On appeal from the Merit System Board. Thomas P. Scrivo argued the cause for appellant Borough of Keansburg (McElroy, Deutsch & Mulvaney, attorneys; Mr. Scrivo, of counsel and on the brief; Michael Rowan, on the brief).
Before Judges Pressler, Ciancia and Hoens.
The opinion of the court was delivered by: Pressler, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 12, 2002
Jason E. Sokolowski argued the cause on behalf of amicus curiae New Jersey State Policemen's Benevolent Association (Zazzali, Fagella, Nowak, Kleinbaum & Friedman, attorneys; Paul L. Kleinbaum, of counsel and on the brief; Mr. Sokolowski, on the brief).
The Borough of Keansburg appeals from a final decision of the Merit System Board prohibiting it from hiring Class Two special police officers for the summer months of 2001 since regular permanent police officers of the Borough were then in layoff status. It appears that the appeal is moot not only because the 2001 summer season has now passed but also, and more importantly, because it has been represented to us that there are no longer any regular police officers in that status who seek or who are now eligible for reemployment. Keansburg has, in fact, applied for decertification of the layoff list on that basis. *fn1 We nevertheless address the issue because of its public importance and the likelihood of its recurrence.
The relevant facts are largely undisputed. Faced with a budget crisis, Keansburg, on February 1, 2001, applied to the Division of Human Resource Management in the Department of Personnel (DOP) for permission to lay off permanent employees including a reduction in force (RIF) of eight police officers. The Borough's plan was approved by letter of the DOP dated March 19, 2001, requiring the affected employees to be given forty- five day notices of layoff. The originally scheduled layoff date of May 4, 2001, was extended until May 31, 2002. Respondent Keansburg Local No. 68, the police officers' representative, appealed the RIF, claiming that it was motivated by bad faith rather than by legitimate economic concerns. We were advised at oral argument that that appeal is presently pending in the Office of Administrative Law and will be heard by an administrative law judge in November 2002.
While Local No. 68's appeal was pending and before the layoffs were actually effected, Keansburg announced its intention to hire special police officers for the summer season of 2001, roughly from Memorial Day to Labor Day. Keansburg, a shore community with, typically, a large influx of summer residents and visitors, had been hiring ten or so special police officers for the summer months for some years, and the 2001 announcement may be fairly characterized as a continuation of its past practice. This administrative proceeding challenging the Borough's right to hire Class Two special officers ensued. The basis of its challenge lies in its interpretation of the governing legislation.
The hiring of special police officers by a municipality and the conditions, terms, and limitations of such hiring are governed by the Special Law Enforcement Officers' Act (Act), N.J.S.A. 40A:14-146.8 to -146.18. We note that in its definitional provisions, the Act takes specific notice of the seasonal needs of shore communities, defining a "resort municipality" as a municipality which, because of its "recreational or entertainment characteristics or facilities" or proximity thereto, "experiences a substantial increase during the seasonal period in the number of persons visiting or temporarily residing there," N.J.S.A. 14A:14-146.9f. The Act also enlarges the definition of "seasonal period" for resort communities bordering on the Atlantic Ocean from the four consecutive months applicable to other communities to six consecutive months, N.J.S.A. 40A:14-146.9g. "Special law enforcement officer" is defined as a person appointed pursuant to the Act to temporarily or intermittently perform duties similar to those performed regularly by members of a police force of a local unit, or to provide assistance to a police force during unusual or emergency circumstances, or at individual times or during regular seasonal periods in resort municipalities. [N.J.S.A. 40A:14-146.9h]
Two classes of special officers are provided for by N.J.S.A. 40A:14-146.11a. Class One officers are authorized to "perform routine traffic detail, spectator control and similar duties." They may issues summonses for traffic violations and disorderly persons offenses. They may not, however, carry or use firearms and consequently may not be assigned duties that might require the carrying and use of firearms. Class Two officers are authorized to perform, within the municipality, all of the duties of a regular police officer and may, if so authorized by the municipality, carry and use firearms after being fully certified as having successfully completed the required training. It is not disputed that Keansburg's prior practice has been the hiring of Class Two special officers for the summer season and that it intended to hire Class Two special officers for the 2001 summer season. Its position is that Class One officers cannot reliably meet its seasonal need.
PBA Local 68's challenge, filed with the Division of Human Services in the Department of Personnel, was based on the proposition that such hiring violated N.J.S.A. 40A:14-146.16b, which provides in full that:
Notwithstanding any provision of this act to the contrary, special law enforcement officers may be employed only to assist the local law enforcement unit but may not be employed to replace or substitute for full- time, regular police officers or in any way diminish the number of full-time officers employed by the local unit.
The challenge was rejected by the Manager of the Division of Human Services, who ruled that the statute would not be violated despite the layoff status of regular police officers, provided the Borough hired no more Class Two special officers for the summer of 2001 than it had for the previous summer. PBA Local 68 appealed that decision to the Merit System Board (Board), which, relying on a 1989 opinion it had issued in a case involving remarkably similar facts, concluded that while the hiring of Class Two special officers during the viability of a layoff list violated the statute, the hiring of Class One officers would not, provided the laid-off officers were given first refusal of the Class One appointments. Keansburg appeals, and we granted the motion of the New Jersey State Policemen's Benevolent Association to appear as amicus curiae.
The central legal issue before us is simply whether the summer hiring by a shore resort community of seasonal Class Two special officers while there are regular police officers on layoff status automatically violates the prohibition of N.J.S.A. 40A:14-146.16b by constituting, based solely on the existence of a layoff list, a replacement or substitution for regular full- time officers or a diminishment of the regular police force. In addressing this question we are mindful of our obligation to accord great weight to the interpretation of a statute by the agency charged with its administration and implementation. See, e.g., In re Dist. of Liquid Assets, 168 N.J. 1, 11 (2001); In re Pub. Serv. Elec. & Gas Co., 167 N.J. 377, 384 (2001); National Waste Recycling, Inc. v. MCIA, 150 N.J. 209, 228 (1997). Nevertheless, we are not bound by the agency's interpretation if we find it unreasonable or inconsistent with statutory policy. See, e.g., In re M.F., 169 N.J. 45, 56 (2001); Brock v. Public Serv. Elec. & Gas Co., 149 N.J. 378, 383 (1997). While we are satisfied that the Class Two special officer technique is obviously vulnerable to abuse as a device for replacement or substitution of regular police officers and diminishment of the regular police force and that the preclusion of such abuse is the purpose of the statutory prohibition, we are also convinced that the existence of a layoff list cannot, by itself, be dispositive of the question of whether, in a particular case, hiring Class Two special officers constitutes a violation of the statute. In sum, we are persuaded that the Board construed the statutory prohibition too narrowly and too mechanically. In our view, the statute can be deemed violated only when ...