In the Matter of the Layoff of Fire Fighters, Township of Teaneck CSC Docket No (Civil Service Commission, decided June 24, 2009)

Transcription

1 In the Matter of the Layoff of Fire Fighters, Township of Teaneck CSC Docket No (Civil Service Commission, decided June 24, 2009) The Firefighters Mutual Benevolent Association (FMBA), Local 42 (Fire Fighters) and Local 242 (Fire Officers), and the Teaneck Deputy Fire Chiefs, represented by David I. Fox, Esq., petition the Civil Service Commission (Commission) for a stay of the layoff and demotion of fire personnel in the Township of Teaneck (Township). It is noted that the petitioners shall collectively be referred to as the fire union. By way of background, on April 6, 2009, the Township submitted a layoff plan to the Division of Local Human Resource Management (LHRM), 1 proposing the layoff of 47 public safety and non-public safety employees and the demotion of 18 employees in various departments, including the Fire Department, effective June 25, The six Deputy Fire Chief positions were to be eliminated and five Fire Fighter positions were targeted, with Fire Captains and Fire Lieutenants to be affected due to demotional title rights. 3 The Township contended that the layoff was for reasons of economy and efficiency. It stated that the original prepared budget, which maintained services and did not reduce positions, exceeded the Tax Levy Cap by over three million dollars. Further, the Township stated that it engaged in alternative and pre-layoff actions in an attempt to lessen the possibility of layoffs, but after engaging in such actions, layoffs were still necessary. For example, it noted that since all public safety contracts were in negotiation or arbitration, there was little opportunity to roll back salary increases although attempts had been made to convince the unions of the reasonableness of this strategy. However, the Township stated that ongoing discussions were still taking place. LHRM approved the Township s request for a layoff and 45-day notices, pursuant to N.J.A.C. 4A:8-1.6(a), were issued on May 7, 2009 to the potentially affected employees. Furthermore, on June 17, 2009, LHRM issued corrected layoff rights determinations. 4 It determined that due to the elimination of the six Deputy Fire Chief positions, five Deputy Fire Chiefs are to be demoted to Fire Captains. 5 Additionally, as there are only five Fire Captain positions, one Deputy Fire Chief, Robert O Neill, is to be demoted to Fire Lieutenant. Consequently, six Fire 1 LHRM is now the Division of State and Local Operations. 2 The original date of layoff was June 21, 2009, but it was extended. 3 Based on payroll records as of March 30, 2009, there are 99 uniformed fire personnel. 4 The layoff rights determinations were originally issued on June 10, 2009, but they were amended on June 17, 2009 after the number of fire personnel to be affected was clarified. 5 It is noted that the Township advised that five Deputy Fire Chiefs have filed for retirement; however, LHRM was informed that the retirements are not effective until after the layoff.

2 Lieutenants are to be demoted to Fire Fighter positions and the six Fire Fighters in these positions are to be laid off along with an additional five Fire Fighters. Thus, a total of 11 Fire Fighters are to be separated. It is noted that corrected letters were also sent to certain Fire Fighters and Fire Lieutenants, advising them that based on the re-determination of layoff rights, they are not going to be impacted by the June 25, 2009 layoff. The Fire Fighters who were so advised are Kevin McCall, Michael Wilkins, Stephen Margulies, Bryan Wiecenski, Gregory Wagner, Alan Russ, and Paul Fanelli. Additionally, Fire Lieutenant Michael Hunter was advised that he would not be affected by the layoff. In the instant petition, the fire union requests that the Township s layoff of fire personnel be delayed as the layoff plan was proposed in bad faith and a result of blatant misrepresentations by the former interim Township Business Administrator, Gregory Fehrenbach. 6 It indicates that prior to the appointment of Fehrenbach, the Township Business Administrator was Helene Fall, who was terminated on January 13, Prior to Fall s termination, the fire union asserts that labor agreements, as recent as January 2009, were made with Fall to avoid the necessity of layoffs. Thereafter, Fehrenbach was appointed who has a background and reputation of improperly targeting public safety employees and he conducted a meeting on February 26, The fire union indicates that Fehrenbach basically repudiated any contract or knowledge of prior agreements. However, it states that there was no mention of any layoffs at the meeting. Furthermore, the fire union maintains that the layoff plan submitted by Fehrenbach contains false or misleading information, which it does not specifically indicate, and that Fehrenbach has a bias against fire personnel. In regard to the latter, the fire union indicates that 60% of the individuals targeted for layoff are fire personnel. Additionally, the fire union submits a letter from Fire Chief Robert Montgomery, 8 dated April 7, 2009, to the Township Council. Chief Montgomery expresses concern over the possibility of having a reduced staff in the Fire Department. He emphasizes that in order for the Fire Department to succeed, the same level of fire personnel is needed. He submits that response time would be reduced, fires would spread, and lives and property could be lost if staff is reduced. Specifically, Chief Montgomery states that [d]ue to the ever increasing size of homes and an aging/deficient water supply, there is a critical need to rapidly deploy fire attack crews to 6 The Township indicates that the Fehrenbach was employed as the Township Manager. 7 Personnel records indicate that Fall s unclassified appointment as a Municipal Manager was terminated effective April 30, Montgomery was promoted to Fire Chief effective June 1, 2006 and has been an employee of the Township for over 37 years.

