NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-6095-11T3
NEW JERSEY STATE (DIVISION OF STATE POLICE), APPROVED FOR PUBLICATION
June 8, 2015 Appellant, APPELLATE DIVISION v.
NEW JERSEY STATE TROOPER CAPTAINS ASSOCIATION,
Respondent. ___________________________________________
Argued October 8, 2014 – Decided June 8, 2015
Before Judges Fuentes, Ashrafi and Kennedy.
On appeal from the New Jersey Public Employment Relations Commission, Docket No. RO-2006-087.
Steven W. Suflas argued the cause for appellant (Ballard Spahr, attorneys; Mr. Suflas and William K. Kennedy, on the briefs).
Marcia J. Mitolo argued the cause for respondent (Limsky Mitolo, attorneys; Ms. Mitolo, of counsel and on the brief).
Don Horowitz, Acting General Counsel, attorney for respondent New Jersey Public Employment Relations Commission (Mary E. Hennessy-Shotter, Deputy General Counsel, on the statement in lieu of brief).
The opinion of the court was delivered by
KENNEDY, J.A.D. The State of New Jersey, Division of State Police
(Division), appeals a New Jersey Public Employment Relations
Commission (PERC) determination that, with some exceptions,
State Police captains are not "managerial executives" as that
term is defined in N.J.S.A. 34:13A-3(f), and therefore are
eligible to join collective negotiations units. The Division
argues, among other things, that the PERC determination violates
the plain language of the statute; uses a flawed "two-pronged"
analysis in reaching its conclusion; and contravenes public
policy. We have considered these arguments in light of the law
and the record, and we affirm.
1. Background.
In June 2006, the New Jersey State Troopers Captains
Association (Association) filed a petition with PERC in which it
sought to represent a collective negotiations unit of captains
employed by the Division. The Division opposed the petition and
asserted that captains are managerial executives or confidential
employees ineligible for inclusion in any negotiations unit
under the New Jersey Employer-Employee Relations Act, N.J.S.A.
34:13A-1 to -39 (the Act). After thirteen days of hearings, the
record was closed on May 8, 2008, and the hearing officer
subsequently issued her report and findings in which she held
that, with some exceptions, captains are neither managerial
2 A-6095-11T3 executives nor confidential employees as defined by the statute
in force at that time, and therefore are eligible for inclusion
in an appropriate negotiations unit.
PERC adopted, with some modifications, the hearing
officer's report and decision. The Division filed an appeal,
but moved for a remand to PERC after the Legislature amended
N.J.S.A. 34:13A-3(f) on January 8, 2010. We granted the State's
motion and did not retain jurisdiction.
The hearing officer then held five additional days of
hearings, following which she recommended that most captains are
eligible for representation because their responsibilities and
their role in creating policy for the Division placed them at a
level below that of an "assistant commissioner" under the
amended version of the statute. On January 28, 2012, PERC
adopted the hearing officer's report and recommendations, with
certain exceptions, and remanded the case to the Deputy Director
of Representation to determine whether a majority of the
eligible captains want to be represented by the Association. On
September 5, 2012, the deputy director issued an order
designating the Association as the exclusive agent for
collective negotiations on behalf of the eligible captains.
This appeal followed.
3 A-6095-11T3 2. The Facts.
The facts attendant upon this appeal are largely
undisputed. What follows is a brief summary of the salient
facts pertinent to the appeal. The Executive Branch of the
State is comprised of fifteen principal departments and numerous
independent agencies, boards, and commissions. The Division is
a part of the New Jersey Department of Law and Public Safety and
its core mission is to protect the public by investigating and
preventing crimes, apprehending offenders, and providing
homeland security. It is a paramilitary organization with a
strict hierarchical structure that identifies its command
officers through the use of military titles.
The head of the Division is the superintendent who holds
the rank of colonel. The superintendent occupies a cabinet-
level position and reports to the Attorney General and the
Governor, and is responsible for the overall functioning of the
Division. Two lieutenant colonels and three deputy
superintendents occupy the next rung in the organization, and
they report directly to the superintendent.
