On appeal from Superior Court, Law Division, Bergen County.
King, Gaulkin and Gruccio. The opinion of the court was delivered by Gruccio, J.A.D.
Plaintiff North Arlington PBA # 95 appeals from an adverse determination in its challenge to the facial validity of defendant Borough of North Arlington's ordinance governing elective retirement. Plaintiff contends before us, as it did before the Law Division, that the ordinance is preempted by State law. At our request, the Attorney General filed an amicus brief in which he urged that the borough's ordinance, when properly construed, is not preempted by the laws and regulations governing the police and firemen's retirement systems. We agree with his position and affirm.
On August 13, 1985, defendant adopted Ordinance # 1342 which states:
Be it ordained by the Mayor and Council of the Borough of North Arlington, Bergen County, State of New Jersey that once a police officer of any rank has elected to take his retirement and to accept any of the benefits, including but not limited to, terminal leave, accumulated sicktime, vacation time or personal days, then and in that event he cannot change his mind and seek to return to active duty nor can he withdraw his application for retirement.
Plaintiff, the majority representative of North Arlington's police officers, is a party to the collective bargaining agreement with defendant. Its police officers participate in the Police and Firemen's Retirement System (PFRS), N.J.S.A. 43:16A-1, et seq.
Plaintiff contends that Ordinance # 1342 is preempted by the extensive statutory and regulatory scheme contained within
N.J.S.A. 43:16A-1, et seq. and N.J.A.C. 17:4-1.1, et seq. Preemption is "a judicially created principle based on the proposition that a municipality, which is an agent of the State, cannot act contrary to the State." Mack Paramus Co. v. Paramus, 103 N.J. 564, 573 (1986), quoting Overlook Terrace Management Corp. v. Rent Control Bd. of W. New York, 71 N.J. 451, 461 (1976). The applicability of preemption can be determined based on the consideration of the following questions:
1. Does the ordinance conflict with state law, either because of conflicting policies or operational effect (that is, does the ordinance forbid what the Legislature has permitted or does the ordinance permit what the Legislature has forbidden)?
2. Was the state law intended, expressly or impliedly, to be exclusive in the field?
3. Does the subject matter reflect a need for uniformity?
4. Is the state scheme so pervasive or comprehensive that it precludes coexistence ...