CITY OF NEWARK v. FRATERNAL ORDER OF POLICE

 SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2993-21
CITY OF NEWARK,
Respondent-Appellant,
v.
FRATERNAL ORDER OF POLICE,
NEWARK LODGE NO. 12,
Charging Party-Respondent,
and
NEWARK POLICE SUPERIOR
OFFICERS' ASSOCIATION, INC.,
Charging Party-Respondent.
______________________________
Submitted September 12, 2023 – Decided October 3, 2023
Before Judges Sumners and Perez Friscia.
On appeal from the New Jersey Public Employment
Relations Commission, PERC Nos. 2016-038, 2016-
196, 2020-063, 2020-065, and 2020-092.
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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Carmagnola & Ritardi, LLC, attorneys for appellant
(Sean P. Joyce, of counsel and on the brief; Stephanie
Torres, on the brief).
Markowitz and Richman, attorneys for respondents
Fraternal Order of Police, Newark Lodge No. 12 and
Newark Police Superior Officers' Association, Inc.
(Matthew D. Areman, on the brief).
Christine Lucarelli, General Counsel, attorney for
respondent New Jersey Public Employment Relations
Commission (Frank C. Kanther, Deputy General
Counsel, on the statement in lieu of brief).

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
PER CURIAM
The City of Newark (City) issued two General Orders 18-25 and 18-26
(collectively "the General Orders") unilaterally changing predecessor general
orders pertaining to disciplinary procedures, safeguards, sanctions, and penalties
for members of the Fraternal Order of Police, Newark Lodge No. 12 (FOP) and
the Newark Police Superior Officers' Association, Inc. (SOA) (collectively "the
Unions"). The Unions filed unfair practice charges with Public Employees
Relations Commission (PERC) against the City to rescind the General Orders.
PERC subsequently issued a final agency decision that the City violated the New
Jersey Employer-Employee Relations Act (Act), N.J.S.A. 34:13A-1 to -64, and
its collective negotiations agreements (CNAs) with the Unions because unlike
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the predecessor general orders, the terms and conditions of employment set forth
in the General Orders were not collectively bargained.
The City challenges PERC's decision, contending: (1) its duty to bargain
with the Unions is exempted because the General Orders were in furtherance of
a consent decree entered between the City and the United States Department of
Justice (DOJ) approved by the United States District Court for the District of
New Jersey; (2) the changes and additions in the General Orders do not pertain
to subjects of mandatory negotiation; (3) the Unions waived their right to
negotiation by failing to intervene during the federal litigation and General
Orders' rule-making process; (4) public policy weighs against PERC's
determination; and (5) the consent decree compels federal jurisdiction over the
matter. We disagree and affirm substantially for the reasons expressed by PERC
in its cogent final agency decision.
I
To provide a historical context to this dispute, we hark back to 1993 when
the City's Police Department and the Unions agreed to General Order 93-2,
modifying the disciplinary process for the Unions' members. Several years later,
the City's directive to unilaterally change the disciplinary procedures in General
Order 93-2 were rescinded by PERC. See City of Newark, I.R. No. 99-5, 24
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N.J.P.E.R. ¶ 29228, 1998 NJ PERC LEXIS 267, at *9-11 (1998), reconsideration
denied, P.E.R.C. No. 99-37, 24 N.J.P.E.R. ¶ 29240, 1998 NJ PERC LEXIS 199
(1998) (holding the City's Office of the Police Director's Memorandum 98-919,
which unilaterally implemented changes to discipline and hearing procedures,
violated the CNA to negotiate certain mandatorily negotiable subjects).
In April 2015, the City's mayor issued Executive Order MEO-0005,
creating the Civilian Complaint Review Board (CCRB) in response to an
investigation report by the DOJ, initiated by a petition from the American Civil
Liberties Union of New Jersey regarding police misconduct.1 Two months later,
in June 2015, the City unilaterally promulgated a disciplinary matrix
significantly modifying the disciplinary procedures set forth in General Order
93-2. The Unions separately filed unfair practice charges with PERC
challenging the implementation of the CCRB2 and the changes to their
1 The City’s Municipal Council passed an ordinance establishing and
implementing the CCRB on March 16, 2016.
2 In Fraternal Ord. of Police, Newark Lodge No. 12 v. City of Newark, 244
N.J. 75, 80 (2020), our Supreme Court held the CCRB was permissible under
state law as long as it complied "with current legislative enactments." The Court
further ruled the CCRB could not issue subpoenas; "can investigate citizen
complaints alleging police misconduct," which "may result in recommendations
to . . . discipline . . . a police officer," but "cannot exercise its investigatory
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disciplinary processes outside of the collective bargaining process required
under the Act.
