                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NOS. A-4103-16T3
                                                                     A-4516-16T3

IN THE MATTER OF LAYOFFS
OF BERGEN COUNTY SHERIFF'S
DEPARTMENT.
______________________________

POLICEMEN'S BENEVOLENT
ASSOCIATION, LOCAL 49,
BERGEN COUNTY SHERIFF
BUREAU OF POLICE SERVICES,
on behalf of the association and
its individuals,

          Plaintiff-Appellant,

v.

BERGEN COUNTY SHERIFF'S
OFFICE, COUNTY OF BERGEN,
BERGEN COUNTY BOARD OF
CHOSEN FREEHOLDERS1 and
BERGEN COUNTY SHERIFF
MICHAEL SAUDINO, in his
individual and official capacity,

     Defendants-Respondents.
______________________________

1
     Improperly pled as Bergen County Board of Freeholders.
Argued December 4, 2018 – Decided April 18, 2019

Before Judges Yannotti, Rothstadt and Gilson.

On appeal from the New Jersey Civil Service
Commission, Docket No. 2017-3520; and Superior
Court of New Jersey, Chancery Division, Bergen
County, Docket No. C-000162-17.

Michael A. Bukosky argued the cause for appellant
Bergen County Police Benevolent Association, Local
49 (Loccke, Correia & Bukosky, attorneys; Michael A.
Bukosky and Corey M. Sargeant, of counsel and on the
briefs).

Pamela N. Ullman, Deputy Attorney General, argued
the cause for respondent Civil Service Commission in
A-4103-16 (Gurbir S. Grewal, Attorney General,
attorney; Melissa Dutton Schaffer, Assistant Attorney
General, of counsel; Pamela N. Ullman, on the brief).

Catherine M. Elston and Frank P. Kapusinski, Assistant
County Counsel, argued the cause for respondents (C.
Elston & Associates, LLC, attorneys for respondent
Bergen County Sheriff Michael Saudino; Patrick J.
O'Dea, General Counsel, attorney for respondent
Bergen County Sheriff's Office; and Julien X. Neals,
Bergen County Counsel, attorney for respondent
County of Bergen; Catherine M. Elston, Patrick J.
O'Dea and Frank P. Kapusinski, of counsel and on the
joint briefs; Cathlene Y. Banker, on the joint briefs).

Edward J. Florio argued the cause for respondent
Bergen County Board of Chosen Freeholders (Florio
Kenny Raval, LLP, attorneys; Edward J. Florio, of
counsel and on the briefs; Michael S. Urcuyo, on the
brief).


                                                          A-4103-16T3
                          2
PER CURIAM

      In these appeals, which we consider back-to-back and have consolidated

for the purpose of writing a single opinion, appellant the Policemen's Benevolent

Association, Local 49 (PBA) raises issues relating to its attempted challenges to

respondent Bergen County Sheriff's Office's (BCSO) implementation of a 2017

layoff plan. That plan only impacted former members of the Bergen County

Police Department (BCPD) who came under the authority of the BCSO after the

2015 merger of the BCPD into the BCSO.

      In A-4103-16, the PBA appeals from a final agency decision by the Civil

Service Commission (CSC) denying a stay of the layoff plan. In A-4516-16, the

PBA appeals from a June 6, 2017 order of the Chancery Division that dismissed

an action filed by the PBA to enjoin the BCSO from implementing the layoff

plan for failure to exhaust administrative remedies.

      In its challenge to the CSC's decision, the PBA contends that the CSC did

not properly analyze its application for a stay because it failed to (1) recognize

that the county sheriff was not authorized to "request the layoffs"; (2) "follow

the statutory requirements" that do not allow layoffs from "a targeted division";

(3) "investigate" whether the county sheriff "carried out the pre-requisite and

mandatory layoff actions necessary before a layoff plan can be approved"; (4)


                                                                          A-4103-16T3
                                        3
"carefully analyze a[ny] comparison between sheriff's officers and county police

officers on a timely basis"; and (5) "conduct a proper analysis based on the

regulatory criteria." It further contended that the CSC's decision was clearly

erroneous.

