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In the Matter of Temporary Layoffs, City of Newark CSC Docket No. 2011-1508 (Civil Service Commission, decided January 19, 2010) Newark Council 21, NJSCA, IFPTE, AFL-CIO (Council 21), represented by David I. Fox, Esq., petitions the Civil Service Commission (Commission) for a stay of Newark's temporary layoff of employees for a total of 18 days commencing on July 28, 2010.1 By way of background, on May 26, 2010, Newark submitted a temporary layoff plan to the Division of State and Local Operations (SLO), proposing the temporary layoff of employees in all municipal departments except for the Police and Fire Departments, and Water and Sewer Utilities.2 Each affected department would be closed on 11 dates between July 28, 2010 and December 29, 2010.3 Newark explained that the temporary layoffs became necessary since it has a "structural budget deficit that can no longer be sustained through on-time Port Authority of New York and New Jersey settlement payments . . . [that] were used to balance the City's budget . . . [as] those payments will end" in 2010. Moreover, it maintained that it could not generate enough revenue and realize sufficient savings to offset the anticipated expenses and obligations and that as a result and despite budget costs, it projected a severe budget shortfall of $70,000,000. Newark's layoff plan also detailed actions it took pursuant to N.J.A.C. 4A:8-1.2 and N.J.A.C. 4A:81.3, to lessen the possibility of layoffs, including, inter alia, implementing hiring and promotional freezes, separating non-essential provisional employees, and having no salary increases for unclassified and unrepresented employees since 2006. It also considered other actions, such as non-paid holidays. Despite the above measures, Newark found that it was necessary to implement temporary layoffs. Newark also indicated that it met with officials of the affected collective negotiations units, including Council 21, on May 20, 2010, at which time it discussed the savings to be achieved by the proposed temporary layoffs and the budgetary shortfalls that necessitated such cost-saving measures. By letter dated June 9, 2010, SLO approved the temporary layoff plan. As a result, all affected employees were provided with 45-day notices for the dates for the department-wide shut downs. On July 27, 2010, Newark submitted an additional temporary layoff plan to SLO, proposing the temporary layoff of employees in all municipal departments except for the Police and Fire Departments, and Water and Sewer Utilities. Each affected department would be closed an additional seven days between October 6, 2010 and December 23, 2010. Newark indicated that the additional temporary layoffs were necessary for the reasons indicated above and that it again met with officials of the affected collective negotiations units, including Council 21, on July 26, 2010, at which time it discussed the savings to be achieved by the proposed temporary layoffs and the budgetary shortfalls that necessitated such cost-saving

Since the employees have completed the majority of the planned temporary layoff days, Council 21's request for a stay is also a request for a reimbursement of pay for any temporary layoff day already served. 2 Although part of the proposed plan, the City Clerk's office was not approved for inclusion in the temporary layoffs as it is a separate appointing authority from Newark's other departments. 3 The plan indicated one schedule for the Department of Neighborhood and Recreational Services and one schedule for all other affected departments.

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measures. By letter dated August 6, 2010, SLO approved the additional temporary layoff plan. As a result, all affected employees were provided with 45-day notices for the additional dates for the department-wide shut downs. In the instant petition, Council 21 argues that the temporary layoffs imposed by Newark were made for reasons other than economy, efficiency or other related reasons, and therefore, the temporary layoffs are in bad faith. Specifically, it claims that the temporary layoffs are an example of Newark's attempts to "obtain a different result in a collective bargaining dispute that could not be obtained during the arbitration process" which the Commission has previously determined is not allowed. See In the Matter of the Township of Belleville Layoff (Commissioner of Personnel, decided February 20, 2002). Moreover, it argues that Newark has improperly and disproportionately targeted Council 21 in violation of N.J.A.C. 4A:81.1. In this regard, Council 21 maintains that despite citing a massive fiscal shortfall as the reason for the temporary layoffs, Newark exempted thousands of public safety and non-public safety employees, continues to hire non-essential employees and fill vacancies, and raised salaries of non-affected employees. Additionally, Council 21 asserts that Newark failed to follow required pre-layoff actions, including good faith consultation and meaningful discussion with affected collective negotiations representatives in violation of Civil Service law and rules. In this regard, Council 21 argues that although Newark claimed to have initiated hiring and salary freezes on non-essential employees, Newark continued to hire non-essential personnel and raised the salaries of employees during the time period of the temporary layoffs. In support, it submits several Executive Orders it claims evidence that Newark created new positions, hired new employees and raised the salaries of other employees by significant amounts. For example, an April 21, 2010 Executive Order (C/D-10-0009) changed the hours and salary of the position of Public Works Superintendent, effective January 1, 2010, to a 40-hour position with a salary range of $76,405 to $102,917. This Executive Order was approved by the Personnel Director, Budget Director, Business Administrator and Mayor in June 2010, but was not recorded by the City Clerk until August 11, 2010. It also submits a January 20, 2010 Executive Order (C/D/-10-0001) which created the positions of Senior Planner with a salary range of $53,226.04 to $70,913.96 and Senior Planner, Economic Development with a salary range of $53,484.42 to $71,258.20, both effective January 1, 2008. This Executive Order was approved by the Personnel Director and Budget Director in January 2010, and by the Business Administrator and Mayor in February 2010, but was not recorded by the City Clerk until August 11, 2010. Further, it submits a June 22, 2010 Executive Order (T-10-0015) adopting the salary ranges for the fiscal years of 2008 to 2011 for the titles of Chief Communications Officer, Communications Officer, Police Communications Clerk, Police Communications Clerk, Bilingual in Spanish and English and part-time Police Communications Clerk, as provided for in the collective negotiations agreement. This Executive Order was recorded by the City Clerk on August 11, 2010. Council 21 also asserts that Newark failed to "consult" with affected collective negotiations representatives as required prior to any layoff pursuant to N.J.A.C. 4A:8-1.2, and therefore, the temporary layoffs are unlawful. Specifically, Council 21 maintains that "consultation" pursuant to N.J.A.C. 4A:8-1.2 has been determined to require "meaningful discussion[s]" between an appointing authority and affected negotiations representatives, with a view toward avoiding a reduction

