February 11, 1999
NEWARK COUNCIL NO. 21, NJCSA, IFPTE, AFL-CIO, GLORIA BYRD, PATRICIA SERMON, NASEEM MARVI, *FN1 JUANITA REED, AND MIRIAM ZIMUTO, PLAINTIFFS-APPELLANTS, AND GERARD BARROS, LOURDES BERNARDINO, THILITA BROWN ADAMSON, SHELLEY CANNON, GLADYS DANCY, ALVA DRUITT, FRANCES ENGLISH, PATRICIA GREY, JAMES GRIFFIN, ANGIE L. JONES, LAVERNE LAND, MILDRED SIMPSON, ROBERT MARCELA, ALESIA RAINES, JANE CANTER, SANDRA LEE-WALTON, MENGTING LIANG, INNA LOKSHINA, VENERA NAKHIMOVSKY, BERNICE WEST, EDWARD LAMBERT, MARGARET LEGGETT, CONSTANCE KRATT, RUTH HILL, CHRISTOPHER GRANT, EVELYN DAVIS GRANT, EVELYN HICKS, CARLA POTTER, FELIX ROSARIO, MARCIA SCHOLMASTER, LENORE SUTTON, JEAN THOMPSON, MARSHA MCGOWAN, DARRYL SAUNDERS, JAMILA BEMBRY, JOHN DA SILVA, BASIL FRANKLIN, ELAINE MOORE, ARLENE SMITH, REGINA BAYLEY, EMILIO CRUZ, LISA HAMLETTE, RONNIE JOHNSON, LARRY LAWSON, EDWIN WAY, DOROTHY THOMPSON, DEBORAH ODOM, MICHELLE PORTEE, ELYZE MINTER, MAE RUTH BLUE, IVAN BURGOS, JEROME MIGHTY, AND ALEX KOSHY, PLAINTIFFS,
SHARPE JAMES, MAYOR OF THE CITY OF NEWARK, AND CITY OF NEWARK, DEFENDANTS-RESPONDENTS.
Before Judges Pressler, Brochin, and Kleiner.
The opinion of the court was delivered by: Kleiner, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 15, 1998
On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Pursuant to a verified complaint filed September 18, 1996, plaintiffs, fifty-eight employees of the City of Newark and their collective bargaining representative, Newark Council No. 21, NJCSA, IFPTE, AFL-CIO, sought and were issued an order to show cause seeking to enjoin defendants, Mayor Sharpe James and the City of Newark (collectively "defendants" or "City") from: (1) enforcing the City's residency ordinance against the named plaintiffs who were hired prior to September 1, 1996; (2) requiring the named plaintiffs who live outside of the City of Newark to establish residences within the City of Newark; and (3) initiating, processing, or completing any termination or disciplinary proceedings against the named plaintiffs who were hired prior to September 1, 1996, and who did not live in the City of Newark.
Plaintiffs' verified nine count complaint sought in the ad damnum clause in count one the following:
(a) Declaring that the Residency Ordinance cannot be retroactively enforced due to the City's studied policy of non-enforcement;
(b) Enjoining defendants from enforcing the Residency Ordinance;
(c) Awarding plaintiffs attorney's fees, costs and disbursements; and
(d) Awarding plaintiffs such further relief as this court deems just and proper. *fn2
It is clear from the plaintiffs' verified complaint, from plaintiffs' subsequent pleadings, and from the colloquy between the trial Judge and counsel during all pre-trial proceedings and at the subsequent three-day bench trial commencing April 7, 1997, that this litigation focused solely upon the enforcement of the residency ordinance, City Ordinance 2:14-1, as to each individual plaintiff. *fn3 Plaintiffs' complaint did not seek to declare void, on federal or state constitutional grounds or otherwise, the validity of City Ordinance 2:14-1.