      In its appeal from the Chancery Division's dismissal of its complaint, the

PBA contends that the court, as compared to the CSC, was "the proper venue"

for its claim. It also argues that it was entitled to relief from the Chancery

Division under the theory of equitable estoppel and, contrary to the court's

decision, it was not required to exhaust its administrative remedies before

seeking that relief.

      We have considered the PBA's contentions in light of the record and the

applicable principles of law. For the reasons that follow, we conclude that the

PBA's appeals are moot and should be dismissed.

                                        I.

      In order to give context to our decision, an extended discussion of the facts

leading to the challenged layoff plan and the procedural history of each action

is required.    In 2013, the Bergen County Board of Chosen Freeholders

(Freeholders) adopted an ordinance that called for the BCPD's transfer from the

county's Department of Public Safety to the BCSO. In anticipation of the


                                                                           A-4103-16T3
                                        4
merger, the Freeholders appointed a panel of law enforcement and government

personnel to make recommendations about the implementation of the merger.

The panel, chaired by the county prosecutor, incorporated its recommendations

into a "Memorandum of Agreement for the Long Term Realignment of Police

Services" (MOA) that the county executive, prosecutor, and sheriff signed and

approved on January 1, 2015, before presenting it to the Freeholders.

      The MOA stated that the BCPD was being realigned with the BCSO. It

provided that once the Freeholders adopted an ordinance transferring all

operational and administrative authority over the BCPD to the BCSO, the BCPD

would be known as "Bergen County Sheriff, Bureau of Police Services." The

MOA also provided that the BCPD would continue to be a separate unit overseen

by the BCSO and that there would be no changes required to any existing labor

contracts.

      At the time of the MOA, seventy-five BCPD positions had already been

reduced through attrition. The agreement stated that the number of BCPD

officers was expected to be further reduced through attrition, leaving the BCSO

with approximately 200 total officers, around fifty BCPD police officers and

150 Sheriff's Officers. No layoffs were contemplated at that time.




                                                                        A-4103-16T3
                                       5
      In his submission of the MOA to the Freeholders, the county prosecutor

noted the involvement of the PBA in the document's formation. He stated that

the PBA representatives met "subcommittee members to express their concerns

and wishes . . . ." He believed that the PBA was willing to work with the County

to insure the merger succeeded and the PBA understood "the need to freeze

current salaries of current [BCPD] officers to allow Sheriff's officers[']

salaries . . . to equalize with" BCPD officers' salaries. Based on the PBA's

commitment, the prosecutor reported that "certain changes were made to

accomplish some of [the PBA's] concerns."

      The Freeholders adopted ordinances in 2015 implementing the MOA,

including its recognition that the reduction in BCPD officers' numbers would be

achieved through attrition. However, two years later, the Sheriff abandoned that

plan in favor of layoffs of BCPD officers.

      On March 23, 2017, the BCSO submitted a layoff plan, effective June 12,

2017, to the CSC for its approval. In the submission, the BCSO justified the

need for layoffs by relying upon a May 2015 New Jersey Supreme Court

approved court security plan for courthouses, which called for an armed Sheriff's

Officer to be stationed in every courtroom in use by a judge or hearing officer.




                                                                         A-4103-16T3
                                       6
The BCSO determined it needed to hire thirty-five new BCSO officers to

implement the plan at an estimated cost that was in excess of $3 million.

      The BCSO explained that it considered alternatives before deciding upon

layoffs. Those alternatives included hiring freezes and attrition of clerical and

other non-police positions. It also considered lateral transfers of BCPD officers,

but found they were not "the best means of achieving . . . the goals of efficiency

and economy in the operations of the [BCSO] in furtherance of the public

interest."

      In order to pay the expense of hiring the new BCSO officers and staying

within the mandatory budget cap of two percent that became effective January

1, 2017, under N.J.S.A. 40A:4-45(b), the BCSO concluded that rather than

training highly paid BCPD officers to assume the new positions, "[t]he abolition

of the remaining [twenty-six] . . . [BCPD] officer positions via layoffs w[ould]

expedite the achievement of efficiencies for which the realignment of [BCPD]

was effectuate[d] in 2015, as well as offset the cost of hiring the new Sheriff's

Officers mandated by the Court Security Plan."