3 limit the percentage of building involvement in fires. Our efforts have been proven to limit fire spread and save lives. If staffing is reduced, the reverse will occur. Moreover, the fire union complains that it was not given the layoff plan and only became aware of the layoff when a local newspaper informed the President of Local 42 that the newspaper had a copy of the plan. Additionally, the fire union indicates that fire personnel did not receive a copy of the plan until after the Individual and General Notices of Layoff were served. The fire union argues that the foregoing is evidence of the Township s bad faith. Furthermore, as to the General Notice of Layoff, the fire union contends that Fire Fighters McCall and Wilkins were not properly served with the notice. It states that McCall has not yet received the notice and Wilkins received his notice on May 19, 2009, which does not meet the requirement that notice must be served 45 days prior to the effective date of the layoff. See N.J.S.A. 11A:8-1(a) and N.J.A.C. 4A:8-1.6(a). Moreover, the fire union maintains that McCall and Wilkins along with Margulies and Wiecenski are not the least senior Fire Fighters and should not have been on the layoff list. It is noted, however, that McCall, Wilkins, Margulies, and Wiecenski will not be affected by the layoff. The fire union notes that one of these Fire Fighters, whom it does not name, is married and his wife is due to have a baby just days after the proposed effective date of the layoff. Thus, the fire union maintains that the bad faith, if not fraud has disrupted this family. In addition, the fire union states that all six Deputy Fire Chiefs are to be demoted. However, there has been no approval to abolish the rank of Deputy Fire Chief and no establishment of a plan to transfer the duties to Fire Captains. The fire union states that without a stay of the layoffs, there is no other way to be assured that bad faith will be discontinued. Further, no harm will come to the Township if a stay were granted. The fire union contends that the harm would obviously be huge if the stay were denied. Additionally, the fire union contends that any monetary harm that the Township may face is outweighed by the public safety concern of reduced services. Moreover, it submits that the layoff plan raises serious questions as to whether the Township has bargained in good faith. In this regard, the fire union contends that the plan indicates that a layoff would result if the fire union refused to make significant concessions. Therefore, the fire union submits that it has clearly demonstrated that it will be successful in challenging the good faith of the layoff and danger of immediate and irreparable harm would occur if the stay is not granted. Additionally, it

4 claims that there is the absence of substantial injury to the Township and the public interest is best served with the granting of this stay. In response, the Township, represented by Brian Kronick, Esq., explains that Fall began negotiations with the fire unions for successor contracts in 2008, but no agreement was ever reached. It then appointed Fehrenbach as interim Township Manager. Fehrenbach and the fire unions met on or about February 26, 2009, but there was no discussion of layoffs at the time. The Township notes that Fehrenbach had not yet reviewed the proposed budget. Subsequent meetings and telephone discussions occurred on how to avoid possible layoffs, including the reduction of overtime costs and not filling vacancies. However, the Township indicates that none of the alternatives achieved the level of savings needed to meet the Tax Levy Cap. Moreover, the Township contends that the fire union has not met the factors for interim relief as set forth in N.J.A.C. 4A: In this regard, it states that the fire union has not provided sufficient evidence that the Township acted in bad faith in negotiating successor agreements, providing layoff notices, or demoting Deputy Fire Chiefs. Thus, it submits that the fire union has not established a clear likelihood of success on the merits of its case that the Township acted in bad faith or that it was noncompliant with layoff procedures. Additionally, the Township argues that the fire union s claims are not ripe for review. It emphasizes that the members of the fire union have appeal rights once the layoffs become effective. Moreover, it states that the fire union presents a dispute of fact as to whether a labor agreement was reached. The fire union claims that there were firm labor agreements, but the Township contends that no final agreement is in place. Thus, the Township submits that interim relief cannot be granted in light of this material dispute of fact. Further, the Township maintains that it acted in good faith during the contract negotiations. It submits the certification of Fehrenbach, who states that he met with the fire union on several occasions to discuss alternatives to layoffs and sought ways to obtain cost savings, including eliminating vacant positions in other departments. Additionally, the Township indicates that the accusations against Fehrenbach are baseless. Fehrenbach certifies that in over 31 years of service to various municipalities as a manager or administrator, he has only submitted one other layoff plan to LHRM that affected uniformed public safety employees. Regarding service of the layoff plan, the Township states that Civil Service regulations do not require the Township to submit the plan to the fire union prior to the Commission s approval. It cites N.J.A.C. 4A:8-1.4(e), which provides that upon approval of the layoff plan, LHRM shall provide affected

