NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4309-12T2
ESSEX COUNTY CORRECTIONS OFFICERS PBA LOCAL NO. 382, NEW JERSEY STATE POLICEMEN'S BENEVOLENT ASSOCIATION, JOSEPH AMATO, and ANTHONY WIENERS,
Plaintiffs-Appellants, APPROVED FOR PUBLICATION
v. December 30, 2014
COUNTY OF ESSEX, a body politic APPELLATE DIVISION and corporate of the State of New Jersey, BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF ESSEX, a body politic and corporate of the State of New Jersey, EDUCATION AND HEALTH CENTERS OF AMERICA, INC., and COMMUNITY EDUCATION CENTERS, INC.,
Defendants-Respondents.
____________________________________________
Argued October 16, 2014 – Decided December 30, 2014
Before Judges Fuentes, Ashrafi, and O'Connor.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-646-13.
Robert A. Fagella argued the cause for appellants (Zazzali, Fagella, Nowak, Kleinbaum & Friedman, attorneys; Mr. Fagella, of counsel and on the brief; Colin M. Lynch and Flavio L. Komuves, on the brief). Ronald L. Israel argued the cause for respondents County of Essex and the Essex County Board of Chosen Freeholders (Wolff & Samson, P.C., attorneys; Arthur S. Goldstein, of counsel; Robert L. Hornby and Mauro G. Tucci, Jr., on the joint brief).
William Harla argued the cause for respondent Education and Health Centers of America, Inc. (DeCotiis, FitzPatrick & Cole, attorneys; Mr. Harla, on the joint brief).
Angelo J. Genova argued the cause for respondent Community Education Centers, Inc. (Genova Burns Giantomasi & Webster, L.L.C., attorneys; Mr. Genova, on the joint brief).
The opinion of the court was delivered by
ASHRAFI, J.A.D.
In this appeal, we consider whether Essex County can
lawfully contract for housing and treatment services for a large
population of its county jail inmates at two privately owned and
operated facilities, Delaney Hall and Logan Hall.
Plaintiffs allege that Essex County's contract for the
housing of inmates at those facilities is an unlawful
"privatization" of county jail operations. Defendants contend
that the County contracted for rehabilitative and similar inmate
treatment services at the two facilities, as it is authorized to
do. The trial court agreed with defendants and dismissed the
case.
2 A-4309-12T2 We conclude that plaintiffs did not prove by means of the
summary action they requested, see Rule 4:67, that Essex County
is in fact delegating to a private entity its core governmental
function of confining inmates apart from appropriate treatment
services. However, because of the public importance of the
issue, and in accordance with Rule 4:67-5, plaintiffs should
have the opportunity to pursue the matter as a plenary case and
to expand the record. We remand to the trial court and direct
that the matter be converted to a plenary action if plaintiffs
make such a request.
I.
Plaintiffs are the union and the local that represent Essex
County corrections officers, as well as the presidents of those
labor organizations. Defendants are Essex County and its Board
of Chosen Freeholders ("the County"), and also Education and
Health Centers of America, Inc. ("EHCA") and Community Education
Centers, Inc. ("CEC"), the private companies that provide the
disputed housing and other inmate services at Delaney and Logan
Halls.
In August 2012, plaintiffs filed a complaint alleging that
the current contract the County awarded to EHCA is an ultra
vires delegation of the County's statutory duty to confine and
maintain inmates — in other words, that the County acted without
3 A-4309-12T2 the legal authority that only the State Legislature can grant to
it. Plaintiffs sought a declaratory judgment and injunctive
relief prohibiting defendants from continuing the housing of
County inmates at Delaney and Logan Halls.
Together, those two facilities hold more than 1000 inmate
beds. They are operated by CEC, a for-profit company closely
associated with EHCA, which is the non-profit company that
entered into a publicly-bid contract with the County. The two
companies have separate boards of directors but share some of
the same executives and are owned by some of the same persons.
Plaintiffs requested that the court proceed by way of
summary proceedings under Rule 4:67. Both the County and the
defendant companies moved to dismiss the lawsuit. They asserted
that a county government has the authority to enter into such a
contract for inmate services and housing, and that, in this
case, the County has not delegated responsibility for confining
inmates to private entities because it retains control of its
inmates and oversees the operation of Delaney and Logan Halls.
Both sides in the litigation agreed that the matter could be
decided by the court as a matter of law without pre-trial
discovery and without a trial.