The Division is organized into four branches:
administration, investigations, field operations, and homeland
security; there is also the office of the chief of staff, which
is essentially a fifth branch. Those five branches are each led
4 A-6095-11T3 by one of the two lieutenant colonels and three deputy
superintendents.
The branches are, in turn, subdivided into sections
supervised by majors who occupy the third tier in the leadership
hierarchy. Sections are organizational units that are charged
with various responsibilities within a branch. For example, the
intelligence branch has a section focused upon "special
investigations" and the administrative branch has sections for
information technology and human resources management. Sections
are then divided into bureaus and offices which are supervised
by captains.
Most captains are circumscribed by the "chain of command"
and are expected to communicate only with their immediate
supervisors, as well as their subordinates, in carrying out
their police functions. However, some captains are designated
as "executive officers" and function as section supervisors,
generally exercising greater authority than "regular" captains.
For instance, these captains often act as intermediaries between
other captains and their commanding majors, and interact more
frequently with higher-tiered officers than other captains,
often being tasked directly with formulating policies and
procedures for the Division.
5 A-6095-11T3 Captains are expected to "guide" their subordinates and to
administer the "day to day duties of their commands." They are
also responsible for evaluating the performance of officers
under their command and to make recommendations on personnel
decisions.
In August 2006, the superintendent instructed each bureau
to develop a strategic plan setting forth the bureau's long-term
goals and operational objectives, its projected workload, its
staffing requirements, and any anticipated capital improvements
or equipment requirements. Although, in some cases, a strategic
plan submitted to the supervising major by a bureau captain
would be approved without significant changes, the plans were
generally mutable and were subject to review and revision every
six months.
In addition, the superintendent conducted monthly
management accountability conferences with his second- and
third-tier officers. Captains, with the exception of those
designated as "executive officers," generally did not attend
these conferences unless they were directed to do so by a senior
officer. During those meetings, the participants used the
strategic plans to gauge the performance of the particular group
under review, and to monitor its progress in achieving its
goals.
6 A-6095-11T3 As of 2008, the Division had a total of 4400 civilian and
police employees. Police personnel included, in addition to the
colonel, the lieutenant colonels and deputy superintendents, 14
majors, 49 captains, 198 lieutenants, 961 sergeants, 272
detectives and 1506 troopers. Nine captains served as executive
officers.
On May 25, 2011, following our remand and additional
hearings, the hearing officer issued her supplemental report.
The report focused upon the various roles of assistant
commissioners and Division captains. Assistant commissioners
are generally appointed by the governor or their respective
commissioners and deputy commissioners, and occupy the third
tier in their organization's hierarchy. While they generally
advise their commissioners on policy and legislative matters,
not all assistant commissioners participate in policy
development; some are appointed to monitor compliance with
approved procedures and plans within the organization.
Nonetheless, assistant commissioners interact frequently with
their commissioners, help develop agency goals, oversee
programs, formulate plans, and serve on boards, commissions, and
special purpose committees.
By contrast, although some Division captains do regularly
participate in policy development, the Division's strict chain
7 A-6095-11T3 of command and the large number of mandated procedures and
orders limit the discretion that captains may exercise and
minimize the frequency and quality of their interaction with the
superintendent, colonels, and deputy superintendents.
The hearing officer concluded that deciding whether
captains were "managerial executives" under the statute required
consideration of two factors, whether the captains: 1) were at
or above the level of assistant commissioners; and 2) formulated
policy. Applying that test to the record, she reaffirmed the
exclusion of a limited number of captains, but concluded that
the majority of Division captains were not "managerial
executives" as the amendment defined the term, and that their
limited participation in the strategic planning process did not
constitute "formulating policy."
The Division challenged the report's use of a two-part test
and asserted that, for executive branch employees, "the sole
issue [was] whether captains are at or above the level of
assistant commissioners," and proposed a three-step equivalency
test identifying the basic minimal employment characteristics of
assistant commissioners and of captains as a group, and
comparing those characteristics for similarities.