As discussed hereafter, ultimately the trial Judge, following the trial, issued a written opinion, memorialized in a judgment dated June 10, 1997, dismissing plaintiffs' complaint, thus permitting Newark to enforce its residency ordinance as to the individual plaintiffs. *fn4 The trial Judge correctly identified that plaintiffs' burden was to prove that the City had a studied policy of non-enforcement of its residency ordinance against persons hired prior to September 1, 1996. As we note hereafter, as of the date of this trial, April 3, 1997, of the approximately 4500 City employees, approximately 2000 were affected by the residency requirement. *fn5
The primary thrust of the Judge's decision may be gleaned from a small portion of his lengthy opinion:
"Plaintiffs urge that, as a result of this Court's decision in CWA v. Treffinger, 291 N.J. Super. 336 (Law Div. 1996), Newark is estopped to enforce its residency requirement against the five remaining plaintiffs because Newark had official knowledge that the plaintiffs were not residents at the time they became employees of Newark, or in the case of Simons was a resident of Newark, but moved out of Newark in 1989, and Newark did nothing until 1996. Plaintiffs misconstrue the decision in CWA vs. Treffinger. In that case, the allegation was that the Essex County Board of Chosen Freeholders (Board) adopted a resolution on September 14, 1978 requiring all employees of Essex County to be residents of the County. On January 4, 1996, the County Executive issued an executive order declaring the County's intention to enforce the residency requirement contained in the resolution adopted by the Board. On the plaintiffs applications for a preliminary injunction, the Court said:"
"This record clearly indicates the County's official knowledge of violations of the residency requirement. The County has failed to set forth any evidence of a single attempt to enforce the residency requirement from September of 1978 to January of 1996. Based on the foregoing, the plaintiffs at this stage in the proceedings have shown a reasonable probability of ultimate success on the merits to estop the County from enforcing the residency requirement." (emphasis added). [291 N.J. Super. at 360.]
"Thus, a critical factor in the CWA v. Treffinger case was that there was not one instance of enforcement of the residency ordinance from 1978 to 1996. In the present case, the record is replete with evidence of enforcement by the city of its residency ordinance either by termination of employees or by granting waivers to non-resident employees. The fact that Newark periodically entered into a campaign to enforce its residency ordinance does not detract from its efforts nor does it constitute a ground for estoppel against Newark." [(emphasis added).]
The single reason for the Judge's decision dismissing plaintiffs' complaint was the evidence of instances where the residency ordinance had been enforced by defendants, thus permitting his Conclusion that plaintiffs' complaint was distinguishable from the complaint in Treffinger where the County was unable to set forth "any evidence of a single attempt to enforce the residence requirement." 291 N.J. Super. at 360. We agree with this Conclusion and affirm.
We have thoroughly canvassed the record on appeal with particular emphasis on the appendices filed by both parties. Our review clearly allows the Conclusion that prior to 1993 there were numerous instances where the City communicated with its employees seeking information respecting an employee's place of residence or seeking to confirm that an employee had in fact moved into the City following the date employment commenced. We do discern some laxity in the City's strict enforcement of its residency ordinance between October 1993 -- the month plaintiff Byrd was hired -- and the City's general announcement of strict enforcement in January 1996. This laxity is evidenced by the City's failure to strictly enforce the residency ordinance in its employment of each of the five plaintiffs. *fn6 Yet, the record does demonstrate that the ordinance was not totally ignored during that same period. This is best illustrated by the inclusion of a residency affidavit within the documents completed by every new City employee, the reference to the residency ordinance within employee handbooks intended to be disseminated to all new employees, and the reference to the residency ordinance in a slide presentation presented as part of an orientation program available to new employees.
It is evident from the record that although the City may have been lax in strictly enforcing its residency ordinance, the City certainly did not engage in a studied policy of non-enforcement. We cannot conclude that the negligible exceptions exemplified by the individual experiences of the plaintiffs constitutes sufficient evidence that defendant engaged in a studied policy of non-enforcement as discussed in Treffinger. Accordingly, we affirm for the reasons articulated by the trial Judge in his written opinion of May 15, 1997. We add these additional comments to highlight some of the salient reasons which guide our decision to affirm.
On November 17, 1975, the City of Newark adopted a municipal residency ordinance requiring all City employees thereafter hired to reside in the City. The ordinance provides, in pertinent part:
"All officers and employees of the City who shall hereafter become employees of the City are hereby required as a condition of their continued employment to have their place of abode in the City and to be bona fide residents therein, except as otherwise provided by the charter . . . ."
"The Director of any department or the Mayor or City Clerk is hereby authorized in his discretion, for good cause shown, to permit any officer or employee of the City in his respective department or office to remain in the employ of the City without complying with the provisions hereof, where:"
"(a) The health of any officer or employee necessitated residence outside to the City limits;"
"(b) The nature of the employment is such as to require residence outside of the City limits;"
"(c) 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."