in force or lessening the impact of a proposed layoff on permanent employees. See In the Matter of the City of Perth Amboy Layoff (Commissioner of Personnel, decided November 13, 2006). In support, it submits a certification from Michael James, the Council 21 President, who indicates that although Newark met with affected bargaining unit representatives (unions), Newark failed to provide the unions with any detailed information regarding proposed layoffs/furloughs or a copy of any layoff plan. Rather, Newark merely advised the unions that it was suffering a "financial crisis" and that all employees needed to "bear the burden of closing the budget deficit." As a result, Council 21 argues that it was precluded from having any constructive input regarding any potential alternatives to the temporary layoffs. Furthermore, it notes that since December 31, 2008, it has been involved in negotiations with Newark for a collective negotiations agreement. However, the parties reached an impasse in July 2010. Additionally, Council 21 maintains that Newark and this agency failed to provide employees with their determinations of lateral, demotional and/or special employment rights in violation of N.J.A.C. 4A:8-1.6(f) and N.J.A.C. 4A:8-2.1, et seq. The failure to issue rights determination letters deprived employees of their rights since many of the employees affected by the temporary layoffs would have rights to other employees' positions who were not subject to the temporary layoffs. Furthermore, Council 21 asserts that Newark does not have any legal basis for requiring employees to involuntarily take days off without pay since N.J.A.C. 4A:8-1.1A, which provided for "temporary layoffs," was repealed. It argues that the promulgation of the temporary layoff rule was "an admission that current law" precluded such action, and since the "rule" was repealed, temporary layoffs are no longer allowable. In the alternative, it claims that at a minimum, the repeal of the temporary layoff rule prohibits staggered layoffs within a single layoff unit, and for purposes of the temporary layoffs, "City Hall" should be considered a single layoff unit since the majority of employees share a common collective negotiations agreement and common titles, policies, working conditions and space in City Hall. Therefore, Council 21 argues that the exemption of some employees who work in City Hall and the temporary layoffs on different days is an impermissible staggered layoff. See In the Matter of Emergency Temporary Layoff Rule, Docket No. A-362608T2 (App. Div. April 17, 2009). Council 21 also maintains that the temporary layoffs improperly reduce the affected members' salaries below the minimum salary of the salary range as set by ordinance. In response, Newark, represented by Danielle P. Torok, First Assistant Corporation Counsel, contends that Council 21 has not met the criteria listed in N.J.A.C. 4A:2-1.2 for interim relief and therefore, its petition must be denied. Initially, Newark maintains that Council 21 cannot demonstrate a clear likelihood of success on the merits since its request is untimely. In support, it submits a certification from Michael Greene, the former Business Administrator, who indicates that all affected employees were personally served with their 45-day notices of the temporary layoffs on or about June 14, 2010 and on or about August 20, 2010 and those notices clearly stated that employees had 20 days in which to file an appeal. However, Council 21's appeal dated September 13, 2010 is beyond the 20-day time period. In the alternative, Newark asserts that even if Council 21's request is considered timely, it still should be denied as the temporary layoff plans were in accordance with Civil Service law and rules. In this regard, it argues that

the layoffs were implemented for reasons of economy and efficiency as it was faced with an unprecedented fiscal crisis due to a vast range of economic circumstances, including the loss of millions of dollars in both ordinary and extraordinary municipal State aid, and the loss of key revenue sources. As a result, Newark maintains that it was forced to make some extremely difficult economic decisions. However, since $484 million dollars, or 80% of its $605 million dollar budget, was for personnel costs, certain reductions had to be made to personnel expenditures if there was to be any hope to balance its budget. Additionally, Newark denies that its actions were in bad faith. In this regard, it claims that despite Council 21's assertions to the contrary, the Executive Orders Council 21 supplied do not evidence bad faith on the part of Newark. Specifically, Newark maintains that many of the Executive Orders submitted by Council 21 were initially submitted prior to the hiring freeze, and the City Clerk signing them during the hiring freeze does not indicate bad faith. Additionally, it notes that many of the Executive Orders did not record the hiring of additional staff, rather, they created positions that were not filled or that were temporary, seasonal positions and/or positions that would qualify as essential personnel. With regard to the Executive Orders that supposedly were evidence of salary increases, Newark maintains that the salary increases occurred prior to any freezes, but for unknown reasons, the Orders had not been signed. Newark also contends that the Executive Orders which recorded the appointments of individuals were not evidence of bad faith since those appointments were to essential positions and were exempt from the hiring freeze. Newark also disputes Council 21's assertion that it failed to comply with its obligation to institute pre-layoff actions, such as meeting with union representatives. Specifically, in his certification, Greene asserts that as conceded to by Council 21, representatives from Newark met with union representatives and discussed the dire financial status of Newark and its need to implement costsavings measures such as temporary layoff days. Moreover, union representatives were provided with an opportunity to ask questions, which they did, and to provide any suggestions for alternatives. While the unions may not have liked what was said, Greene asserts that representatives from Newark answered the unions' questions to the best of their abilities. Greene notes that he received some suggestions for alternatives, such as revoking gas cards and city vehicles, but the suggestions could not be implemented due to contractual obligations, and the suggestions did not provide sufficient savings to prevent the temporary layoffs from occurring. Finally, Newark argues that the Council's reliance on In the Matter of the City of Perth Amboy Layoff, supra, is misplaced since in that case, Perth Amboy failed to provide any information to the unions, whereas Newark provided information concerning the temporary layoffs, including the proposed layoff dates. Moreover, Newark asserts that it was not required to provide employees with notices of lateral and/or demotional title rights since only a permanent layoff triggers an employee's lateral and/or demotional rights. In this regard, it maintains that since all employees in the affected layoff unit are laid off on the same day, no displacement rights are implicated. See N.J.A.C. 4A:8-2.1, et seq. See also, In the Matter of Emergency Temporary Layoff Rule, supra. Further, contrary to Council 21's assertion, "City Hall" is not a proper layoff unit. Rather, N.J.S.A. 11A:8-1(c) and N.J.A.C. 4A:8-1.5(c) provide that an appropriate layoff unit for a municipality is an individual department. Newark also disputes that there has been any reduction in any employee's permanent salary. Instead, all employees subject to the