On June 28, 2012, PERC adopted the hearing officer's
conclusions in a well-reasoned thirty-page written decision that
8 A-6095-11T3 considered the history of the Act and the legislative history of
N.J.S.A. 34:13A-3(f), in particular. PERC held that captains,
with few exceptions, did not formulate management policies and
practices, and occupied the fourth-tier within the Division
hierarchy. In considering the duties and responsibilities of
Division captains, PERC found that those functions did not place
captains "at or above" assistant commissioner level. PERC also
determined that some captains were not eligible for inclusion
because of the unique roles they filled within the Division.
PERC concluded, in part:
We also are persuaded that captains are not at or above the level of assistant commissioner as most assistant commissioners are a single position appointed by the commissioner or the Governor indicating a high level position in government. The 45 captains in the division of State Police are promoted to the position from the rank of lieutenant and are not appointed. The Colonel and Attorney General are the only appointed positions in the Division.
We are also not persuaded by the Division's arguments that captains must be excluded because they have a broad spectrum of responsibility; are commanding officers; receive the same training as higher ranked officers; are responsible for assessment and evaluation of their subordinates; and have similar salaries to assistant commissioners. We find that all of these factors point to the undisputed conclusion that captains are supervisors, but does not establish that they are at or above the level of assistant commissioner in the Division's organization.
9 A-6095-11T3 PERC held the majority of Division captains were not "managerial
executives," and directed the deputy director to assess whether
the eligible employees wished to be represented by the
Association. On September 5, 2012, the deputy certified the
Association as the exclusive representative of the eligible
Division captains, and this appeal followed.
3. The Law.
We commence with a review of the general principles
governing appeals from final agency decisions and issues of
statutory construction. Judicial review of administrative
agency determinations is limited. Messick v. Bd. of Review, 420
N.J. Super. 321, 324 (App. Div. 2011). We accord the agency's
exercise of its statutorily delegated responsibilities a "strong
presumption of reasonableness," City of Newark v. Natural Res.
Council Dep't Envtl. Prot., 82 N.J. 530, 539, cert. denied, 449
U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980), and defer to
its findings of fact. Mazza v. Bd. of Trs., Police & Firemen's
Ret. Sys., 143 N.J. 22, 29 (1995). "[T]he test is not whether
an appellate court would come to the same conclusion if the
original determination was its to make, but rather whether the
factfinder could reasonably so conclude upon the proofs."
Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div.
1985). Accordingly, we will not upset an agency determination
10 A-6095-11T3 unless it was arbitrary, capricious or unreasonable, its
findings lacked support in the evidence, or it violated the
legislative grant of authority governing the agency. In re
Herrmann, 192 N.J. 19, 27-28 (2007).
While we are not bound by an agency's decision on purely
legal questions, we will give "substantial deference" to an
agency's interpretation of those statutes the agency enforces.
Richardson v. Bd. of Trs., Police & Firemen's Ret. Sys., 192
N.J. 189, 196 (2007). If the statute is ambiguous or silent on
a particular point, we may not substitute our judgment for that
of the agency provided the agency's determination is "based on a
permissible construction of the statute." Kasper v. Bd. of Trs.
of the Teachers' Pension & Annuity Fund, 164 N.J. 564, 581
(2000) (quoting 2 Am. Jur. 2d Administrative Law § 525 (1994)
(footnotes omitted)).
The primary goal of statutory analysis is to understand and
implement the Legislature's intent. State v. Rangel, 213 N.J.
500, 508 (2013). "The Legislature's 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) (citing Frugis v. Bracigliano,
177 N.J. 250, 280 (2003)). In interpreting a statute, we give
words "'their ordinary meaning and significance,' recognizing,
11 A-6095-11T3 [as we have noted], that generally the statutory language is
'the best indicator of [the Legislature's] intent.'" Tumpson v.