In February 2016, collective bargaining negotiations led to the issuance
of General Order 05-04, intending to "improve the quality of law enforcement
services," to be "responsive to the community by providing formal procedures
for the processing of complaints from the public," and to preserve the due
process rights of officers under investigation. The order set forth specific
investigation procedures regarding allegations of police officers' misconduct.3
In March 2016, the DOJ, as a result of its investigation report, filed a
complaint in the District Court against the City, seeking declaratory or equitable
relief "to remedy a pattern or practice of conduct by the Newark Police Division
. . . , the law enforcement agency of the City of Newark, New Jersey, that has
deprived persons of rights, privileges, and immunities secured and protected by
powers when a concurrent investigation is conducted by the Newark Police
Department's Internal Affairs [] unit." Id. at 81.
3 General Order 05-04 outlined an employee's right to notice of the complaint,
General Order IV.B.12(c); granted union representation for administrative charges,
id. IV.D.8(i); mandated that administrative charges be held in abeyance pending a
criminal investigation involving the same facts and events, id. IV.D.8(d); and
granted officers under investigation the right to their investigative file and the right
to cross examine witnesses, id. IV.E.3, 5.
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the Constitution and laws of the United States." A month later, the parties
resolved the complaint through a seventy-seven-page consent decree, which
among other things, required the City and the police department to improve the
quality of policing through training; increase community outreach and
oversight; develop new policies and procedures for internal affairs complaint
intake and investigations; and develop consistent disciplinary procedures for
officers.
In 2019, the City promulgated the General Orders, which, effective
immediately, superseded General Orders 05-04 and 93-2, respectively, and
implemented a new disciplinary process for the Unions' members. The Unions
again separately filed unfair practice charges with PERC challenging the
unilateral promulgation of the General Orders on the basis that they violated the
Act and the CNAs.
Because they are fully detailed in PERC's final agency decision, we
incorporate by reference the extensive procedural history culminating in PERC's
issuance and consolidation of unfair practice complaints against the City based
on the Unions' charges. PERC's final agency decision ordered the City to:
A. Cease and desist from:
1. Interfering with, restraining or coercing employees
in the exercise of the rights guaranteed to them by the
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Act and from refusing to negotiate in good faith with
the FOP and SOA concerning terms and conditions of
employment, particularly by unilaterally modifying the
terms and conditions of employment of employees by
the FOP and SOA, specifically by:
a. implementing those portions of General
Order 18-25, identified in this decision,
that abrogate or change disciplinary
procedures contained in General O[r]der
05-04;
b. implementing those portions of General
Order 18-26, identified in this decision,
including a new "Disciplinary Matrix" and
a new property damage monetary
restitution policy, that abrogate or change
disciplinary procedures and the
disciplinary penalty policy contained in
General Order 93-2;
c. implementing a June 24, 2015
"Disciplinary Matrix" that changes the
disciplinary penalty policy contained in
General Order 93-2;
B. Take this action:
1. Rescind those portions of General Order 18-25 that
abrogate or change disciplinary procedures contained
in General O[r]der 05-04;
2. Restore the disciplinary procedures contained in
General Order 05-04;
3. Rescind those portions of General Order 18-26 and
the June 24, 2015 Disciplinary Matrix that abrogate or
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change disciplinary procedures and disciplinary penalty
policies contained in General Order 93-2;
4. Restore the disciplinary procedures and disciplinary
penalty policies contained in General Order 93-2;
5. Negotiate in good faith, and subject to the impasse
resolution procedures of the . . . Act, with the FOP over
any proposed changes to disciplinary procedures and
any other mandatorily negotiable terms and conditions
of employment, and maintain the status quo during
negotiations;
6. Negotiate in good faith, and subject to the impasse
resolution procedures of the . . . Act, with the SOA over
any proposed changes to disciplinary procedures and
any other mandatorily negotiable terms and conditions
of employment, and maintain the status quo during
negotiations;
7. Post in all places where notices to employees are
customarily posted, copies of the attached notice
marked as Appendix "A." Copies of such notice shall,
after being signed by the City’s authorized
representative, be posted immediately and maintained
by it for at least sixty (60) consecutive days.
Reasonable steps shall be taken to ensure that such
notices are not altered, defaced or covered by other
materials; and
8. Notify the Chair of [PERC] within twenty (20) days
of receipt what steps the City has taken to comply with
this Order.
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II
On appeal, the City reiterates the arguments PERC rejected. Before
addressing them, we are mindful that PERC has "the power and duty, upon the
request of any public employer or majority representative, to make a
determination as to whether a matter in dispute is within the scope of collective
negotiations." N.J.S.A. 34:13A-5.4(d); City of Jersey City v. Jersey City Police
Officers Benevolent Ass'n, 154 N.J. 555, 567-68 (1998) (quoting N.J.S.A.
