Judges Coleman, Muir, Jr., and Thomas.
The opinion of the court was delivered by: Coleman, P.J.A.D.
Submitted February 14, 1994
This case revisits Newark's attempt to enforce its municipal residency ordinance respecting civilian employees. The issue is whether a residency requirement is mandatorily negotiable. Newark appeals a final decision of the Public Employment Relations Commission (PERC) holding that the City's Preliminary Notices of Disciplinary Actions against three civilian employees in the Police Department, based on violations of the residency ordinance, constitutes an unfair labor practice. We disagree and reverse. The residency requirement is preempted from collective negotiations.
At the center of the controversy are three persons employed by the Newark Police Department as identification and records officers (I.D.). They are Jesse Barr, employed March 27, 1978; Gary F. Williams, employed December 27, 1978; and Robert G. Payne, employed July 2, 1985. All of them resided in Newark at the commencement of their employment. They are not graduates of the Police Academy. Their job description defines them as civilian employees who take fingerprints and photographs of arrestees, maintain arrest records and assist with investigation procedures within the police department.
I.D. officers are represented by the Patrolmen's Benevolent Association (PBA) Local 3, but they have been separated from the police officers' collective negotiation unit since 1978. Payne moved out of Newark in 1987, and he notified both the Police and the Personnel Departments of his change of residence. Barr moved from the City at some unspecified time. He, too, said he filed a change of address card. The record does not reflect when Williams moved from the City.
On February 25, 1991, the Newark Police Department served Preliminary Notices of Disciplinary Action against the three I.D. officers seeking to terminate their employment because they were no longer residing in Newark. Before a hearing could be conducted on the application, the PBA Local 3 filed an unfair labor practice charge against the City, alleging a violation of the New Jersey Employer-Employee Relations Act (Act), N.J.S.A. 34:13A-5.4(a)(1) and (5). The complaint alleged the City had unilaterally applied a residency ordinance to I.D. officers.
A hearing examiner ruled in favor of the PBA Local 3. He found the City had violated the Act by not negotiating with the PBA Local 3 over the imposition of a residency requirement upon I.D. officers. PERC agreed with the hearing examiner and ordered the City to (1) rescind the disciplinary actions; (2) negotiate with the PBA Local 3 before applying the residency requirement, and (3) notify the Chairman of PERC within 20 days what action the City had taken to implement the order. This appeal followed.
On this appeal, the City argues its residency law was validly established pursuant to enabling legislation which has not been abrogated by subsequent legislation. Consequently, its ordinance preempts any right to collective negotiations of residency requirement for I.D. officers.
Newark's Residency Ordinance was first adopted in 1932 and revised in 1951; neither controls this appeal. Kennedy v. City of Newark, 29 N.J. 178, 182-83, 148 A.2d 473 (1959). Following the 1951 amendment, the ordinance granted the Director of any department the discretionary authority "for good cause shown" to exempt an employee or officer from the continued residency requirement where "Special circumstances attach permitting residence outside the City limits." Abrahams v. Civil Service Comm'n, 65 N.J. 61, 73-74, 319 A.2d 483 (1974), declared the "special circumstances" exception void for lack of adequate standard to guide the Director's discretion. The City's Residence Ordinance (R.O.) 2:14-1 was amended on November 2, 1976, the circumstances surrounding that amendment will be discussed later. The "special circumstances" exemption was changed to read "Special Talent or technique which is necessary for the operation of government not found among Newark residents exists justifying residence outside of the City limits."
By the time of the 1976 amendment to R.O. 2:14-1, the ordinance had withstood one constitutional attack, Abrahams, supra, 65 N.J. at 75, 319 A.2d 483; it withstood another attack based on selective enforcement or non-enforcement, Kennedy, supra, 29 N.J. at 191, 148 A.2d 473. A second constitutional attack was pending at the time of the 1976 change. That pending decision was rendered November 30, 1976 in Trainor v. City of Newark, 145 N.J.Super. 466, 472, 368 A.2d 381 (App.Div.1976), certif. denied, 74 N.J. 255, 377 A.2d 661; supplemented, 148 N.J.Super. 434, 372 A.2d 1132 (1977), again upholding the constitutionality of the residency ordinance.
In view of the substantial litigation seeking to void the residency requirement, a public referendum was held on November 2, 1976. The majority of voters decided to make the residency requirement for employment prospective from November 2, 1976. In addition, the voters approved the language to replace the "special circumstances" exemption voided by Abrahams. Thus, the effect of the referendum was to grandfather in all of the nonresident officers and employees of the City as of November 2, 1976. As a consequence of the referendum and the amended residency ordinance, all officers and employees hired after November 2, 1976, not exempted by law, are subject to the residency ordinance. Since the 1976 amendment, the ordinance has withstood yet another constitutional attack. Booth v. Township of Winslow, 193 N.J.Super. 637, 640, 475 A.2d 644 (App.Div.), ...