The opinion of the court was delivered by: Weiss
On September 14, 1978, the Essex County Board of Chosen Freeholders (Board) passed Resolution No. 36454 (Resolution) requiring that all employees of the County of Essex (County) be residents of the County. (See Appendix). On September 19, the County Supervisor approved the Resolution.
On January 4, 1996, the County Executive, James W. Treffinger (Treffinger), issued Executive Order 96-1, declaring the County's intention to enforce Resolution No. 36454. Following the County Executive's announced intention to enforce the residency requirement, five suits were instituted to declare the County's action invalid.
On February 1, 1996, the first of these lawsuits was filed by the Communication Workers of America (CWA), AFL-CIO, Locals 1040 and 1081, the International Brotherhood of Electrical Workers, AFL-CIO, Local 1158, the International Brotherhood of Teamsters, AFL-CIO Local 723, Public Employees' Supervisors' Union and the Essex County Unit Managers and Supervisors' Association. Also listed are individual members of the unions who are affected by the residency requirement. Later that day another suit was filed by Essex County PBA Local 54, the Essex County Prosecutor's Office, PBA Local 325 and Herbert Pendleton and E.J. Pollara, as state delegates for the two unions.
On February 9, two additional suits were filed challenging the enforcement of the residency requirement. Suit was filed by plaintiffs Essex County Sheriff's Officers PBA Local 183, Essex County Corrections Officers, Essex County Jail Annex, Caldwell, Police PBA Local 157, Essex County Corrections Officers, Essex County Jail, Newark, PBA Local 153 and the Superior Officers' Association for the Sheriffs, Jail and Jail annex. The second suit instituted on February 9, was filed by Clifford J. Minor in his capacity as Essex County Prosecutor. An amended complaint was filed by Clifford J. Minor on February 16.
The final suit challenging the enforcement of the residency requirement was filed on February 23, by the Essex County Prosecutor's Office Assistant Prosecutor's Association and by individuals Gary J. Bogdanski, Joseph P. Donohue and Raymond Hoffman. Orders to show cause requesting preliminary injunctive relief were signed by the court. On March 8, defendants Treffinger and the County filed a brief and certifications in opposition to plaintiffs' orders to show cause and in support of defendants' motion to dismiss plaintiffs' complaints. Oral argument was entertained by the court on March 19, 1996.
II. VALIDITY OF RESOLUTION
The threshold issue in this case is whether the Freeholder Board's enactment of the residency requirement by resolution on September 14, 1978, was a valid exercise of its legislative power. Plaintiffs argued that the residency requirement is void because it was passed by resolution and not by ordinance. Initially, some plaintiffs relied on N.J.S.A. 40:41A-66, which became effective November 13, 1978. L.1978, c. 141, § 9. That statute requires the Board to exercise its legislative power by ordinance, unless the power to be exercised falls within one of the statute's enumerated exceptions which are permitted to be exercised by resolution. Plaintiffs argued that the residency requirement did not fall within one of the enumerated exceptions and, thus, is void because it was not enacted by ordinance. Plaintiffs, however, incorrectly relied on L.1978, c. 141, § 9 (an amended form of N.J.S.A. 40:41A-66) which is significantly different than the statute in effect at the time the residency resolution was passed.
The enabling legislation in effect on September 14, 1978, which permitted the adoption of a residency requirement was N.J.S.A. 40A:9-1.3, which provided:
Unless otherwise provided by law, the governing body of any local unit may by resolution or ordinance, as appropriate, require, subject to the provisions of this act, all officers and employees employed by the local unit after the effective date of this act to be bona fide residents therein. A bona fide resident for the purpose of this act is a person having a permanent domicile within the local unit and one which has not been adopted with the intention of again taking up or claiming a previous residence acquired outside of the local unit's boundaries. Any local unit wherein the provisions of Title 11 (Civil Service) of the Revised Statutes are operative, shall transmit a copy of the adopting ordinance or resolution, as the case may be, to the Civil Service Commission.
[L.1978, c. 63, § 1, eff. June 3, 1978. (emphasis added).]
Prior to June 30, 1978, the effective date of this statute, the statute was written in mandatory terms and required all employees whose "duties of which relate to county only" to be residents of the county. The changes effected by the legislature on June 30, 1978, were to make the residency requirement permissive by the adoption of a "resolution or ordinance" and to change those covered from employees whose "duties of which relate to county only," to employees "employed by the local unit." N.J.S.A. 40A:1-1, defines a local unit as a county or municipality.
In September 1978, the County operated under the County Supervisor Plan form of government, as set forth in N.J.S.A. 40:41A-59-71. Under this form of government, the Board of Chosen Freeholders' legislative power was governed by N.J.S.A. 40:41A-66, which on September 14, 1978, read, "the legislative power of the County shall be vested in the Board of Chosen Freeholders." L.1972, c. 154 § 66. N.J.S.A. 40:41A-67(a), further provided that: "The Board of Chosen Freeholders shall pass in accordance with this act whatever ordinances and resolutions it deems necessary and proper for the good governance of the county." L.1972, c. 154, § 67(a).
