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Court rejects PERC bid to join Donovan suit against sheriff’s raises

Photo Credit: Cliffview Pilot File Photo
Photo Credit: Cliffview Pilot

YOU READ IT HERE FIRST: A state court has rejected a bid by New Jersey PERC to intervene in Bergen County Executive Kathleen Donovan’s appeal of a local judge’s decision that she implement 2011 and 2012 pay raises negotiated by Sheriff Michael Saudino and the union representing his officers.

The Appellate Division didn’t supply a rationale for the decision. It simply states that the Public Employee Relations Committee’s “MOTION TO INTERVENE OR IN THE ALTERNATIVE APPEAR AS AMICUS CURIAE” is “DENIED.”

The court’s shut out of PERC speaks volumes as to that agency’s relevance to this case,” said Catherine Elston, the litigation counsel for Saudino.

“They don’t belong in this litigation, and the agency’s argument that they do has been rejected by the Appellate Division,” Elston told CLIFFVIEW PILOT. “We look forward to proceeding without any further, or unnecessary, delays.”

“We are very happy with this most recent decision,” added Mike Doyle, president of PBA Local #134, which represents the Sheriff’s Officers. “The fact that the Appellate Division has denied PERC’s  entry into this case just reaffirms our original position that this is not a case to be decided by PERC but rather a case that needs to be decided in a court of law.”

CLICK THE IMAGE to view the order

An email seeking comment was sent earlier this afternoon to Donovan’s staff.

The county executive appealed Superior Court Judge Joseph Conte’s decision, arguing that she deserved a seat at the bargaining table when both sides agreed on what she said would be more than $10.5 million in raises for the department over a four-year span.

Saudino said the total is about a fifth of that when retirements and attrition are factored in.

Donovan’s denial has become “a hardship to those officers who have not received the benefits of their approved negotiated contracts,” Conte wrote in anearly 14-page decision first obtained by CLIFFVIEW PILOT .

The state Appellate Division has postponed Conte’s order while it considers Donovan’s argument.

At the heart of the dispute is whether the county executive or the sheriff is the employer.

Local 134 and Saudino point to a statute approved by lawmakers in Trenton that applies to public contracts. As an elected official who commands an office, and not an appointed department head who must answer to the executive, they say, the sheriff has the authority to set salaries.

Donovan disagrees.

“I cannot protect the taxpayers if I am not part of the negotiation process,” she said.

Attorneys for Donovan argued that the executive along with the sheriff is a joint employer of his employees, which thereby gives her the right to “negotiate contracts for the county subject to [freehold] board approval; make recommendations concerning the nature and location of county improvements and execute improvements determined by the board…,” under a state court ruling.

PERC agreed.

Last month, the commission argued to the appeals judges that the joint employer issue was decided in 1984 and revisited in a case involving the former Mercer County Executive Bob Prunetti, whose contract negotiating authority was challenged by the Mercer County Freeholder Board.

“Prunetti held that the County Executive and the County Sheriff were the joint employers of the Sheriff’s employees for purposes of collective bargaining,” PERC wrote. “That interpretation, as well as earlier rulings, should have settled the issues decided by the Commission and litigated in Superior Court.”

Conte agreed with Saudino and the union that the proper venue for hearing the case isn’t PERC but in the courts.

The judge said Donovan mistakenly “relies heavily” on a New Jersey case titled “Prunetti v. Mercer County Board of Chosen Freeholders” — an approach that he characterized as “misplaced.”

Although Mercer and its sheriff were considered joint employers for purposes of collective bargaining in that particular instance, NJSA 40A:9-117 essentially reveresed that opinion.

The new statute “was enacted with the clear legislative intent of giving the Sheriff the power to fix the compensation of its employees, and made no mention of the County as being a joint employer for purposes of collective bargaining,” Conte wrote.

“The applicable statute is intended to give the Sheriff the exclusive power to negotiate contracts of its employees,” the judge ruled. “[C]onsidering the fact that Prunetti was decided prior to the enactment of the statute, the Court finds that Defendant’s reliance on the holding in Prunetti is not persuasive.”

Conte concluded that the union and Saudino demonstrated, to him, “a reasonable probability of success on the merits” of their case before any judge in New Jersey — local, appeals or Supreme.

A “balancing of equities and hardships favors injunctive relief,” the judge wrote, adding that there would be “irreparable injury” if the court didn’t intervene.

“The public interest will be served, not harmed, by granting [the union and sheriff’s] request for implementation of the negotiated contracts,” Conte wrote.

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