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Camden County Prosecutor v. Camden County Assistant Prosecutors' Association

June 18, 2007

IN THE MATTER OF CAMDEN COUNTY PROSECUTOR, RESPONDENT-RESPONDENT,
v.
CAMDEN COUNTY ASSISTANT PROSECUTORS' ASSOCIATION, PETITIONER-APPELLANT.
IN THE MATTER OF UNION COUNTY PROSECUTOR, RESPONDENT-RESPONDENT,
v.
UNION COUNTY ASSISTANT PROSECUTORS' ASSOCIATION, PETITIONER-APPELLANT.



On appeal from a Final Decision of the Public Employment Relations Commission, IA-2006-066 and IA-2006-086.

The opinion of the court was delivered by: Lintner, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued/Submitted May 21, 2007

Before Judges Lintner, S.L. Reisner and Seltzer.

These two appeals filed by the Union County and Camden County Prosecutors' Associations (Associations) are calendared back-to-back and consolidated for the purposes of this opinion. The Associations are the collective bargaining representatives for all assistant prosecutors working for the respective County Prosecutors (Prosecutors).*fn1 Each Association's latest contract expired on December 31, 2005. After negotiations with the Prosecutors failed to reach an agreement, the Associations filed petitions with the Public Employment Relations Commission (PERC), seeking compulsory interest arbitration pursuant to the Police and Fire Public Interest Arbitration Reform Act, N.J.S.A. 34:13A-14a to -16.6 (the Act).*fn2 The Prosecutors' responses sought dismissal of their respective Association's petitions on the grounds that the Associations' members are not police officers nor are they engaged in performing police services and, thus, are not entitled to invoke compulsory interest arbitration under the Act.

On August 10, 2006, based on the parties' briefs and documentation, PERC issued two written decisions incorporating orders granting the Prosecutors' dismissal motions. The Associations filed timely notices of appeal. The central issue in this appeal is whether assistant prosecutors fall within the Act's categorical definition of "employees engaged in performing police services," N.J.S.A. 34:13A-15, thus entitling them to compulsory interest arbitration. We hold that they do not and, consequently, affirm PERC's orders.

In 1995, the Legislature updated its 1977 law on interest arbitration by passing the Act. N.J.S.A. 34:13A-16a(1) provides the framework for labor negotiations between "public fire or police department[s] and an exclusive representative concerning the terms and conditions of employment." The Act provides avenues for resolution of negotiation impasse through mediation, N.J.S.A. 34:13A-16a(2), or, upon request by either party, through independent fact-finding and suggested settlement terms by PERC. N.J.S.A. 34:13A-16b(1). Alternatively, as the Associations did in this case, "either party may petition [PERC] for arbitration on or after the date on which their collective negotiation agreement expires." N.J.S.A. 34:13A-16b(2). Arbitration undertaken pursuant to N.J.S.A. 34:13A-16b(2) is referred to as "compulsory interest arbitration." Hillsdale PBA Local 207 v. Borough of Hillsdale, 137 N.J. 71, 80 (1994). It is a statutorily mandated procedure for resolving the terms of a new contract. N.J. State Policemen's Benevolent Ass'n, Local 29 (Irvington P.B.A.) v. Town of Irvington, 80 N.J. 271, 284-88 (1979); see also Policeman's Benevolent Ass'n, Local 292 v. Borough of N. Haledon, 158 N.J. 392, 400 (1999).

The Legislature declared its reasons for enacting compulsory interest arbitration for firefighters and law enforcement officers in N.J.S.A. 34:13A-14a:

Recognizing the unique and essential duties which law enforcement officers and firefighters perform for the benefit and protection of the people of this State, cognizant of the life threatening dangers these public servants regularly confront in the daily pursuit of their public mission, and fully conscious of the fact that these public employees, by legal and moral precept, do not enjoy the right to strike, it is the public policy of this State that it is requisite to the high morale of such employees, the efficient operation of such departments, and to the general well-being and benefit of the citizens of this State to afford an alternate, expeditious, effective and binding procedure for the resolution of disputes. (emphasis added).

Defining the two groups for which the Act was intended, namely, public police and fire departments, N.J.S.A. 34:13A-15 provides the following definition for "public police department":

[A]ny police department or organization of a municipality, county or park, or the State, or any agency thereof having employees engaged in performing police services including but not necessarily limited to units composed of State troopers, police officers, detectives and investigators of counties, county parks and park commissions, grades of sheriff's officers and investigators; State motor vehicle officers, inspectors and investigators of the Alcoholic Beverage Commission, conservation officers in Fish, Game and Shell Fisheries, rangers in parks, marine patrolmen; correction officers, keepers, cottage officers, interstate escort officers, juvenile officers in the Department of Corrections and patrolmen of the Human Services and Corrections Departments; patrolmen of Capitol police and patrolmen of the Palisades Interstate Park Commission. (emphasis added).

In reaching its decision that assistant prosecutors did not qualify as employees engaged in performing police services, PERC deemed it significant, "[a]lthough . . . not determinative" that N.J.S.A. 34:13A-15 did not expressly include assistant prosecutors. It noted that county prosecutors have the statutory power to hire assistant prosecutors, N.J.S.A. 2A:158-15, and that they also hire county investigators and detectives, job titles that the Legislature did specify in N.J.S.A. 34:13A-15. Citing an Assembly Committee Statement accompanying the 1977 Act, PERC observed that the Legislature's "aim" was "to delineate the 'principal titles' within the scope of the interest arbitration statute." See Assembly Labor, Industry and Professions Committee, Statement to Senate No. 482 (December 6, 1976). PERC reasoned that had the Legislature intended to cover assistant prosecutors as well, it likely would have listed them in the statute.

Second, PERC was influenced by the fact that assistant prosecutors do not have the kinds of police powers that have been granted by law to some other classes of employees in other public-employment contexts. Citing the holding in County of Gloucester v. Public Employment Relations Commission, 107 N.J. Super. 150, 158 (App. Div. 1969), aff'd, 55 N.J. 333 (1970), that corrections officers were police officers by virtue of N.J.S.A. 2A:154-4, which empowers ...


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