34:13A-5.4(d)). In making a scope of negotiations determination, PERC decides
the "limited" issue of whether "the subject matter in dispute [is] within the scope
of collective negotiations." Ridgefield Park Educ. Ass'n v. Ridgefield Park Bd.
of Educ., 78 N.J. 144, 154 (1978) (quoting In re Hillside Bd. of Educ., P.E.R.C.
No. 76-11, 1 N.J.P.E.R. at 57 (1975)).
In our review of a PERC ruling, we give deference to the agency's
interpretation of the Act "unless its interpretations are plainly unreasonable,
contrary to the language of the Act, or subversive of the Legislature's intent."
N.J. Tpk. Auth. v. AFSCME, Council 73, 150 N.J. 331, 352 (1997) (citations
omitted). Said another way, an agency’s determination "is entitled to affirmance
so long as [it] is not arbitrary, capricious, or unreasonable, which includes
examination into whether the decision lacks sufficient support in the record or
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involves an erroneous interpretation of law." Melnyk v. Bd. of Educ. of the
Delsea Reg'l High Sch. Dist., 241 N.J. 31, 40 (2020). However, where a legal
question of statutory interpretation arises, we review de novo. Libertarians for
Transparent Gov't v. Cumberland Cnty., 250 N.J. 46, 55 (2022).
A. Managerial Prerogative
The City contends that it properly exercised its managerial prerogative
altering the discipline process matrix through the General Orders without having
to negotiate with the Unions. This contention is unpersuasive.
Our Supreme Court has defined a mandatorily negotiable subject when
"(1) the item intimately and directly affects the work and welfare of public
employees; (2) the subject has not been fully or partially preempted by statute
or regulation; and (3) a negotiated agreement would not significantly interfere
with the determination of governmental policy." In re Loc. 195, IFPTE, 88 N.J.
393, 404 (1982). Based on these guidelines, PERC recognized that its prior
rulings as well as our "courts have held that procedural safeguards associated
with discipline and investigations intimately and directly affect employees and
do not significantly interfere with the ability of a public employer to impose
discipline."
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PERC determined that "all of the[] cited portions of [General Order] 05-
04 that were omitted from [General Order] 18-25 are mandatorily negotiable
pre-disciplinary procedures concerning due process issues such as time frames,
informational and notice issues, evidence and witnesses during a hearing, and
the right to different levels of union representation under certain circumstances."
PERC further determined:
the City’s unilateral imposition of a [d]isciplinary
[m]atrix in [General Order] 18-26 changed the
recommended penalty policy in [General Order] 93-2
and violated the Act. We similarly find that the City’s
June 24, 2015 unilateral promulgation of a disciplinary
matrix violated the Act. Like the [d]isciplinary
[m]atrix in [General Order] 18-26, the 2015 matrix
changed the sanctions table from that in [General
Order] 93-2 and set forth tables of categories of
misconduct and levels offenses corresponding to
certain penalty levels for the City’s decision makers to
use when determining discipline.
[General Order] 18-26 also unilaterally created a
monetary restitution obligation for officers as a penalty
for damages to or losses of specified police property,
such as the motor patrol vehicle. ([General Order] 18-
26, p. 27, XVI.F.) Like the [d]isciplinary [m]atrix, this
restitution penalty for such offenses is a mandatorily
negotiable issue. . . .
Finally, [General Order] 18-26 also unilaterally
changed certain definitions from [General Order] 93-2
in ways very similar to how [General Order] 18-25
changed definitions from [General Order] [05-04]. For
the same reasons as discussed above pertaining to
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[General Order] 18-25, we find that the City violated
the Act in [General Order] 18-26 by unilaterally
changing the definitions of "major offense" and the
"45-Day Rule." ([General Order] 18-26, pp. 4-5, VI.Q.;
[General Order] 18-26, p. 7, VI.HH.).4
We agree with PERC that the disciplinary procedures detailed in the
General Orders involve matters subject to mandatory negotiation. The City has
not shown the disciplinary procedures implemented in General Orders 18-25 and
18-26 are fully or partially preempted from collective bargaining by statute or
regulation. See In re Loc. 195, 88 N.J. at 405-06. Nor has the City shown that
negotiation of these procedures would significantly interfere with the
determination of governmental policy. See id. at 407-08.
B. Union Intervention
The City contends the Unions waived their rights to negotiate the
disciplinary process set forth in the General Orders by failing to intervene during
the federal litigation culminating in the consent decree or voice objection at a
community hearing regarding the General Orders. Based upon our review of the
record, the contention was not raised before PREC. We therefore would not
4 PERC, however, determined "the City's changes to the definition of 'Minor
Offense' and its definition of the 'New Jersey Administrative Code' d[id] not
constitute substantive procedural changes requiring negotiations. ([General
Order] 18-26, p. 5, VI.R. and S.)."
