The New Jersey Supreme Court recently upheld an arbitration award in a dispute between a municipality and local labor union. In doing so, it highlighted that courts should give great deference to arbitration awards in New Jersey public-sector labor disputes so long as they are reasonably debatable.

The Facts of the Case

The dispute in East Rutherford v. East Rutherford PBA Local 275, A-24-11, involved the provision of health benefits under a collectively bargained agreement (CBA) between the Borough of East Rutherford (Borough) and the East Rutherford Policemen’s Benevolent Association, Local 275 (PBA). The Borough provided healthcare coverage for its employees through the State Health Benefits Plan (SHBP), which required a $5.00 co-payment for doctor’s office visits. Effective January 1, 2007, the State Health Benefits Commission increased the co-payment to $10.00 per office visit, and the Borough passed along the increase to members covered by the CBA.

The PBA filed a grievance disputing the increase, claiming that the CBA precluded imposition of the higher co-payment. An arbitrator found that employees covered by the CBA were required to comply with the increased co-payment instituted by the Commission. However, she also found that the CBA required the employer to maintain the past practice that required employees to pay only a $5.00 co-payment per doctor visit.

Accordingly, the award ordered the employer to reimburse employees for the incremental increase in co-payments through the end of the contract period. On appeal, the Appellate Division held that the Arbitrator’s construction of the CBA was reasonably debatable and rejected the Borough’s additional claims that the award was illegal.

The Court’s Decision

The New Jersey Supreme Court upheld the Appellate Division judgment, finding that “because judicial review of an arbitration award is deferential to an arbitrator’s conclusions, the award must be sustained.”

As explained by the Court, “[t]he interpretation reached by the Arbitrator of this contract was within the range of what is reasonably debatable. Furthermore, the remedy ordered by the Arbitrator to effectuate her interpretation was neither contrary to existing law nor beyond the scope of what was reasonably debatable.”

The Court further emphasized that arbitration should not be viewed as a “gateway to the courthouse,” particularly in public-sector labor disputes.  The Court stated that when parties agree to arbitration, they “must recognize that courts give arbitrators significant discretion to make reasoned conclusions based on interpretations of the contractual language and the relevant law. “  As such, the mere fact that a court may disagree with an arbitrator’s decision is not a sufficient basis to overturn an arbitration award.

For more information about this case or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Public Law Group.

Legislation that would overrule a recent court ruling regarding the liability of New Jersey municipalities when it comes to their emergency response operations is advancing through both the state Senate and Assembly.

As we have previously discussed on this New Jersey Government & Law Blog, the New Jersey Supreme Court held that rescue squads that provide intermediate and basic life support services are not immune from suit. The case centered on the court’s interpretation of N.J.S.A. 26:2K-29, which lawmakers now seek to amend.

Versions of the legislation have now been unanimously passed by both the Senate Law and Public Safety Committee and, most recently, the Assembly Health and Senior Services Committee. A full vote may come as early as April, according to Senate co-sponsor Christopher “Kip” Bateman, R-Somerset.

Under the bills (A-3282 and S-2165), N.J.S.A. 26:2K-29 would be amended to clarify that first aid, ambulance or rescue squads, as well as their officers and members, are not liable for any civil damages as the result of an act or the omission of an act committed while in training for or in the rendering of intermediate life support services in good faith. Intermediate life support includes common procedures such as cardiopulmonary resuscitation (CPR) and defibrillation.

The amendments also clarify that civil immunity applies to “hybrid” squads, which may not meet the statutory definition of a volunteer or nonvolunteer squad. They often are comprised of volunteers but receive some reimbursement from the government.

We will continue to track the status of this legislation and will provide updates as they become available.

For more information about this legislation or how it may impact your municipality, we encourage you to contact a member of Scarinci Hollenbeck’s Public Law Group.

New Jersey still has a large inventory of foreclosed properties. As a result, many municipalities are seeking to condemn the properties for redevelopment and other purposes.

In a recent decision, the Appellate Division clarified that that a New Jersey condemning authority is not obligated to negotiate with the assignee of a mortgagee, even after it has obtained a final judgment of foreclosure on the subject property.

The Facts of the Case

In Merchantville v. Malik & Son, A-3745-11, the Borough of Merchantville (Borough) sought to condemn a 54-unit apartment complex for redevelopment purposes. It contacted the owner of record, Malik & Son, and made an offer of $270,000. The owner rejected the offer, and the Borough filed a condemnation complaint naming Malik and several of its creditors.

Counsel for LB-RPR REO Holdings, LLC (LB), a lien holder, subsequently sent the Borough’s counsel an email advising that LB had obtained an order of foreclosure and expected to become the owners of the property. LB claimed it was “the real party in interest” and the Borough should be negotiating with it regarding the proposed acquisition.

