Todaro v. Township of Union

Decision Date17 November 1998
Docket NumberNo. CIV. A. 97-4875.,CIV. A. 97-4875.
Citation27 F.Supp.2d 517
PartiesBrian TODARO, et al., Plaintiffs, v. THE TOWNSHIP OF UNION, etc., Defendant.
CourtU.S. District Court — District of New Jersey

Renee C. Vidal, Cureton, Caplan & Clark, Mt. Laurel, NJ, for Plaintiffs.

John C. Marcolini, Weiner, Lesniak, Parsippany, NJ, for Defendant.


WOLIN, District Judge.

This matter comes before the Court on cross-motions for summary judgment filed by plaintiffs Brian Todaro, et al., and defendant Township of Union. The Court has decided this matter pursuant to Federal Rule of Civil Procedure 78. For the reasons set forth herein, plaintiffs' motion for summary judgment on count one of the amended complaint will be denied. Defendant's motion for summary judgment will be held in abeyance as to count one of the amended complaint pending the completion of certain limited discovery, and will be granted as to count two of the amended complaint.


The plaintiffs in this action are eleven private individuals who served as special law enforcement officers ("plaintiffs") for the Township of Union ("Township" or "defendant"), a municipal corporation of the State of New Jersey.1 In the first count of their amended complaint, plaintiffs seek remuneration under the minimum wage provisions of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., for hours of "town duty" they performed for the defendant without compensation. In their second count, plaintiffs seek reinstatement and remuneration for what they allege was the defendant's retaliatory termination of their status as SLEOs.

Plaintiffs have moved for summary judgment on the first count of the amended complaint, and defendant has moved for summary judgment on both counts of the amended complaint.

A. Rules Governing SLEOs

Pursuant to the Special Law Enforcement Officers' Act (the "Act"), a New Jersey municipality may appoint SLEOs "to temporarily or intermittently perform duties similar to those performed regularly by members of a police force of a local unit, or to provide assistance to a police force during unusual or emergency circumstances ...." N.J.S.A. § 40A:14-146.9(h); see also § 40A:14-146.10(a). SLEOs may be appointed for terms of up to one year, and an appointment may be revoked for cause after an adequate hearing. Reappointment is not automatic at the end of each term. See N.J.S.A. § 40A:14-146.14(a); Township of Union Code ("Union Code") § 71-30(A), (B), (E).

SLEOs are subject to various conditions and requirements specified not only in the Act, but also in applicable municipal ordinances (the "Union Code") and in the Township of Union Special Police Rules and Regulations ("SPR & R"), as memorialized in General Orders ("GO") and Directives ("DO") issued by the Township's chief of police.

For instance, SLEOs must be residents of the Township and must undergo the same psychological testing required of regularly appointed police officers. See N.J.S.A. § 40A:14-146.10(b)(6); Union Code § 71-30(B)(1), (6). SLEOs must successfully complete a training course approved by the Police Training Commission, and may not be issued firearms unless they successfully complete the same basic firearms course required for regular police officers. See N.J.S.A. 40A:14-146.11(a); Union Code § 71-31. SLEOs may carry firearms only when "engaged in the actual performance of the officer's official duties and when specifically authorized by the chief of police ...." N.J.S.A. § 40A:14-146.14(b); Union Code § 71-32. The Act provides that SLEOs "shall be under the supervision and direction of the chief of police ...." N.J.S.A. § 40A:14-146.14(c).

Pursuant to local ordinance, SLEOs are obligated to perform four hours of "town duty" each week:

All special law enforcement officers shall be prepared to serve the Township of Union as such in an official capacity by devoting at least four (4) hours weekly to police work of the township and such additional assignments as they may be called upon to perform as designated by the Chief of the Police Division.

Union Code § 71-39 (emphasis added).

This ordinance is supplemented by the SPR & R, which provides:

TOWN DUTY — Any public safety and law enforcement functions which a special police officer performs for the Township, and for which he/she receives no compensation, shall be deemed as "town duty". Except as otherwise provided for herein, every special police officer shall be required to perform a minimum of 4 hours of town duty each and every week, and such additional town duty as he/she may be called upon to perform by the Chief of Police.

a. Whenever a special police officer fails to satisfy his/her required minimum town duty hours for a given week, said hours shall be added to and become part of his/her minimum town duty requirements for the following week. A special police officer who is in arrears of his/her town duty obligations shall be prohibited from performing "job-in-blue" duty until such outstanding town duty obligations are satisfied. A special police officer who is in arrears of 20 hours or more of his/her town duty obligations shall be subject to suspension and possible termination from the Special Police.

