                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-4309-12T2

ESSEX COUNTY CORRECTIONS
OFFICERS PBA LOCAL NO. 382,
NEW JERSEY STATE POLICEMEN'S
BENEVOLENT ASSOCIATION,
JOSEPH AMATO, and ANTHONY WIENERS,

     Plaintiffs-Appellants,             APPROVED FOR PUBLICATION

v.                                         December 30, 2014

COUNTY OF ESSEX, a body politic            APPELLATE DIVISION
and corporate of the State of
New Jersey, BOARD OF CHOSEN
FREEHOLDERS OF THE COUNTY OF
ESSEX, a body politic and
corporate of the State of
New Jersey, EDUCATION AND HEALTH
CENTERS OF AMERICA, INC., and
COMMUNITY EDUCATION CENTERS, INC.,

     Defendants-Respondents.

____________________________________________

         Argued October 16, 2014 – Decided December 30, 2014

         Before Judges Fuentes, Ashrafi, and
         O'Connor.

         On appeal from Superior Court of New Jersey,
         Law Division, Essex County, Docket No.
         L-646-13.

         Robert A. Fagella argued the cause for
         appellants (Zazzali, Fagella, Nowak,
         Kleinbaum & Friedman, attorneys; Mr.
         Fagella, of counsel and on the brief;
         Colin M. Lynch and Flavio L. Komuves,
         on the brief).
          Ronald L. Israel argued the cause for
          respondents County of Essex and the Essex
          County Board of Chosen Freeholders (Wolff &
          Samson, P.C., attorneys; Arthur S. Goldstein,
          of counsel; Robert L. Hornby and Mauro G.
          Tucci, Jr., on the joint brief).

          William Harla argued the   cause for
          respondent Education and   Health Centers of
          America, Inc. (DeCotiis,   FitzPatrick & Cole,
          attorneys; Mr. Harla, on   the joint brief).

          Angelo J. Genova argued the cause for
          respondent Community Education Centers, Inc.
          (Genova Burns Giantomasi & Webster, L.L.C.,
          attorneys; Mr. Genova, on the joint brief).

      The opinion of the court was delivered by

ASHRAFI, J.A.D.

      In this appeal, we consider whether Essex County can

lawfully contract for housing and treatment services for a large

population of its county jail inmates at two privately owned and

operated facilities, Delaney Hall and Logan Hall.

      Plaintiffs allege that Essex County's contract for the

housing of inmates at those facilities is an unlawful

"privatization" of county jail operations.    Defendants contend

that the County contracted for rehabilitative and similar inmate

treatment services at the two facilities, as it is authorized to

do.   The trial court agreed with defendants and dismissed the

case.




                                2                            A-4309-12T2
    We conclude that plaintiffs did not prove by means of the

summary action they requested, see Rule 4:67, that Essex County

is in fact delegating to a private entity its core governmental

function of confining inmates apart from appropriate treatment

services.   However, because of the public importance of the

issue, and in accordance with Rule 4:67-5, plaintiffs should

have the opportunity to pursue the matter as a plenary case and

to expand the record.    We remand to the trial court and direct

that the matter be converted to a plenary action if plaintiffs

make such a request.

                                 I.

    Plaintiffs are the union and the local that represent Essex

County corrections officers, as well as the presidents of those

labor organizations.    Defendants are Essex County and its Board

of Chosen Freeholders ("the County"), and also Education and

Health Centers of America, Inc. ("EHCA") and Community Education

Centers, Inc. ("CEC"), the private companies that provide the

disputed housing and other inmate services at Delaney and Logan

Halls.

    In August 2012, plaintiffs filed a complaint alleging that

the current contract the County awarded to EHCA is an ultra

vires delegation of the County's statutory duty to confine and

maintain inmates — in other words, that the County acted without




                                 3                         A-4309-12T2
the legal authority that only the State Legislature can grant to

it.   Plaintiffs sought a declaratory judgment and injunctive

relief prohibiting defendants from continuing the housing of

County inmates at Delaney and Logan Halls.

      Together, those two facilities hold more than 1000 inmate

beds.   They are operated by CEC, a for-profit company closely

associated with EHCA, which is the non-profit company that

entered into a publicly-bid contract with the County.   The two

companies have separate boards of directors but share some of

the same executives and are owned by some of the same persons.

      Plaintiffs requested that the court proceed by way of

summary proceedings under Rule 4:67.   Both the County and the

defendant companies moved to dismiss the lawsuit.   They asserted

that a county government has the authority to enter into such a

contract for inmate services and housing, and that, in this

case, the County has not delegated responsibility for confining

inmates to private entities because it retains control of its

inmates and oversees the operation of Delaney and Logan Halls.

Both sides in the litigation agreed that the matter could be

decided by the court as a matter of law without pre-trial

discovery and without a trial.




