H.E. NO. 92-20

STATE OF NEW JERSEY

BEFORE A HEARING EXAMINER OF THE

PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the Matter of

CITY OF NEWARK,

Respondent,

-and-	Docket No. CO-H-91-277

PBA LOCAL NO. 3,

Charging Party.

SYNOPSIS

A Hearing Examiner recommends that the Commission find the City of Newark committed an unfair practice when it sought to discipline certain Records and Identification (I.D.) Officers for failure to comply with the City's residency ordinance. The I.D. Officers did not believe the ordinance applied to them. They believed they were exempt from the ordinance, as are police officers. The residency ordinance has been in existence for 16 years and had never been enforced against the I.D. Officers nor have I.D. Officers ever been notified that the ordinance applied to them. Accordingly, the City's action established a practice exempting I.D. Officers from the residency ordinance. This practice could not be altered prior to negotiating with the I.D. Officers' majority representative, PBA Local 3.

Appearances:

For the Respondent, Oliver Cato and James E. Walker, Assistant Corporation Counsels

For the Charging Party, Zazzali, Zazzali, Fagella & Nowak, attorneys (Tanya E. Pushnack, of counsel)

HEARING EXAMINER'S REPORT

AND RECOMMENDED DECISION

On April 12, 1991, the Policemen's Benevolent Association Local #3 (PBA) filed an unfair practice charge with the Public Employment Relations Commission (Commission) alleging that the City of Newark Police Department (City) committed an unfair practice when it unilaterally changed a term and condition of employment by imposing a residency requirement on Records and Identification Officers (I.D. Officers) without first negotiating with the PBA. It

was claimed that this action constituted a violation of N.J.S.A. 34:13A-1 et seq, specifically 5.4(a)(1) and (5).1/

The unfair practice charge was accompanied by an Order to Show Cause seeking an interim restraint of the City's action. I conducted a hearing and issued an interim order restraining the City from enforcing the residency requirement upon I.D. Officers pending a final Commission decision. City of Newark, I.R. No. 91-21, 17 NJPER 298 (¶22130 1991). A complaint was issued on the charge and a hearing was held.2/

The PBA represents I.D. Officers employed by the City. The contract between the parties is silent as to the question of residency. On February 25, 1991 the City served preliminary notices of disciplinary charges on two I.D. Officers3/ employed by the City for failure to comply with the City's residency ordinance. The City claims that only police officers are exempted from its residency ordinance; I.D. Officers are not police officers and are subject to the ordinance. The PBA argues that the City neither

1/	These subsections prohibit public employers, their representatives or agents from: "(1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this act. (5) Refusing to negotiate in good faith with a majority representative of employees in an appropriate unit concerning terms and conditions of employment of employees in that unit, or refusing to process grievances presented by the majority representative."

2/	The record closed September 23, 1991.

3/	The charge alleges three I.D. Officers were served with notices.

implemented nor enforced its residency ordinance on I.D. Officers. Accordingly, an established practice within the meaning of subsections 5.3 and 5.4(a)(5) of the Act was created.

The City's current residency ordinance, R.O.2:14-1 was enacted in 1976. It provides that "All officers and employees of the City who shall hereafter become employees of the city (sic) are hereby required as a condition of their continued employment to have their place of abode in the city and to be bona fide residents therein, except as otherwise provided by the charter...".4/

N.J.S.A. 40A:9-1.5 grants public bodies the discretion to pass an ordinance requiring all officers and employees be bona fide residents unless otherwise provided by law.

N.J.S.A. 40A:14-122.1 prohibits a municipality from requiring police officers to maintain their residence within the municipality as a condition of employment. Accordingly, after police officers are hired they are exempt from the City's residency ordinance.

N.J.S.A. 40A:14-122 states that no one shall be appointed as a member of a police department unless (s)he qualifies for membership in the Police and Firemen's Retirement System of New Jersey pursuant to N.J.S.A. 43:16A-1(2)(a). This statute defines a policeman as one

4/	As can be seen, those who were City employees on the date of the enactment were exempt from this ordinance.

"...whose primary duties include the investigation, apprehension or detention of persons suspected or convicted of violating the criminal laws of the State and who:

(i)	is authorized to carry a firearm while engaged in the actual performance of his official duties;

(ii)	has police powers..."

