SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-6700-96T2
NEWARK COUNCIL NO. 21, NJCSA,
IFPTE, AFL-CIO, GLORIA BYRD,
PATRICIA SERMON, NASEEM MARVI,See footnote 1
JUANITA REED, and MIRIAM ZIMUTO,
Plaintiffs-Appellants,
and
GERARD BARROS, LOURDES BERNARDINO,
THILITA BROWN ADAMSON, SHELLEY
CANNON, GLADYS DANCY, ALVA DRUITT,
FRANCES ENGLISH, PATRICIA GREY,
JAMES GRIFFIN, ANGIE L. JONES,
LAVERNE LAND, MILDRED SIMPSON,
ROBERT MARCELA, ALESIA RAINES,
JANE CANTER, SANDRA LEE-WALTON,
MENGTING LIANG, INNA LOKSHINA,
VENERA NAKHIMOVSKY, BERNICE WEST,
EDWARD LAMBERT, MARGARET LEGGETT,
CONSTANCE KRATT, RUTH HILL,
CHRISTOPHER GRANT, EVELYN DAVIS
GRANT, EVELYN HICKS, CARLA POTTER,
FELIX ROSARIO, MARCIA SCHOLMASTER,
LENORE SUTTON, JEAN THOMPSON,
MARSHA MCGOWAN, DARRYL SAUNDERS,
JAMILA BEMBRY, JOHN DA SILVA,
BASIL FRANKLIN, ELAINE MOORE,
ARLENE SMITH, REGINA BAYLEY,
EMILIO CRUZ, LISA HAMLETTE,
RONNIE JOHNSON, LARRY LAWSON,
EDWIN WAY, DOROTHY THOMPSON,
DEBORAH ODOM, MICHELLE PORTEE,
ELYZE MINTER, MAE RUTH BLUE,
IVAN BURGOS, JEROME MIGHTY, and
ALEX KOSHY,
Plaintiffs,
v.
SHARPE JAMES, Mayor of the
City of Newark, and CITY OF NEWARK,
Defendants-Respondents.
Argued September 15, 1998 - Decided
February 11, 1999
Before Judges Pressler, Brochin, and Kleiner.
On appeal from the Superior Court of
New Jersey, Law Division, Essex County.
Stacy B. Rosenberg argued the cause for
appellants (Fox and Fox, attorneys; Craig S.
Gumpel and Ms. Rosenberg, of counsel and on
the brief; Matthew M. Collins, on the brief).
Richee Lori Smith argued the cause for
respondents (Michelle Hollar-Gregory,
Corporation Counsel, attorney; Joanne Y.
Watson, First Assistant Corporation Counsel,
on the brief).
The opinion of the court was delivered by
KLEINER, J.A.D.
Pursuant to a verified complaint filed September 18, 1996,
plaintiffs, fifty-eight employees of the City of Newark and their
collective bargaining representative, Newark Council No. 21,
NJCSA, IFPTE, AFL-CIO, sought and were issued an order to show
cause seeking to enjoin defendants, Mayor Sharpe James and the
City of Newark (collectively "defendants" or "City") from: (1)
enforcing the City's residency ordinance against the named
plaintiffs who were hired prior to September 1, 1996; (2)
requiring the named plaintiffs who live outside of the City of
Newark to establish residences within the City of Newark; and (3)
initiating, processing, or completing any termination or
disciplinary proceedings against the named plaintiffs who were
hired prior to September 1, 1996, and who did not live in the
City of Newark.
Plaintiffs' verified nine count complaint sought in the ad
damnum clause in count one the following:
(a) Declaring that the Residency Ordinance
cannot be retroactively enforced due to the
City's studied policy of non-enforcement;
(b) Enjoining defendants from enforcing the
Residency Ordinance;
(c) Awarding plaintiffs attorney's fees,
costs and disbursements; and
(d) Awarding plaintiffs such further relief
as this court deems just and proper.See footnote 2
It is clear from the plaintiffs' verified complaint, from
plaintiffs' subsequent pleadings, and from the colloquy between
the trial judge and counsel during all pre-trial proceedings and
at the subsequent three-day bench trial commencing April 7, 1997,
that this litigation focused solely upon the enforcement of the
residency ordinance, City Ordinance 2:14-1, as to each individual
plaintiff.See footnote 3 Plaintiffs' complaint did not seek to declare void,
on federal or state constitutional grounds or otherwise, the
validity of City Ordinance 2:14-1.