GO:87-001.03 (emphasis added).

Prior to October 2, 1995, after SLEOs had been appointed by the Township, and as long as they were not in arrears in their town duty hours, they were eligible to accept certain paid assignments designated as "jobs-in-blue." See Union Code § 71-38. "Job-in-blue duty" is defined as follows:

JOB-IN-BLUE DUTY — Any public safety function which a special police officer performs on behalf of the Township for a public or private entity, and for which he/she receives compensation at the rate established by Township resolution and in accordance with departmental regulations concerning same, shall be deemed "job-in-blue duty".

GO 87-001.04.

Jobs-in-blue consist largely of traffic, crowd control, or security work performed for private or governmental entities (usually private), known as "subscribers." See In re Township of Union, Public Employer, et al., 21 NJPER ¶ 26008 (1994) ("PERC-1"). Jobs-in-blue are contracted by the subscriber through the police department, and are scheduled and posted by the jobs-in-blue assignment officer. See PERC-1. Until October 2, 1995, regular Township police officers were given the first opportunity to accept jobs-in-blue, then SLEOs, then Union County police officers. See PERC-1. The hourly rate of compensation for jobs-in-blue is established set by the Township. See PERC-1. The compensation rate set in August 1995 was $20.00 per hour for jobs-in-blue other than construction and strike duty, and $28.00 per hour for construction and strike duty. See Declaration of John C. Marcolini, Esq. in Support of Defendant's Motion for Summary Judgment ("Marcolini Decl."), Exh. 15. Compensation is paid directly by the subscriber to the officer performing the job-in-blue, although sometimes the compensation is forwarded to the police department for disbursement. See PERC-1. Prior to October 2, 1995, SLEOs were permitted to work up to 16 hours of jobs-in-blue per week. GO 87-001.04. There is no evidence or allegation before the Court that SLEOs were ever promised or guaranteed job-in-blue assignments.

B. The PERC Decisions

At all times relevant to this lawsuit, plaintiffs were SLEOs appointed by the Township. Plaintiffs assert that they performed town duty "to receive and with the expectation that Plaintiff[s] would receive compensation through Plaintiffs['] eligibility to perform jobs-in-blue." See Answer # 22 of each plaintiff's Answers to Interrogatories, Marcolini Decl., Exh. 12. All plaintiffs held full-time, paying jobs in addition to their performance of SLEO town duty and any jobs-in-blue they accepted. See Answer # 15 of each plaintiff's Answers to Interrogatories, Marcolini Decl., Exh. 12.

Although the Township's regular police force was represented by the Policemen's Benevolent Association of The Township of Union ("Local 69"), the SLEOs were not members of Local 69, but rather were affiliated with an unrecognized non-collective bargaining group known as Local 7 of the New Jersey State Law Enforcement Officers' Association ("Local 7"). See Defendant's Statement of Material Facts, ¶¶ 6-7.

In July 1992, Local 7 filed a petition with the New Jersey Public Employment Relations Commission ("PERC") seeking authority to represent 21 SLEOs from the Township. See PERC-1. The Township opposed Local 7's petition, asserting that the SLEOs were volunteers rather than public employees, and also that the Township could not be a public employer of the SLEOs because the SLEOs were not directly compensated by the Township. See PERC-1. In the alternative, the Township argued that if the PERC determined that it was an employer of the SLEOs, it should be held to be a joint employer along with the jobs-in-blue subscribers, thus placing the SLEOs outside the jurisdiction of the PERC because they were at least in part employed by private entities. See PERC-1.

The Representation Director of the PERC (the "Director") held fact-finding hearings on Local 7's petition. In his published decision, dated November 7, 1994, the Director discussed the status of the SLEOs in the two different roles they performed — town duty and jobs-in-blue. With regard to the status of the SLEOs when performing town duty, the Director provided a rather cursory analysis:

The Township asserts that it is not the employer of the special police officers. It argues that special officers are independent contractors. Alternatively, to the extent the specials are employees, it argues that they are employees of the jobs-in-blue subscribers. As far as the Township is concerned, the specials are simply volunteers. The Township concluded that if it is found to be the employer, the subscribers must be found to be joint employers with...

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