After the Borough failed to respond, LB unsuccessfully sought to dismiss the condemnation complaint. The trial court concluded that the Eminent Domain Act (Act), N.J.S.A. 20:3-1 to -50, did not require the Borough to advise LB it was going to condemn the property or to negotiate with LB. On appeal, LB argued that it essentially stepped into the shoes of the property owner, and the Borough breached its obligation to “turn square corners” by not including it in the negotiations and in failing to make a bona fide offer prior to filing the condemnation action.

The Court’s Decision

 The Appellate Division ultimately agreed with the lower court, finding that the Borough did not have a duty to engage in bona fide negotiations with LB and satisfied its obligation to engage in such negotiations with the property owner.

In reaching its decision, the court relied on City of Atlantic City v. Cynwyd Investments, 148 N.J. 55, 70-72 (1997), in which the New Jersey Supreme Court held that the condemning authority was not legally required to negotiate with a lessee of the property, but only with the title owner. In that case, the court explained that the “title of record” qualification in the statute “avoids the difficult requirement of negotiating with each condemnee having an interest in the property.”

The court further rejected LB’s argument that it was the true stakeholder and the “only party with a genuine interest in negotiating the sale of the property.” As the court explained, “We are not convinced that this status translated into a legal requirement mandating the Borough to negotiate with LB. Malik, as title holder, had the requisite motivation to ensure that it received just compensation for the property.”

For more information about this case or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Public Law Group.

The U.S. Supreme Court recently began its October 2012 term. While issues like affirmative action, gay marriage, and voting rights are some of the most-highly anticipated issues on the docket this term, it is sometimes the lesser-known cases that really make waves.

As New Jersey public law attorneys, we are closely watching several cases that will come before the Supreme Court this term. Below is a brief preview of the issues involved:

Koontz v. St Johns River Water Management: The Supreme Court will consider the circumstances under which the refusal to issue a permit can constitute a taking. The specific question before the Court is whether the government can be held liable for a taking when it refuses to issue a land-use permit on the sole basis that the permit applicant refused to agree to a permit condition that, if applied, would violate the essential nexus and rough proportionality tests set out in Nollan u. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994). The Court will also determine whether the tests apply to a land-use exaction that takes the form of a government demand that a permit applicant dedicate money, services, labor, or any other type of personal property to a public use.

McBurney v. Young: The Supreme Court will consider whether a state may preclude citizens of other states from enjoying the same right of access to public records that the state affords its own citizens. The petitioner claims that prohibiting non-citizens from obtaining public records under a state’s open-records law is unconstitutional in that it violates both the Privileges and Immunities Clause and the Commerce Clause. The circuits are currently split on this issue.

City of Arlington v. FCC: The Supreme Court will consider whether a court should apply the precedent established in Chevron U. S.A. Inc. v. NRDC, Inc., 467 U.S. 837 (1984) in the context of an agency’s determination of its own statutory jurisdiction. Chevron holds that courts must defer a federal agency’s reasonable interpretation of an ambiguous statute that the agency is charged with administering. The case involves the Federal Communication Commission’s authority to establish specific deadlines for cities to act on wireless-tower zoning requests under the 1996 Telecommunications Act.

To find out more about the public law cases discussed in this blog, please contact a member of Scarinci Hollenbeck’s Public Law Group. For additional information about the upcoming Supreme Court term, we invite you to check out the Scarinci Constitutional Law Blog.

The New Jersey Supreme Court refused to give a New Jersey public employee a second bite at the apple. It held that the rejection of a claim of employer retaliation in a civil service disciplinary proceeding should bar the employee from seeking to circumvent that discipline through a subsequent Conscientious Employee Protection Act (CEPA) action also alleging retaliation.

The Facts of the Case

In Winters v. North Bergen Regional Fire & Rescue, A-45/46/47-10, the plaintiff, Steven Winters, was terminated from his position with North Hudson Regional Fire and Rescue following two close-in-time proceedings involving separate disciplinary matters before the Civil Service Commission (Commission). The first resulted in a demotion and the imposition of a sixty-day suspension.

The second proceeding involved a distinct set of charges relating to plaintiff’s abuse of sick leave by working two other public-sector jobs while receiving public benefits. The Commission ultimately determined that the plaintiff had committed conduct unbecoming a public employee. In light of the “egregious” nature of the misconduct, it concluded removal was the appropriate discipline.

After the plaintiff’s appeal of the Commission’s decision was unsuccessful, he also filed a CEPA action claiming that his termination was retaliatory. North Hudson Regional Fire and Rescue sought summary judgment on the basis that estoppel principles should bar the action.

