought recognition from Sullivan as the employee representative of certain employees in his office pursuant to N.J.S.A. 34:13A-1 et seq. Sullivan accepted the Association as their

representative. Three separate negotiating units were established: (1) a clerical unit, (2) a unit of detectives, detective/sergeants and investigators and (3) a unit of lieutenants and captains. Sullivan and the Association then started negotiations in an attempt to reach employment agreements. The freeholders were aware of these negotiations. No later than August 4, 1980 Sullivan recognized that his budget would be inadequate to fund the proposed contracts because on that day he received a memorandum from his office manager projecting a shortfall of $60,756. Ultimately plaintiffs reached agreement and accordingly written contracts were executed on October 2 and 3, 1980. See N.J.S.A. 34:13A-5.3. These contracts established the terms and conditions of employment for 1980, 1981 and 1982 and were retroactive to January 1, 1980.

On October 6, 1980 Sullivan sent copies of the agreements to the freeholders. Since the appropriations for the prosecutor's office were insufficient to fund the agreements, he requested on October 27, 1980 that the freeholders implement the agreement. On November 3, 1980 John E. Dimon, Burlington County Solicitor, on Behalf of the freeholders, responded to Sullivan's request. Dimon specified that the freeholders had taken a firm position objecting to certain portions of the contracts but stated that "the door remains open for further discussion and reasoning."

On November 13, 1980 plaintiffs brought this action in lieu of prerogative writs in the Superior Court, Law Division. The complaint recited the execution of the contracts and alleged that the freeholders had refused to fund them. Plaintiffs sought a judgment requiring the freeholders to fund the contracts. Simultaneously with the filing of the complaint plaintiffs filed a motion for summary judgment returnable December 10, 1980. The freeholders filed an answer to the complaint. They set forth that the contracts were unreasonable. In addition, the freeholders asserted that Sullivan had "failed to exhaust the administrative and statutory remedies available to him pursuant

to N.J.S.A. 2A:158-7." The freeholders served a cross-motion to dismiss returnable December 10, 1980.

A hearing on the motions was held by Burlington County Assignment Judge Samuel D. Lenox, Jr. on December 10, 1980. No testimony was taken at that time since there was no dispute as to the facts. After hearing oral argument Judge Lenox held that Sullivan could not make a binding agreement without appropriations being available since, absent funding, he must seek relief from the assignment judge under N.J.S.A. 2A:158-7. Accordingly, on December 10, 1980 Judge Lenox signed an order dismissing the complaint.

Plaintiffs appeal from that order. Their contention as set forth in Sullivan's brief on this appeal is that "a collective negotiation agreement under the Employer-Employee Relations Act is a legal obligation which cannot be altered by action of the county board of freeholders." In essence, they contend that the contracts must be funded and that the procedure set forth in N.J.S.A. 2A:158-7 providing for additional funding of a prosecutor's expenses upon approval of the assignment judge is inapplicable to these contracts negotiated pursuant to N.J.S.A. 34:13A-1 et seq.

It is clear that Sullivan is the public employer of the Association's members for purposes of negotiation of contracts under N.J.S.A. 34:13A-1 et seq. See In re Mercer Cty. Freeholder Bd. v. Mercer Cty. Prosecutor , 172 N.J. Super. 411 (App.Div.1980); In re Bergen Cty. Freeholder Bd. v. Bergen Cty. Prosecutor , 172 N.J. Super. 363 (App.Div.1980). Thus, it was entirely proper for Sullivan to negotiate ...

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