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normally consider the contention because it neither addresses the court's
jurisdiction nor substantially implicates the public interest. See R. 2:10-2;
Zaman v. Felton, 219 N.J. 199, 226-27 (2014) (citation omitted). Nonetheless,
we conclude there is no merit for the contention.
Neither the DOJ's complaint nor the consent decree addressed the
disciplinary process for the Unions' membership. The Unions therefore had no
reason, let alone, basis to intervene. Furthermore, we are unaware of any
caselaw, statute, or PERC decision exempting a public employer from its
collective bargaining obligations simply because a collective bargaining unit
failed to object to the public employer's pronouncement to unilaterally change
employees' terms and conditions. Accordingly, the Unions did not waive their
rights to challenge the General Orders by not intervening in the consent decree
process or voicing objection at a community hearing regarding the General
Orders.
C. The Consent Decree's Impact
The City argues the changes implemented by the General Orders were not
mandatorily negotiable because they were authorized by the consent decree.
The consent decree's terms expressly contradict the City's argument, stating:
"This decree shall not be deemed to confer on the civilian oversight entity any
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powers beyond those permitted by law, including by civil service rules and
collective bargaining agreements." PERC held "both Commission and federal
judicial precedent have held that there is no managerial prerogative to
unilaterally change negotiable terms and conditions of employment in order to
settle civil litigation such as discrimination, civil rights, or constitution al
claims." See e.g., W.R. Grace & Co. v. Loc. Union 759, Int'l Union of the United
Rubber, Cork, Linoleum & Plastic Workers of Am., 461 U.S. 757, 771 (1983)
(holding the employer's settlement of a federal employment discrimination
lawsuit via a conciliation agreement with the Equal Employment Opportunity
Commission could not legally conflict with its seniority layoff obligations
pursuant to its collective bargaining agreement with the union (citations
omitted)); United States v. City of Los Angeles, 288 F.3d 391, 399-400 (9th Cir.
2002) (ruling a consent decree between the City of Los Angeles and the DOJ to
settle a lawsuit alleging deprivation of federal constitutional rights could not
alter the police union's right to negotiate changes to its terms or conditions of
employment (citations omitted)); Town of West New York, P.E.R.C. No. 99-
110, 25 N.J.P.E.R. ¶ 30143, at 334, 1999 NJ PERC LEXIS 50, at *11 (1999)
(holding "[n]o agreement or promise addressing [an employee's] working
conditions could supersede the [collective bargaining unit's] exclusive right to
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negotiate over the terms and conditions of employment of the officers it
represents"). Thus, PERC properly held "[c]ontrary to the City's assertion, the
[c]onsent [d]ecree does not supersede applicable state law . . . or abrogate the
City's contractual obligations pursuant to its [CNAs]."
The City also contends the consent decree "lead[s] to the inescapable
conclusions that PERC does not have jurisdiction to address the issues raised by
[defendants] and [that] the matter must be dismissed." In support, the City
points to the consent decree's provisions requiring: (1) the parties to notify each
other if the agreement "is challenged in any other court other than the [District
Court]" (¶ 219); and (2) "the City and [the police department] promptly notify
DOJ if any term of this Agreement becomes subject to collective bargaining and
consult with DOJ in a timely manner regarding the position the City and [the
police department] will take in any collective bargaining consultation connected
with this Agreement" (¶ 220). We disagree.
Neither consent decree provision states nor implies the Unions' unfair
practice charge must be before a federal court. Paragraph 219 governs
challenges to the consent decree. The Unions are not challenging the consent
decree but the City's compliance with the Act. Paragraph 220 compels notice to
the DOJ should the City and the Unions enter into a CNA affecting the consent
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decree. The City is challenging collectively bargained employment terms and
conditions predating the City's agreement to the consent decree in May 2016.
The consent decree did not––nor could it––invalidate those terms and
conditions. Even if the within dispute pertained to a new CNAs, paragraph 220
merely compels notice to the DOJ, not mandate federal jurisdiction over the
collective bargaining process.
To the extent we have not specifically addressed any argument raised by
the City, it is because we conclude they lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
In sum, the consent decree sought to resolve significant and legitimate
concerns over the City's police department's practice of violating individuals'
constitutional and federal law rights. The agreement did not authorize the City
to unilaterally impose disciplinary procedures and sanctions against the Unions'
members and sidestep its collective bargaining obligations under the Act.
Consequently, PERC's final agency decision rescinding provisions of the
General Orders and restoring prior negotiated disciplinary processes and
penalties is not arbitrary, capricious, or unreasonable, and is supported by the
credible evidence in the record.
Affirmed.