4 A-4309-12T2 The Assignment Judge for Essex County1 considered the
parties' submissions, heard argument, and decided by written
opinion and order dated April 30, 2013, that plaintiffs'
complaint does not state a claim upon which relief can be
granted and therefore must be dismissed. Initially, the court
agreed with defendants that the action should be treated as one
in lieu of prerogative writs pursuant to Rule 4:69. But the
court disagreed with defendants' assertion that the complaint
was untimely because it was filed some nine months after the
contract was awarded. See R. 4:69-6 (providing generally that
an action in lieu of prerogative writs shall be commenced within
forty-five days of its accrual but also permitting enlargement
of the time "where it is manifest that the interest of justice
so requires"). On the merits of plaintiffs' claims, the court
concluded that the County did not violate the law in entering
into the contract for private operation of alternative inmate
housing and services.
On appeal, plaintiffs contend the court erred as a matter
of law because of three related reasons: (1) the Legislature
placed authority and responsibility upon county government to
house jail inmates and granted no statutory authority for the
1 The Assignment Judge is the supervising judge of a trial court vicinage in New Jersey. See R. 1:33-2(b).
5 A-4309-12T2 County to contract for provision of those governmental functions
by a private entity; (2) the County's contractual arrangement is
preempted by the Legislature's detailed statutory scheme for
inmate substance abuse and other rehabilitation services; and
(3) the County may not delegate to a private entity the core
governmental function of "keeping" inmates in custody. Before
addressing these contentions, we will summarize the facts as
developed in the summary action.
II.
For more than twenty years, the County has contracted with
private entities to provide services for some of its inmates,
including housing at Delaney Hall since 2000. In 1990, the
County entered into a consent judgment in consolidated federal
lawsuits that alleged jail overcrowding and health and safety
deficiencies at the County jail. The consent judgment directed
the County to provide funding for a jail population management
program focused on pre-trial supervision and services and on
treatment of inmates who were substance abusers. Essex Cnty.
Jail Inmates v. Amato, Case Nos. 87-871, 82-1945 (D.N.J. Jan. 5,
1990). In the ensuing years, the County entered into successive
contracts for private operation of some jail services, at first
the management of a bail and pretrial release program for a
minimum of sixty inmates, and later, programs for inmate
6 A-4309-12T2 treatment services, which included the housing of the inmates
placed in the programs.
In March 2000, the freeholders awarded such a contract to
EHCA for a period of seven months at a cost of $3 million.
"Minimum security" inmates were to be eligible for the treatment
services. There was to be no "mingling" of those inmates with
other jail detainees. The contract required that EHCA provide
"treatment services" and "other services," including "laundry,
barber and mail . . . preventing walk-aways, maintaining order
and managing the resident Inmate population . . . establish[ing]
an Inmate work program, seasonal Inmate recreation and leisure
time programs and literacy training programs." EHCA implemented
the contract by housing approximately 255 inmates at Delaney
Hall, which is a privately-owned building located on Doremus
Avenue in Newark near the County jail.
In May 2006, the freeholders approved an amendment to the
EHCA contract to increase the maximum contract price to $15
million and to add Logan Hall as a residential facility for
inmates. Logan Hall is also a privately-owned facility, located
in another part of Newark. In 2008, the freeholders again
amended EHCA's contract, expanding its services and the maximum
contract price to $24 million per year for the next three years.
7 A-4309-12T2 The contract that is at issue in this appeal expanded yet
again the inmate housing and service programs provided by EHCA.
On October 19, 2011, the Department of Corrections publicly
advertised a Request for Proposal (RFP) seeking a vendor for the
"(1) provision of Alternative Incarceration/Residential
Treatment for certain inmates who otherwise would be
incarcerated at the Essex County Correctional Facilities and (2)
to house Immigration and Customs Enforcement (ICE) detainees."
The RFP called for a program of "comprehensive care of Essex
County prisoners, including assessment, treatment and substance
abuse services." It stated further: "These services shall
include, but not be limited to security operations, substance
abuse treatment, personality/risk assessment, education,
recreation, and life skills training." It specified that the
vendor should provide "at least 1,000 beds."
The RFP described the profile of potential inmates:
"inmates will comprise a cross-section of the general inmate
population and will be referred to residential [sic] based on
the custody level, offense of conviction or pre-trial offense at
the discretion of the Department of Corrections." The RFP also
directed that the vendor "shall be responsible for preventing
walk-aways, maintaining order and managing the population."