      While the BCSO's plan was pending before the CSC, but after the

Freeholders approved the layoff plan, the PBA filed a petition with the CSC on

April 17, 2017, requesting "relaxation to consider petitioner[']s application to


                                                                          A-4103-16T3
                                        7
establish a different layoff unit . . . [and] to deny approval of the layoff plan

submitted by . . . [BCSO] under the totality of the circumstances."         Those

circumstances included the BCSO's failure to comply with N.J.A.C. 4A:8-1.3

and the fact that the Sheriff's reasons for layoffs was pre-textual. According to

the PBA's submission, there was no verification of the Sheriff's need for layoffs

and, because the PBA challenged the Sheriff's reasons, a hearing in the Office

of Administrative Law (OAL) was required.

        The CSC approved the layoff plan on April 24, 2017. In its letter advising

the Sheriff of its approval, the CSC made no mention of the PBA's petition.

        On May 2, 2017, the PBA again petitioned the CSC for relief. This time,

it sought a stay of the CSC's approval of the layoff plan "pending application to

the Appellate Division and further determination by the [CSC]" because the CSC

"failed to consider the establishment of a different and more appropriate layoff

unit." In its thirty-nine page petition, the PBA set forth in detail its legal

arguments as to why it was entitled to a stay under the criteria stated in N.J.A.C.

4A:2-1.2.2




2
    The regulation provides in pertinent part as follows:



                                                                           A-4103-16T3
                                         8
      While the PBA's petition was pending, it received permission from us to

file an emergent application seeking to stay the CSC's approval of the BCSO

layoff plan pending appeal. As part of that application, the PBA filed its notice

of appeal in this matter on May 31, 2017, only challenging the CSC's April 24,

2017 decision.3   After considering the parties' submissions, we denied the

emergent motion for a stay.


            (a) Upon the filing of an appeal, a party to the appeal
            may petition the [CSC] for a stay or other relief pending
            final decision of the matter.

                  ....

            (c) The following factors will be considered in
            reviewing such requests:

            1. Clear likelihood of success on the merits by the
            petitioner;

            2. Danger of immediate or irreparable harm if the
            request is not granted;

            3. Absence of substantial injury to other parties if the
            request is granted; and

            4. The public interest.

            [N.J.A.C. 4A:2-1.2.]
3
  The PBA did not file the required Case Information Statement (CIS) at that
time. However, on October 31, 2017, it filed the CIS and identified the CSC's


                                                                         A-4103-16T3
                                       9
      After the BCSO filed its opposition to the PBA's petition, on June 7, 2017,

the CSC issued a final decision denying the PBA's request for a stay. In its

fourteen-page decision, the CSC addressed each of the PBA's contentions and

explained in detail why it concluded that the PBA failed to meet the criteria for

a stay under N.J.A.C. 4A:2-1.2.

      The CSC also observed that many of the PBA's contentions argued in

support of a stay could not "be addressed fully on the written record." It stated

the following:

            The [CSC] 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 of 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. Accordingly, the PBA has not
            demonstrated a sufficient basis for a stay of the instant
            layoff. However, the PBA or any employees affected
            by the layoff are not precluded from pursuing such
            good faith arguments in any subsequent appeal of the
            layoff.

      In reaching its conclusion, the CSC recognized the "impact of a layoff on

affected employees . . . [who] may suffer harm while awaiting an [OAL]



June 7, 2017 final agency decision denying PBA's application for a stay as the
decision being appealed.
                                                                         A-4103-16T3
                                       10
hearing[, but that it was] . . . financial in nature[] and . . . [could be]

remedied . . . [with] back pay should [the PBA] prevail in the good faith appeal."

       The PBA filed a motion with us to stay the CSC's decision and the

implementation of the layoff plan "pending disposition by the [CSC] of the

PBA's request for approval of a different plan . . . ." We denied that motion on

June 9, 2017.