The Court’s Ruling

The New Jersey Supreme Court agreed that allowing the plaintiff a second opportunity to pursue the claim would run afoul of the doctrine of collateral estoppel. As explained in the majority opinion, “If an employee and employer engage the system of public employee discipline established by law and the employee raises a claim that employer retaliation at least partially motivated the decision to bring the charge or the level of discipline sought, then both the employee and employer must live with the outcome, including its potential preclusive effect on related employment-discrimination litigation as a matter of the equitable application of estoppel principles.”

“We therefore put users of the public employment system of employee discipline on notice that integration of employer-retaliation claims should be anticipated and addressed where raised as part of the discipline review process,” the court stated. “It is unseemly to have juries second-guessing major public employee discipline imposed after litigation is completed before the Commission to which the Legislature has entrusted review of such judgments,” the justices added.

For additional information about this case, please contact a member of Scarinci Hollenbeck’s Public Law Group.

In an interesting discrimination case working its way though the federal court system, the New Jersey Port Authority maintains that it is not covered by the New Jersey Law Against Discrimination (NJLAD). The argument relies on an unpublished Third Circuit Court of Appeals decision that appears to suggest that the anti-discrimination law does not apply to bi-state agencies like the Port Authority.

The case involves allegations of retaliation by the agency’s former New Jersey solicitor, Donald Burke. He claims he was forced into early retirement after speaking out against discriminatory conduct towards older, female attorneys employed by the Port Authority.

In his decision on the Port Authority’s motion to dismiss the NJLAD claim, U.S. District Judge Jose Linares ruled that the Third Circuit has not yet addressed whether a port authority is subject to suit under individual state laws. He further noted that the New Jersey Supreme Court has reached conflicting conclusions on the issue.

“Despite the absence of an explicit reference to the Port Authority in the relevant state statute, this Court will infer that the legislature intended the law to apply to the activities of bi- state agencies. The very purpose of the NJLAD is to prevent discrimination. Accordingly, absent some specific, clear indication intending to exclude a specific employer such as Defendant herein, it follows that the legislature did not intend to exclude any particular employer,” the opinion states.

Judge Linares further points to a 1951 Amendment to the bi-state compact in which the Port Authority broadly consented to “suits, actions, or proceedings of any form or nature at law in equity or otherwise.” Thus, he concluded that “even if the New Jersey Legislature did not originally intend to apply the NJLAD to the Port Authority, the plain language of its own contractual amendment consents to application of same and Defendants’ motion to dismiss Plaintiff’s NJLAD claim is denied.”

It will be interesting to see if this issue makes it all the way to the Third Circuit Court of Appeals for a definitive answer of the liability of bi-state agencies under the NJLAD. We will provide updates as they become available, so please stay tuned.

For additional information about municipal liability under the New Jersey Law Against Discrimination, please contact a member of Scarinci Hollenbeck’s Public Law Group.

A bill introduced in the New Jersey Senate would overrule a recent court ruling regarding the liability of New Jersey municipalities when it comes to their emergency response operations. In Murray v. Plainfield Rescue Squad, the New Jersey Supreme Court held that rescue squads that provide intermediate and basic life support services are not immune from suit.

The decision was based on the court’s interpretation of N.J.S.A. 26:2K-29. It provides: “No EMT–intermediate, licensed physician, hospital or its board of trustees, officers and members of the medical staff, nurses or other employees of the hospital, or officers and members of a first aid, ambulance or rescue squad shall be liable for any civil damages as the result of an act or the omission of an act committed while in training for or in the rendering of intermediate life support services in good faith and in accordance with this act.”

As we previously discussed on this New Jersey Government & Law blog, the state’s highest court concluded that the law does not provide immunity to a rescue squad as an entity, highlighting that the legislature could have drafted the law to provide immunity but failed to do so. Now, lawmakers are acting to do just that.

New Jersey Senate Bill 2165 clarifies that first aid, ambulance or rescue squads, as entities, have immunity from civil damages in certain circumstances. The bill was introduced by Sen. Christopher “Kip” Bateman, R-Somerset, and is currently pending before the Senate Law and Public Safety Committee.

For additional information about liability issues related to emergency response operations, please contact a member of Scarinci Hollenbeck’s Public Law Group.

Against the backdrop of a ballot question to force judges to pay more for their benefits, the New Jersey Supreme Court has approved amendments to the Rules Governing the Courts of the State of New Jersey, which impose new ethics obligations on those New Jersey judges who begin to look for alternative employment opportunities elsewhere.

Under the new disqualification rules for New Jersey judges, a judge that has “discussed or negotiated his or her post-retirement employment with any party, attorney or law firm involved in the matter” must be disqualified.