As discussed hereafter, ultimately the trial judge,
following the trial, issued a written opinion, memorialized in a
judgment dated June 10, 1997, dismissing plaintiffs' complaint,
thus permitting Newark to enforce its residency ordinance as to
the individual plaintiffs.See footnote 4 The trial judge correctly
identified that plaintiffs' burden was to prove that the City had
a studied policy of non-enforcement of its residency ordinance
against persons hired prior to September 1, 1996. As we note
hereafter, as of the date of this trial, April 3, 1997, of the
approximately 4500 City employees, approximately 2000 were
affected by the residency requirement.See footnote 5
The primary thrust of the judge's decision may be gleaned
from a small portion of his lengthy opinion:
Plaintiffs urge that, as a result of
this Court's decision in CWA v. Treffinger,
291 N.J. Super. 336 (Law Div. 1996), Newark
is estopped to enforce its residency
requirement against the five remaining
plaintiffs because Newark had official
knowledge that the plaintiffs were not
residents at the time they became employees
of Newark, or in the case of Simons was a
resident of Newark, but moved out of Newark
in 1989, and Newark did nothing until 1996.
Plaintiffs misconstrue the decision in CWA
vs. Treffinger. In that case, the allegation
was that the Essex County Board of Chosen
Freeholders (Board) adopted a resolution on
September 14, 1978 requiring all employees of
Essex County to be residents of the County.
On January 4, 1996, the County Executive
issued an executive order declaring the
County's intention to enforce the residency
requirement contained in the resolution
adopted by the Board. On the plaintiffs
applications for a preliminary injunction,
the Court said:
This record clearly indicates the
County's official knowledge of violations of
the residency requirement. The County has
failed to set forth any evidence of a single
attempt to enforce the residency requirement
from September of 1978 to January of 1996.
Based on the foregoing, the plaintiffs at
this stage in the proceedings have shown a
reasonable probability of ultimate success on
the merits to estop the County from enforcing
the residency requirement. (emphasis added).
[291 N.J. Super. at 360.]
Thus, a critical factor in the CWA v.
Treffinger case was that there was not one
instance of enforcement of the residency
ordinance from 1978 to 1996. In the present
case, the record is replete with evidence of
enforcement by the city of its residency
ordinance either by termination of employees
or by granting waivers to non-resident
employees. The fact that Newark periodically
entered into a campaign to enforce its
residency ordinance does not detract from its
efforts nor does it constitute a ground for
estoppel against Newark.
[(emphasis added).]
The single reason for the judge's decision dismissing plaintiffs'
complaint was the evidence of instances where the residency
ordinance had been enforced by defendants, thus permitting his
conclusion that plaintiffs' complaint was distinguishable from
the complaint in Treffinger where the County was unable to set
forth "any evidence of a single attempt to enforce the residence
requirement." 291 N.J. Super. at 360. We agree with this
conclusion and affirm.
We have thoroughly canvassed the record on appeal with
particular emphasis on the appendices filed by both parties. Our
review clearly allows the conclusion that prior to 1993 there
were numerous instances where the City communicated with its
employees seeking information respecting an employee's place of
residence or seeking to confirm that an employee had in fact
moved into the City following the date employment commenced. We
do discern some laxity in the City's strict enforcement of its
residency ordinance between October 1993 -- the month plaintiff
Byrd was hired -- and the City's general announcement of strict
enforcement in January 1996. This laxity is evidenced by the
City's failure to strictly enforce the residency ordinance in its
employment of each of the five plaintiffs.See footnote 6 Yet, the record
does demonstrate that the ordinance was not totally ignored
during that same period. This is best illustrated by the
inclusion of a residency affidavit within the documents completed
by every new City employee, the reference to the residency
ordinance within employee handbooks intended to be disseminated
to all new employees, and the reference to the residency
ordinance in a slide presentation presented as part of an
orientation program available to new employees.
It is evident from the record that although the City may
have been lax in strictly enforcing its residency ordinance, the
City certainly did not engage in a studied policy of non-enforcement. We cannot conclude that the negligible exceptions
exemplified by the individual experiences of the plaintiffs
constitutes sufficient evidence that defendant engaged in a
studied policy of non-enforcement as discussed in Treffinger.
Accordingly, we affirm for the reasons articulated by the trial
judge in his written opinion of May 15, 1997. We add these
additional comments to highlight some of the salient reasons
which guide our decision to affirm.
On November 17, 1975, the City of Newark adopted a municipal residency ordinance requiring all City employees thereafter hired to reside in the City. The ordinance provides, in pertinent part:
All officers and employees of the City who shall hereafter become employees of the City 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 . . . .