5 negotiations representatives with a copy of the plan. Since the fire union received a copy of the plan after LHRM s approval, the Township argues that no regulation was violated. Furthermore, the Township acknowledges that there are certain employees listed in the layoff plan who will not actually be subject to the layoff. It advised LHRM of this and does not object to a different seniority list based on LHRM s evaluation. In addition, the Township states that any issues relating to notice, seniority, or bumping rights will be cured prior to the implementation of the layoff. It notes that the effective date of the layoff was changed to address any notice delays. As to the demotion of the Deputy Fire Chiefs, the Township submits that the demotions will create a more efficient Fire Department and assist the Township in meeting its financial obligations. It states that the current system of one Deputy Fire Chief supervising one Fire Captain who supervises four Fire Lieutenants is inefficient. Additionally, the Township indicates that by demoting the Deputy Fire Chiefs to Fire Captains, a more effective distribution of resources will occur. Further, it contends that any harm that the fire union may suffer is not immediate or irreparable, since the harm that the fire union members would suffer is monetary in nature. Moreover, since the members may file appeals, the Township contends that any possible harm cannot be deemed irreparable. The Township also states that the public interest would be greatly affected if the fire union s request is granted since the taxpayer will ultimately bear the burden of an inefficient government. In addition, if the layoff with regard to the fire personnel is stayed, the Township indicates that additional layoffs in other departments would occur as it needs to achieve the same savings as the current plan. Furthermore, it states that if the layoffs or cost controls are not in place by the time the budget is put forth for adoption, the governing body cannot adopt the budget. Thus, this would cause disruption to the Township s operations. Therefore, the Township maintains that the fire union has not established the absence of substantial harm to other parties if its request is granted. In addition, the Township contends that the fire union has not shown that the public interest would be harmed. It submits that other than Chief Montgomery s statement, there is no actual evidence that the Fire Department cannot deliver the same level of service with the proposed decreased number of fire personnel. Therefore, it urges the Commission to deny the fire union s request for a stay of the layoff. The fire union responds that the Township failed to dispute Chief Montgomery s statement as to the necessity of keeping the current staffing levels for the protection of the public. It submits that based on Chief Montgomery s experience, he is in the best position to determine the needs of

6 the department. Further, the fire union states that Fehrenbach was only the Township Manager on an interim basis for a period of three months. 9 Moreover, Fehrenbach has said to Glenn Smith, Fire Fighter and President of Local 42, on numerous occasions that he has no knowledge of how the Fire Department operates. The fire union submits the certification of Smith, attesting to the truth of the fire union s statements. 10 In addition, the fire union presents Chief Montgomery s May 26, 2009 memorandum to the new Township Manager, William Broughton. Chief Montgomery explains the organizational structure of the Fire Department, including the duties of fire personnel and its staffing needs, and comments on the proposed layoff as disastrous and may cause the loss of human life and/or the unnecessary destruction of property. As to the duties of Deputy Fire Chiefs, Chief Montgomery indicates that they are on duty every day of the year and are responsible for covering 91 tours (24-hour shifts) of duty. There are four platoons/shifts and each is assigned a Deputy Fire Chief. A fifth Deputy Fire Chief is utilized as a relief deputy so as to allow the other deputies to take leave. Moreover, Chief Montgomery states that [d]ue to the administrative and legal requirements of the department a sixth Deputy Chief is authorized to work as the Administrative Deputy Chief. Chief Montgomery reiterates that the current level of fire personnel is needed for a safe manning level for the Fire Department. He concludes with By your request/direction, I have drafted a plan for restructuring the department if this doomsday plan is initiated. Chief Montgomery indicates that he is totally opposed to its implementation. The fire union points out that Chief Montgomery was requested after the fact to draft this plan. The statement of the Township that the current system was inefficient thus was not supported as the plan was drafted after the fact. Furthermore, the fire union presents that the duties of a Teaneck Deputy Fire Chief and Fire Captain as described by Chief Montgomery are consistent with Civil Service job specifications. It argues that if the Deputy Fire Chief positions are eliminated, Fire Captains would be performing duties inconsistent with their job specifications. Moreover, the fire union notes that one of the Deputy Fire Chiefs is at the mandatory retirement age and four of the six Deputy Fire Chiefs are eligible to retire. If the layoff is not stayed, the four Deputy Fire Chiefs have the incentive to retire since they do not want to have their pension based on the salary of a Fire Captain. Therefore, the fire union maintains that there can be no adequate layoff plan if Deputy Fire Chief positions are eliminated. 9 Fehrenbach states that he was the interim Township Manager from February 24, 2009 until May 18, It is noted that the fire union also submits the certification of Anthony Verley, a Deputy Fire Chief, stating that the information presented by the fire union is true.

