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Bergen County PBA Local 134 v. Donovan

Superior Court of New Jersey, Appellate Division

May 30, 2014

BERGEN COUNTY PBA LOCAL 134, Plaintiff-Respondent,
v.
KATHLEEN A. DONOVAN, BERGEN COUNTY EXECUTIVE, Defendant-Appellant and BERGEN COUNTY SHERIFF MICHAEL SAUDINO, Plaintiff/Intervenor-Respondent,

Argued May 13, 2014.

Approved for Publication May 30, 2014.

Page 1182

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-6161-12.

Matthew J. Giacobbe argued the cause for appellant ( Cleary, Giacobbe, Alfieri, Jacobs, attorneys; Mr. Giacobbe and Adam S. Abramson-Schneider, of counsel and on the brief).

Stephen B. Hunter argued the cause for respondent, Bergen County PBA Local 134 ( Detzky & Hunter, attorneys; Mr. Hunter, of counsel and on the brief).

John McCann argued the cause for respondent Michael Saudino, Bergen County Sheriff ( C. Elston & Associates, attorneys; Catherine M. Elston, of counsel and on the brief; Cathlene Y. Banker on the brief).

Before Judges REISNER, OSTRER and CARROLL. The opinion of the court was delivered by CARROLL, J.S.C. (temporarily assigned).

OPINION

Page 1183

[436 N.J.Super. 190] CARROLL, J.S.C. (temporarily assigned).

This appeal presents the questions (1) whether the Bergen County Sheriff (Sheriff) has the exclusive statutory authority to negotiate salary payments, increases, and other economic benefits with the employees of the Sheriff's Department, subject to the requirements of N.J.S.A. 40A:9-117; and (2) whether the court, rather than the New Jersey Public Employment Relations Commission (PERC), is the appropriate forum to adjudicate this dispute. We answer both questions in the affirmative, and affirm the trial court's judgment.

I.

In 1972, the Legislature enacted the Optional County Charter Law (Charter Law), N.J.S.A. 40:41A-1 to -149, that allows counties to select from a variety of forms of government, including the county executive plan. Bergen County adopted the county executive form of government in 1986, thereby opting to " be governed by an elected board of freeholders and an elected county executive and by such other officers and employees as may be duly appointed pursuant to this act, general law, or ordinance." N.J.S.A. 40:41A-32(a). " In each county operating under this article, the term 'governing body' of the county shall be construed to include both the board of freeholders and the county executive." N.J.S.A. 40:41A-32(b).

Plaintiff Bergen County Local PBA 134 (Local 134) represents all Bergen County Sheriff's officers and correction officers, up to and including the rank of lieutenant. There are approximately 426 member employees within this law enforcement negotiations unit. Since 1986, Local 134 members worked under agreements [436 N.J.Super. 191] collectively negotiated with the Sheriff, without participation by the County Executive. In November 2010, Local 134 and the Sheriff began negotiating an agreement for the period January 1, 2011, through December 31, 2014.

The landscape changed in May 2011, when the Bergen County Executive, Kathleen A. Donovan, in letters to Sheriff Michael Saudino and to Local 134, made several requests, via the County Administrator and the County's labor counsel, to participate in the negotiations and " represent her joint employer interests relative to the economic terms and conditions of employment for the members of the bargaining unit." In response, Local 134 refused to allow any county representative, including the County Executive, to intervene in its negotiations with the Sheriff, asserting that under N.J.S.A. 40A:9-117, the Sheriff " is the sole employer of the Correction Officers and Sheriff's Officer[s] included within PBA Local 134's unit."

In May 2011, the County, on behalf of the County Executive, filed with PERC: (1) an unfair practice charge against Local 134 for refusing to negotiate with the County Executive, " the statutorily designated

Page 1184

negotiator for all economic terms with respect to County of Bergen contracts," in violation of N.J.S.A. 34:13A-5.4(b)(3) and (5) of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 to -43 (NJEERA); and (2) an application for interim relief enjoining Local 134 from continuing to negotiate the economic terms of its successor collective negotiations agreement without the participation of the County Executive or her designee. Local 134 voluntarily suspended its negotiations with the Sheriff as a result of the PERC filing.

