The opinion of the court was delivered by: William C. Todd, III, P.J. Ch.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS
This opinion deals with a petition filed by the Cape May County Prosecutor (hereinafter "the Prosecutor") seeking authorization for increases in the salaries and wages of his employees over the amounts authorized by the Cape May County Board of Chosen Freeholders (hereinafter "the Board") in its budget for the 2006 calendar year. That request, commonly referred to as a Bigley application, was based upon the provisions of N.J.S.A. 2A:158-7, and the opinion in In re Bigley,55 N.J. 53 (1969). The resolution of this request requires the court to address a number of issues including the question of whether the request is, in the most basic sense, reasonable. Additional issues are presented as to the relationship between the collective negotiations process, the budget process, and the procedure to be followed in presenting Bigley applications to the court. For the reasons noted below, the court has authorized some but not all of the increases requested.
Each county prosecutor is a constitutional officer, appointed by the Governor with the consent of the Senate, for a term of five years. N.J. Const. art. VII, § 1, ¶ 5. By statute, the prosecutor is responsible for the detection, arrest, indictment, and conviction of those who violate the law. See N.J.S.A. 2A:158-5. N.J.S.A. 2A:158-7 deals with the funding of the prosecutor's office and is unique. The prosecutor's expenses are to be paid by the county treasurer, provided the payments to be made by the treasurer are not to exceed the amount authorized by the board of chosen freeholders, unless specifically authorized by the court.
For a number of years, the Cape May County Prosecutor's Office was supervised by a series of acting prosecutors. That continued through October 2004, when Prosecutor Taylor was sworn into office. The petition now before the court was filed by the Prosecutor in March 2006. In the intervening period, the Prosecutor and the Board had entered into a number of collective negotiations agreements with negotiating units representing many of the employees of the Prosecutor's office. Two separate budgets also were considered and adopted by the Board, after receiving some input from the Prosecutor. The specific sequence of events bears on the court's analysis, and will be briefly reviewed.
The Prosecutor was sworn into office in October 2004. Within a relatively short period of time, negotiations began with a number of collective negotiations units representing most, but not all of the employees in the prosecutor's office. In each case the negotiations were conducted by Steven O'Connor, the County Administrator. The Prosecutor was aware those negotiations were taking place and that the County Administrator was conducting those negotiations. He assumed, based on his discussions with the County Administrator, that it was generally appropriate to permit the negotiations to proceed in that fashion. In any event, the Prosecutor did not take any active role in the negotiations themselves. The County Administrator was successful in reaching agreement with each of the collective negotiations units in question. Formal collective negotiations agreements were prepared and executed by January 2005. In each case, the agreements were submitted for approval by both the Board and by the Prosecutor, and were executed by each of them.
Five separate collective negotiations agreements were executed. There were separate agreements with (1) Assistant Prosecutors, (2) Detectives, Investigators and Sergeants, (3) Captain and Lieutenants, and (4) the Prosecutor's Employees Organization, consisting largely of secretarial personnel and (5) a collective negotiations unit consisting of only two employees, the Prosecutor's secretary and the office manager. Each agreement covered the period from January 1, 2005, through December 31, 2008. With the exception of the agreement entered into with the Assistant Prosecutors, the agreements established the salary levels through December 2008, by reference either to the salaries of each named employee, or by reference to the position held by the employee in question, providing for increases in each calendar year. The agreement entered into with the Assistant Prosecutors was unique in providing that the salaries of the Assistant Prosecutors would be subject renegotiation on an annual basis in October of each year. The agreements cover almost all of the Prosecutor's employees. The only exceptions are the First Assistant Prosecutor, the Chief of Detectives, and a group of five agents and one chemist. Their salaries are also at issue here.
The collective negotiations agreements were executed by the collective negotiations units in question, the Board, and the Prosecutor by January 2005. The County's budget is reviewed annually, on a calendar year basis. For the calendar year 2005, that process was presumably completed sometime in the spring of 2005 through appropriate presentations to the Board. In 2005, the Prosecutor presented a number of requests for additional staffing and/or funds, many of which were not incorporated into the budget adopted by the Board. The Prosecutor elected not to pursue a Bigley application at that time.