temporary layoffs retain their same permanent salary and are paid the same for the days they are required to work. They are not merely paid for the temporary layoff days. However, the loss of pay for those particular days does not alter an employee's permanent salary. Furthermore, Newark argues that there is no danger of immediate or irreparable harm if the temporary layoffs continue since potential losses or losses of a pecuniary nature are not considered sufficient. Although it does not make light of the employees' economic loss, that type of harm is not the type of harm which warrants the extreme measure of interim relief since such harm is not irreparable. Additionally, contrary to Council 21's assertions, Newark would suffer substantial injury if the instant application was granted. Specifically, Newark asserts that it has relied upon the salary cost savings that would be realized by the temporary layoff days in creating its budget for this fiscal year. Stopping the temporary layoff days at this point would require it to recreate its budget in an attempt to plug an even bigger budget gap. Finally, the public interest will not be served if the temporary layoff days are stopped, since the taxpayers would be faced with an even worse fiscal crisis. In response, Council 21 asserts that the temporary layoffs should be stayed as they violate the impairment of the obligation of contract clauses of the United States and New Jersey Constitutions. In this regard, it asserts that Article I of the federal Constitution and Article IV of the New Jersey Constitution limit the authority of a State or the legislature, respectively, to impair the obligations of contracts. Therefore, since the negotiated agreement specifically provided for the salary schedules for all covered positions, and the temporary layoffs unconstitutionally reduce the salaries of its affected members, Newark's actions were in violation of these constitutional provisions. Moreover, Council 21 maintains that there are "more modest means of saving or raising money" that do not affect Newark's contractual obligations. However, Council 21 does not indicate what those means may be. Council 21 argues that Newark's self interest in having additional funds should not be given complete deference as a defense to violating the contract clauses of the constitutions. In this regard, it notes that in Massachusetts Community College Council v. Commonwealth of Massachusetts, 420 Mass. 126, 649 N.E.2d 708 (1995), Massachusetts implemented a mandatory furlough program in 1991 for certain State employees in the face of a perceived fiscal crisis. However, the state Supreme Court determined that the state's actions in implementing the mandatory furlough program were not reasonable, since the collective bargaining agreements, which included salaries for union members, were signed in December 1990 at a time when the fiscal problems of March and April 1991 were reasonably foreseeable, but the state nonetheless entered into the collective bargaining agreements. Therefore, the substantial impairment of the employees' rights under the collective bargaining agreements could not be considered reasonable. In the instant matter, Council 21 maintains that Newark has failed to demonstrate that the impairment to its members' rights under the collective negotiations agreement is both reasonable and necessary to serve an important government purpose. Therefore, it contends that since Newark has recently settled collective negotiations agreements and implemented those terms and conditions with other unions and since the fiscal concerns were known to Newark at the time it implemented those agreements, its actions in the instant matter cannot be deemed reasonable and necessary.

Additionally, Council 21 argues that if a stay is not immediately granted, then its members will suffer extreme personal hardship and irreparable harm. In support, it submits certifications from several of its members who indicate that their bi-weekly paychecks have been reduced to such an extent that they are facing assorted financial problems, including possible foreclosures and an inability to pay their bills. Council 21 also maintains that irreparable harm may be presumed where a constitutional injury is at stake in addition to monetary damages. See Public Service Co. of New Hampshire v. Town of West Newbury, 835 F.2d 380 (1st Cir. 1987) (Court noted that the line of cases holding that a deprivation of constitutional right is sufficient to establish irreparable harm are almost entirely restricted to cases involving alleged infringements of free speech, association, privacy or other rights as to which temporary deprivation is viewed of such qualitative importance as to be irremediable by any subsequent relief). Moreover, it asserts that Newark's actions in completely repudiating key provisions of the collective negotiations agreement and unilaterally implementing terms and conditions of employment during the collective negotiations process between the parties will cause irreparable harm to the collective bargaining process and to the members of Council 21 who participate in that process. Further, it argues that its members already "bear the burden" of Newark's financial crisis in the pain and loss or reduction of employment suffered by spouses, children and other family members due to the economic conditions of the city and the State as well as due to increases in taxes, fees and cuts to the school budget. Its members also rely on full paychecks to pay for essentials such as housing, food and transportation and many have committed themselves to long-term financial obligations, which will go unpaid due to the temporary layoffs. Finally, Council 21 argues that Newark is a Faulkner Act Mayor-Council Plan C form of government and as such, must have the advice and consent of the City Council in order to enact any layoffs. Specifically, it notes that the City Charter specifically states: Effective of July 1, 1954, the voters of the City of Newark, by a referendum held on November 3, 1953 and acting pursuant to the Optional Municipal Charter Law (N.J.S. 40:69A-1 et seq.), commonly known as the Faulkner Act, adopted Mayor-Council Plan C as the form of local government. The general provisions pertaining to MayorCouncil plans of government are found in Article 3 (40:69A-31 to 40:69A-48), and regulations specific to Mayor Council-Plan C are covered in Article 5 (40:69A-60.1 to 40:69A-60.7) of this Act. Council 21 contends that the temporary layoff plans approved by this agency do not indicate that the City Council consented to the temporary layoffs and therefore, absent such consent, the temporary layoffs must be declared invalid and unenforceable. In response, Newark reiterates its arguments that Council 21 has failed to meet the standard for interim relief and therefore, its request must be denied. Newark denies that it has repudiated any provisions of the collective negotiations agreement between the parties by implementing the temporary layoffs and it notes that it has met with Council 21 to negotiate a new collective negotiations agreement