       After we denied the PBA's motion, it filed an appeal with the CSC on June

14, 2017, challenging the good faith of the proposed layoffs and raising issues

about the wrongful effect of the plan on the lateral and demotional rights or

seniority interests of the impacted employees. In the meantime, the layoff plan

was implemented and the affected BCPD officers were terminated from

employment.

       After this appeal was filed with us and the matter fully briefed, the parties

informed us that the CSC rendered a decision in the layoff rights appeal.4 The

CSC's determination in that matter is the subject of a new appeal filed by the

PBA and the individual BCPD officers affected by the layoff plan. See In re

Alan Brundage et. al., A-3466-17.




4
    The CSC's final agency decision is dated March 29, 2018.
                                                                            A-4103-16T3
                                        11
                                           II.

      The PBA filed its complaint in the Chancery Division challenging the

layoff plan on March 27, 2017, two days after the BCSO submitted the plan to

the CSC as indicated above. The complaint essentially asserted claims that the

PBA relied to its detriment on promises that a reduction in the number of BCPD

officers after the merger would be achieved only through attrition. It argued

that the layoffs should be barred by promissory estoppel, equitable estoppel,

employer misrepresentation, employer fraud, and breach of the covenant of good

faith and fair dealing. Although the PBA filed the complaint, it never served it

on any parties.

      While the PBA's May 2, 2017 petition for a stay from the CSC was

pending, it filed an amended complaint in the Chancery Division action on May

15, 2017, adding new claims relating to alleged violations of various state

statutes and provisions of the state and federal constitutions. Among the relief

sought, the PBA asked for a declaration that any layoffs carried out by the BCSO

be nullified and for preliminary and permanent injunctions forbidding any

BCPD officers from being laid off except through attrition.

      After the PBA filed its amended pleading, the BCSO removed the matter

from state court to federal court based on one count in the PBA's complaint that


                                                                        A-4103-16T3
                                      12
alleged the BCSO violated the federal constitution. In response to the removal,

the PBA dismissed its complaint and filed a new complaint in the Chancery

Division on June 2, 2017, without the federal claim and made application for

entry of an order to show cause awarding injunctive relief. In response to the

complaint, each named defendant filed a motion to dismiss under Rule 4:6-2 in

lieu of an answer.

      On June 6, 2017, the parties appeared before Judge Menelaos Toskos for

oral argument regarding the PBA's application for temporary restraints and the

motions filed to dismiss the complaint. After considering the parties arguments,

Judge Toskos denied the PBA's application for injunctive relief and granted the

motions to dismiss the complaint. The dismissals were without prejudice.

      In a comprehensive oral decision, Judge Toskos explained his reasons for

denying restraints and dismissing the complaint. Initially, he found that the

relief being requested in the matter before him was the same that was being

requested before the Appellate Division and the CSC, noting that there was no

immediacy for relief as one of the other tribunals could find a remedy. The

judge applied the criteria for injunctive relief as stated in Crowe v. DeGioia, 90

N.J. 126 (1982), and reviewed each of the PBA's claims under that standard

before concluding that the PBA did not meet its burden. He then considered


                                                                          A-4103-16T3
                                       13
whether there was a need to grant relief in order to maintain the status quo and

concluded that because monetary relief could be afforded to any of the PBA

members who were adversely affected by the layoff plan, injunctive relief was

not necessary.

      Regarding the motions to dismiss, Judge Toskos stated that, in accordance

with Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739 (1989), a

complaint should be dismissed if it stated no basis for relief and if discovery

would not provide for any. Citing to Rezem Family Assocs., LP v. Borough of

Millstone, 423 N.J. Super. 103 (App. Div. 2011), the judge observed that

"[o]rdinarily courts will not undertake . . . to review a matter where the plaintiff

has failed to exhaust available remedies or an appeal lies from the action of the

agency, the courts will typically require the appellant to exhaust those

remedies."   The judge found that "the complaint [does not] contain[ any]

allegation that the [PBA] exhausted available administrat[ive] and judicial

remedies . . . [and] sought a final decision."

