On appeal from a Final Agency Decision of the New Jersey Department of Personnel and the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner, Sapp-Peterson and Alvarez.
Appellants are present and former corrections officer recruit trainees and their union representatives for collective negotiations. Respondents are the New Jersey Department of Personnel (DOP), Commissioner Rolando Torres, New Jersey Department of Corrections (DOC), and Commissioner George Hayman (collectively respondents). On March 27, 2007, appellants commenced an action in the Law Division seeking declaratory relief and damages arising out of respondents' continuation of the Corrections Officer Recruit Trainee Pilot Demonstration Program ("the program"). The parties stipulated to the dismissal of appellants' complaint, without prejudice, and agreed to have the dispute resolved in the Appellate Division. Although no final agency action was taken, we view the stipulation of dismissal and removal of the matter to the Appellate Division as the equivalent of a decision declining to grant the relief appellants sought. The issues on appeal are identical to those asserted in appellants' complaint.
Appellants allege continuation of the program violates the Civil Service Act (Act), N.J.S.A. 11A:1-1 to 12-6; the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 to 24; and the Fair Labor Standards Act (FLSA), 29 U.S.C.A. §§ 201-219. We agree the program violates the Act and APA and therefore declare it void. We decline to address appellants' FLSA claims as there has been no waiver of sovereign immunity, and even in the instance of waiver, appellants' proofs are insufficient to warrant relief.
The salient facts are derived from appellants' statement of items comprising the record, the pleadings, and respondents' responses to appellants' Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, request. In November 1996, the Policemen's Benevolent Association, Law Enforcement Officers Local No. 105 (Local 105), requested that DOP consider a pilot program for the pre-employment training of corrections officers. Already in existence at the time Local 105 submitted its request to DOC was a "correction officer recruit" program. Under this program, prospective corrections officers obtained appointment to career service*fn1 with the DOC through the successful completion of a pre-employment examination administered by the DOP. After successful completion of the examination process, those individuals were hired by the DOC as employees with the title "correction officer recruit" and thereafter received the necessary training and instruction to perform their job duties. As employees of the DOC, "correction officer recruits" received all of the benefits available to employees under the Act, including, but not limited to, a salary set by the DOP pursuant to the State Compensation Plan, overtime compensation, medical and pension benefits, and union representation.
According to Local 105, the pilot program it proposed would eliminate candidates who may not be suitable for the position. Moreover, Local 105 believed if there was a distinction in the employment status between recruits and officers, it would not have to accept recruits into its representation.
In the fall of 1997, DOP and DOC proposed a new classification and title of "correction officer trainee." Under the proposal, the trainees would receive their training through a corrections officer training program, during which they would receive fourteen weeks of instruction overseen by the New Jersey Police Training Commission. This training would take place prior to permanent appointment to the rank and title of "correction officer recruit" and the commencement of their one-year working test period.
The pilot program was expected to operate from January 1, 1998, through December 31, 1998. As proposed, the trainees would be considered "students" during the training program. They would, however, be "temporary employees" for purposes of FLSA. Additionally, the actual training would not take place during employment but would become part of the examination process, with the training portion of the examination scored on a pass/fail basis. The successful completion of the training program would be a prerequisite to permanent appointment as a correction officer recruit. Further, recruit trainees would not be entitled to a salary or wages, but instead would receive a "stipend" of $300 per week. Moreover, they would not be eligible for pension benefits, overtime, or union membership during the period of their training program.
Because they were in an "in-residence" training program, the recruit trainees would be required to remain at the training facility five days per week. The training would generally consist of forty hours per week, and include a twelve-week in-residence portion, with an additional two weeks of on-site training at a correctional facility. The "student trainees" would be responsible for learning the various rules, regulations, polices, procedures, operational processes, and methods related to a correctional institution including: law enforcement responsibilities, weapons training, self-defense, custodial duties, patrolling, inmate control, maintaining institutional order, cell inspections, inmate escorting, and other essential tasks.
On August 11, 1998, DOP formalized the program informally and internally without notice to the public or rulemaking. It was essentially adopted as proposed with an anticipated one-year duration period. The program proved successful and DOC's Bureau of Training, which oversaw the program, submitted two separate requests to extend the program beyond the one-year period. DOP made no formal response to these extension requests. Its position was that the program was not a true "pilot program" within the meaning of N.J.S.A. 11A:2-11(i); consequently, there was no need to terminate the program after one year or a need for formal rulemaking in order to continue the program. Nonetheless, DOC issued Standard Operating Procedure ("SOP") #35, entitled "Correction Officer Training Hiring Procedure" on August 26, 1999 that extended the program.
On appeal, appellants raise the following points for ...