as recently as August 25, 2010. Moreover, Newark argues that despite Council 21's arguments that the temporary layoffs are unconstitutional due to the collective negotiations agreement between the parties, temporary layoffs are authorized by State law and Civil Service regulations. N.J.S.A. 11A:8-1(a) clearly provides that permanent employees may be laid off for economy, efficiency or other related reasons and the Appellate Division has found that Civil Service appointing authorities have the legal authority to implement full departmental shutdowns for one or more days, so long as all employees of the layoff unit are laid off on the same day. See In the Matter of Department of Personnel Employees,4 Docket No. A-461792T3 (App. Div. May 9, 1994). Additionally, in State of New Jersey v. CWA, 285 N.J. Super. 541, 553 (App. Div. 1995), cert. denied, 143 N.J. 519 (1996), the Appellate Division held that the State was well within its power to unilaterally reduce workweeks without negotiation because layoff decisions were not negotiable and the State could not bargain away the public's interest and its role was greater than the employees' right to negotiate. Further, it is well-settled law that a provision in a collective negotiations agreement between public employers and unions that seeks to specifically prohibit the layoffs of certain employees will be considered invalid, unenforceable and contrary to State statute. See Stone v. Camden County Board of Chosen Freeholders, 180 N.J. Super. 430 (Ch. Div. 1981) (Court found a "no layoff" clause in the collective negotiations agreement to be invalid and unenforceable and denied the plaintiffs' request to restrain the layoffs). Additionally, Newark disputes that the Faulkner Act requires the Mayor to obtain the advice and consent of the Municipal Council when implementing a temporary layoff plan and therefore, it was within its powers to submit a temporary layoff plan without such consent and approval. In this regard, in Municipal Council v. James, 183 N.J. 361 (2005), the Court specifically considered the role of the Mayor and Municipal Council under the Faulkner Act and the Mayor-Council Plan C form of government. In doing so, the Court found that in a Mayor-Council Plan C form of government, the Mayor's authority is substantial. Under the Faulkner Act Mayor-Council Plan C form, the executive power is vested in the Mayor who is the chief executive and responsible for supervising the departments of the municipal government, except for those administrative functions vested in the offices of the municipal clerk. See N.J.S.A. 40:69A-32(b), N.J.S.A. 40:69A-40 and N.J.S.A. 40:69A-43(a). Furthermore, N.J.S.A. 40:69A-37.1 provides that the Mayor has significant powers regarding the control over the employees of the jurisdiction, however, N.J.S.A. 40:69A-36 provides that a Municipal Council only has control over its own employees. Consequently, the approval of the Municipal Council was not required, nor did it have the authority to approve the temporary layoff plans and therefore, this request must be denied. In response, Council 21 argues that Newark incorrectly states that temporary layoffs are authorized by State law and Civil Service rules, notwithstanding a collective negotiations agreement between the parties. Rather, it asserts that "the law is now very clear that all local government employers . . . must negotiate over furloughs and may not unilaterally impose them" even if the layoff plan was approved by the Commission. For example, in In the Matter of Borough of Belmar

On June 30, 2008, Public Law 2008, Chapter 29 was signed into law and took effect, changing the Merit System Board to the Civil Service Commission, abolishing the Department of Personnel and transferring its functions, powers and duties primarily to the Civil Service Commission. In this decision, the former names will be used to refer to actions which took place prior to June 30, 2008.

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and Communications Workers of America, AFL-CIO, P.E.R.C. No. 2011-34 (2010), the Public Employment Relations Commission (PERC) noted by way of background that due to a financial crisis in 2009, the Borough Administrator, Municipal Judge, Prosecutor and five investigators consented to a 10% base salary reduction, the Mayor and Council agreed to forego their annual salaries, the Municipal Clerk received no wage increase, and two of the four unions agreed to a wage freeze. However, CWA refused. As a result, Belmar submitted a temporary layoff plan that provided for a layoff of one day a week for 10 weeks for the employees of the Department of Public Works. The temporary layoff plan, which was submitted with the aim of saving $53,616.45 in labor costs and avoiding the permanent layoff of one employee, was approved by this agency. PERC noted that although Belmar retains the non-negotiable managerial prerogative to reduce the number of employees in the Department of Public Works and despite Belmar's actions not violating Civil Service law and rules, Belmar did not have a managerial prerogative to reduce the employees' workweek and pay through the means of the temporary layoff plan since an employee's workweek and pay are negotiable items. Consequently, it deferred the matter to binding arbitration. Additionally, in In the Matter of Mount Laurel and Communications Workers of America and AFSCME Council 71, P.E.R.C. No. 2011-35 (2010), although Mount Laurel had adopted a balanced budget for 2009 that included appropriations to fully fund salaries, it notified CWA and AFSCME that it intended to reduce personnel costs in the current and upcoming budgets and requested the unions to either agree to eight voluntary furlough days in 2009 and 2010 or agree to forego sick leave buybacks in 2009. The unions indicated that they would not agree unless Mount Laurel agreed to a "no layoff guarantee." Mount Laurel refused, and instead submitted a temporary layoff plan that provided for a one day a month temporary layoff of all municipal employees, except for police and emergency service personnel from November 2009 to June 2010. The temporary layoff plan, which was submitted with the aim of saving $152,000, an amount equal to the salary of three employees, in order to increase Mount Laurel's budgetary surplus which had decreased by half to $600,000 in 2009, was approved by this agency. PERC held that, under the circumstances presented, the contractual dispute over work hour and pay provisions was within the scope of collective negotiations. Consequently, it deferred the matter to binding arbitration. In the instant matter, Council 21 argues that it is undisputed that Council 21 and Newark are parties to a collective negotiations agreement which, although expired, remains in full force and effect while the parties continue to negotiate and that the agreement's terms set the workweek, hours of work and pay for its members. Moreover, Council 21 asserts that Newark refused to discuss any details of the temporary layoff plan with it. Additionally, it argues that as noted in In the Matter of Borough of Belmar and In the Matter of Mount Laurel, the fact that this agency had approved the layoff plans does not preempt negotiations over a reduction in employees' workweeks and pay. Therefore, Council 21 maintains that prior to implementing any reduction in workweek or unpaid furloughs of employees represented by Council 21, Newark must negotiate with it and may not unilaterally impose unpaid furloughs, regardless of whether the plan was approved by this agency.

