Consent Decree Does Not Impair Bargaining Rights

Written on 12/08/2023

The history of negotiations over disciplinary procedures in the Newark Police Department in New Jersey is a long one. In 1993, the City of Newark and the unions representing Newark’s officers agreed to General Order 93-2, modifying the disciplinary process for the unions’ members. Several years later, a City’s directive to unilaterally change the disciplinary procedures in General Order 93-2 was rescinded by order of the New Jersey’s Public Employment Relations Commission (PERC), which found the issues of disciplinary standards and pro­cedures to be mandatory for bargaining.

In April 2015, the City’s mayor issued an executive order creating the Civilian Complaint Review Board (CCRB) in response to an investigation report by the federal Department of Justice, which had been initiated by a petition from the American Civil Liberties Union of New Jersey. In June 2015, the City unilaterally promulgated a disciplinary matrix significantly modifying the disciplinary proce­dures set forth in General Order 93-2. The Unions filed unfair practice charges with PERC challenging the implementation of the CCRB and the changes to their disciplinary processes outside of the collective bargaining process.

In February 2016, bargaining led to the issuance of General Order 05-04, intending to “improve the quality of law enforcement services,” to be “responsive to the community by providing formal procedures for the processing of com­plaints from the public,” and to preserve the due process rights of officers under investigation. The order set forth specific investigation procedures regarding allegations of police officers’ misconduct.

In March 2016, the DOJ filed a complaint in a federal district court against the City, seeking relief “to remedy a pattern or practice of conduct by the Newark Police Department that has deprived persons of rights, privileges, and immunities secured and protected by the Constitution and laws of the United States.” Only a month later, the City and the DOJ resolved the complaint through a 77-page consent decree, which among other things, required the City and the Depart­ment to improve the quality of policing through training; increase community outreach and oversight; develop new policies and procedures for internal affairs complaint intake and investigations; and develop consistent disciplinary proce­dures for officers.

In 2019, the City circulated a new set of General Orders, 18-25 and 18-26, unilaterally changing predecessor general orders pertaining to disciplinary procedures, safeguards, sanctions, and penalties for members of the Unions. The Unions filed unfair labor practice complaints against the City, alleging that the implementation of the new General Orders violated the City’s obligation to bargain with the Unions. When PERC sided with the Unions, the City challenged the decision in a New Jersey Appeals Court.

The Court upheld PERC’s deci­sion and ordered the City to rescind the new General Orders. The City contended that it properly exercised its managerial prerogative altering the discipline process matrix through the General Orders without having to negotiate with the Unions. The Court found this argument unpersuasive.

The Court noted that “courts have held that procedural safeguards associated with discipline and investi­gations intimately and directly affect employees and do not significantly interfere with the ability of a public employer to impose discipline. We agree with PERC that the disciplinary procedures detailed in the General Orders involve matters subject to mandatory negotiation. The City has not shown the disciplinary procedures implemented in the new General Or­ders are fully or partially preempted from collective bargaining by statute or regulation. Nor has the City shown that negotiation of these procedures would significantly interfere with the determination of governmental policy.

“The City contends the Unions waived their rights to negotiate the disciplinary process set forth in the General Orders by failing to inter­vene during the federal litigation culminating in the consent decree or voice objection at a community hearing regarding the General Orders. However, neither the DOJ’s complaint nor the consent decree addressed the disciplinary process for the Unions’ membership. The Unions therefore had no reason, let alone a basis, to intervene. Furthermore, we are un­aware of any case law, statute, or PERC decision exempting a public employer from its collective bargaining obli­gations simply because a collective bargaining unit failed to object to the public employer’s pronouncement to unilaterally change employees’ terms and conditions.

“The City argues the changes implemented by the General Orders were not mandatorily negotiable because they were authorized by the consent decree. The consent decree’s terms expressly contradict the City’s argument, stating: ‘This decree shall not be deemed to confer on the civilian oversight entity any powers beyond those permitted by law, including by civil service rules and collective bar­gaining agreements.’ Contrary to the City’s assertion, the consent decree does not supersede applicable state law or abrogate the City’s contractual obligations pursuant to its collective bargaining agreements.”

City of Newark v. Fraternal Order of Police, 2023 WL 6439402 (NJ App. 2023).