The Director of any department or the
Mayor or City Clerk is hereby authorized in
his discretion, for good cause shown, to
permit any officer or employee of the City in
his respective department or office to remain
in the employ of the City without complying
with the provisions hereof, where:
(a) The health of any officer or employee
necessitated residence outside to the
City limits;
(b) The nature of the employment is such as
to require residence outside of the City
limits;
(c) Special talent or technique which is
necessary for the operation of
government not found among Newark
residents exists justifying residence
outside of the City limits.
Failure of any officer or employee to comply
with this section shall be cause for his
removal or discharge from the City service.See footnote 7
[Newark, N.J., Rev. Ordinance 2:14-1.]
The trial judge summarized the trial testimony of each individual plaintiff. The only other witness presented by plaintiffs at trial was Michael A. James. James was at that time the president of Newark Council No. 21 which represents "[all] white collar workers and some professional employees of the City of Newark." James was then employed as the Executive Assistant to the City Clerk.
On direct examination, James testified:
Q. Mr. James, do you know the approximate number of employees in the City of Newark?
A. It's approximately about 44-4500.
Q. Out of those 4500, how many of them are
police and fire?
A. Approximately 2500.
Q. Now are the police and fire exempt from
the residency requirement?
A. Yes.
Q. Now out of the 2,000 employees that are
not police and fire, approximately how many
of those are grandfathered, meaning that they
were hired prior to November 2, 1976?
A. I don't know all of them, but I remember
that we came up with, from trying to gather
those employees who are still with the City,
that there's approximately 100-150 of them.
Q. So out of the approximately 1850
employees that are subject to the residency
requirement, how many of those reside outside
the city?
A. About 200.
Q. Now, out of the 200 that reside outside
of the City, approximately how many of those
are not being terminated for violating the
residency requirement?
A. Close to 100.
Q. Now, out of the approximate 100 employees
that are not being terminated for violating
the residency requirement, how many of those
are provisional employees?
A. In our union, there are approximately 35-40 of them.
Q. That are not being terminated?
A. No, excuse me, no. Out of the
provisionals, I would say about 90 of them.
Neither additional direct testimony nor cross-examination
elicited an explanation why approximately 100 of the approximate
200 employees residing outside the City were not notified of the
City's intention to terminate their employment.See footnote 8
The primary witness for the defense was Glenn Grant, the City's Business Administrator.See footnote 9 Grant testified to the City's efforts to enforce the residency ordinance following the decision in Trainor v. City of Newark, 145 N.J. Super. 466 (App. Div. 1976), certif. denied, 74 N.J. 255 (1977).
Grant testified that, on at least three occasions, in 1989, 1991, and 1993, each City employee was notified by a statement on their individual City paycheck of the residency requirement to the effect that all "employees hired after November 2, 1976 must maintain residence in the City."
Prior to February 23, 1996, the residency ordinance provided three classifications of employees who were entitled to apply for a waiver of the residency requirement. Although on February 23, 1996, the Mayor delegated his authority to grant or deny waiver applications to the business administrator, the City honored all waivers which had been granted prior to that date. Grant testified that after February 23, 1996, in certain instances he granted waiver applications and in other instances denied waiver applications. The judge ultimately concluded as part of his findings of fact that the existence of a waiver policy and the denial or grant of individual waivers was one indicia of the City's enforcement of the residency ordinance, both prior to and after January 1996.
On May 24, 1996, Grant compiled a list of twenty-one employees in each City department who had previously received a written waiver or a conditional written waiver and a list of 100 employees who had been identified as non-residents of the City who had not received a waiver. Each department head received a communication from Grant specifically identifying those employees in his/her department identified in each category. Each department head was directed to notify those identified employees who had not, as of that date, complied with the City residency ordinance that "they risk losing their job to a qualified Newark resident if they do not satisfy the residency requirement by September 1, 1996."See footnote 10
As noted, we have thoroughly reviewed the appendices filed on appeal which comprise 574 pages. Many of the documents contained therein are copies of communications between the City and various employees seeking verification of residency or an explanation of an employee's intent to obtain City residency. Although the bulk of these exhibits demonstrate that the City expended a greater effort to assure compliance with the residency ordinance before 1980 and after January 1996, nonetheless the exhibits do establish periodic efforts in the intervening years to enforce the ordinance. In Kennedy v. City of Newark, 29 N.J. 178 (1959), the Supreme Court, in discussing the validity of residency ordinances noted, "laxity" in enforcement is insufficient to warrant a finding of a "studied policy not to enforce" a residency ordinance. Id. at 192. The City's laxity, however, did not give rise to any sustainable complaint by any individual plaintiff. The trial judge correctly dismissed plaintiffs' complaint.
