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Essex County Corr. officers PBA Local No. 382 v. County of Essex

Superior Court of New Jersey, Appellate Division

December 30, 2014

COUNTY OF ESSEX, a body politic and corporate of the State of New Jersey, BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF ESSEX, a body politic and corporate of the State of New Jersey, EDUCATION AND HEALTH CENTERS OF AMERICA, INC., and COMMUNITY EDUCATION CENTERS, INC., Defendants-Respondents

Argued October 16, 2014

Approved for Publication December 30, 2014.

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On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-646-13.

Robert A. Fagella argued the cause for appellants ( Zazzali, Fagella, Nowak, Kleinbaum & Friedman, attorneys; Mr. Fagella, of counsel and on the brief; Colin M. Lynch and Flavio L. Komuves, on the brief).

Ronald L. Israel argued the cause for respondents County of Essex and the Essex County Board of Chosen Freeholders ( Wolff & Samson, P.C., attorneys; Arthur S. Goldstein, of counsel; Robert L. Hornby and Mauro G. Tucci, Jr., on the joint brief).

William Harla argued the cause for respondent Education and Health Centers of America, Inc. ( DeCotiis, FitzPatrick & Cole, attorneys; Mr. Harla, on the joint brief).

Angelo J. Genova argued the cause for respondent Community Education Centers, Inc. ( Genova Burns Giantomasi & Webster, L.L.C., attorneys; Mr. Genova, on the joint brief).

Before Judges FUENTES, ASHRAFI, and O'CONNOR. The opinion of the court was delivered by ASHRAFI, J.A.D.

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[439 N.J.Super. 111] OPINION

[439 N.J.Super. 112] ASHRAFI, J.A.D.

In this appeal, we consider whether Essex County can lawfully contract for

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housing and treatment services for a large population of its county jail inmates at two privately owned and operated facilities, Delaney Hall and Logan Hall.

Plaintiffs allege that Essex County's contract for the housing of inmates at those facilities is an unlawful " privatization" of county jail operations. Defendants contend that the County contracted for rehabilitative and similar inmate treatment services at the two facilities, as it is authorized to do. The trial court agreed with defendants and dismissed the case.

We conclude that plaintiffs did not prove by means of the summary action they requested, see Rule 4:67, that Essex County is in fact delegating to a private entity its core governmental function of confining inmates apart from appropriate treatment services. However, because of the public importance of the issue, and in accordance with Rule 4:67-5, plaintiffs should have the opportunity to pursue the matter as a plenary case and to expand the record. We remand to the trial court and direct that the matter be converted to a plenary action if plaintiffs make such a request.


Plaintiffs are the union and the local that represent Essex County corrections officers, as well as the presidents of those labor organizations. Defendants are Essex County and its Board of Chosen Freeholders (" the County" ), and also Education and Health Centers of America, Inc. (" EHCA" ) and Community Education Centers, Inc. (" CEC" ), the private companies that provide the disputed housing and other inmate services at Delaney and Logan Halls.

In August 2012, plaintiffs filed a complaint alleging that the current contract the County awarded to EHCA is an ultra vires delegation of the County's statutory duty to confine and maintain [439 N.J.Super. 113] inmates -- in other words, that the County acted without the legal authority that only the State Legislature can grant to it. Plaintiffs sought a declaratory judgment and injunctive relief prohibiting defendants from continuing the housing of County inmates at Delaney and Logan Halls.

Together, those two facilities hold more than 1000 inmate beds. They are operated by CEC, a for-profit company closely associated with EHCA, which is the non-profit company that entered into a publicly-bid contract with the County. The two companies have separate boards of directors but share some of the same executives and are owned by some of the same persons.

Plaintiffs requested that the court proceed by way of summary proceedings under Rule 4:67. Both the County and the defendant companies moved to dismiss the lawsuit. They asserted that a county government has the authority to enter into such a contract for inmate services and housing, and that, in this case, the County has not delegated responsibility for confining inmates to private entities because it retains control of its inmates and oversees the operation of Delaney and Logan Halls. Both sides in the litigation agreed that the matter could be decided by the court as a matter of law without pre-trial discovery and without a trial.