There is no dispute that I.D. Officers are not police officers within the contemplation of 43:16A-1(2)(a); they do not carry guns and they lack specific statutory authorization to exercise police powers. Compare: City of Gloucester v. PERC, 107 N.J. Super. 150 (App. Div. 1969), aff'd 55 N.J. 333 (1975).

In City of Newark, D.R. No. 81-18, 7 NJPER 3 (¶12002, 1980) the Director found I.D. Officers "perform services which are integral to criminal detection". They perform police services and are included in the coverage of the police and fire officer interest arbitration statute, N.J.S.A. 34:13A-15.

Two Assistant Chief Identification Officers, Thomas Payne and Jesse Barr, are the subjects of the unfair practice charge. They both testified that they were residents of the City when first employed and knew they had to be residents to qualify for their jobs. However, neither was ever told they had to maintain their residency within the City. Both understood the residency requirements which applied to them was the same as for police officers and both moved out of the City. Prior to moving out of the City both submitted "recall" or change of address cards. Eight recall cards must be filled out whenever an employee of the Police Department moves. These cards go to the office of the Chief I.D.

Officer, to the Deputy Chief in charge of the division, to the Police Director's office, to Internal Affairs and to the City's personnel office. When they were hired they received the Newark Police Department Police Manual. They never received, nor were they ever informed that they would be subject to, the civilian manual. (The civilian manual includes the residency ordinance while the police manual does not.)

In February, 1991, both men received preliminary notices of discipline because they were not complying with the City's residency requirement.5/

Thomas DeMaio is the Chief I.D. Officer. He has held that position for ten years. He is the supervisor of I.D. Officers. It is his responsibility to ensure I.D. Officers comply with Police Department Rules and Regulations. DeMaio applies the Newark Police Department Rules and Regulations for police to the I.D. Officers. DeMaio testified that other non-police employees in his Department must comply with the Civilian Employee Rules of the Police Department, including those employees who wear uniforms, e.g. Communications Officers. DeMaio believed that I.D. Officers had the

5/	The record from the interim relief proceeding indicates that Barr and Payne were notified sometime in 1990 that they were eligible to sit for an upcoming examination for Assistant Chief I.D. Officer. They both sat for the exam and in November of 1990 were advised that they ranked two and three for appointment, respectively. The Department of Personnel issued certifications for the acting chief positions. Apparently the residency of Barr and Payne first came to the attention of the City when these promotions were processed.

same residency requirement as police officers; that is, they could move out of the City.

DeMaio has never been notified that I.D. Officers are required to reside in the City and never brought an I.D. officer up on charges because of their residency. He testified that I.D. Officer duties and treatment, at times, are the same as police officers. (He relates that on one occasion I.D. Officers were directed to "bring a gun with them to work.")

Stephen Patella is Deputy Chief of Police. The Newark Police Department manual for Civilian Employees was prepared when he was the captain in command of the Central Communications Bureau. Patella gave it to communications clerks, call takers and telephone operators. Patella believed that Chief DeMaio was given a copy of the Civilian Handbook for use in his bureau. However, he is not aware if the civilian handbook was distributed to I.D. Officers. He is aware that I.D. Officers are routinely issued copies of the Police manual when they are hired. Patella stated that I.D. Officers are not exempt from the residency requirement and was not aware that they were not complying with the ordinance. Patella never reviews address recall cards and testified that no one in the police department higher than the level of lieutenant reviews recall cards.

John D'Auria is the Personnel Director of the City of Newark. D'Auria testified that the residency ordinance applied to I.D. Officers. In 1988 he issued a memorandum on residency (R-4) to

"All Department Directors and Division Managers in the City and specifically to the police director.

The memorandum reviews the City's residency requirement and applies to "all officers and employees of the City hired after November 2, 1976, who are not otherwise exempt by state statute:

are required as a condition of their employment to be bona fide residents of the City of Newark.

Exception may be granted to permit an employee to remain in the employ of the City without complying with the residency requirement, where:

(a)	The health of any officer or employee necessitates residency outside of the City limits.

(b)	The nature of the employment is such as to require residency outside of the city limits.

(c)	The officer or employee possesses a special talent or technique which is necessary for the operation of the city government and which cannot be found among Newark residents justifying residence outside of the city limits.

