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Redd v. Bowman

Superior Court of New Jersey, Appellate Division

October 29, 2013

HONORABLE DANA L. REDD, CAMDEN CITY MAYOR, AND HONORABLE FRANCISCO MORAN, CAMDEN CITY COUNCIL PRESIDENT, PLAINTIFFS-RESPONDENTS,
v.
VANCE BOWMAN, LARRY GILLIAMS, EULISIS DELGADO, MARY I. CORTES, AND ROBERT DAVIS, INDIVIDUALLY AND COLLECTIVELY AS THE COMMITTEE OF PETITIONERS, DEFENDANTS-APPELLANTS, AND LUIS PASTORIZA, CLERK OF THE CITY OF CAMDEN, JOSEPH RIPA, CLERK OF CAMDEN COUNTY; PHYLLIS PEARL, CAMDEN COUNTY SUPERINTENDENT OF ELECTIONS; AND THE CAMDEN COUNTY BOARD OF ELECTIONS, DEFENDANTS-RESPONDENTS, AND CAMDEN CITY COUNCIL, DEFENDANT

Argued: June 4, 2013.

Approved for Publication October 29, 2013.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-2019-12.

Anthony Valenti argued the cause for appellants ( Caplan, Valenti & Murray, PC, attorneys; Mr. Valenti and Karen M. Murray, on the brief).

John C. Eastlack, Jr. argued the cause for respondent Honorable Dana L. Redd, Camden City Mayor ( Weir & Partners, L.L.P., attorneys; Mr. Eastlack, on the brief).

Jay J. Blumberg argued the cause for respondent Honorable Francisco Moran, Camden City Council President ( Law Offices of Jay J. Blumberg, attorneys; Mr. Blumberg, on the brief).

Before Judges MESSANO, LiHOTZ and OSTRER. The opinion of the court was delivered bye MESSANO, P.J.A.D.

OPINION

Page 1231

[433 N.J.Super. 181] MESSANO, P.J.A.D.

The government of the City of Camden (Camden) operates pursuant to the Optional Municipal Charter Law, N.J.S.A. 40:69A-1 to -210, commonly known as the Faulkner Act (or the Act). The voters in a Faulkner Act municipality " may propose any ordinance and may adopt or reject the same at the polls, such power being known as the initiative . . . ." N.J.S.A. 40:69A-184. They " also have the power of referendum[,] which is the power to approve or reject at the polls any ordinance submitted by the council to the voters or any ordinance passed by the council, against which a referendum petition has been filed . . . ." N.J.S.A. 40:69A-185.

We have said that " [t]he 'salutary purposes' of both initiative and referendum include 'arousing public interest' and 'placing

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in the hands of the voters . . . direct means of controlling proposed or already enacted municipal legislation and also of accomplishing the enactment of legislation which has neither been proposed nor adopted.'" City of Ocean City v. Somerville, 403 N.J.Super. 345, 352, 958 A.2d 465 (App.Div.2008) (quoting Maese v. Snowden, 148 N.J.Super. 7, 11, 371 A.2d 802 (App.Div.1977) (citations omitted)). The " [t]wo statutes ensure that the voters have that right both before and after the council adopts an ordinance on any particular subject." Ibid. (citations omitted).

[433 N.J.Super. 182] This appeal involves an initiative petition and proposed ordinance filed with the Camden city clerk, defendant Luis Pastoriza, by defendants Vance Bowman, Larry Gilliams, Eulisis Delgado, Mary I. Cortes and Robert Davis, collectively known as the Committee of Petitioners (the Committee). The ordinance was proposed in response to Camden's decision to disband its municipal police department and join a newly-formed county police force. Plaintiffs, Mayor Dana L. Redd and City Council president Francisco Moran, filed a complaint seeking to declare the petition-initiated ordinance invalid before it was submitted to the City Council or placed on any ballot.

The Law Division judge determined that the proposed ordinance did not " unduly restrict" Camden's " statutory authority" under N.J.S.A. 40A:14-118, which grants every municipality the right to " create and establish" a police force. However, the judge entered restraints " prohibiting" the city clerk " from accepting the petition and proposed ordinance for filing" because the proposed ordinance " create[d] an undue restraint on the future exercise of municipal legislative power," was " invalid," and could not " be placed on the ballot for voters to act upon." The judge specifically refrained from considering whether the proposed ordinance was pre-empted by the Municipal Rehabilitation and Economic Recovery Act, N.J.S.A. 52:27BBB-1 to -75 (MRERA), and the Special Municipal Aid Act, N.J.S.A. 52:27D-118.24 to -118.31 (SMAA). The Committee filed this appeal.

We have considered the arguments raised in light of the record and applicable legal standards. We reverse and remand for further proceedings consistent with this opinion.

I

The facts are not disputed. Camden's existing municipal police department was established and organized by ordinance as authorized by N.J.S.A. 40A:14-118. On June 17, 2008, Camden entered into a Memorandum of Understanding (MOU) with the Division of Local Government Services (DLGS) in the Department of Community [433 N.J.Super. 183] Affairs (DCA) for the provision of $61.5 million in aid pursuant to the SMAA. The MOU required Camden to accept certain oversight measures and other conditions imposed by the State. Camden entered into similar MOUs in order to receive additional aid in 2009 and 2010.