8 A-4309-12T2 EHCA was the only bidder for the public contract. It
proposed "to provide housing, medical and treatment services for
male and female adult, pre-adjudicated and sentenced County
inmates at the company's Delaney Hall and Logan Hall facilities
in Newark, New Jersey." With the approval of the State Office
of Purchasing, the County awarded the contract to EHCA on
December 14, 2011, for "a five (5) year period commencing
January 1, 2012 for the provision of the Services in an amount
not to exceed $129,785,750.00 for the first three (3) years;
subsequent years four (4) and five (5) [to] be calculated as
stated and agreed to in the memorandum of agreement" of the
parties. The County applied for and received substantial State
funding to pay the approximately $43 million maximum yearly cost
of the contract.
EHCA's bid for the contract stated that CEC would actually
provide the requested services through a subcontract with EHCA.
CEC and EHCA operate under a 1996 "Support Services Provider
Agreement," which has been amended in subsequent years through
2007. CEC is incorporated as a for-profit corporation under the
laws of Delaware and has its principal place of business in New
Jersey. EHCA's president formed CEC for the purpose of
operating halfway houses, other jail facilities, and inmate
treatment services. At the time of this action, CEC was
9 A-4309-12T2 operating such facilities and services in seventeen states. The
president of EHCA, Joseph J. Clancy, also serves as the chairman
and the chief executive officer of CEC. Several other
executives hold positions in both CEC and EHCA. Over the years,
CEC has received from EHCA all but two dollars of the $62 to $75
per diem rate of the County contracts for each inmate CEC housed
in its two facilities in Newark.
With respect to which inmates can be transferred to Delaney
and Logan Halls, the Essex County Department of Corrections has
formally established eligibility criteria. Generally, Essex
County inmates are eligible if they are designated minimum or
medium custody status and do not have federal or state-level
detainers lodged against them. Excluded from eligibility are
those inmates whose bail is set higher than $100,000 and those
charged with murder, kidnapping, escape, sexual assault,
carjacking, endangering the welfare of a child, or arson.
The security features of Delaney and Logan Halls include
"360 degrees . . . perimeter security barrier" monitored by
closed-circuit television.
Entrance to the facility is closely monitored by staff and can only be accomplished through the Guard House that leads into a sally port, which is monitored by camera and by a manned 24-hour central office. All windows are sealed and the safety glass/laminate combination has been tested to ensure its ability to withstand
10 A-4309-12T2 breakage attempts using objects such as rocks and hammers.
CEC has directors, managers, and supervisors to operate the two
facilities and hires "counselors" to provide inmate services and
to oversee the inmates as the functional equivalent of
corrections officers.
The County contends it supervises the operations of Delaney
and Logan Halls on a daily basis. The County's Department of
Corrections issued a memorandum in August 2012 directing shift
commanders at the County jail to assign a senior officer each
day on each shift "to tour" and "to inspect" the living areas of
the two facilities. Nevertheless, plaintiffs allege that many
security breaches and disruptions have occurred at the two
facilities. They allege that CEC's counselors receive a low
rate of pay and are not adequately trained as corrections
officers. In sum, plaintiffs argue the contract illegally
delegated to private entities the "core governmental function"
of confining and maintaining inmates and the County abdicated
its own responsibilities and duties.
III.
The parties dispute whether the Legislature has authorized
county governments to enter into a private contract such as the
one in this case. Plaintiffs argue there is no statutory
authority affirmatively granting the County the power to
11 A-4309-12T2 delegate operation and control of jail facilities to private
companies, and so, the County does not have such power.
Defendants respond that the County has broad power to execute
its duties, and there is no statutory authority prohibiting
county government from contracting with a private company to
provide inmate services.
Our Supreme Court has stated that "the county is a creature
of the State. Its existence and powers depend upon the
Legislature's determinations. It is subject to the dominion of
the Legislature." Clark v. Degnan, 83 N.J. 393, 400 (1980).
Consequently, a county may "exercise only such powers as may be
granted to it by the Legislature." Borough of Pittman v.
Skokowski, 193 N.J. Super. 215, 220 (App. Div. 1984) (citing
City of Camden v. Byrne, 82 N.J. 133, 157 (1980)).
