The opinion of the court was delivered by
ESPINOSA, J.A.D.
After collective negotiation agreements (CNAs) between defendant City of Paterson and plaintiffs, Paterson Police PBA Local 1 and Paterson Police PBA Local 1 Superior Officers Association,
Although base salary was not defined in either the statute or the award, it was defined in a subsequent statute that was applicable to the award here. See N.J.S.A. 34:13A-16.7. In the absence of any statement to the contrary, we assume the arbitrator used the term "base salary" as directed by the Legislature. Therefore, and for the reasons that follow, we agree with defendant's interpretation of the interest arbitration award and reverse.
On February 8, 2010, the Legislature introduced Senate Bill Numbers 2, 3, and 4, which were passed and signed into law on March 22, 2010. The three bills implemented some of the recommendations of
In the Final Report, the Committee noted that its investigation of "health benefits issues revealed a system plagued by the skyrocketing costs of health care that have dramatically increased the cost of health benefits for both current and retired public employees." Final Report, supra, at 57. The Committee recommended forty-one reforms to public employee pensions, health care benefits, and other employee benefits, which it found were long "overdue." Id. at 2-5. With regard to health care costs, the Committee recommended that the Legislature require all active public employees and future retirees to pay some portion of the cost of their health insurance premiums. Id. at 113-18. The resulting legislation was "designed to improve the fiscal strength of State and local governments, reduce taxpayer burdens, and ensure the health and pension systems remain viable for current and future employees."
L. 2010, c. 2, added subsection (b) to N.J.S.A. 40A:10-21. As amended, N.J.S.A. 40A:10-21(b) provides:
"Base salary" is not defined under the statute. Adding to the resulting ambiguity is the fact that the employee's contribution is made "through the withholding of the contribution from the pay, salary or other compensation." N.J.S.A. 40A:10-21(b) (emphasis added). No administrative regulations defining the term "base salary" were promulgated under the amended statute.
However, guidelines were published by the State Department of the Treasury, Division of Pensions and Benefits (DPB), and the New Jersey Department of Community Affairs, Division of Local Government Services (DLGS) to be provided to the affected groups. DLGS was established in the Department of Community Affairs under the Local Government Supervision Act (1947), N.J.S.A. 52:27BB-1
DLGS issued LFN 2010-12 to provide "guidance for complying with" N.J.S.A. 40A:10-21(b) to local units, such as defendant, that provide non-State Health Benefits Program (SHBP) coverage. LFN 2010-12 highlighted important elements of the law and included Frequently Asked Questions (FAQs) in which it defined "base salary" as the "salary on which pension contribution ... is based." This definition was consistent with the definition of base salary in a statewide informal guideline issued by the DPB for the administration of SHBP.
Defendant sought to comply with the dictates of N.J.S.A. 40A:10-21 by following LFN 2010-12. Accordingly, it deducted 1.5% of base pensionable salary from all its employees' pay as their contribution toward their health benefits.
Prior to the enactment of N.J.S.A. 40A:10-21(b), plaintiffs and defendant were parties to two separate CNAs, which governed the terms of employment of all member police officers, including salary ranges by step and rank, and percentage increases for longevity. Officers assigned as detectives received an annual $2000 "detective differential" that was "payable bi-weekly in addition to their base pay." An officer who worked the night shift received a five percent "night differential," as part of his or her "regular base salary," and an officer who completed eighteen years of service received an annual "base salary increase" of $2000. As part of his or her "regular salary," an officer received an "education incentive reimbursement" in the amount of $22.50 for each credit hour earned toward a degree or certificate. Officers also received periodic compensation for overtime, court attendance, rescheduled duty tours, clothing and equipment allowances, and off-duty assignments. Under the agreement, officers paid deductibles for medical care, but did not contribute toward the cost of their health insurance benefit.
Because the parties were unable to negotiate successor agreements, their CNAs expired on July 31, 2008, and they submitted to compulsory interest arbitration pursuant to N.J.S.A. 34:13A-16 with New Jersey Public Employment Relations Commission (PERC). Hearings were conducted by an arbitrator in October 2009. On February 17, 2011, the arbitrator issued an Interest Arbitration Decision and Award, which established the terms of the CNAs between the parties for August 1, 2008, to July 31, 2012. The arbitration award set a new salary schedule and modified the longevity schedule, but continued the provisions of the prior agreements regarding educational incentives, and night and detective differentials.
The arbitration award recognized the applicability of the amendment to N.J.S.A. 40A:10-21. Noting that neither party "made a proposal regarding employee co-payments toward health insurance," the arbitrator nevertheless took "official notice of an act by the New Jersey Legislature requiring the payment of 1.5% of base salary towards health insurance effective May 21, 2010." Accordingly, the award
Neither party filed an appeal of the award to PERC.