During this time the Prosecutor became concerned with his relationship with the Board and his ability to obtain the funds he considered necessary to operate his office. That concern was apparently based on a number of factors. Based on discussions with some of his fellow county prosecutors, the Prosecutor concluded he should have been more actively involved in the collective bargaining process and that he, rather than the County Administrator, should have been responsible for dealing with the collective negotiations units in question. That conclusion was consistent with existing case law that will be reviewed in some detail below. Statistical information provided by the Division of Criminal Justice, budget submissions by the Prosecutor's predecessors, and more informal discussions indicated to the Prosecutor that the office was understaffed and that salaries and wages were inadequate, at least when the office was compared with other prosecutors' offices around the state. By the fall of 2005, the Prosecutor had determined to take a more aggressive role with respect to his budget.
By November 2005, the Prosecutor asked the Attorney General for authorization to proceed with a Bigley application. In addition, the Prosecutor asked the Division of Criminal Justice to prepare a staff analysis of his office. That analysis was completed in December 2005. The analysis was based almost entirely on a comparison of the staffing levels at the Cape May County Prosecutor's Office with staffing levels in two other counties, selected by the analyst in question based on the workloads in each county. The analysis was based on a variety of measures, and indicated the workloads in Cape May were well above the average workloads in those two other counties. The Prosecutor had access to other statistical information indicating salary levels in his office were also well below the average salaries for prosecutor's office throughout the state. In early December 2005, the Attorney General authorized the filing of a Bigley application, also directing that the application not be filed until the budget process for 2006 had been completed.
During that same time, the 2006 budget process had begun. The Prosecutor's request for permission to proceed with a Bigley application was submitted November 14, 2005. Within a few days, the Prosecutor submitted his budget request for 2006 to the Board. Notably, that budget request was more limited than the requests ultimately presented to the court through the Bigley petition. That budget submission, however, included requests for additional staff throughout the office. It also requested increases in salaries and wages with respect to a number of employees, but not necessarily in the amounts requested through this application. By way of example, the budget request itself suggests that the salaries of most of the secretarial staff and investigators would remain at the levels set in the collective negotiations agreements negotiated in January 2005. This application requests additional increases for those employees, over those provided for in the collective negotiations agreements in question and in the budget request.
By the spring of 2006, the Prosecutor had concluded it would be appropriate to increase the salaries and wages of the employees covered by the collective negotiations agreements, beyond the increases which had been agreed to in January 2005. On that basis, the Prosecutor elected to approach each collective negotiations unit, offering to "reopen" the prior negotiations, to permit the negotiation of additional salary increases. As one would expect, each collective bargaining unit agreed to reopen the prior agreements. By March 2006, separate addenda had been prepared for each collective negotiations unit. In each case, the addendum provided for an increase in salaries. With the exception of an addendum applicable to the Assistant Prosecutors, the increases agreed to extend through the expiration of collective negotiations agreements in question, in December 2008. As with the original agreements, the addenda provided for increases in each calendar year. The various addenda were executed by both the Prosecutor and the collective negotiations units in question and were then presented to the Board in mid-March 2006. The Board has not accepted those proposed addenda.
The collective negotiations agreement entered into with the Assistant Prosecutors did not establish salary levels through 2008, as was the case with each other agreement. The Assistant Prosecutors' agreement provides that salaries are subject to renegotiation in October of each year. By the fall of 2005, it was apparently clear to all involved that the Prosecutor was considering pursuing a Bigley application. In that context additional negotiations occurred with respect to the salaries to be paid to the Assistant Prosecutors. Again, those negotiations involved the County Administrator and a representative of the collective negotiations unit, but did not involve the Prosecutor. The County Administrator and the Assistant Prosecutors reached an agreement, and a formal collective negotiations agreement was prepared, providing for a five percent increase in salaries for 2006. The Prosecutor did not agree to those terms, having satisfied himself that more substantial increases were appropriate. That apparently was not clear to the County Administrator who submitted the new agreement to the Board. It was approved by the Board, but has never been accepted or signed by the Prosecutor. Notably, the Prosecutor's budget request, submitted in November 2005, requested a nine percent increase for the Assistant Prosecutors for 2006. That budget request was apparently submitted to the Board prior to the negotiations between the County Administrator and the Assistant Prosecutors' collective negotiations unit with respect to salary levels for 2006. It also was submitted prior to the Prosecutor's effort to "reopen" the negotiations with respect to all the agreements executed in January 2005. In pursuing this application, the Prosecutor has requested increases in excess of the amount agreed upon with the County Administrator, and in excess of the amount requested in the Prosecutor's prior budget request. The request advanced during the hearing included the five percent increase that had been agreed upon by the Assistant Prosecutors and the County Administrator for 2006, and an additional increase in a fixed amount for each assistant prosecutor, which was intended to adjust for what the Prosecutor perceived as disparities in the individual assistant prosecutors' salary levels within his office. Taken together, those two proposed increases would be in excess of the nine percent increase requested in the Prosecutor's budget proposal.