The Legislature has enacted statutes that address the
management and operation of county detention and penal
facilities. See N.J.S.A. 30:8-1 to -69. Plaintiffs claim these
statutory provisions grant no authority to the County to enter
into a contract for the private operation of inmate confinement
services. Specifically, plaintiffs contend the sheriff of a
county is responsible for operating county jails and must "keep"
all county inmates in such government controlled facilities.
12 A-4309-12T2 See N.J.S.A. 30:8-17.2 The statutes also authorize a county
board of chosen freeholders to take over the responsibility for
the confinement of inmates. N.J.S.A. 30:8-19.3 Where, as in
this case, the freeholders have undertaken that responsibility,
they must appoint a "keeper" or "warden" to be responsible for
the confinement of inmates. See N.J.S.A. 30:8-22.4 Plaintiffs
contend these statutory provisions direct that control and
custody of inmates "lies solely and exclusively with the County,
its designated Warden and no one else."
Defendants respond that N.J.S.A. 30:8-19 must be read in
conjunction with N.J.S.A. 30:8-235 and Article IV, section VII,
2 N.J.S.A. 30:8-17 provides: "Except as otherwise in this chapter provided the sheriff of every county shall have the care, custody and control of the county jail or jails and all prisoners therein, and shall be responsible for the conduct of any keeper appointed by him." 3 N.J.S.A. 30:8-19 provides: "It shall be lawful for the board of chosen freeholders of any county in this state to assume and thereafter to exercise the custody, rule, keeping and charge of the county jails in their respective counties, and of the prisoners therein . . . ." 4 N.J.S.A. 30:8-22 provides: "All persons committed to a county jail which has been taken over by the board of chosen free- holders . . . shall be delivered to the keeper or warden of such jail and by him held in custody until discharged by due process of law." 5 N.J.S.A. 30:8-23 provides: "the board of chosen freeholders . . . shall prescribe rules and regulations for the management and conduct of such jail, and the employment, maintenance and keeping of the prisoners therein . . . ."
13 A-4309-12T2 paragraph 11 of the New Jersey Constitution,6 and that these laws
permit the freeholders to provide inmate services and related
housing by means of a contract with a private entity. They urge
affirmance of the trial court's decision that the County has
"broad authority . . . to oversee and manage county correctional
facilities" and that "[i]mplicitly and necessarily, this grant
of authority includes the ability to procure the services needed
to execute it."
Legislative intent is the "paramount goal when interpreting
a statute and, generally, the best indicator of that intent is
the statutory language." DiProspero v. Penn, 183 N.J. 477, 492
(2005). Courts must "ascribe to the statutory words their
ordinary meaning and significance, and read them in context with
related provisions so as to give sense to the legislation as a
whole." Ibid. (internal citations omitted). A court's "task
requires that every effort be made to find vitality in the
chosen language." In re Civil Commitment of J.M.B., 197 N.J.
563, 573, cert. denied, 558 U.S. 999, 130 S. Ct. 509, 175 L. Ed.
6 N.J. Const. art. IV, §VII, ¶ 11 provides that the State Constitution shall be "liberally construed" in favor of counties with respect to any laws concerning them, and also states that "[t]he powers of counties . . . shall include not only those granted in express terms but also those of necessary or fair implication, or incident to the powers expressly conferred . . . ."
14 A-4309-12T2 2d 361 (2009). A court should not "resort to extrinsic
interpretive aids when the statutory language is clear and
unambiguous, and susceptible to only one interpretation . . . ."
DiProspero, supra, 183 N.J. at 492 (internal citations and
quotation marks omitted).
We do not read the language of the cited statutes and
constitutional provision as susceptible to only one
interpretation. The statutes do not state expressly one way or
the other whether a county may delegate to a private entity the
responsibility for confining county inmates and providing inmate
services to them. Cf. State, Comm'r of Health v. Bd. of Health
of the Twp. of Morris, 208 N.J. Super. 415, 417-18 (App. Div.)
(statute requiring municipality to hire full-time health officer
was clear in its language and did not permit contracting of
health officer's duties to a private entity), appeal dismissed,
107 N.J. 50 (1986).
Both sides in this dispute offer reasonable interpretations
of the cited statutes and constitutional provision. Therefore,
we must look beyond those provisions to resolve the dispute.
IV.
