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In re Sullivan

Decided: November 9, 1981.

IN THE MATTER OF THE APPLICATION OF CORNELIUS P. SULLIVAN, BURLINGTON COUNTY PROSECUTOR FOR FUNDS PURSUANT TO N.J.S.A. 2A:158-7


Haines, A.j.s.c.

Haines

On October 2 and 3, 1980 Cornelius P. Sullivan, Prosecutor for Burlington County, executed agreements with Council No. 16, New Jersey Civil Service Association, covering terms and conditions of employment for employees of the prosecutor's Office for the years 1980, 1981 and 1982. The agreements were retroactive to January 1, 1980 and were reached after negotiation pursuant to the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq.

The Burlington County Board of Chosen Freeholders (board) refused to provide the funds required to carry out the provisions of the prosecutor's agreements. The salary arrangements which

they provided were said to be more generous than those negotiated by the county with other employees and were therefore unnecessary and unacceptable. For the same reasons, the county also objected to various conditions of employment fixed by the prosecutor's agreements. Negotiations designed to bridge these differences were unsuccessful and, on November 13, 1980, the prosecutor filed a suit in lieu of prerogative writs in the Superior Court, Law Division, seeking a judgment ordering the freeholders to fund his contracts. The trial judge denied the requested relief, holding that the agreements were not binding without available appropriations because no relief had been sought under N.J.S.A. 2A:158-7, which permits the assignment judge to order the board to pay for additional expenditures. This decision was appealed to the Appellate Division, which affirmed. Sullivan v. Burlington Cty. Freeholder Bd. , 179 N.J. Super. 228 (App.Div.1981). It recognized the right of Sullivan, as the public employer of the Council's members, to negotiate collective bargaining contracts but refused to consider the substantive issue involving the enforceability of these contracts because of the procedural difficulty. It held that "our decision is without prejudice to plaintiff Sullivan applying for relief under N.J.S.A. 2A:158-7." Sullivan v. Burlington County Freeholders , 179 N.J. Super. 228, 233 (App.Div.1981). An application to the Supreme Court for certification was denied.

The present application under N.J.S.A. 2A:158-7 was filed on June 25, 1981, on notice to the freeholder board. Hearings followed. These were legislative, not judicial. The assignment judge sat, sans robe, off the bench, informally receiving testimony and exhibits. A court reporter took testimony. The prosecutor and other witnesses presented evidence in support of the need for funds. The board, being of the opinion that "need" was to be defined by the prosecutor alone, presented no evidence on that issue. Its witnesses stressed the county's financial difficulties, the legislative restrictions upon raising monies (the budget "cap") and said that it could not afford to pay the additional monies required to fund the prosecutor's contracts.

The assignment judge decided that the board's approach to the "need" question was wrong, as a matter of law. Accordingly, he wrote to the parties, advising them that he would reopen the hearings, if requested, to provide the board with an opportunity to present testimony concerning this issue. That request was made, the hearings were reopened and additional evidence received. The board presented general testimony about county finances but relied chiefly upon testimony of the prosecutor, who was called as its witness. Charles Juliana, Clerk of the Freeholder Board and its principal labor negotiator, as well as Robert Shinn, a freeholder, also testified.

I. The Binding Effect of the Contracts

The prosecutor continues to press his argument that the contracts with Council No. 16 are binding and enforceable. The question has not been decided in the courts. The conclusion here, however, is that the contracts are not enforceable against the county.

N.J.S.A. 2A:158-7 reads:

All necessary expenses incurred by the prosecutor for each county in the detection, arrest, indictment and conviction of offenders against the laws shall, upon being certified to by the prosecutor and approved under his hand, by a judge of the superior court or of the county court for such county, be paid by the county treasurer whenever the same shall be approved by the board of chosen freeholders of such county. The amount or amounts to be expended shall not exceed the amount fixed by the board of chosen freeholders in its regular or emergency appropriation, unless such expenditure is specifically authorized by the order of the assignment judge of the superior court for such county.

This budget statute does not permit the prosecutor to incur expenses unless they are approved by the Freeholder Board or authorized by the assignment judge. Consequently, any agreement requiring County funding is subject to these statutory provisions, unless, as argued here, N.J.S.A. 34:13A-5.3 controls. The latter statute, part of the New Jersey Employer-Employee Relations Act, requires public employers to negotiate with employee representatives concerning terms and conditions of ...


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