The Assignment Judge for Essex County[1] considered the parties' submissions, heard argument, and decided by written

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opinion and order dated April 30, 2013, that plaintiffs' complaint does not state a claim upon which relief can be granted and therefore must be dismissed. Initially, the court agreed with defendants that the action should be treated as one in lieu of prerogative writs pursuant to Rule 4:69. But the court disagreed with defendants' assertion that the complaint was untimely because it was filed some nine months after the contract was awarded. See R. 4:69-6 (providing generally that an action in lieu of prerogative writs shall be commenced within forty-five days of its accrual but also [439 N.J.Super. 114] permitting enlargement of the time " where it is manifest that the interest of justice so requires" ). On the merits of plaintiffs' claims, the court concluded that the County did not violate the law in entering into the contract for private operation of alternative inmate housing and services.

On appeal, plaintiffs contend the court erred as a matter of law because of three related reasons: (1) the Legislature placed authority and responsibility upon county government to house jail inmates and granted no statutory authority for the County to contract for provision of those governmental functions by a private entity; (2) the County's contractual arrangement is preempted by the Legislature's detailed statutory scheme for inmate substance abuse and other rehabilitation services; and (3) the County may not delegate to a private entity the core governmental function of " keeping" inmates in custody. Before addressing these contentions, we will summarize the facts as developed in the summary action.


For more than twenty years, the County has contracted with private entities to provide services for some of its inmates, including housing at Delaney Hall since 2000. In 1990, the County entered into a consent judgment in consolidated federal lawsuits that alleged jail overcrowding and health and safety deficiencies at the County jail. The consent judgment directed the County to provide funding for a jail population management program focused on pre-trial supervision and services and on treatment of inmates who were substance abusers. Essex Cnty. Jail Inmates v. Amato, Case Nos. 87-871, 82-1945 (D.N.J. Jan. 5, 1990). In the ensuing years, the County entered into successive contracts for private operation of some jail services, at first the management of a bail and pretrial release program for a minimum of sixty inmates, and later, programs for inmate treatment services, which included the housing of the inmates placed in the programs.

[439 N.J.Super. 115] In March 2000, the freeholders awarded such a contract to EHCA for a period of seven months at a cost of $3 million. " Minimum security" inmates were to be eligible for the treatment services. There was to be no " mingling" of those inmates with other jail detainees. The contract required that EHCA provide " treatment services" and " other services," including " laundry, barber and mail . . . preventing walk-aways, maintaining order and managing the resident Inmate population . . . establish[ing] an Inmate work program, seasonal Inmate recreation and leisure time programs and literacy training programs." EHCA implemented the contract by housing approximately 255 inmates at Delaney Hall, which is a privately-owned building located on Doremus Avenue in Newark near the County jail.

In May 2006, the freeholders approved an amendment to the EHCA contract to increase the maximum contract price to

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$15 million and to add Logan Hall as a residential facility for inmates. Logan Hall is also a privately-owned facility, located in another part of Newark. In 2008, the freeholders again amended EHCA's contract, expanding its services and the maximum contract price to $24 million per year for the next three years.

The contract that is at issue in this appeal expanded yet again the inmate housing and service programs provided by EHCA. On October 19, 2011, the Department of Corrections publicly advertised a Request for Proposal (RFP) seeking a vendor for the " (1) provision of Alternative Incarceration/Residential Treatment for certain inmates who otherwise would be incarcerated at the Essex County Correctional Facilities and (2) to house Immigration and Customs Enforcement (ICE) detainees." The RFP called for a program of " comprehensive care of Essex County prisoners, including assessment, treatment and substance abuse services." It stated further: " These services shall include, but not be limited to security operations, substance abuse ...

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