In a related argument, plaintiffs contend that, even if the
statutes do not expressly prohibit the disputed contract, the
Legislature has preempted the field of inmate confinement and
15 A-4309-12T2 services and thus the County may not do what the Legislature has
not specifically authorized in the statutes. Plaintiffs argue
the Legislature intended to regulate county jail operations
comprehensively through N.J.S.A. 30:8-1 through -69, and there
is no room for the County to deviate from the express terms of
those statutes.
Local action is preempted when the Legislature intended
"its own actions, whether it exhausts the field or touches only
part of it, to be exclusive." Mack Paramus Co. v. Mayor &
Council of Paramus, 103 N.J. 564, 573 (1986) (internal quotation
marks and citation omitted). "The ultimate question is whether,
upon a survey of all the interests involved in the subject, it
can be said with confidence that the Legislature intended to
immobilize the [local governments] from dealing with local
aspects otherwise within their power to act." Summer v. Twp. of
Teaneck, 53 N.J. 548, 555 (1969).
To determine whether the Legislature intended to preempt a
particular field, courts must make the following inquiries:
1. Does the [local governmental action] conflict with state law, either because of conflicting policies or operational effect (that is, does the [local action] forbid what the Legislature has permitted or does [it] permit what the Legislature has forbidden)?
2. Was the state law intended, expressly or impliedly, to be exclusive in the field?
16 A-4309-12T2 3. Does the subject matter reflect a need for uniformity?
4. Is the state scheme so pervasive or comprehensive that it precludes coexistence of [local] regulation?
5. Does the [local action] stand "as an obstacle to the accomplishment and execution of the full purposes and objectives" of the Legislature?
[Overlook Terrace Mgmt. Corp. v. Rent Control Bd. of W. New York, 71 N.J. 451, 461-62 (1976) (internal citations omitted).]
Applying these tests, defendants dispute that the
Legislature intended to preempt the field of operating county
inmate facilities. They point to N.J.S.A. 30:8-16.17 and -16.28
7 N.J.S.A. 30:8-16.1 provides:
It shall be lawful for the board of chosen freeholders of any county in this State to establish and maintain facilities to provide services for therapy for drug addicts or users while confined to the jail, workhouse or penitentiary of any such county. It shall also be lawful for such board to provide therapy for such drug addicts or users after discharge from the jail, workhouse or penitentiary. Such facilities may be provided as a part of the jail, workhouse or penitentiary, and at such other locations as the board shall determine. It shall also be lawful for such board to contract with any municipality or any other county to provide such needed facilities and services, and to pay the whole or any part of the cost of such facilities under such contract. Each board of chosen freeholders (continued)
17 A-4309-12T2 to support their argument that the Legislature left room for
county government to act independently and in accordance with
individual county needs. Those statutes grant a county the
discretion to provide alcohol and drug abuse counseling for
inmates outside the operations of the county itself, but they
make no specific reference to private contracting for those
rehabilitative services.
More generally, defendants rely on N.J.S.A. 30:8-16.4,
which provides for cooperation between the State and counties in
distinguishing between violent inmates and those non-violent
inmates that can be "dealt with more effectively in county
correctional facilities and programs." The statute makes
reference to a State "financial assistance program for the
(continued) is authorized to appropriate and expend the moneys necessary to carry out the purposes of this act. 8 N.J.S.A. 30:8-16.2 provides:
It shall be lawful for any board of chosen freeholders in this State to erect and maintain as a part of its jail, workhouse or penitentiary, a suitable building, buildings or additions for the treatment, while confined in such jail, workhouse or penitentiary, of inmates having a history of alcoholism; such board shall have power to appropriate and expend the moneys necessary in its judgment for such purpose.
18 A-4309-12T2 construction and renovation of county correctional facilities"
and to "viable alternatives to State confinement." N.J.S.A.
30:8-16.4.
These statutes do not expressly authorize contracting with
a private entity for the provision of substance abuse, rehabili-
tation, and related services, but defendants contend they
contradict a legislative intent to preempt the field of inmate
services. Defendants emphasize a twenty-year history of the
County providing inmate services through private contracts and
also an established practice of confining County inmates at
Delaney and Logan Halls. They also cite N.J.A.C. 10A:31-26.1(b)
and (c) as regulatory authority for counties to contract with
outside vendors to provide "[d]rug and alcohol addiction
counseling," "[f]amily counseling," "[c]risis intervention," and
"[v]ocational counseling."