Similarly, Canon 3 of the Code of Judicial Conduct will now stipulates that a judge should be disqualified from any case where he or she has initiated contact about, discussed or negotiated postretirement employment with a party, lawyer or law firm in the case.

The commentary accompanying the rules offers the judiciary some advice for how to seek post-retirement employment without offending the new rules. It states:

A judge who engages in post-retirement employment negotiations or discussions while still on the bench with any party, attorney or law firm that does not have a matter pending before the judge, must do so in a way that minimizes the need for disqualification, does not interfere with the proper performance of the judge’s judicial duties, and upholds the integrity of the courts. A judge should delay starting any such negotiations or discussions until shortly before his or her planned retirement, and should discuss post-retirement employment opportunities with the fewest possible number of prospective employers.

While the rules are clearly designed to maintain impartiality, they will also make it increasingly difficult for judges to secure post-retirement employment while they are still on the bench.

For additional information, please see Are More Changes in Store for the New Jersey Judiciary?

The New Jersey Supreme Court recently ruled that violations of the state’s Open Public Meetings Act (OPMA) by Rutgers University are not actionable. While the court acknowledged that the university’s Board of Governors did not fully comply with the letter of the law, it held that the minor violations did not warrant a legal remedy.

As we previously discussed on this New Jersey Government and Law Blog, Francis McGovern, Jr., a Rutgers alumnus, filed a lawsuit alleging that the university violated OPMA when its Board of Governors met privately to discuss the football program. He alleged that the meeting notice lacked the specificity required under OPMA and that the board used the executive session to discuss issues that should have been addressed publicly.

The lawsuit also called into question the practice of “sequencing” — holding long closed-door sessions between public sessions. Critics of the practice have argued that it often leaves members of the public waiting for long periods of time for the public part of the meeting to resume and, therefore, runs afoul of OPMA’s objectives.

While the New Jersey Supreme Court agreed that the Board of Governors should have provided further details about what would be discussed in closed session and that it acted improperly by engaging in “sequencing,” it ultimately concluded that the university should not be held liable for these infractions. The N.J. Supreme Court reasoned that legal remedies were not warranted because the Board took no official action at the meeting in question, did not have a history of OPMA violations, and did not knowingly violate the act.

“We agree with defendants and amicus Attorney General that public bodies are often confronted with fluid, ongoing situations, and it is often difficult, if not impossible, to determine at a later juncture whether the public body provided ‘as much information as possible’ of the intended scope of discussions at a closed session,” Appellate Division Judge Dorothea Wefing wrote.

Despite the favorable ruling, the Court did caution about the use of closed-door sessions by New Jersey public entities in light of OPMA’s requirements.

“We recognize that, as a meeting progresses, there may be a natural progression from the discussion of topics from which the public may be excluded to topics from which the public may not be excluded,” Wefing wrote. “Members of public bodies must be vigilant during closed sessions to ensure that they do not stray from the defined, circumscribed issues that may be addressed in a closed session.”

While many don’t give a second thought to the government census forms that arrive in their mailboxes every ten years, they have a profound effect on our political representation. Both congressional apportionment and redistricting must be undertaken after each U.S. census to reflect population changes over the past decade.

In New Jersey, the 2010 U.S. census data reduced the number of seats the state holds in the U.S. House of Representatives. That means, starting in 2013, New Jersey will have one less vote on key pieces of legislation, and one less electoral vote in presidential elections. This was not the first time New Jersey’s delegation has decreased. New Jersey also lost a House seat to redistricting in 1980 and 1990.   However, this time it forced a divisive and expensive primary between two popular incumbent Democrats in Bergen and Passaic County.

The U.S. Constitution requires the government to count U.S. residents every 10 years and report the results to the President by the end of the census year. As the Supreme Court eloquently stated, the Census Clause “reflects several important constitutional determinations: that comparative state political power in the House would reflect comparative population, not comparative wealth; that comparative power would shift every 10 years to reflect population changes; that federal tax authority would rest upon the same base; and that Congress, not the States, would determine the manner of conducting the census.”

The most recent 2010 census revealed significant population increases in many Western and Southern states. Nevada’s population grew 35.1 percent, while Texas saw a 20.6 percent rise. However, East Coast states grew more modestly. New Jersey’s population only grew 4.5 percent. As a result, Texas gained 4 seats and New Jersey lost one.

It is a reach to find a positive spin, but give this one a try: Considering New Jersey’s history as a small state with only four members of the House of Representatives after the Constitution of the United States was ratified, the state still has a net gain of 8 seats.  That’s about the most positive spin you could give it.

For a short video summary of redistricting, see http://www.youtube.com/watch?v=yu_92RFKiEI&feature=plcp