"Failure of any officer or employee to comply with this section shall be cause for his removal or discharge from the City service." *fn7 [Newark, N.J., Rev. Ordinance 2:14-1.]
The trial Judge summarized the trial testimony of each individual plaintiff. The only other witness presented by plaintiffs at trial was Michael A. James. James was at that time the president of Newark Council No. 21 which represents "[all] white collar workers and some professional employees of the City of Newark." James was then employed as the Executive Assistant to the City Clerk.
On direct examination, James testified:
"Q. Mr. James, do you know the approximate number of employees in the City of Newark?"
"A. It's approximately about 44-4500."
"Q. Out of those 4500, how many of them are police and fire?"
"A. Approximately 2500."
"Q. Now are the police and fire exempt from the residency requirement?"
"Q. Now out of the 2,000 employees that are not police and fire, approximately how many of those are grandfathered, meaning that they were hired prior to November 2, 1976?"
"A. I don't know all of them, but I remember that we came up with, from trying to gather those employees who are still with the City, that there's approximately 100-150 of them."
"Q. So out of the approximately 1850 employees that are subject to the residency requirement, how many of those reside outside the city?"
"A. About 200."
"Q. Now, out of the 200 that reside outside of the City, approximately how many of those are not being terminated for violating the residency requirement?"
"A. Close to 100."
"Q. Now, out of the approximate 100 employees that are not being terminated for violating the residency requirement, how many of those are provisional employees?"
"A. In our union, there are approximately 35-40 of them."
"Q. That are not being terminated?"
"A. No, excuse me, no. Out of the provisionals, I would say about 90 of them."
Neither additional direct testimony nor cross-examination elicited an explanation why approximately 100 of the approximate 200 employees residing outside the City were not notified of the City's intention to terminate their employment. *fn8
The primary witness for the defense was Glenn Grant, the City's Business Administrator. *fn9 Grant testified to the City's efforts to enforce the residency ordinance following the decision in Trainor v. City of Newark, 145 N.J. Super. 466 (App. Div. 1976), certif. denied, 74 N.J. 255 (1977).
Grant testified that, on at least three occasions, in 1989, 1991, and 1993, each City employee was notified by a statement on their individual City paycheck of the residency requirement to the effect that all "employees hired after November 2, 1976 must maintain residence in the City."
Prior to February 23, 1996, the residency ordinance provided three classifications of employees who were entitled to apply for a waiver of the residency requirement. Although on February 23, 1996, the Mayor delegated his authority to grant or deny waiver applications to the business administrator, the City honored all waivers which had been granted prior to that date. Grant testified that after February 23, 1996, in certain instances he granted waiver applications and in other instances denied waiver applications. The Judge ultimately concluded as part of his findings of fact that the existence of a waiver policy and the denial or grant of individual waivers was one indicia of the City's enforcement of the residency ordinance, both prior to and after January 1996.
On May 24, 1996, Grant compiled a list of twenty-one employees in each City department who had previously received a written waiver or a conditional written waiver and a list of 100 employees who had been identified as non-residents of the City who had not received a waiver. Each department head received a communication from Grant specifically identifying those employees in his/her department identified in each category. Each department head was directed to notify those identified employees who had not, as of that date, complied with the City residency ordinance that "they risk losing their job to a qualified Newark resident if they do not satisfy the residency requirement by September 1, 1996." *fn10
As noted, we have thoroughly reviewed the appendices filed on appeal which comprise 574 pages. Many of the documents contained therein are copies of communications between the City and various employees seeking verification of residency or an explanation of an employee's intent to obtain City residency. Although the bulk of these exhibits demonstrate that the City expended a greater effort to assure compliance with the residency ordinance before 1980 and after January 1996, nonetheless the exhibits do establish periodic efforts in the intervening years to enforce the ordinance. In Kennedy v. City of Newark, 29 N.J. 178 (1959), the Supreme Court, in discussing the validity of residency ordinances noted, "laxity" in enforcement is insufficient to warrant a finding of a "studied policy not to enforce" a residency ordinance. Id. at 192. The City's laxity, however, did not give rise to any sustainable complaint by any individual plaintiff. The trial Judge correctly dismissed plaintiffs' complaint.