We agree with defendants that these statutes and
regulations indicate that the Legislature did not intend "its
own [legislative] actions" pertinent to county correctional
institutions "to be exclusive" of local decisions regarding how
to provide certain inmate services. See Mack Paramus, supra,
103 N.J. at 573. "[A]n intent to occupy the field must appear
clearly." Summer, supra, 53 N.J. at 554 (citing Kennedy v. City
of Newark, 29 N.J. 178, 187 (1959)). Here, the Legislature
19 A-4309-12T2 granted authority to county governments to devise means and
methods to provide inmate rehabilitative and similar services.
It did not preempt the action of counties in devising innovative
ways to provide those services.
We conclude the doctrine of preemption does not prohibit
the County from contracting with private entities for inmate
rehabilitation and similar treatment services. Contrary to
plaintiffs' contention, we further conclude that the County is
not restricted by statute to providing such services within the
County's own facilities. Since the housing of inmates who
receive rehabilitative and similar services may be necessary in
conjunction with providing those services, we conclude that the
statutes upon which plaintiffs rely neither prohibit nor preempt
the County from confining inmates who are in need of and
receiving rehabilitative and similar services in private
facilities such as Delaney and Logan Halls.
V.
Also with respect to inmate treatment services, plaintiffs
contended in the trial court that the disputed contract violates
N.J.S.A. 30:4-91.2,9 which limits to non-profit entities any
9 N.J.S.A. 30:4-91.2 provides:
The commissioner [of the State Department of Corrections] or his duly authorized agent, (continued)
20 A-4309-12T2 private contract for the provision of inmate treatment services
that includes confinement. Plaintiffs contended that the
contract awarded to EHCA does not comply with that statute
because Delaney and Logan Halls are operated by a profit-making
entity, CEC.
N.J.S.A. 30:4-91.2, however, applies to the State
Department of Corrections and not to county governments or
jails. On appeal, plaintiffs have not repeated their claim that
the statute applies literally in this case to prohibit the
County's disputed 2011 contract. Instead, they contend the
statute renders untenable the claim that the County is permitted
to contract, in effect, with a for-profit entity such as CEC.
Plaintiffs question how the County could exercise greater
(continued) may designate as a place of confinement any available, suitable, and appropriate institution or facility whether owned by the State or otherwise, and may at any time transfer a person from one place of confinement to another.
The word "facility" shall include private nonprofit community-based residential treatment centers which provide for the care, custody, subsistence, education, training and welfare of inmates.
Any such private nonprofit community-based residential treatment center must be certified annually by the commissioner as a secure and appropriately supervised place of confinement.
21 A-4309-12T2 authority to transfer custody and care of its inmates to a
private profit-making entity when the State is prohibited from
doing so with its inmates.
Defendants respond that the State Department of Corrections
and the State Office of Purchasing have consistently approved
its contracts with EHCA, with full knowledge that inmates are
confined at Delaney and Logan Halls and that EHCA subcontracts
with CEC to operate those facilities.
We agree with defendants that N.J.S.A. 30:4-91.2 is not
applicable to the disputed contract. We cannot discern in a
statute directed to the operations of State correctional
facilities a legislative intent to apply the same controls to
correctional facilities and inmates under the jurisdiction of
county government. We decline to apply N.J.S.A. 30:4-91.2
beyond its express terms.
VI.
Plaintiffs dispute that the purpose of Delaney and Logan
Halls is to provide inmate rehabilitative and similar services.
In the trial court, all parties agreed to proceed summarily, and
they represented that the essential facts in this case are
undisputed for the purposes of the court's legal decision with
respect to the County's authority. But the two sides differ
22 A-4309-12T2 significantly in their characterization of the services provided
by EHCA and CEC.
Plaintiffs contend the disputed 2011 contract is
essentially for alternative jail facilities and that the primary
function of EHCA and CEC is to confine a large population of
County inmates. They contend CEC does not offer substance abuse
and rehabilitative services to all the inmates housed at Delaney
and Logan Halls but mainly performs the County's function of
housing and guarding inmates in those facilities. Plaintiffs
assert that the County's reference to "residential inmate
treatment services" is a euphemism for the operation of a
privatized jail to confine a large percentage of County jail
inmates without regard to their need for rehabilitative or
related services.