7 Moreover, the fire union indicates that Vincent Foti, a forensic accountant, has done an economic analysis for both the Teaneck fire and police departments. 11 In this regard, it states that the December 31, 2008 surplus for Teaneck was 6.7 million dollars, of which only approximately 4.1 million dollars has been applied to the 2009 budget. Thus, the fire union contends that the unapplied surplus of 2.6 million demonstrates a healthy financial position and the ability to avoid layoffs. Additionally, the fire union presents the statement of Michael Hunter, who is also the President of Local 242. Hunter indicates that he just recently spoke to Anthony Bianchi, Chief Financial Officer of Teaneck, who said that he had a meeting with Fehrenbach and the Township s auditor. Bianchi told Fehrenbach that layoffs were financially unnecessary as there were available funds to adopt a budget. In response, the Township indicates that although Chief Montgomery opposes the layoff, the fire union fails to present a single statistic, fact or circumstance to prove that a reduction of fire staff would result in the spread of fires and/or additional lives being lost. As to Smith s statement that Fehrenbach told him on numerous occasions that Fehrenbach has no knowledge of how the Fire Department operates, the Township argues that the statement is unsubstantiated and has no relevance to the instant matter. It states that without a single person certifying to its accuracy is simply an attempt to make personal attacks where legal attacks have failed. 12 Regarding the statement of Bianchi, the Township presents a second certification from Fehrenbach, indicating that Bianchi told Fehrenbach that he indicated to Hunter that it was possible to adopt a budget without layoffs in However, Fehrenbach states that Bianchi believes that Hunter may have taken the comment out of context. The Township emphasizes that the ultimate decision on whether to institute layoffs or other budget alternatives lies with the governing body. After a review of its options, the Township contends that it deemed layoffs necessary Fehrenbach also denies that a meeting took place with him, Bianchi, and the Township s auditor as referenced by Hunter. Additionally, the Township maintains that its layoff plan is legitimate and has already been approved by LHRM. It reiterates that due to the Tax Levy Cap, a reduction of expenses in excess of $3.3 million dollars is required to balance the budget. After the reduction of certain salaries and overtime, the elimination of programs, and not filling vacancies, the Township contends 11 Although the fire union references Foti s analysis, it does not submit any supporting documentation apart from its own summary of information. 12 However, as indicated above, the fire union submits the certification of Smith, attesting to the truth of the fire union s statements.