Therefore, the court rejects plaintiffs' argument that the residency requirement is invalid because it was not enacted by ordinance, and finds that the statutory provisions then in effect under the County Supervisor Plan form of government gave the Board the legislative authority to enact the residency requirement by resolution.
III. OFFICES OF SHERIFF & PROSECUTOR
The second issue is whether the members of the offices of the sheriff and prosecutor are subject to the residency requirement adopted by the County. In addition to an estoppel argument, the Prosecutor and the Sheriff argue that their offices are not subject to the residency requirement because the members of their offices are not employed by the County.
The County argues that the issue of whether members of the county prosecutor's office are subject to a county residency requirement was resolved almost nineteen years ago in Passaic County Prosecutor v. Passaic County Freeholders, 159 N.J. Super. 258 (App. Div.), certif. granted and remanded 77 N.J. 511 (1978).
In Passaic County, the defendants, county and treasurer, refused to pay the salaries of an assistant prosecutor and a county investigator who were duly appointed by plaintiff prosecutor. The defendants refused to pay the appointees because the said appointees were non-residents of Passaic County. Plaintiff instituted an action in lieu of prerogative writ against defendants in order to compel payment. The controlling statute at the time of the trial court's decision, N.J.S.A. 40A:9-1, read:
Except in the case of counsel, attorney, engineer, health officer, auditor, comptroller, appointed tax collector, elected assessors who have received tenure under P.L. 1967, c. 44, s.7 (C. 54:1-35.31), appointed tax assessor, or members of boards of assessors or as otherwise provided by law, every person holding an office, the authority and duties of which relate to a county only, or to a municipality only, shall reside within said county or municipality, as the case may be.
Any person holding or attempting to hold any such office in a county or municipality in violation hereof, may be ousted in a proceeding in lieu of prerogative writ.
[ Passaic County Prosecutors, supra, 159 N.J. Super. at 260.]
The trial Judge entered a judgment directing defendants to pay the salaries. The defendants appealed.
On appeal, the Appellate Division framed the issue as follows: "the resolution of the controversy depends on whether the respective offices of assistant county prosecutor and county investigator are positions 'the authority and duties of which relate to a county only.'" Id. (emphasis added). The court, in addressing this issue stated that the "dominant and pervading thesis of the statutes and cases pertaining to county prosecutors and their staffs is that their authority and duties are local, i.e., confined to their respective counties." Id. at 264. Accordingly, the Appellate Division reversed the trial court and held that the assistant prosecutor and the county investigator were required to be residents of Passaic County.
Following the May 2, 1978, Appellate Division decision in Passaic County, the New Jersey Supreme Court granted Certification on July 21, 1978, and remanded the matter to the Superior Court, Law Division, for further consideration in light of the adoption of c. 63, L.1978 by the Legislature, which became effective June 30, 1978. Passaic County Prosecutor, supra, 77 N.J. at 511. As previously set forth, L.1978, c. 63 amended the law to make the residency requirement permissive rather than mandatory and changed the covered employees from those whose "duties of which relate to county only," to employees "employed by the local unit." L.1978, c. 63 is the current statute relating to the residency requirement. N.J.S.A. 40A:9-1.3, reads in part:
Unless otherwise provided by law, the governing body of any local unit may by resolution or ordinance, as appropriate, require, subject to the provisions of this act, all officers and employees employed by the local unit after the effective date of this act to be bona fide residents therein.
The County argues that, "although the earlier statute admittedly contained different language than the current one, Passaic County is applicable here since the fundamental issue is the same: are the members of the County Prosecutor's Office employees of the county?" The court finds the County's argument unpersuasive. Passaic County is distinguishable from the case at bar because of the change in law. This court finds the change in law to be significant, as the decision in Passaic County was based on the language in N.J.S.A. 40A:9-1, "duties of which relate to a county only" and not the current language of N.J.S.A. 40A:9-1.3, "employed by the local unit." The court finds that Passaic County is not applicable to the case at bar as it was based on a repealed statute.
In determining whether the residency requirement is applicable to the members of the prosecutor's office, the court must decide, pursuant to N.J.S.A. 40A:9-1.3, whether the members of the prosecutor's office are "employed by the local unit" or employed by the prosecutor. The prosecutor is a constitutional state officer. N.J. Const. art. VII, § 2, par. 1. Although, as a practical matter, the prosecutor is normally a resident of the county in which he or she holds office, neither constitutionally, nor statutorily, N.J.S.A. 2A:158-1, is there any requirement that a prosecutor be a resident of the county in which he or she serves. In Cetrulo v. Byrne, 31 N.J. 320, 157 A.2d 297 (1960), the Court held that:
the Legislature as well as the courts have long recognized the strong policy considerations which dictate that since the county prosecutor is charged with heavy enforcement responsibilities he must be given broad powers to appoint his own personnel . . . .