Plaintiffs concede that ancillary services for inmates,
such as provision of food, medical care, and transportation, may
be accomplished through private contracts. They distinguish
those services from the "core governmental function" of
confining inmates. They contend the scope and actual effect of
the disputed 2011 contract is an abdication of the County's
responsibility to confine and sustain its inmates and,
therefore, is a violation of the non-delegation doctrine.
23 A-4309-12T2 The non-delegation doctrine is grounded in "state and
federal doctrines of substantive due process . . . ."
Ridgefield Park Ed. Ass'n v. Ridgefield Park Bd. of Ed., 78 N.J.
144, 163 (1978). "[P]ublic officials [are] charged with
governmental responsibility they cannot lawfully abdicate or
bargain away." Rutgers, State Univ. v. Rutgers Council of AAUP
Chapters, 256 N.J. Super. 104, 115 (App. Div. 1992), aff'd, 131
N.J. 118 (1993) (internal quotation marks omitted).
"The general rule is that a power or duty delegated by
statute to an administrative agency cannot be subdelegated in
the absence of any indication that the legislature so intends."
Mercer Council #4 v. Alloway, 119 N.J. Super. 94, 99 (App.
Div.), aff'd, 61 N.J. 516 (1972). "To be constitutionally
sustainable, a delegation must be narrowly limited, reasonable,
and surrounded with stringent safeguards to protect against the
possibility of arbitrary or self-serving action detrimental to
third parties or the public good generally." Ridgefield Park,
supra, 78 N.J. at 163-64; accord Paterson Police PBA Local #1 v.
City of Paterson, 87 N.J. 78, 94 (1981).
Defendants argue that the non-delegation doctrine applies
to "governmental policymaking power," Ridgefield Park, supra, 78
N.J. at 163, not to routine administrative and operational
functions of government. We disagree that the non-delegation
24 A-4309-12T2 doctrine is so limited. The doctrine also applies to functions
that are traditionally the core operational duty of government.
Courts have found certain functions to be central to the
purposes and duties of government, and those functions cannot be
delegated to private entities without express legislative or
constitutional authority. See 515 Assocs. v. City of Newark,
132 N.J. 180, 188 (1993) (law enforcement and protective
functions of the police); Prudential Ins. Co. v. U.S. Gypsum
Co., 991 F.2d 1080, 1086 (3d Cir. 1993) (adjudicatory
responsibility of the courts); Skehan v. State Sys. of Higher
Educ., 815 F.2d 244, 248 (3d Cir. 1987) (public education); see
also Johnson v. DOT, 98 P.3d 773, 778 (Utah Ct. App. 2004)
(listing examples of "nondelegable [core] functions and powers"
of government under Utah law), aff'd, 133 P.3d 402 (Utah 2006).
Even functions that are less evidently part of the core
powers and duties of government have been held to require
legislative authority before a local government may delegate
them to private entities. Compare Reid Dev. Corp. v. Twp. of
Parsippany-Troy Hills, 10 N.J. 229, 233 (1952) (discussing the
functions of local government in providing a public water
supply), with N.J.S.A. 40:62-96 (permitting private contracts to
construct and operate water systems). See also Eckert v. Town
of W. Orange, 90 N.J.L. 545, 548 (E. & A. 1917) (holding that a
25 A-4309-12T2 municipality was under no obligation to collect and dispose of
garbage from private properties); N.J.S.A. 40:66-4 (permitting
municipalities to enter into private contracts for street
cleaning and garbage collection).
Here, plaintiffs make a strong argument that the confining
of inmates, and the concomitant responsibility for their welfare
and the security of the public, is a core governmental function
that must be performed by the designated governmental agency,
unless the Legislature has expressly permitted its delegation to
private entities. We agree and so hold.
VII.
We cannot conclude, however, on the record presented in the
summary proceedings that the County has in fact delegated the
core governmental function of confining County inmates to EHCA
and CEC. The issue that the summary record does not
satisfactorily resolve in favor of either party is whether
Delaney and Logan Halls are being utilized for the permitted
purposes of providing substance abuse, rehabilitative, and
similar services to inmates, or whether they are merely
alternative jail facilities for the incarceration of County
inmates.
Throughout their joint brief in this appeal, defendants
describe the function of the disputed contract and Delaney and
26 A-4309-12T2 Logan Halls as providing "residential inmate treatment services"
rather than merely confining inmates. They point to the history
of "the treatment program at issue" and describe the disputed
contract in terms of "a residential inmate treatment program as
an alternative to traditional incarceration."