8 that a gap of approximately $650,000 still remains. 13 Therefore, it concludes that layoffs and demotions are necessary to address this budget gap. After reviewing the organizational structure of the Fire Department, the Township indicates that it determined that the duties performed by the Deputy Fire Chiefs were largely administrative and duplicative. It states that the positions were simply unnecessary and keeping the positions was inefficient. The Township reiterates that the Fire Department would be better served if the demoted Deputy Fire Chiefs serve as Fire Captains, as they would be more directly involved in the day-to-day leadership of the Fire Fighters. It emphasizes that under well-settled case law, it has a right to eliminate positions. Thus, the Township maintains that the fire union has not met its burden of demonstrating that there is a clear likelihood of success on the merits of its case. The Township also emphasizes that the relief suffered by the fire union members would be monetary and may be remedied. It submits that irreparable harm must directly affect the individual or group seeking relief. In this case, it maintains that the fire union s argument that lives of citizens will be in danger is not sufficient to prove irreparable harm and grant the fire union interim relief. Moreover, the Township notes that it was recently informed that five of the six Deputy Fire Chiefs have filed for retirement. As such, it argues that these five Deputy Fire Chiefs no longer have valid claims against the proposed demotions. Thus, the Township contends that the fire union has failed to show that it would suffer irreparable harm. Finally, it reiterates that if the layoff notices are rescinded, Teaneck and its citizens would be harmed as the Township would exceed its Tax Levy Cap while operating at an inefficient level within the Fire Department. The fire union responds by presenting letters addressed to Chief Montgomery from Peter Finley, retired Fire Chief and President of the New Jersey Career Fire Chiefs Association (Fire Chiefs Association), and Gerard Naylis, President of Mid-Bergen Mutual Aid Group. 14 The fire union also submits a letter from Peter Hodge, a Fire Instructor and President of the Bergen County Fire Chiefs Association, Inc. Finley expresses concern regarding Teaneck s elimination of the Deputy Fire Chief positions. He states that the plan is not only ill conceived, it is downright dangerous and would, without question, significantly compromise the safety of both your firefighters, and, the residents of, and visitors to, Teaneck that you are charged with protecting. Moreover, Finley indicates that the Fire Chiefs 13 Fehrenbach notes that the budget gap could be filled by almost half if the Fire Department overtime were reduced by $282, This group provides aid and assistance during fires and other emergency incidents to its member fire departments and rescue squads, which consist of Bergenfield, Bogota, Englewood, Hackensack, Ridgefield Park, and Teaneck.

9 Association supports Teaneck s current organizational structure, namely, one Deputy Fire Chief assigned to each of the four platoons as commander and two Deputy Fire Chiefs assigned to administrative functions, with one Deputy Fire Chief also serving as a floating chief when the platoon commanders are on leave. Finley commends Teaneck s Fire Department for meeting the standards of the National Fire Protection Association (NFPA) that there be a minimum of 17 personnel to initially respond to a reported structural fire and that a supervisory chief officer be dispatched or notified to respond to a full alarm assignment. He states that Teaneck s Fire Department s current structure falls within the recommended supervisory span of control for incident management operations. Further, Finley notes that Fire Captains and Fire Lieutenants do not have the training and experience to be able to perform the command duties of a Deputy Fire Chief as quickly and precisely, and Fire Captains would be performing out-of-title duties if they serve as platoon commanders. As for Naylis, he also expresses concern over the elimination of the Deputy Fire Chief positions, as it will impact the entire mutual aid group and their ability to operate. He contends that the lack of a chief officer at a scene means that tasks that need to be completed will in all likelihood be overlooked or not done. Furthermore, he states that the loss of staff will erode the ability of all member fire departments to deliver their service to the community by placing an even greater reliance on mutual aid. In conclusion, Naylis indicates that our collective hope is that Teaneck will continue to staff the Deputy Fire Chief positions and maintain the same level of Fire Fighters in order to provide a minimum level of fire protection. Hodge also conveys similar sentiments. He indicates that the loss of Deputy Fire Chiefs in Teaneck will impact Bergen County s interdependent mutual aid groups and their ability to operate. Furthermore, the fire union asserts that recent evidence reveals that the layoff plan has resulted in the elimination of not only the rank of Deputy Fire Chief but also Fire Captain. For example, it indicates that Anthony Verley, Jr., the only Deputy Fire Chief who has not been forced to retire, has been notified by LHRM that he will be demoted to Fire Lieutenant as opposed to Fire Captain. However, it is noted that as of the June 17, 2009 layoff rights determinations, Verley is not scheduled to be demoted to Fire Lieutenant. His demotion is to Fire Captain, and Robert O Neill is to be demoted to Fire Lieutenant. Additionally, the fire union presents a certification from Hunter, stating that based on the original layoff letters issued by LHRM, there are now 19 Fire Fighters scheduled to be laid off rather than 11 Fire Fighters as originally planned. Hunter notes the monetary result of the layoff, stating