Additionally, Council 21 reiterates that under the Faulkner Act, the Municipal Council was required to consent to the temporary layoff plans. Specifically, it asserts that without an express delegation by statute or ordinance, the Mayor does not have the unilateral authority to effectuate a layoff plan. Therefore, since the Faulkner Act is silent as to the delegation of the power to lay off employees, then the Municipal Council has both the enumerated requirement of "advice and consent" to actions of the Mayor and the power to express disapproval of the layoff by the Mayor. See N.J.S.A. 40:69A-36. Accordingly, since the Municipal Council did not provide "advice or consent" for the layoff plans, they are invalid and unenforceable. In response, Newark reiterates its previous arguments. Additionally, it disputes Council 21's assertion that the Mayor does not have the authority to institute layoffs without the advice and consent of the Municipal Council. In this regard, it argues that given the broad breadth of powers given to a Mayor under the Mayor-Council form of government, it is counterintuitive to suggest that in implementing the most significant control over municipal employees, i.e., effectuating a layoff, that a Mayor would be prevented from doing so unless the Council agreed. Moreover, despite Council 21's assertions, N.J.S.A. 40:69A-36 does not provide that the Mayor needed the consent of the Municipal Council prior to implementing layoffs. Rather, N.J.S.A. 40:69A-36 merely articulates those powers that a Municipal Council may exercise by ordinance versus resolution. It does not give a Municipal Council the power to override the Executive Branch's decision to implement layoffs. Further, in describing the duties of the Mayor, the Faulkner Act clearly provides that the Mayor shall "supervise, direct and control all departments of the municipal government" and has the power to appoint the department heads which carry out all of the administrative functions of the government. See N.J.S.A. 40:69A-40(c) and N.J.S.A. 40:69A-43. Newark maintains that in a Mayor-Council form a government, the Council has very limited authority over non-Council personnel and the few instances where Municipal Council approval over nonCouncil personnel decisions is required its power is clearly defined. For example, N.J.S.A. 40:69A-43(b) provides that each department shall be headed by a director, who shall be appointed by the Mayor with the advice and consent of the Council. Newark argues that if the Commission agrees with the interpretation of Council 21, that the Municipal Council needed to provide its advice and consent prior to any action of a Mayor, there would be no separation, and a Mayor would have no actual authority. However, the Mayor-Council scheme clearly does not support such an interpretation. See Faber v. Borough of Hawthorne, 365 N.J. Super. 54 (App. Div. 2003) (The court, relying on N.J.S.A. 40:69A-43(b) found that a Mayor was well within his or her power to unilaterally remove a municipal employee). Furthermore, Newark contends that even if the Municipal Council was required to consent to the layoff, it has approved the municipal budget which implements the layoff plan, and therefore, the Municipal Council has given its consent. Additionally, Council 21 was notified that in response to its appeal of the good faith of the layoff on behalf of all of its members, it was required to submit the names of each individual, along with the $20 appeal filing fee per individual appellant pursuant to Public Law 2010, Chapter 265, which provides that the Commission shall establish a $20 fee for each appeal filed under the provisions of subsection a or b of N.J.S.A. 11A:2-6, subsection e of N.J.S.A. 11A:4-1, N.J.S.A.

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Codified as N.J.S.A. 11A:4-1.1(d).

11A:8-4, and the rules promulgated thereunder. However, Council 21 argued that it should not be required to submit a $20 appeal fee for each member since the appeal is a single appeal filed on behalf of its members. In response, staff of the Division of Merit System Practices and Labor Relations informed Council 21 that it would accept Council 21's request for interim relief upon payment of a $20 fee, but that the matter of whether a fee would be required for each individual for the good faith appeal was still pending. Council 21 argues that the imposition of the fee is a violation of its members' due process right of access to the Civil Service appeals process. Specifically, it asserts that a $20,000 filing fee ($20 for each of its 1,000 members) is unconstitutional as it infringes upon its members' protected right to present grievances through representatives of their own choosing as well as established in law by demanding a clearly excessive fee for the processing of a "single layoff appeal" (emphasis in original). See N.J. Const. (1947), Art. I, Par. 19 (Provides public employees a right to organize and to present grievances and proposals through representatives of their own choosing). See also, N.J.A.C. 4A:2-1.1(e) (Provides that a party to an appeal may be represented by an attorney, authorized union representative or authorized appointing authority representative). It notes that the concept of "class action" appeals is a longstanding one accepted in federal and State law and that the Commission itself has a history of accepting "class action" appeals. See In the Matter of the City of Perth Amboy Layoff, supra. Moreover, it argues that in all other venues, the fee for filing a class action suit is the same as if there was only a single appellant and therefore, a single layoff appeal on behalf of a large group of members should require a single fee. In other words, "one docket number, one fee," is not only a common sense standard, but the practice required by law. In the instant matter, a single docket number was provided for this matter, which Council 21 argues demonstrates that this agency considers this matter a single appeal and therefore, should only be subject to a single $20 fee. Additionally, Council 21 argues that a $20,000 fee is not reasonable in that it inhibits access to an avenue of redress for its members. Moreover, Council 21 maintains that the assessment of $20,000 is a violation of its members' due process rights and a denial of equal protection to its members by denying them "fair access to the courts." In this regard, it claims that the recognition of fair access to the courts is reflected in the Legislature's provision in Public Law 2010, Chapter 26, which waives the fee for those appellants who are receiving public assistance and for veterans. Consequently, it is unreasonable and prohibitive to assess a $20,000 fee against it for filing a single appeal, which was accepted as a single appeal as evidenced by a single docket number. Further, Council 21 argues that the appeal fee is to help defray the processing of appeals and therefore, since this matter is a single layoff appeal, it should only be subject to a $20 assessment and any additional amount is exorbitant and as such denies access to the Civil Service process. It also contends that the only reason for charging a $20,000 fee is to discourage unions from appealing layoff actions, which is an illegal reason. Newark did not provide any arguments on the issue of fees. CONCLUSION