      In granting the motions for dismissal, Judge Toskos explained why the

orders were "without prejudice." He stated:

             If there’s something that . . . for whatever reason, can’t
             be decided by the [CSC], then after the dust settles, I’m
             not prejudging this, but I guess you can come back. I
             am going to dismiss it without prejudice, which is

                                                                            A-4103-16T3
                                        14
             generally what’s done under Rule 4:6-2(e), which the
             Supreme Court has recommended that we take that
             manner of dismissal, and that would leave the right for
             [defendants] to argue that some of those claims should
             be dismissed . . . with prejudice . . . for failure to
             comply with Rule 4:69 and the [forty-five-]day statute
             of limitations. But I’m not going to decide that today.
             So I’m going to dismiss the complaint without
             prejudice.

        The PBA orally moved for a stay of Judge Toskos' orders. The judge

denied the application as he again found no immediate and irreparable harm and

that there was a significant public interest in allowing the Sheriff to exercise his

knowledge and expertise as a constitutional officer regarding the budget and

public funds.

        On June 23, 2017, the PBA filed with our court an application for

permission to file an emergent motion on short notice for a stay pending an

appeal of Judge Toskos' denial of its application and the dismissal of its

complaint, which we granted. The PBA filed its motion and notice of appeal on

June 26, 2017. However, after the motion was filed and we considered the

parties' submissions, we denied the motion for a stay pending appeal on June 28,

2017.




                                                                            A-4103-16T3
                                        15
      After the PBA filed its appeal, the BCSO filed a motion to dismiss the

appeal without prejudice because it was moot. We denied the motion without

prejudice to the BCSO being able to raise that issue with our court's merits panel.

                                       III.

      As already noted, prior to oral argument before us in this matter, the BCSO

carried out the layoff plan and the CSC issued a decision on the layoff rights of

the laid off officers, which is under appeal. Under these circumstances, we are

constrained to dismiss the appeals as being moot because the only relief being

pursued in them is a reversal of the CSC's and the Chancery Division's denials

of a stay and the Chancery Division's dismissal of the complaint without

prejudice. If we were to grant relief to the PBA, staying the layoff plan, it would

at this point be meaningless.

      "Mootness is a threshold justifiability determination rooted in the notion

that judicial power is to be exercised only when a party is immediately

threatened with harm." Stop & Shop Supermarket Co., LLC v. Cty. of Bergen,

450 N.J. Super. 286, 291 (App. Div. 2017) (quoting Betancourt v. Trinitas

Hosp., 415 N.J. Super. 301, 311 (App. Div. 2010)). "[F]or reasons of judicial

economy and restraint, courts will not decide cases in which the issue is

hypothetical, [or] a judgment cannot grant effective relief[.]" Ibid. (alterations


                                                                           A-4103-16T3
                                       16
in original) (quoting Cinque v. N.J. Dep't of Corr., 261 N.J. Super. 242, 243

(App. Div. 1993)). Moreover, "[a] case is moot if the disputed issue was

resolved, at least with respect to the parties who instituted the litigation."

Matthew G. Carter Apartments v. Richardson, 417 N.J. Super. 60, 67 (App. Div.

2010) (alteration in original) (quoting Advance Inc. v. Montgomery Twp., 351

N.J. Super. 160, 166 (App. Div. 2002)). Furthermore, "[a]n issue is 'moot' when

the decision sought in a matter, when rendered, can have no practical effect on

the existing controversy." Comando v. Nugiel, 436 N.J. Super. 203, 219 (App.

Div. 2014) (alteration in original) (quoting Greenfield v. N.J. Dep't of Corr., 23

N.J. Super. 254, 257-58 (App. Div. 2006)).

      Although we offer no opinion on the propriety of the layoff plan, even if

we agreed with the PBA's contentions that it was improper, it is now almost two

years after the plan's implantation and restoring improperly terminated

employees is not a possibility. If their claims are not completely addressed

through the appeal of the CSC's final decision regarding their layoff rights, they

may still pursue claims for damages, such as back pay, through a lawsuit as

contemplated by Judge Toskos' dismissal without prejudice of the PBA's

complaint, once the administrative process through appeal has been completed.

      Appeals dismissed.


                                                                          A-4103-16T3
                                       17