Failure of any officers or employee (not otherwise exempt from the provisions of the law) to comply with the provision shall be cause for his removal or discharge from the city services."

The memo also reviews the procedure for requesting an exemption from the residency requirement. The request is to be made to the appropriate division director. In the case of the police department, the request goes to the police director who makes the final decision. There is no evidence that the memo was distributed to anyone in the police department other than the director.

ANALYSIS

The intent of the City was to apply the residency requirement to I.D. Officers. However none of the I.D. Officers, including their supervisor, Chief DeMaio, was aware that the residency requirement applied to them.

The City argues its residency ordinance is not negotiable because it is preempted by statute. It cites County of Hudson, P.E.R.C. No. 80-103, 6 NJPER 101 (@11052, 1980). In Hudson, the Commission recognized that a residency requirement is mandatorily negotiable. However, it found that N.J.S.A. 11:22-7 expressly established a residency requirement for all permanent Civil Service employees and preempts negotiations.

This analysis, although seemingly compelling, must fall. Title 11 has been repealed. See N.J.S.A. 11A:12-3. The successor statute, N.J.S.A. 11A:4-3, does not expressly establish a residency requirement and does not preempt negotiations.

N.J.S.A. 40A:9-1.3 et seq grants discretion to municipalities to adopt a residency requirement and subsection 1.7 grants discretion to a municipality to employ non-residents with special talent or skill. The City's ordinance tracks 1.7.6/

To the degree a statute is discretionary, it cannot preempt negotiations. State v. State Supervisory Assn., 78 N.J. 54 (1978); Bethlehem Tp. Bd.of Ed. v. Bethlehem Ed. Assn., 11 N.J. 38 (1982),

6/	A city ordinance cannot unilaterally preempt negotiations; only a specific state statute or regulation could do so. Tp. of Denville, P.E.R.C. No. 81-146, 7 NJPER 359 (¶12162, 1981).

University of Medicine & Dentistry, P.E.R.C. No. 85-106, 11 NJPER 290 (¶16105, 1985).

The contract between the PBA and the City is silent as to residency. The I.D. Officers believed the residency ordinance did not apply to them. They never received notice to the contrary. The City allowed this practice to continue for 15 years. Both Payne and Barr filled out recall cards notifying the City of their new addresses, yet no action was taken by the City. The ordinance allows for a general exception based upon the City's own evaluation of its needs. These employees could fall within this exception. I believe the City's failure to inform the I.D. officers of its intent, or otherwise monitor the ordinance, established a practice concerning a term and condition of employment. This practice cannot be altered by the City prior to good faith negotiations. Barnegat Tp. Bd. of Ed., P.E.R.C. No. 91-18, 16 NJPER 484 (¶21209 1990). City of Burlington, P.E.R.C. No. 89-132, 15 NJPER 417 (¶20170 1989), aff'd App. Div. Dkt. No. A-6485-88T2 (6/4/90); Denville Tp. See, State of New Jersey (Dept. of Corrections), P.E.R.C. No. 89-11, 15 NJPER 275 (¶29129 1989), aff'd 240 N.J. Super. 26 (App. Div. 1990) where the State claimed its regulations precluded a particular payment as overtime - held: the payment was made as vacation pay, was discretionary with State, and, therefore, created a binding established practice. Here the established practice of exempting I.D. Officers from the City's residency requirement cannot be altered without first negotiating such a change with the PBA.

Based upon the entire record, I make the following:

CONCLUSION OF LAW

The City of Newark violated N.J.S.A. 34:13A-5.4(a)(5) and derivatively (a)(1) by attempting to discipline Robert Payne and Jesse Barr.

RECOMMENDED ORDER

I recommend the Commission ORDER:

A.	The City of Newark cease and desist from:

Interfering with, restraining or coercing its employees in the exercising of the rights guaranteed to them by the Act, particularly by failing to negotiate with the PBA over the imposition of a residency requirement upon Records and Identification Officers.

B.	The City take the following action:

Rescind all disciplinary action against Assistant Chief Robert Payne and Assistant Chief Jesse Barr which arose out of their failure to comply with the City's residency ordinance.

Edmund G. Gerber

Hearing Examiner

Dated: February 5, 1992

Trenton, New Jersey