With regard to Newark's assertion that the instant request is untimely, it is initially noted that although there are no rules specifically on temporary layoffs, the Appellate Division in In the Matter of Emergency Temporary Layoff Rule, supra, found that a temporary layoff must proceed in accordance with Civil Service law and rules governing layoffs. N.J.S.A. 11A:8-4 and N.J.A.C. 4A:8-2.6(b) provide that an appeal from a layoff action must be filed within 20 days of final notice of such layoff. Therefore, the 20-day limit provided for in N.J.S.A. 11A:8-4 is also applicable in matters concerning temporary layoffs. This 20-day time limitation is jurisdictional and cannot be relaxed or waived. See In the Matter of Annemarie Krusznis (MSB, decided May 18, 2005) (Appellant's reliance on her attorney to file a timely good faith appeal of her layoff did not provide a basis to grant relief when the attorney never filed the appeal and the appellant subsequently filed an untimely appeal as the time limit was jurisdictional and could not be relaxed). See also, Borough of Park Ridge v. Salimone, 21 N.J. 28, 46 (1956); Mesghali v. Bayside State Prison, 334 N.J. Super. 617 (App. Div. 2000), cert. denied, 167 N.J. 630 (2001); Murphy v. Department of Civil Service, 155 N.J. Super. 491, 493 (App. Div. 1978). In the instant matter, Newark submits a certification from Michael Greene, the former Business Administrator, who indicates that all affected employees were personally served with their 45-day notices of the temporary layoffs on or about June 14, 2010 (for the initial temporary layoff days) and on or about August 20, 2010 (for the additional temporary layoff days) and that those notices clearly stated that employees had 20 days in which to file an appeal. Moreover, Council 21 failed to submit any arguments or documentation that disputes Newark's assertion. Therefore, since the record indicates that the affected employees personally received their 45-day notices of the initial temporary layoff on or about June 14, 2010, Council 21 would have had to submit its appeal on or before July 6, 2010. With regard to the additional temporary layoff days, since the record indicates that the affected employees personally received their 45-day notices of the additional temporary layoff days on or about August 20, 2010, Council 21 would have had to submit its appeal on or before September 9, 2010. A review of the record reveals that Council 21's request was not dated until September 13, 2010, which is beyond the 20-day time period for the June 14, 2010 notice. With regard to the August 20, 2010 notice, Council 21 has not disputed the appointing authority's representations or presented any evidence as to when the notices were received. Therefore, the appeal of the August 20, 2010 notice is also considered untimely. However, even though the instant request was not timely filed, the Commission will address Council 21's arguments for informational purposes. N.J.A.C. 4A:2-1.2(c) provides the following factors for consideration in evaluating petitions for interim relief: 1. Clear likelihood of success on the merits by the petitioner; 2. Danger of immediate or irreparable harm; 3. Absence of substantial injury to other parties; and 4. The public interest. N.J.S.A. 11A:8-4 and N.J.A.C. 4A:8-2.6(a)1 provide that good faith appeals may be filed based on a claim that the appointing authority laid off or demoted the employee in lieu of layoff for reasons other than economy, efficiency or other related reasons. When a municipality has abolished a position, there is a presumption of good faith and the burden is on the employee to show bad faith and that the action

taken was not for purposes of economy. Greco v. Smith, 40 N.J. Super. 182 (App. Div. 1956); Schnipper v. North Bergen Township, 13 N.J. Super. 11 (App. Div. 1951). As the Appellate Division further observed, "That there are considerations other than economy in the abolition of an office or position is of no consequence, if, in fact, the office or position is unnecessary, and can be abolished without impairing departmental efficiency." Schnipper, supra at 15. (emphasis added). Further, N.J.S.A. 11A:8-2(b), N.J.A.C. 4A:8-1.2(e) and N.J.A.C. 4A:8-1.3(c) provide that appointing authorities shall consult with affected negotiations representatives prior to offering alternatives to layoffs or implementing pre-layoff measures. N.J.S.A. 11A:8-3 and N.J.A.C. 4A:8-1.2(b) and (c) provide that appointing authorities should lessen the possibility of layoffs by considering voluntary alternatives, such as granting leaves of absence without pay to permanent employees without loss of seniority, granting voluntary furloughs, allowing a voluntary reduction of work hours, or providing employees with optional demotional title changes. N.J.S.A. 11A:8-2 and N.J.A.C. 4A:8-1.3(a) provide that an appointing authority shall lessen the possibility, extent or impact of layoffs by implementing pre-layoff actions, such as initiating a temporary hiring and/or promotion freeze, separating non-permanent employees, returning provisional employees to their permanent titles, reassigning employees, or assisting potentially affected employees in securing transfers or other employment. A review of the record does not evidence a clear likelihood of success on the merits by Council 21. Initially, in In the Matter of Department of Personnel Employees, supra, the Appellate Division upheld the ability of a Civil Service employer to impose temporary layoffs on its employees through the closure of an entire layoff unit. Such a temporary layoff must proceed in accordance with Civil Service law and rules governing layoffs. See also, In the Matter of Emergency Temporary Layoff Rule, supra; In the Matter of Temporary Layoffs, City of Newark and the Newark Public Library (CSC, decided October 7, 2009). In the instant matter, Council 21 argues that there is no legal basis for an appointing authority to implement a temporary layoff since N.J.A.C. 4A:8-1.1A was repealed. However, although N.J.A.C. 4A:8-1.1A was repealed, the Commission does not agree that there is no legal basis for the implementation of temporary layoffs. In this regard, N.J.A.C. 4A:8-1.1A essentially codified the Appellate Division's decision in In the Matter of Department of Personnel Employees, supra, which found that the complete shut-down of the Department of Personnel (DOP) to attain a $2,223,871 budget reduction was not made in bad faith nor did it violate any Civil Service law or rule. In so finding, the Appellate Division disagreed with the appellants that there was no statutory authority to implement the temporary layoffs. Specifically, it noted that Black's Law Dictionary defined a layoff as a termination of employment, which may be temporary. It also noted that N.J.S.A. 11A:8-1(a) provides that a "permanent employee may be laid off for economy, efficiency or other related reason" and that N.J.A.C. 4A:1-1.3 defines a layoff as "the separation of a permanent employee from employment for reasons of economy or efficiency or other related reasons and not for disciplinary reasons." Therefore, the Appellate Division determined that a layoff could encompass a temporary cessation of an employer's operations or temporary suspension of employment. Further, it found that since the entire department was shut down, the normal "layoff" rights of employees were not affected. Finally, the Appellate Division found that the DOP's