10 that the cost of 11 laid off Fire Fighters is $1.21 million dollars and the cost of 19 laid off Fire Fighters is $2.09 million. Further, Hunter contends that there are mistakes in seniority. For example, he states that Gregory Wagner, Alan Russ, Paul Fanelli, and John Slickson 15 should not be laid off based on their seniority. In addition, Hunter certifies that he never received an Individual or General Notice of Layoff, but he received a determination from LHRM that he will be demoted to Fire Fighter. However, as indicated above, based on the re-determination of layoff rights, Hunter will not be affected by the layoff. Hunter also notes that five other Fire Lieutenants will be demoted to Fire Fighters. Moreover, Hunter emphasizes that based on the uncontradicted statements of Chief Montgomery, Finley, Naylis, and Hodge, it is clear that Teaneck s proposed layoff plan is a disaster and will erode the ability of all member fire departments to deliver their services. Further, Hunter submits that since a budget may be approved without layoffs as indicated by Bianchi, there is no irreparable harm if the layoff is stayed. Finally, the fire union reiterates its prior arguments and urges the Commission to grant its request for a stay and also requests an expedited hearing on the good faith of the layoff. The Township responds that N.J.S.A. 40A:14-7 gives Teaneck the authority to create and maintain a Fire Department. Civil Service statutes also provide that a permanent employee may be laid off for economy, efficiency or related reasons. Thus, the Township maintains that it has the authority to lay off and demote fire personnel. Additionally, it states that the fire union does not represent the Deputy Fire Chiefs. Thus, it contends that the fire union s arguments should be disregarded as the fire union lacks standing to challenge the demotions of the Deputy Fire Chiefs. Similarly, it indicates that the statements of Finley, Naylis, and Hodge should not be considered as the statements pertain to the demotion of the Deputy Fire Chiefs. It is noted that although the FMBA does not represent the Deputy Fire Chiefs, the FMBA s attorney also filed the instant request for interim relief on behalf of the Deputy Fire Chiefs. Nonetheless, the Township submits that if the Commission considers the foregoing information, the fire union still has not met its burden in the instant matter. In reply to Finley and Naylis support of Deputy Fire Chief positions, the Township states that it agrees that a fire commander needs to be present during a fire call. However, it opposes the notion that the role needs to be filled with a Deputy Fire Chief. The Township submits that it is within a Fire Captain s job duties to take control of a fire scene and serve as an incident manager/commander. Moreover, it indicates that Deputy Fire Chiefs and Fire Captains do not have different training or certification levels. In this regard, it states that pursuant to N.J.A.C. 5:73-1.6(b)-(d) and the job 15 Slickson is not included in the layoff rights determinations, nor does the Commission have a record of his employment.

11 specifications for Fire Chief, Deputy Fire Chief, and Fire Captain, an employee serving in any one of these titles must possess only a valid Incident Management Level 1 certification. Further, the Township submits that the Federal Emergency Management Agency (FEMA) National Incident Management System Guidelines for Level III training include Fire Captains. Additionally, the Township maintains that administrative functions may be undertaken by other Teaneck employees. It states that there are currently two civilian employees who assist Chief Montgomery in administrative functions of the Fire Department. Moreover, it notes that many other fire departments in the State are run successfully without the aid of a paid Deputy Fire Chief, such as the Winslow Township Fire Department, where Finley formerly was the Fire Chief, and Millburn Fire Department, which is the department of the Fire Chiefs Association s Vice President. Thus, it concludes that the argument that a Deputy Fire Chief is essential to the administrative success of the Teaneck Fire Department is unfounded and does not prove that the fire union will succeed on the merits of its case. As to NFPA standards, the Township indicates that these standards are guidelines for the ideal response to a fire call. These standards are not required in order for the Fire Department to be considered efficient. Further, the Township notes that only a few departments in the State meet these standards, including Winslow Township and Millburn. Therefore, it submits that the fire union s reliance on the foregoing is misplaced and not persuasive to delay the layoff. Further, the Township states that it takes exception to the fire union s suggestion that it has a huge surplus, yet chooses to institute layoffs. It explains that after conducting a surplus rebuilding analysis, the auditor, Bianchi, and Fehrenbach reached the conclusion that, if the Township were to expect the ability to regenerate a similar surplus for 2010, as it has for several of the past years, the amount of unappropriated surplus remaining after appropriation this year was barely adequate. The Township contends that it does not wish to create a fiscal problem for 2010 as a result of any actions taken in Therefore, it indicates that layoffs had to be considered. In addition, the Township sets forth that the layoff rights determinations were made by LHRM. Thus, the implementation of these notices was not the responsibility of the Township. The Township also notes that Hunter was served with a General Notice of Layoff by certified mail, but he refused to retrieve it from the post office. Hunter also refused to accept the General Notice of Layoff when a Deputy Fire Chief personally served it on him. Moreover, it stresses that Fire Captain positions are not to be