Farina, 218 N.J. 450, 467-468 (2014) (alteration in original)
(quoting DiProspero, supra, 183 N.J. at 492). We read each
statutory provision "in relation to other constituent parts so
that a sensible meaning may be given to the whole of the
legislative scheme." Wilson ex rel. Manzano v. City of Jersey
City, 209 N.J. 558, 572 (2012). "[I]f there is ambiguity in the
statutory language that leads to more than one plausible
interpretation, we may turn to extrinsic evidence, including
legislative history, committee reports, and contemporaneous
construction." DiProspero, supra, 183 N.J. at 492-93 (citation
and internal quotation marks omitted).
"We do not view words and phrases in isolation but rather
in their proper context and in relationship to other parts of a
statute, so that meaning can be given to the whole of an
enactment." Ibid. Furthermore, when construing a statute, we
presume that the Legislature created a logical scheme that
avoids contradictions. See State v. Hudson, 209 N.J. 513, 542
(2012).
In St. Peter's Univ. Hosp. v. Lacey, 185 N.J. 1, 15-16
(2005), the Supreme Court stated:
12 A-6095-11T3 "[t]he meaning ascribed to legislation by the administrative agency responsible for its implementation, . . . is persuasive evidence of the Legislatures understanding of its enactment." Cedar Cove, Inc. v. Stanzione, 122 N.J. 202, 212 (1991) (citations omitted). Our conclusion is supported further by the unquestioned proposition that "[w]hen the Legislature expressly includes a requirement in one subsection and excludes that same requirement in other subsections of the same general statute, we need not strain to import that requirement where it is not." In re Freshwater Wetlands Protection Act Rules, supra, 180 N.J. [478,] 492 [2004].
Here, "PERC is charged with administering the [Act], N.J.S.A.
34:13A-1 to -29, and its interpretation of the Act is entitled
to substantial deference." CWA, Local 1034 v. N.J. State PBA,
Local 203, 412 N.J. Super. 286, 291 (App. Div. 2010) (citing
N.J. Tpk. Auth. v. AFSCME, Council 73, 150 N.J. 331, 352
(1997)).
Guided by these principles, we turn to the statute that
governs this dispute. The constitutional and legislative basis
for the right of public employees to engage in collective
negotiations is well-known and thus there is no need for us to
trace that history here.1 Very briefly, public employees are
constitutionally entitled to engage in collective negotiations.
1 See generally N.J. Tpk. Auth. v. AFSCME, Council 73, supra, 150 N.J. at 335, for a thorough examination of the history of the Act.
13 A-6095-11T3 N.J. Const., art. I, para. 19; Council of N.J. State College
Locals v. State Bd. of Higher Educ., 91 N.J. 18, 25 (1982).
Their representative organization is authorized to negotiate
"terms and conditions of employment." N.J.S.A. 34:13A-5.3.
However, while the Act applies broadly to "public employees,"
defined in N.J.S.A. 34:13A-3(d) to include "any person [] in the
service of a public employer" but excluding, among others,
"managerial executives," the Act did not originally define that
term. In 1974, the Legislature clarified the exception for
"managerial executives" by adding the following definition:
"Managerial executives" of a public employer means persons who formulate management policies and practices, and persons who are charged with the responsibility of directing the effectuation of such management policies and practices, except that in any school district the term shall include only the superintendent or other chief administrator, and the assistant superintendent of the district.
[L. 1974, c. 123, § 2 (codified as N.J.S.A. 34:13A-3).]
This statutory definition remained unchanged until the
Legislature amended the Act in 2010.
The 2010 amendment to the Act provides:
"Managerial executives" of a public employer, in the case of the State of New Jersey, means persons who formulate management policies and practices, but shall not mean persons who are charged with the responsibility of directing the effectuation
14 A-6095-11T3 of such management policies and practices, except that, in the case of the Executive Branch of the State of New Jersey, "managerial executive" shall include only personnel at or above the level of assistant commissioner.
[N.J.S.A. 34:13A-3(f) (emphasis added).]