After the arbitrator's award was issued, defendant began withholding 1.5% of each police officer's pensionable salary, retroactive to the effective date of the statute. Defendant calculated pensionable salary as base salary wages plus additional items of compensation, including longevity, educational incentives, and night and detective differentials, but not overtime pay. Plaintiffs filed a verified complaint to confirm the February 17, 2011, compulsory interest arbitration award pursuant to N.J.S.A. 34:13A-16, challenging defendant's calculation of base salary, as well as an order to show cause for summary action pursuant to Rule 4:67-1. Defendant filed an answer and counterclaim, alleging that it had withheld 1.5% of each employee's "pensionable salary" in accord with LFN 2010-12. Defendant also sought modification or correction of the arbitrator's award to clarify that "it shall withhold 1.5% of pensionable salary in conformance with P.L. 2010, c. 2...."
The trial court held that defendant could not assert a counterclaim to "modify the award" because it failed to appeal the arbitrator's decision to PERC and because defendant failed to establish grounds for such modification pursuant to N.J.S.A. 2A:24-9. The court found the award was "still subject to confirmation ... as written on its face." The court concluded that the "clear and common meaning of the term `base salary' in P.L. 2010, c. 2" excluded "additional payments or allowances ... such as overtime pay, educational incentives, detective and night differentials, and longevity pay." The court entered final judgment, ordering defendant to "immediately adjust the deductions taken from its police employees' wages to reflect a deduction of 1.5% of `base salary' for health contributions, excluding from `base salary' such benefits as longevity, overtime, educational incentives, and night and detective pay differentials." The judge also ordered defendant to refund the amounts in excess of that definition previously deducted from police officers' salary.
The judge later issued an order that granted a stay as to retroactive excess deductions, but denied a stay of the prospective deductions. After defendant filed a notice of appeal, we granted defendant's motion for a stay.
Defendant argues that the trial court erred in interpreting the term "base salary" as meaning base contractual salary, rather than "base pensionable salary," and thereby improperly excluded such additional items of compensation as educational incentives, detective and night differentials, and longevity pay from the calculation of base salary. Amici DLGS, DPB, and the State League of Municipalities support defendant's position. Amici New Jersey State Firefighters' Mutual Benevolent Association (FMBA) and New Jersey Policemen's Benevolent Association support plaintiffs' interpretation of base salary.
The judgment, which enforced an arbitration award pursuant to N.J.S.A. 34:13A-19, turned upon the trial judge's interpretation of the term "base salary"
We first review the nature of the award that was the subject of interpretation by the trial court and now, in this appeal.
Compulsory interest arbitration, which is governed by the "Police and Fire Public Interest Arbitration Reform Act" (the Reform Act), N.J.S.A. 34:13A-14(a) to -19, provides a mechanism for the speedy resolution of collective negotiation disputes between police and fire departments and their employers. Hillsdale PBA Local 207 v. Borough of Hillsdale, 137 N.J. 71, 80, 644 A.2d 564 (1994). Arbitration conducted pursuant to the Reform Act is subject to a statutorily mandated procedure. The arbitrator must "decide the dispute based on a reasonable determination of the issues, giving due weight to [enumerated statutory factors] that are judged relevant for the resolution of the specific dispute." N.J.S.A. 34:13A-16(g); see also In re City of Camden, 429 N.J.Super. 309, 325, 58 A.3d 1186 (App.Div.), certif. denied, 215 N.J. 485, 73 A.3d 511 (2013).
The arbitrator's decision is final and binding upon the parties. N.J.S.A. 34:13A-16(f)(5). There is, however, a procedure for appealing the decision to PERC. See ibid. Although none of the parties appealed, they were permitted to seek enforcement of the decision in the Superior Court. N.J.S.A. 34:13A-19. In our view, the relief sought by defendant was not a modification of the award but rather, a clarification that use of the term "base salary" in the award was consistent with applicable law.
The new Article 31 in the award explicitly referred to L. 2010, c. 2, reciting the requirement that employees contribute 1.5% of their "base salary" toward the cost of their health insurance. Therefore, to understand the meaning of "base salary" within the award, we must determine the meaning of that term in the statute.
The court's "task in statutory interpretation is to determine and effectuate the Legislature's intent." Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 553, 964 A.2d 741 (2009). Courts "look first to the plain language of the statute, seeking further guidance only to the extent that the Legislature's intent cannot be derived from the words that it has chosen." McGovern v. Rutgers, 211 N.J. 94, 108, 47 A.3d 724 (2012) (quoting Bosland, supra, 197 N.J. at 553, 964 A.2d 741).