The Attorney General had authorized the filing of a Bigley application in December 2005. The letter issued by the Attorney General, however, specifically indicated that the application could not be filed until the budget process was complete, so that the Board would "have an opportunity to address correct (sic) the staffing and funding deficiencies" of the office. This court assumes that direction was based on the Attorney General's interpretation of existing case law, which will be discussed in more detail below. In any event, the Prosecutor did not proceed with this action until the Board had finally approved its budget for 2006. That occurred sometime in March 2006. The petition now before the court was filed March 16, 2006. The Assignment Judge was unable to handle the matter as a result of a conflict, and the petition was assigned to this court, as the Acting Assignment Judge.
The petition as originally filed requested authorization for a variety of types of expenses. Requests were presented for additional staff, additional facilities, and funds for a community outreach program, as well as for increases in salaries and wage levels. In general, the requests outlined in the petition exceeded the requests incorporated in the Prosecutor's prior budget request. By way of example, the Prosecutor requested two additional assistant prosecutors' positions in his budget request, but requested four additional assistant prosecutors' positions in the pending petition. With the exception of the request related to salary of the First Assistant Prosecutor, the wage and salary requests presented through the petition were all in excess of the amounts requested in the prior budget submission.
The Prosecutor and the Board were able to reach agreement as to the requests for staff, facilities, and the community outreach program. Some additional staff have been authorized for 2006. Professionals are to be retained to review requests for additional staff and the need for additional facilities, and those issues will apparently be revisited in conjunction with the budget process for 2007. As an aside, the Board has questioned whether this court has the authority to deal with a request for additional facilities under the statute in question. That issue has not been resolved and may or may not be presented in some future proceeding. In that context, a hearing was conducted in May 2006, focusing on the dispute as to salaries and wages, which is the subject of this opinion.
As noted above, these proceedings are unique. Neither the statute at issue nor the existing case law provides a great deal of guidance in terms of procedure or the substantive standards to be applied by the court. A brief review of the applicable law is appropriate.
The court's authority to deal with this request is statutory. N.J.S.A. 2A:158-7 provides as follows:
All necessary expenses incurred by the prosecutor for each county in the detection, arrest, indictment and conviction of offenders against the laws shall, upon being certified to by the prosecutor and approved, under his hand, by a judge of the superior court, be paid by the county treasurer whenever the same shall be approved by the board of chosen freeholders of such county. The amounts to be expended shall not exceed the amount fixed by the board of chosen freeholders in its regular or emergency appropriation, unless such expenditure is specifically authorized by order of the assignment judge of the superior court for such county.
In re Bigley, supra, 55 N.J. 53 is the leading opinion dealing with that statute. In that opinion the Supreme Court confirmed what is apparent in the language of the statute -- that the final decision with respect to a request for additional funds rests with the assignment judge and not with the board of chosen freeholders, subject to appellate review. Id.. at 59. One portion of that opinion recognized the unique role assigned to the court under the statute in question, as follows.
It should be stressed that the statute does not call upon the judicial officer to sit in review of the action or inaction of the board of freeholders. On the contrary, the judicial officer is required to make his own original evaluation of the prosecutor's request. Thus the judge does not exercise the judicial power of his office; the statute constitutes him a legislative agent. Hence, although we agree with Irving v. Applegate that the judge's order has the quality of a final judgment binding on the board of freeholders, we emphasize that the judge exercises a delegated legislative function ...