12 eliminated. It explains that in a letter to LHRM, dated June 15, 2009, it clarified that if any of the six Deputy Fire Chiefs exercises their demotional title rights, they would become Fire Captains. The layoff chain then would proceed down to Fire Fighters, of which 11 are to be laid off. Moreover, the Township points out that the fire union presents various monetary arguments with regard to the budget, which are clearly not a basis for an irreparable harm finding. Accordingly, it requests that the Commission deny the fire union s request for interim relief and permit the layoffs to proceed. The fire union responds that the Township has not disputed the statements of Chief Montgomery and the mutual aid organizations. It submits that the decision of the Township and Fehrenbach are illegal and life threatening. It notes that five of the six Deputy Fire Chiefs are off the payroll and are retired. Thus, it urges the Commission to stay the layoffs. In response, the Township indicates that the five Deputy Fire Chiefs filed for retirement on June 1, 2009, but their retirement is not yet official. CONCLUSION N.J.A.C. 4A:2-1.2(c) provides the following factors for consideration in evaluating petitions for interim relief: 1. Clear likelihood of success on the merits by the petitioner; 2. Danger of immediate or irreparable harm; 3. Absence of substantial injury to other parties; and 4. The public interest. N.J.S.A. 11A:8-4 and N.J.A.C. 4A:8-2.6(a)1 provide that good faith appeals may be filed based on a claim that the Township laid off or demoted the employee in lieu of layoff for reasons other than economy, efficiency or other related reasons. When a municipality has abolished a position, there is a presumption of good faith and the burden is on the employee to show bad faith and that the action taken was not for purposes of economy. Greco v. Smith, 40 N.J. Super. 182 (App. Div. 1956); Schnipper v. North Bergen Township, 13 N.J. Super. 11 (App. Div. 1951). As the Appellate Division further observed, That there are considerations other than economy in the abolition of an office or position is of no consequence, if, in fact, the office or position is unnecessary, and can be abolished without impairing departmental efficiency. Schnipper, supra at 15. (emphasis added). In the instant matter, the fire union contends that the Township did not act in good faith when it submitted its layoff plan, as evidenced by Fehrenbach s alleged misrepresentations in the plan and his bias against fire

13 personnel. Moreover, it maintains that the layoff plan raises serious issues as to whether the Township bargained in good faith regarding a successor contract. Further, it indicates that the layoff plan was not provided to the union, layoff notices were not properly served, and certain Fire Fighters should not have been on the layoff list due to their seniority. In addition, it submits that the Township actually has a healthy financial position due to a supposed surplus of 2.6 million dollars and that Bianchi, the Chief Financial Officer, advised Fehrenbach that layoffs were unnecessary. Thus, the fire union maintains that the layoff should be stayed until a hearing is conducted on the good faith of the layoff. However, the fire union does not indicate the specific information in the layoff plan that it claims is inaccurate. It has also not provided substantive evidence that Fehrenbach was motivated by invidious reasons. Rather, it merely states that Fehrenbach has a reputation of targeting fire personnel for layoff. However, Fehrenbach certifies that he has only submitted one other layoff plan to LHRM that included public safety employees in his over 31 years of service for various municipalities. Additionally, non-public safety employees have been targeted for layoff. Further, although the layoff plan references public safety negotiations and the attempt of the Township to convince the unions on salary roll backs, the plan does not provide clear evidence as to whether the Township bargained in bad faith. Moreover, contrary to the fire union s assertion of a healthy financial situation and the Township s ability to adopt a budget without layoffs, the Township maintains that the original prepared budget without layoffs exceeded the Tax Levy Cap by over three million dollars. Nonetheless, these issues present disputes of facts that cannot be addressed fully on the written record. The Commission will not attempt to determine the merits of these issues without a full plenary hearing before an Administrative Law Judge who will hear live testimony, assess the credibility of witnesses, and weigh all the evidence in the record before making an initial decision. Therefore, since there are disputes of facts, there has not been a demonstration of a clear likelihood of success that the anticipated layoff has been conducted in bad faith. As to procedural issues, no requirement is imposed upon appointing authorities under Civil Service law and rules to provide a layoff plan to affected negotiations representatives prior to its approval. See N.J.A.C. 4A:8-1.4(e); see e.g., In the Matter of County of Morris Layoffs (Commissioner of Personnel, 16 decided February 28, 2007). Thus, the fire union s argument in that regard fails. Moreover, the Township s failure to provide a particular 16 On June 30, 2008, Public Law 2008, Chapter 29 was signed into law and took effect, changing the Merit System Board to the Civil Service Commission, abolishing the Department of Personnel and transferring its functions, powers and duties primarily to the Civil Service Commission. In this decision, the former names will be used to refer to actions which took place prior to June 30, 2008.