As noted, "base salary" is not defined in the statute itself or in any administrative regulation promulgated to implement the statute. Moreover, it is susceptible to multiple interpretations. "Salary" has been defined as "monies received by a person on a fixed and continuous basis, i.e., normally paid in regular periodic intervals in specific regular amounts." Koribanics v. Bd. of Educ. of Clifton, 48 N.J. 1, 6, 222 A.2d 87 (1966); Wilson v. Bd. of Trs. of Police and Firemen's Ret. Sys., 322 N.J.Super. 477, 481, 731 A.2d 513 (App. Div.1998); see Black's Law Dictionary 1454 (9th ed. 2009) (defining salary "[a]s an agreed compensation for services ... usually paid at regular intervals on a yearly basis"); but see Webster's II New College Dictionary 92 (1995) ("defining base pay" as "[a]n amount or a rate of compensation for a specified job or activity, excluding
We therefore turn to "extrinsic evidence from which [we] hope[] to glean the Legislature's intent." Klumb v. Bd. of Educ. of Manalapan-Englishtown Reg'l High Sch. Dist., 199 N.J. 14, 24, 970 A.2d 354 (2009) (citing Bedford v. Riello, 195 N.J. 210, 222, 948 A.2d 1272 (2008)). "When a statute is subject to more than one plausible reading," the court's "role is `to effectuate the legislative intent in light of the language used and the objects sought to be achieved.'" Velazquez v. Jiminez, 172 N.J. 240, 256, 798 A.2d 51 (2002) (quoting State v. Hoffman, 149 N.J. 564, 578, 695 A.2d 236 (1997)). "Both the statute's words and its goals must be considered." Kas Oriental Rugs, Inc. v. Ellman, 407 N.J.Super. 538, 569, 972 A.2d 413 (App. Div.), certif. denied, 200 N.J. 476, 983 A.2d 201 (2009).
Such extrinsic evidence properly includes legislative history and statutory context. See McGovern, supra, 211 N.J. at 108, 47 A.3d 724; TAC Assocs. v. N.J. Dep't of Envtl. Prot., 202 N.J. 533, 541, 998 A.2d 450 (2010). As we have noted, the enactment here was part of a comprehensive legislative effort to control costs by making changes to public employees' pension benefits, health benefits programs, and other benefits.
In addition, we have the benefit of other legislative action, enacted by the same legislative body in the same year as L. 2010, c. 2, which also served the legislative goal of controlling costs associated with public employees compensation and benefits. N.J.S.A. 34:13A-16.7
Significantly, the arbitration award here was not issued until February 17, 2011, after the effective date of N.J.S.A. 34:13A-16.7, and therefore was subject to these definitions.
The arbitrator was therefore required to employ the definition of "base salary" the Legislature mandated for use in making arbitration awards involving police and firefighters. Had he failed to comply with this statutory mandate, the award would be subject to being vacated. In the absence of any affirmative statement by the arbitrator to the contrary, we assume the arbitration award used the term "base salary" as directed by the Legislature in N.J.S.A. 34:13A-16.7(a).
We also note that, months before the award was rendered, DLGS issued LFN 2010-12 and sent it to all public employers to provide guidance for complying with L. 2010, c. 2. The FAQs in LFN 2010-12 advised, "`base salary' on which the 1.5% contribution is calculated" is the "salary on which pension contribution ... is based." This definition was consistent with that contained in the guidelines published by DPB, also prior to the award, to assist public employers in complying with L. 2010, c. 2, regarding SHBP and the School Employees Health Benefits Program.
The guidelines issued by DLGS were informal in nature and not the equivalent of an administrative agency's interpretation of a statute it is empowered to enforce, which would warrant our "substantial deference." See Klumb, supra, 199 N.J. at 24-25, 970 A.2d 354; Baylor v. N.J. Dep't of Human Servs., 235 N.J.Super. 22, 37, 561 A.2d 618 (App.Div.1989) (Petrella, P.J.A.D., dissenting), aff'd, 127 N.J. 286, 604 A.2d 110 (1990). Still, the guidelines merit our consideration because they represent the practical interpretation of the statute by the agency charged with instructing local governmental units on how they were to comply with the new law. Id. at 36-37, 561 A.2d 618.
The Legislature did not disavow the interpretation adopted by DLGS and DPB. Generally, "the fact that the Legislature has not acted in response to an agency's interpretation ... is `granted great weight as evidence of its conformity with the legislative intent.'" Klumb, supra, 199 N.J. at 24-25, 970 A.2d 354 (quoting Malone v. Fender, 80 N.J. 129, 137, 402, A.2d 240 (1979)). That conformity is evident by the Legislature's action in enacting N.J.S.A. 34:13A-16.7 after the guidelines were issued and effectively adopting the same definition of base salary for use in police and firefighter arbitration. It is, therefore, reasonable to infer that the arbitrator was aware of the applicable guidelines from DLGS as well as the statute that governed the arbitration here and acted in conformity therewith.
The orders dated October 12 and November 3, 2011, are reversed because the arbitration award must be enforced consistent
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
As we have noted, neither party appealed the arbitration award to PERC and neither party contends that the award failed to comply with these limitations.