"failure" to exhaust all other means of reducing its deficit prior to initiating layoffs was not required by N.J.A.C. 4A:8-1.1 et seq. Rather, the regulations only require that the DOP consider other options prior to starting layoffs. Consequently, the Appellate Division determined that as long as the temporary shutdown was done in good faith for reasons of economy or efficiency, the DOP did not need to initially demonstrate that it had exhausted all other means of reducing expenditures. It is also noted that in In the Matter of Emergency Temporary Layoff Rule, supra, the Appellate Division upheld the validity of a temporary layoff of all employees in a layoff unit, subject to exemptions to ensure public health and safety. Therefore, even though N.J.A.C. 4A:8-1.1A has been repealed, that fact does not automatically invalidate the layoff plans of Newark. Rather, it must be determined whether the appointing authority is closing an entire layoff unit (i.e., department or agency), without any exemptions. Although Council 21 argues that the layoff unit should be "City Hall" rather than individual departments, the Commission does not agree. N.J.A.C. 4A:8-1.5(c) provides in pertinent part, that in local service, the layoff unit shall be a department in a county or municipality, an entire autonomous agency, or an entire school district. See also, N.J.S.A. 11A:81(c). Accordingly, City Hall would not be an "appropriate" layoff unit since several individual departments share space. In the instant matter, the layoff plans call for the closure of entire departments without any exemptions in those departments. Consequently, based on the statute, the current rules, N.J.A.C. 4A:8-1.1, et seq., and the Appellate Division's decision in In the Matter of Department of Personnel Employees, the temporary layoffs undertaken by Newark are appropriate. N.J.A.C. 4A:1-1.3 defines "appointing authority" as "a person or group of persons having power of appointment and removal." The Commission does not agree with Council 21's argument that the Mayor did not have the authority to implement the temporary layoffs without getting the "advice and consent" of the Municipal Council. Initially, as noted by the parties, Newark operates under a Mayor-Council Plan C form of government. Under the Faulkner Act, N.J.S.A. 40:69A-1, et seq., there is a separation of powers between the Council and the Mayor, with the executive power vested in the Mayor who is the chief executive and responsible for supervising the departments of the municipal government, except for those administrative functions vested in the offices of the municipal clerk. See N.J.S.A. 40:69A-32(b), N.J.S.A. 40:69A-40 and N.J.S.A. 40:69A-43(a). See also, Municipal Council v. James, supra. In James, the Court held that the Mayor rather than the City Council had the authority to negotiate and sign contracts for the City. Further, in describing the duties of the Mayor, the Faulkner Act clearly provides that the Mayor shall "supervise, direct and control all departments of the municipal government" and has the power to appoint the department heads which carry out all of the administrative functions of the government. See N.J.S.A. 40:69A-40(c) and N.J.S.A. 40:69A-43. Therefore, the Mayor can serve as the appointing authority for the entire City or he can delegate this to the business administrator (N.J.S.A. 40:69A-44) or for each department, the department head can serve as the appointing authority. Additionally, N.J.S.A. 40:69A-37.1 provides that the Mayor has significant powers regarding the control over the employees of the jurisdiction, however, N.J.S.A. 40:69A-36 provides that a Municipal Council only has control over its own employees. Despite Council 21's assertions, N.J.S.A. 40:69A-36 does not provide that the Mayor needed the consent of the Municipal

Council prior to implementing layoffs. Rather, N.J.S.A. 40:69A-36 merely articulates those powers that a Municipal Council may exercise by ordinance versus resolution. It does not give a Municipal Council the power to override the Executive Branch's decision to implement layoffs. Additionally, in a Mayor-Council form of government, the Council has very limited authority over non-Council personnel and the few instances where Municipal Council approval over non-Council personnel decisions is required, its power is clearly defined. For example, N.J.S.A. 40:69A-43(b) provides that each department shall be headed by a director, who shall be appointed by the Mayor with the advice and consent of the Council. Further, the Mayor-Council scheme clearly does not support the interpretation that the Municipal Council needs to provide its advice and consent prior to any action of a Mayor. See Faber v. Borough of Hawthorne, supra (The court, relying on N.J.S.A. 40:69A-43(b), found that a Mayor was well within his or her power to unilaterally remove a municipal employee). Consequently, if the Municipal Council does not have the authority necessary to fill a particular position or appoint a department head, then the Mayor may include those positions and/or departments in a temporary layoff. See In the Matter of Evelyn Laccitiello and Michelle Jones, City of Newark (CSC, decided October 7, 2009) (Commission found that since the Municipal Council had the authority to fill the position of City Clerk, the City Clerk must agree to be included in a temporary layoff. However, since the Municipal Council did not have the authority to fill the positions of Tax Assessor and Tax Collector, their agreement was not necessary to be included in the temporary layoff). Accordingly, the aforementioned statutory provisions provide the Mayor with the authority to implement a temporary layoff plan and thus, the approval of the Municipal Council was not required. However, even if the approval of the Municipal Council was required, Newark correctly notes that the Municipal Council's approval of the municipal budget indicates its tacit approval of the temporary layoffs. With regard to Council 21's arguments that the temporary layoffs improperly reduced its members' salaries to below the minimum set by ordinance, the Commission notes that In the Matter of Evelyn Laccitiello and Michelle Jones, supra, the appellants had argued that a proposed temporary layoff changed their salaries in violation of N.J.S.A. 40A:9-165 which provides, in part, that unless otherwise provided by law, a municipality shall fix and determine the salaries, wages or compensation to be paid to its officers and employees by ordinance and that "no such ordinance shall reduce the salary of, or deny without good cause an increase in salary given to all other municipal officers and employees to, any tax assessor, chief financial officer, tax collector or municipal clerk" during their appointed term. However, the Commission determined that the temporary layoff did not affect the appellants' base salaries which were set by any ordinance. The Commission finds that in the instant matter, the base salaries of Council 21's members have also not been changed by the temporary layoffs. Moreover, although Council 21 argues that the reduction of its members' hours and pay must be negotiated pursuant to PERC's determinations in In the Matter of Borough of Belmar and In the Matter of Mount Laurel, the Commission notes that the issue of negotiability is not pertinent to the instant matter. As stated by PERC in In the Matter of Borough of Belmar, supra at 20, "[t]he Civil Service Act