The prosecutor's statutory authority to appoint the members of his office are provided by the following statutes:
Assistant prosecutors in and for the respective counties may be appointed by the prosecutors of such counties as hereinafter provided, who shall hold their appointments at the pleasure of the respective prosecutors. . . .
[N.J.S.A. 2A:158-15 (emphasis added)]
In counties of the first class having a population not in excess of eight hundred thousand there is created in the office of the county prosecutor, the office or position of legal assistant to the county prosecutor which shall be in the unclassified service of the civil service. The prosecutor of each of the said counties may appoint, subject to the approval hereinafter required, suitable persons to said office or position. . . . Every such legal assistant shall serve at the pleasure of the county prosecutor and be subject to removal by such prosecutor.. . .
[N.J.S.A. 2A:158-18.1 (emphasis added)]
The prosecutor in each of the several counties of this State may appoint such number of suitable persons, not in excess of the number, and at salaries not less than the minimum amounts, in this chapter provided, to be known as county detectives, to assist the prosecutor in the detection, apprehension, arrest and conviction of offenders against the law. Persons so appointed shall be in the classified service of the civil service and shall possess all the powers and rights and be subject to all the obligations of police officers, constables and special duty sheriffs in criminal matters.
[N.J.S.A. 2A:157-2 (emphasis added)]
In addition to the office of county detective, there is created in the office of the prosecutor, the office or position of county investigator which shall be in the unclassified service of the civil service. The prosecutor of each of the several counties of this state may appoint such number of suitable persons, not in excess of the number, and at salaries not less than the minimum amounts, in this act provided, to be known as county investigators, to serve at his pleasure and subject to removal by him, and to assist the prosecutor in the detection, apprehension, arrest and conviction of offenders against the law. Persons so appointed shall possess all the powers and rights and be subject to all the obligations of police officers, constables and special duty sheriffs, in criminal matters.
[N.J.S.A. 2A:157-10 (emphasis added)]
The Supreme Court in Cetrulo further noted that "nowhere have we found any statutory authority which supports the notion that an outside legislative agency such as the board of freeholders has the right to appoint assistants to the prosecutor, particularly legal assistants . . . ." Cetrulo, supra, 31 N.J. at 328-29.
The Public Employment Relations Commission (PERC) line of cases further support the Conclusion that the Prosecutor is the employer of the members of the prosecutor's office. In Matter of Middlesex County Prosecutor, 255 N.J. Super. 333, 605 A.2d 265 (App. Div. 1992), the Detectives and Investigators Association of the Middlesex County Prosecutor's office filed an unfair labor practice charge against the Middlesex County Prosecutor. The Association complained of the prosecutor's unilateral rescinding of credits granted to newly hired employees based on prior governmental employment. PERC ordered the prosecutor to reinstate the credits and the prosecutor appealed, arguing that the Board in effect directed the prosecutor to alter the existing agreement by the Board's enactment of the 1989 Resolution rescinding the credit. The prosecutor maintained that the powers reserved for the freeholders cannot be usurped by any other board or official, including the prosecutor, and thus contended that the prosecutor cannot negotiate a credit in violation of the Board's resolution. In doing so, the prosecutor relied upon N.J.S.A. 40:20-1, which states in part:
The property, finances and affairs of every county shall be managed, controlled and governed by the board elected therein, to be known as "the board of chosen freeholders of the county of . . . . (specifying name of county)", and the executive and legislative powers of the county shall be vested in that board of chosen freeholders, except where by law any specific powers or duties are imposed or vested in a Constitutional officer.
The Appellate Division disagreed, and affirmed PERC. The court reasoned that the prosecutor is a constitutional officer, see N.J. Const. art. VII, § 2, P 1, and as such, fits into the exception in the statute. The court further stated:
Prosecutors are authorized by statute to incur necessary expenses in the conduct of their offices and if the freeholders do not honor the prosecutor's certification of his expenses they may be ordered to pay the sums authorized by the assignment Judge for the county. N.J.S.A. 2A:158[-]7, saved from repeal by N.J.S.A. 2C:98[-]3. See, also, N.J.S.A. 2A:157[-]18 and [-]19. The language of the statute indicates a legislative intent to place the prosecutor in a dominant position with relation to the freeholders for the purpose of maintaining his independence and effectiveness.
[ Id. at 339 (quoting In re Application of Bigley, 55 N.J. 53, 56, 259 A.2d 213 (1969)) (emphasis added)]
Based on the foregoing, the court held that the prosecutor is a separate employer from the freeholder, and, as a separate employer, the prosecutor must negotiate with the ...