On June 16, 2011, PERC's designee granted the Sheriff's request to intervene, and on July 18, 2011, the designee issued an interlocutory decision denying the County its requested interim relief that would have stopped Local 134 from negotiating the economic terms of any successor agreement without the County Executive. Negotiations again resumed between the Sheriff and [436 N.J.Super. 192] Local 134, without the participation of the County Executive or other County representative.

On August 8, 2011, the County filed a motion with PERC for reconsideration. A decision on that motion lingered for more than a year, and in the interim the Sheriff and Local 134 signed a Memorandum of Agreement (MOU) on November 16, 2011, agreeing to various contract modifications subject to ratification by Local 134's members. In February 2012, following its ratification, the Sheriff and Local 134 executed the 2011-2014 Agreement. Local 134 and the Sheriff were the only signatories, and the Sheriff presented the 2011-2014 Agreement to the Bergen County Freeholders.

On May 2, 2012, the Freeholders, by Resolution # 623-12, " adopt[ed] and accept[ed] the collective bargaining agreement negotiated by and between the Bergen County Sheriff and [Local 134,] effective as of January 1, 2012," even though the County Executive did not support or approve the agreement, consent to it, or present it to the Freeholders for approval. In June 2012, the Freeholders adopted by resolution the County's annual budget for fiscal year 2012, which had been presented by the County Executive, and which included the Sheriff's proposed and anticipated revenues and appropriations for salaries, wages, and other financial expenses for the Sheriff's Department.

On August 8, 2012, after the County Executive refused to implement the 2011-2014 Agreement's salary payments, increases, and other economic benefits, such as clothing allowances, Local 134 sued the County Executive to compel enforcement of its terms. Local 134 further verified that there were sufficient funds in the approved 2011 and 2012 County budgets to implement all of the negotiated economic terms in the Agreement, and that the Agreement " provide[s] for compensation in accordance with the generally accepted County salary ranges for the other County law enforcement negotiations units representing officers within the Bergen County Police Department as well as Investigators and [436 N.J.Super. 193] Superior Officers employed within the Bergen County Prosecutor's Office."

On September 6, 2012, some thirteen months after its filing, PERC issued a written decision granting the County's motion for reconsideration, vacating the designee's interlocutory decision, and referring the County's unfair practice charge against Local 134 " to the Director of Unfair Practices for further processing." In re PBA Local 134, P.E.R.C. No. 2013-8 (Sept. 6, 2012).

Notwithstanding PERC's belated decision on the reconsideration motion, on December 19, 2012, Judge Joseph Conte issued a written decision in Local 134's lawsuit directing the County Executive to

Page 1185

fully implement the 2011-2014 Agreement, and to authorize the prompt payment of all funds due thereunder. The judge first discussed whether the court or PERC had jurisdiction to resolve the issue of whether the 2011-2014 Agreement should be implemented. He found that " the issue in this case is appropriate for review by the Superior Court because it involves a question of law as to the interpretation of N.J.S.A. 40A:9-117 and its conflict with N.J.S.A. 40:41A-36."

Turning to the merits, and finding that no genuine issues of material fact existed, the judge concluded:

[t]he applicable statute, N.J.S.A. 40A:9-117[,] is clear in that the sheriff has the power to fix the compensation in accordance with the prescriptions of the statute for its officers. The legislative history and intent evidence a desire to give the sheriff the sole power to do so, without the intervention of the county executive.

The judge further held that " the county, through the Board of Chosen Freeholders, reviewed and approved the collective negotiations agreement, therefore satisfying any claim that the [c]ounty was prevented from participating in such negotiations." Thus, the negotiated agreement was valid, and the County Executive violated the contract rights of the Sheriff's employees by refusing to implement the contract. He granted summary judgment and ordered the County Executive to ...


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