and the Employer-Employee Relations Act provide employees with separate and distinct rights." PERC has jurisdiction to determine whether the actions taken by Newark are negotiable, but that is separate and apart from the Civil Service Commission's jurisdiction to determine whether Newark's actions complied with Civil Service law and rules. Additionally, as PERC correctly noted in those decisions, under Civil Service law and rules, an appointing authority may temporarily lay off its employees, when as here, it closes an entire layoff unit. See In the Matter of Department of Personnel Employees, supra. With regard to Council 21's arguments that Newark's actions in implementing temporary layoffs are evidence of an attempt to circumvent the negotiations proceedings, again, it must file such a claim with PERC. Therefore, the Commission will not address these allegations. Council 21 also raises several other arguments concerning alleged procedural violations, i.e., that Newark failed to comply with its obligation to institute prelayoff actions, such as meeting with union representatives and that Newark and this agency failed to provide its members with lateral and/or demotional title rights determinations. However, the Commission finds these arguments without merit. Initially, it must be noted that Civil Service law and rules do not require negotiations with affected bargaining units prior to implementing a layoff. Rather, N.J.S.A. 11A:8-2(b), N.J.A.C. 4A:8-1.2(e) and N.J.A.C. 4A:8-1.3(c) require consultations with affected unions. The level of "consultation" contemplated by Civil Service law and rules governing layoffs does not require "negotiations" with affected collective bargaining units as that term is used in labor relations law. Rather, Civil Service law and rules contemplate that a meaningful discussion will occur between an appointing authority and affected negotiations representatives with a view toward avoiding a reduction in force altogether or lessening the impact of a proposed layoff on permanent employees and the provision of public services. Although Council 21 claims that Newark failed to provide it with detailed information regarding the layoffs, it does acknowledge that it met with Newark representatives to discuss the proposed temporary layoffs. Moreover, Council 21 does not dispute Newark's assertion that it discussed the proposed temporary layoffs in general terms. Rather, Council 21 simply reiterates that it was not provided with any detailed information. However, it was provided with an opportunity to submit alternatives to the proposed temporary layoffs. Compare, In the Matter of the City of Perth Amboy Layoff, supra. Thus, it is evident that Newark appropriately consulted with Council 21, as well as the other affected collective bargaining units, and the layoff plans submitted by Newark demonstrate that it considered and/or implemented the feasible pre-layoff actions and alternatives to the layoff. See In the Matter of County of Morris Layoff (Commissioner of Personnel, decided February 28, 2007). Additionally, the Commission notes that neither Newark nor this agency was required to provide employees with notices of lateral and/or demotional title rights, since only a permanent layoff would trigger those rights. See N.J.A.C. 4A:8-2.1, et seq. See also, In the Matter of Emergency Temporary Layoff Rule, supra. Moreover, Council 21 disputes the good faith of the temporary layoffs. In particular, Council 21 maintains that despite citing a massive fiscal shortfall as the reason for the temporary layoffs, Newark exempted thousands of public safety and non-public safety employees, continues to hire non-essential employees and fill vacancies, and raised salaries of non-affected employees. In support, it presents

numerous Executive Orders which it maintains are evidence of Newark's bad faith, as the orders record appointments, salary increases and creation of positions. However, a review of those Executive Orders reveals that many of the actions being recorded had taken place prior to the implementation of the hiring and promotional freezes, or the Orders recorded the creation of positions, which the record does not indicate were filled. Consequently, the mere fact that those Executive Orders were signed and filed during the period of temporary layoffs does not evidence bad faith, when the actions being recorded had occurred prior to the temporary layoffs. Additionally, the Commission does not agree with Council 21 that the exemption of public safety employees from the temporary layoffs is further evidence of bad faith. As previously noted, a temporary layoff requires the complete shutdown of an entire unit. There are legitimate public safety concerns which would preclude a municipality from completely closing its police, fire or other emergency departments on a particular day. Moreover, the Commission notes that although the public safety departments were exempt from the temporary layoffs, Newark has implemented permanent layoffs in the Police Department and after additional consultations, the number of personnel in the Fire Department was reduced through attrition instead of through layoffs. Furthermore, Newark asserts that it was facing a $70,000,000 budget shortfall which required the implementation of temporary layoffs and although Council 21 claims that there were more "modest means" to reduce the budget shortfall, it provided no specifics as to what those "means" were. Therefore, upon a thorough review of the record, there is no need to transmit these matters to the Office of Administrative Law for a hearing, and the denial of the stay serves as the final disposition of these appeals. Finally, the Commission notes that since it has determined that it is not necessary to transmit these matters to the Office of Administrative Law for a hearing, it is unnecessary to address the issue of the filing fee for good faith appeals for a temporary layoff. ORDER Therefore, it is ordered that the request for a stay and the appeal of the temporary layoffs be denied. This is the final administrative determination in this matter. Any further review should be pursued in a judicial forum.

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