Affirmed.
Footnote: 1 Incorrectly designated as "Nasheem Marvi."
Footnote: 2 The same ultimate relief was demanded in the remaining
eight counts of plaintiffs' verified complaint. Each additional
count delineated a basis for the requested ultimate relief:
estoppel (count two); alleged violation of
42 U.S.C. §1983, the
First and Fourteenth Amendments of the United States
Constitution, and Article 1, ¶1 of the New Jersey Constitution on
due process grounds (count three), and on equal protection
grounds (count six); waiver (count four); laches (count five); an
alleged violation of N.J.S.A. 40A:9-1.5 (count seven); an alleged
violation of N.J.S.A. 40:48-1 and N.J.S.A. 40A:9-1.3 (count
eight); and an alleged violation of N.J.S.A. 34:13A-5.4a(1) and
(5) (count nine).
Footnote: 3 As of the date of trial there were only five individual
plaintiffs. Some of the other initial fifty-eight individual
plaintiffs had their complaints transferred for administrative
disposition before the Merit Board, some moved into the City, and
the remainder left their positions with the City. Voluntary
stipulations of dismissal were filed on behalf of those
individual plaintiff employees in the latter two categories.
Footnote: 4 In a separate application, plaintiffs sought a stay of
the June 10, 1997 order pending appeal. On July 8, 1997, the
trial judge entered an order staying enforcement of the June 10,
1997 order.
Footnote: 5 These statistics are discussed in Part II of this
opinion. As noted in that section, 2500 employees of the City
are exempt from the residency ordinance requirement by virtue of
an exception for police and fire department employees.
Footnote: 6 The trial judge fully discussed the employment record of
each plaintiff. We find no reason to repeat those findings as we
conclude that the salient facts pertinent to each plaintiff were
properly considered by the judge in dismissing plaintiffs'
complaint. Suffice it to say, the record amply demonstrates that
each plaintiff knew, prior to January 1996, that the City had a
residency ordinance, that each knew that she was expected to
reside in Newark or, in the alternative, obtain a written waiver
pursuant to the ordinance.
Footnote: 7 Although a referendum was passed on November 2, 1976,
providing that the residency ordinance would have a prospective
effect applicable to new employees hired after November 2, 1976,
the referendum was never codified by the City. However, as a
result of the referendum, the following Public Notice was issued
by the City Clerk:
The Municipal Council of the City of Newark, New Jersey
on November 17, 1975 reconsidered an ordinance
entitled, "ORDINANCE TO AMEND CHAPTER 14, PERSONNEL
PRACTICES AND POLICIES, OF TITLE 2, ADMINISTRATION, OF
THE REVISED ORDINANCES OF THE CITY OF NEWARK, NEW
JERSEY, 1966, AS AMENDED AND SUPPLEMENTED (RESIDENCY
REQUIREMENTS MODIFIED)" which was rejected by the Mayor
on May 23, 1975 which rejection was overridden by the
Municipal Council on November 17, 1975.
A Petition was filed with me requesting that the
question
"Shall the City of Newark adopt an amendment
to its residency requirement for municipal
officers and employees which would make the
residency requirement prospective only after
the date of this referendum and would exempt
from the residence requirement employees
possessing special talents or techniques
necessary for operation of government"
be submitted by referendum to the voters of the City of
Newark. Such referendum was submitted to the voters of
the City at the General Election held November 2, 1976.
The results of that referendum as certified by me were:
Therefore, the "ORDINANCE TO AMEND CHAPTER 14,
PERSONNEL PRACTICES AND POLICIES, OF TITLE 2,
ADMINISTRATION, OF THE REVISED ORDINANCES OF THE CITY
OF NEWARK, NEW JERSEY, 1966, AS AMENDED AND
SUPPLEMENTED (RESIDENCY REQUIREMENTS MODIFIED)"
reconsidered and adopted by the Municipal Council on
November 1976 is in full force and effect.
FRANK D'ASCENSIO
City Clerk
Footnote: 8 A partial explanation may be inferred from the testimony
of Glenn Grant, a witness for the defendant, discussed infra.
Footnote: 9 Defendant also presented the testimony of John D'Auria,
the City's Personnel Director.
Footnote: 10 Grant testified that there are approximately 4300 City
employees, that approximately 2300 are affected by the residency
ordinance, and "less than 100" had been granted waivers which
were then in effect.