That description is further supported by CEC's website,
which is included in the summary record and states: "Delaney
Hall provides residential reentry treatment services for several
referring sources and its goal is to reduce offender
recidivism." Delaney Hall, Cmty. Educ. Ctrs. Inc., http://www.
cecintl.com/facilities_rr_nj_006.html (last visited Dec. 11,
2014). The website adds:
Delaney Hall treatment services include assessments, substance abuse treatment, life skills training, individual and group counseling, relapse prevention, anger management, and education and GED services.
. . . .
The Family Services program at Delaney Hall serves to reunite residents with their families through controlled and therapeutic settings and activities.
[Ibid.]
The website describes similar inmate services provided at Logan
Hall, adding that "[t]he services . . . focus on life skills to
give residents the opportunity to reenter society in a
productive manner." Logan Hall, Cmty. Educ. Ctrs. Inc.,
27 A-4309-12T2 http://www.cecintl.com/facilities_rr_nj_005.html (last visited
Dec. 11, 2014).
As defendants describe the history of the contracts with
EHCA, the services provided in the initial contracts beginning
in 2000 were "predominantly for those who have drug or alcohol
abuse problems." Defendants list the County resolutions over
the years that expanded the services under EHCA contracts but
continued to describe them as "residential treatment programs."
Furthermore, defendants contend that the County maintains
oversight and supervision of Delaney and Logan Halls. They
point to the inspections of those facilities that senior county
corrections officers must conduct on every shift every day, and
they emphasize the County's determination of who is eligible to
be transferred to those facilities. Defendants add that the
County retains responsibility for transportation of inmates, and
that the disputed contract requires CEC to report any
significant event at the facilities that may require County
oversight or disciplinary action against an inmate. They
contend that inmate discipline is determined by the County and
not by CEC or EHCA.
Defendants emphasize that the State Department of
Corrections not only approved the inmate treatment services at
Delaney and Logan Halls but, in 2012, approved $18 million in
28 A-4309-12T2 State aid for that year to implement the programs under the
disputed contract. According to defendants, the State funding
is a far cry from the State prohibiting or preempting the
County's delegation of such services to private entities. Thus,
defendants contend that the function and primary purpose of the
disputed contract is not to provide substitute, privately-
operated jails, but instead to provide necessary substance
abuse, rehabilitative, and similar treatment services for
Plaintiffs reply by pointing to the 2007 description of the
services provided under the EHCA contract — "alternative
incarceration/residential treatment" — significantly adding
"alternative incarceration" to the prior description of the
contracted services. The modified description was carried over
into the disputed 2011 RFP and the resulting contract with EHCA.
Plaintiffs argue that the emphasis now is on "alternative
incarceration," and they point to the large number of inmates
that are housed in Delaney and Logan Halls and the absence of an
eligibility criterion that designates an inmate's need for
substance abuse or other rehabilitative services.
While plaintiffs' evidence is informative, and their
argument potentially persuasive, they did not produce sufficient
proofs in this summary action that the County has in fact
29 A-4309-12T2 contracted for the private operation of its inmate confinement
duties rather than for necessary services for its inmates. On
this record, we cannot conclude that Delaney and Logan Halls
constitute privately run jails and not distinct correctional
facilities that combine authorized inmate rehabilitative and
similar services with the need to maintain those inmates in
confinement.
Plaintiffs requested that the matter proceed as a summary
action under Rule 4:67, without discovery of evidence and
without a trial. But the matter is of vital importance to the
County, to inmates, to plaintiffs and the private-party
defendants, and to the public generally. The current five-year
contract will expire at the end of 2016, and the County may
choose to advertise for another similar contract and to continue
the operation of Delaney and Logan Halls in the same manner.
The parties and the public are entitled to a definitive decision
on the issue of whether the private contracts are lawful, and
such a decision should be based on an adequate evidentiary
record. Therefore, we think it appropriate to remand to the
trial court to consider our discussion of the issues and our
holdings, and to explore with the parties whether they wish to
conduct discovery and to proceed in a plenary action, including
a trial if necessary. See Rule 4:67-5.
30 A-4309-12T2 Reversed and remanded for further proceedings consistent
with this opinion. We do not retain jurisdiction.
31 A-4309-12T2