Nevertheless, Camden's financial woes continued. On June 23, 2010, DLGS published qualification standards for the " Transitional Aid to Localities" program (TAL), which superseded prior programs, including the SMAA. As declared by DLGS, TAL was intended for " municipalities that have the most severe structural financial problems," " despite aggressive cost reductions and service modifications," and need additional assistance " to mitigate significant property tax increases." The standards emphasized " labor cost reductions and changes in service delivery" as " preconditions for receipt of aid." Such reductions and changes would require the elimination of " redundant or excessive services." A municipality's application for TAL funding needed to demonstrate cost

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reductions compared to its 2009 budget, including " documented efforts to share public safety dispatch, code enforcement, public health services, and other services offered by neighboring municipalities, area boards of education, local authorities, or the county, if those costs are less than the current full cost of providing equivalent service."

Camden sought $54 million in TAL funding for 2011. The application painted a dire picture of increasing costs and projected budget shortfalls, as well as the anticipated adverse impact that reductions in Camden's police force would have upon the acknowledged historic, and intractable, violent crime rate in the city. Camden agreed to enter into an MOU by which DLGS would have outside " management, financial, and operational specialists" assess municipal operations, and the city would " [i]mplement actions as recommended . . . ." On November 24, 2010, DLGS awarded Camden $69 million in TAL funding for 2011, and, on December 15, Camden and DLGS entered into a new MOU for 2011. The MOU required Camden to reduce staffing further for 2012, and make [433 N.J.Super. 184] other efforts to reduce costs, maximize recurring revenue, and eliminate the need for TAL funding within four years. Camden continued to negotiate collective bargaining agreements with those unions representing its police department, which had experienced a significant reduction in force. Camden came under some degree of DLGS oversight and control, although it is unclear from the record its nature and extent.

In a February 15, 2011 notice, DCA clarified that the receipt of TAL funding required a municipality to show it " ha[d] moved beyond planning for operational efficiency and ha[d] begun to reduce costs." DCA " expect[ed] that the municipality . . . [had] engaged with its unions and non-union employees to effectuate savings through reduced salary costs, reduced staffing levels, modified work rules, modified controllable benefits costs, or other efforts to mitigate" salary and wage costs. Participation would require the municipality to " [s]ubmit[] to broad State controls over hiring, procurement, and other matters[,]" and " additional fiscal control measures as may be directed by [DLGS]."

In June 2011, Camden issued " Camden Forward, the Transition Plan for 2011-2015." While recognizing the intended use of non-TAL funding to rehire laid-off police officers as a short-term measure, the plan noted Camden's intention to explore " regionalized or shared services for police and fire services as a long-term solution for public safety and the fiscal challenges confronting the City."

On August 9, 2011, the City Council passed a resolution authorizing Camden to enter into an MOU with DCA and the County of Camden (the County) " for the purpose of preparing a plan for the creation of the Camden County Police Department," a new countywide agency. On August 29, 2011, the MOU was executed by plaintiffs, County officials and the Director of DLGS. Under the terms of the MOU, Camden agreed to " act as a co-applicant on submittals and filings . . . with respect to the creation of the Camden County Police Department." The County would act as the " lead agency" in forming the County police department which [433 N.J.Super. 185] would be " available to all municipalities within the County on a voluntary basis."

On the same day, Camden requested $67.5 million in TAL funding for 2012. The application represented that the 2012 budget anticipated an agreement with the County " under which [Camden] would pay $14,000,000 for police services." On October 7, DLGS advised Camden that it would receive $61.4 million in TAL funding for 2012.

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On December 27, 2011, the City Council adopted a resolution immediately implementing the MOU regarding formation of a County police department. The resolution noted that the County police department would include a Camden Metro Division " to provide for public safety and law enforcement in . . . Camden," while " requiring the County Police Department to offer employment to qualified officers previously employed" by the Camden police department. Camden's police department would be dissolved upon the creation of the Camden Metro Division. On January 26, 2012, the County adopted a resolution establishing the county police department.

On April 10, 2012, the Committee submitted a petition seeking consideration of an initiative ordinance amending Camden's municipal code to read:

A. There shall be created and maintained in continued existence, in, for and by the city of Camden, its own Police Department which shall remain the police department for the City of Camden and which shall consist of a Police Director, a Chief of Police and members and officers as shall be deemed necessary by the governing body of the City of Camden which shall, from time to time, determine the number of persons, including, without limitation, temporary officers and members in an emergency, to be appointed to these positions, together with their compensation, all as provided for under N.J.S.A. 40A:14-118.
B. The City of Camden shall not disband its Police Department pursuant to the creation of any county wide Police Department established by or for the County of Camden and shall not participate or join in the creation of any such police department established by or for the County of Camden, nor participate in any consolidation of or regionalization of police services sought to be created by any ...

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