The problem in applying the statutory exception in the case
before us arises because the Division does not utilize the title
of "assistant commissioner," and further, there is an obvious
difficulty in comparing the role of an assistant commissioner in
a primarily civilian regulatory agency with the role of a State
police captain in a paramilitary organization involved in all
aspects of law enforcement.
The Division argues that the statute presents no
ambiguities in this case and that the only analysis permitted is
whether captains in the State police are the "functional
equivalents" of those who hold the title of assistant
commissioners in other State agencies. The Division further
argues that this "single-prong" test supports the conclusion
that captains are "managerial executives" and that PERC erred by
employing a "two-pronged test" requiring that captains both
function at or above the level of assistant commissioner and
also formulate management policies and practices to qualify for
exclusion as managerial executives.
15 A-6095-11T3 In our view, the proper application of the statute in this
case cannot be gleaned from the plain language of the statute
itself, given the unique structure of the Division as a
paramilitary organization and the absence of the title of
"assistant commissioner" in its organizational hierarchy.
Consequently, we are justified in turning to extrinsic evidence,
such as legislative history and committee reports, to assist us
in our quest to understand the Legislature's intent in resolving
the ambiguity in the statute. DiProspero, supra, 183 N.J. at
492.
In the statement accompanying the initial bill to amend
N.J.S.A. 34:13A-3(f), it was very clear that the intent of the
amendment was to broaden the categories of public employees
eligible to participate in collective negotiations:
Under the act's current definition, for the purposes of determining which public managers are subject to the provisions of the act, "managerial executives" are persons who formulate management policies and practices, and persons who are charged with the responsibility of directing the effectuation of those management policies and practices. This bill changes that definition so that in the case of the State as a public employer, "managerial executives" means persons who formulate management policies and practices, but does not include persons who are charged with the responsibility of directing the effectuation of those policies and practices . . . .
16 A-6095-11T3 [Introduction Statement to Senate Bill No. 3071 (December 3, 2009) (Introduction); see also Statement of the Senate Labor Committee to Senate Bill No. 3071 (December 10, 2009) (reporting favorably on the bill and repeating verbatim the introduction statement) (Senate Statement).]
And further:
[T]he bill also specifies that, in the case of the Executive Branch of the State Government, "managerial executive" includes only personnel at or above the level of assistant commissioner . . . .
. . . .
By this change in definition, any manager employed by the Executive Branch of State Government at a level below the level of assistant commissioner, and any manager employed by the State who is not involved with formulating management policies and practices, may join employee organizations and through these organizations collectively negotiate salaries and benefits with public employers.
[Introduction, supra.]
To ensure that the amended Act would protect a larger
segment of public employees, the Senate Statement explained:
This bill also changes the number of collective negotiations units for civilian employees of the Executive Branch of the State government from ten to twelve in order to add State government managers and deputy attorney generals to allow persons holding such positions to be covered under the act. For this purpose, the bill also amends current law to remove the confidential employee status of deputy attorneys general . . . .
17 A-6095-11T3 [Senate Statement, supra.]
Subsequently, the Senate passed another amendment to ensure
that investigators in the Division of Criminal Justice in the
Department of Law and Public Safety would not be disqualified by
virtue of their unclassified status. Floor Statement to Senate
Bill No. 3071 (January 7, 2010). These documents depict a clear
legislative intent to broaden the reach of the Act to include
more, rather than fewer, executive branch employees.
In arguing that PERC should not have adopted a two-pronged
standard, the Division asserts that, where executive branch
employees are concerned, the amended statute erases the policy-
formulation component referenced at the beginning of the
definition. The Division argues that the phrasing of the
language indicates a legislative intent to impose on the
executive branch the same one-pronged test that the Act applies
to superintendents and assistant superintendents within school
districts. We do not agree that the legislative intent is so
clear in the case before us.
It is, by way of example, plausible that the Legislature
only intended the language to apply to executive branch
departments or agencies whose organizational structures included
assistant commissioners, and that the first portion of the
definition, which excludes "persons who formulate management
18 A-6095-11T3 policies and practices," would address executive branch
employees whose organizational structures did not include
assistant commissioners. Cf. GE Solid State, Inc. v. Dir., Div.
of Taxation, 132 N.J. 298, 308 (1993) ("Under the established
canons of statutory construction, where the Legislature has
carefully employed a term in one place and excluded it in
another, it should not be implied where excluded.").