14 employee with at least 45 days notice prior to a layoff, as required by N.J.A.C. 4A:8-1.6(a), does not provide clear proof that a layoff was conducted in bad faith. The Commission notes that a layoff may occur on the scheduled date so long as the employee is fully compensated with 45 days pay notwithstanding he or she did not receive the required amount of notice. In the instant matter, the fire union contends that McCall has not yet received a General Notice of Layoff, Wilkins received the notice on May 19, 2009, and Hunter did not receive an Individual or General Notice of Layoff. However, based on the June 17, 2009 corrected layoff rights determinations, McCall, Wilkins, and Hunter are not going to be affected by the layoff. Similarly, Margulies, Wiecenski, Wagner, Russ, and Fanelli will not be laid off. Moreover, Slickson is not included in the layoff determinations. Thus, the fire union s arguments with regard to these individuals are moot. Further, the fire union asserts that Verley has been notified that he will be demoted to Fire Lieutenant. However, Verley s June 17, 2009 determination indicates that he is to be demoted to Fire Captain. Thus, this issue is also moot. The Commission emphasizes that claims regarding title rights issues are not evidence that a layoff has been conducted in bad faith. Therefore, the fire union has not shown a clear likelihood of success on the merits of its case. With regard to the remaining factors, the fire union maintains that any monetary harm that the Township may face is outweighed by the concern that reduced staffing levels will jeopardize the public s safety. Certainly, the opposition of Chief Montgomery to the layoff, as well as the supporting statements of Finley, Naylis, and Hodge, cannot be ignored. However, without a very clear demonstration that the Township s restructuring of the Fire Department is not feasible or will imperil its citizens, the Commission will not hinder the Township s prerogative to lay off its employees. Compare, In the Matter of the Township of Belleville Layoff (Commissioner of Personnel, decided February 20, 2002) (Commissioner granted a request for a stay of a layoff of fire personnel, pending a determination on the merits of the good faith of the layoff, based on grave issues of public safety as attested to by several Fire Departments in neighboring towns and the assertion that the layoff was proposed to circumvent a court order). Apart from opinions expressed that the current level of personnel is needed, there is not a clear showing that fire services will actually be reduced. Further, the Township emphasizes that other Fire Departments in the State do not utilize Deputy Fire Chief titles, Fire Captains are able to serve as incident managers/commanders, and Deputy Fire Chiefs and Fire Captains possess similar minimum certifications. The Commission cannot dictate how an appointing authority addresses its financial situation or how it should handle its operations absent extraordinary circumstances. The Township maintains that the current organization of the Fire Department is inefficient and the elimination of the Deputy Fire Chief positions will assist it in meeting

15 financial obligations. Moreover, it submits that additional layoffs will occur if the instant request for stay is granted. The Commission emphasizes that the public interest favors efficient government operations, since it is the taxpayer who ultimately bears the financial burden of public employees salary and benefits. It is in the public s best interest to streamline public services and promote more efficient operations. See e.g., In the Matter of City of Newark Layoff (MSB, decided February 27, 2008). Turning to the other claims, since the layoff has not yet occurred, the fire union s claim that Fire Captains will be performing out-of-title duties, namely, the duties of Deputy Fire Chiefs, is speculative and unsupported. In addition, the Commission is cognizant of the impact of a layoff on affected employees. However, the harm that the individuals may suffer while awaiting an Office of Administrative Law hearing is financial in nature, and as such, can be remedied by the granting of back pay should they prevail in the good faith layoff appeal. Accordingly, the fire union has not demonstrated a sufficient basis for a stay of the instant layoff. Nonetheless, based on the circumstances of this case, the Commission orders that a hearing be granted on the good faith claims of the fire union and the matter be promptly transmitted to the Office of Administrative Law with a recommendation that the hearing take place on an expedited basis. ORDER Therefore, it is ordered that this petition be denied, but that a hearing be granted with regard to the good faith of the layoff and the matter be promptly transmitted to the Office of Administrative Law in accordance with this decision.