In our view, the Division's arguments, while they are
imbued with the virtue of simplicity, fail to take into account
the generous deference we owe to an agency's construction of its
controlling legislation and, further, misconstrue the effect of
PERC's holding. The Division argues that PERC requires
"managerial executives in the Executive Branch . . . both to
formulate policies and practices and to serve at or above the
level of assistant commissioner," and "would result in holding
many Executive Branch employees to a higher standard than"
assistant commissioner and "would lead to the illogical result
that, despite his title, [an assistant commissioner who does not
formulate policy] would not meet the definition of 'managerial
executive[.]'"
However, that is not how we read the PERC decision. PERC
did not require Division captains to demonstrate they did not
create policy; rather, it treated the non-participation of
19 A-6095-11T3 Division captains in policy matters as simply a factor for
consideration in making the difficult decision about whether
captains are excluded from collective negotiations under the
statutory definition of "managerial executive." In our view,
the PERC decision does not stand as precedent for the
proposition that an executive branch employee holding the title
of assistant commissioner who does not formulate policy is not a
managerial executive under N.J.S.A. 34:13A-3(f). The core
holding in the PERC analysis is that Division captains did not
serve at or above the level of an assistant commissioner.
Simply because some captains and assistant commissioners in
other executive branch departments share some similar duties
does not mandate a different result here. PERC identified a
number of differences between assistant commissioners and the
Division captains in matters such as the means through which
they obtained their positions, their compensation, the
discretion they exercised, and the frequency and quality of
their interactions with the departmental head. These facts
provide ample support for PERC's determination.
The Division further argues that PERC's evaluation of the
duties and functions of captains on a case-by-case basis creates
uncertainty because captains often change assignments within the
ranks. This argument is unpersuasive, however, given the
20 A-6095-11T3 legislative intent to expand the participation of public
employees in collective negotiations. PERC's individualized
assessment of public employees advances that goal.
Categorically excluding an entire group of employees, without
regard to the variations that exist among the positions, would
most often reduce the number of public employees eligible to
participate in collective negotiations. Indeed, such a result
is perfectly illustrated in the case before us in that most
Division captains undertake the duties of line supervisors. It
is illogical to deprive those captains of the right to
collective negotiations simply because they share the same title
with a smaller subset of captains tasked with duties akin to
those of managerial executives. It is unlikely that the
Legislature intended such a result. See Aponte-Correa v.
Allstate Ins. Co., 162 N.J. 318, 323 (2000) (directing that
statutory interpretation should account for the legislation's
objectives and for commonsense); State v. Provenzano, 34 N.J.
318, 322 (1961) ("The goal of the interpretative process is the
intent of the Legislature. It is axiomatic that a statute will
not be construed to lead to absurd results.").
Moreover, the Division's arguments regarding the
practicality of PERC's decision are unconvincing. The record
contains no evidence that the movement of personnel within an
21 A-6095-11T3 organization is unique to the Division, or that such changes
would materially differ from those occurring in any other
governmental agency.
Finally, we find no merit in the argument that permitting
captains to undertake collective negotiations is contrary to
public policy. The Legislature could have elected to exclude
the Division captains from the process, but chose not to do so.
We have observed that,
While sound public policy and the weal of the people are the concern of all the government, and the [J]udiciary cannot properly shirk the obligation of this concern, in cases where the Legislature has clearly spoken it is the privilege of that body to establish public policy, and the [J]udiciary must not ignore the policy thus established on the ground that its views differ with those plainly expressed by the Legislature.
[Ayres v. Dauchert, 130 N.J. Super. 522, 531-32 (App. Div. 1974).]
The remainder of the Division's arguments are without
sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(1)(E).
Affirmed.
22 A-6095-11T3