                                 4                          A-4309-12T2
     The Assignment Judge for Essex County1 considered the

parties' submissions, heard argument, and decided by written

opinion and order dated April 30, 2013, that plaintiffs'

complaint does not state a claim upon which relief can be

granted and therefore must be dismissed.   Initially, the court

agreed with defendants that the action should be treated as one

in lieu of prerogative writs pursuant to Rule 4:69.   But the

court disagreed with defendants' assertion that the complaint

was untimely because it was filed some nine months after the

contract was awarded.   See R. 4:69-6 (providing generally that

an action in lieu of prerogative writs shall be commenced within

forty-five days of its accrual but also permitting enlargement

of the time "where it is manifest that the interest of justice

so requires").   On the merits of plaintiffs' claims, the court

concluded that the County did not violate the law in entering

into the contract for private operation of alternative inmate

housing and services.

     On appeal, plaintiffs contend the court erred as a matter

of law because of three related reasons: (1) the Legislature

placed authority and responsibility upon county government to

house jail inmates and granted no statutory authority for the


1
   The Assignment Judge is the supervising judge of a trial court
vicinage in New Jersey. See R. 1:33-2(b).



                                5                           A-4309-12T2
County to contract for provision of those governmental functions

by a private entity; (2) the County's contractual arrangement is

preempted by the Legislature's detailed statutory scheme for

inmate substance abuse and other rehabilitation services; and

(3) the County may not delegate to a private entity the core

governmental function of "keeping" inmates in custody.     Before

addressing these contentions, we will summarize the facts as

developed in the summary action.

                               II.

    For more than twenty years, the County has contracted with

private entities to provide services for some of its inmates,

including housing at Delaney Hall since 2000.    In 1990, the

County entered into a consent judgment in consolidated federal

lawsuits that alleged jail overcrowding and health and safety

deficiencies at the County jail.     The consent judgment directed

the County to provide funding for a jail population management

program focused on pre-trial supervision and services and on

treatment of inmates who were substance abusers.     Essex Cnty.

Jail Inmates v. Amato, Case Nos. 87-871, 82-1945 (D.N.J. Jan. 5,

1990).   In the ensuing years, the County entered into successive

contracts for private operation of some jail services, at first

the management of a bail and pretrial release program for a

minimum of sixty inmates, and later, programs for inmate




                                6                           A-4309-12T2
treatment services, which included the housing of the inmates

placed in the programs.

    In March 2000, the freeholders awarded such a contract to

EHCA for a period of seven months at a cost of $3 million.

"Minimum security" inmates were to be eligible for the treatment

services.    There was to be no "mingling" of those inmates with

other jail detainees.     The contract required that EHCA provide

"treatment services" and "other services," including "laundry,

barber and mail . . . preventing walk-aways, maintaining order

and managing the resident Inmate population . . . establish[ing]

an Inmate work program, seasonal Inmate recreation and leisure

time programs and literacy training programs."     EHCA implemented

the contract by housing approximately 255 inmates at Delaney

Hall, which is a privately-owned building located on Doremus

Avenue in Newark near the County jail.

    In May 2006, the freeholders approved an amendment to the

EHCA contract to increase the maximum contract price to $15

million and to add Logan Hall as a residential facility for

inmates.    Logan Hall is also a privately-owned facility, located

in another part of Newark.     In 2008, the freeholders again

amended EHCA's contract, expanding its services and the maximum

contract price to $24 million per year for the next three years.




                                  7                         A-4309-12T2
    The contract that is at issue in this appeal expanded yet

again the inmate housing and service programs provided by EHCA.

On October 19, 2011, the Department of Corrections publicly

advertised a Request for Proposal (RFP) seeking a vendor for the

"(1) provision of Alternative Incarceration/Residential

Treatment for certain inmates who otherwise would be

incarcerated at the Essex County Correctional Facilities and (2)

to house Immigration and Customs Enforcement (ICE) detainees."

The RFP called for a program of "comprehensive care of Essex

County prisoners, including assessment, treatment and substance

abuse services."   It stated further: "These services shall

include, but not be limited to security operations, substance

abuse treatment, personality/risk assessment, education,

recreation, and life skills training."   It specified that the

vendor should provide "at least 1,000 beds."

    The RFP described the profile of potential inmates:

"inmates will comprise a cross-section of the general inmate

population and will be referred to residential [sic] based on

the custody level, offense of conviction or pre-trial offense at

the discretion of the Department of Corrections."   The RFP also

directed that the vendor "shall be responsible for preventing

walk-aways, maintaining order and managing the population."




                                8                          A-4309-12T2
    EHCA was the only bidder for the public contract.       It

proposed "to provide housing, medical and treatment services for

male and female adult, pre-adjudicated and sentenced County

inmates at the company's Delaney Hall and Logan Hall facilities

in Newark, New Jersey."    With the approval of the State Office

of Purchasing, the County awarded the contract to EHCA on

December 14, 2011, for "a five (5) year period commencing

January 1, 2012 for the provision of the Services in an amount

not to exceed $129,785,750.00 for the first three (3) years;

subsequent years four (4) and five (5) [to] be calculated as

stated and agreed to in the memorandum of agreement" of the

parties.    The County applied for and received substantial State

funding to pay the approximately $43 million maximum yearly cost

of the contract.

    EHCA's bid for the contract stated that CEC would actually

provide the requested services through a subcontract with EHCA.

CEC and EHCA operate under a 1996 "Support Services Provider

Agreement," which has been amended in subsequent years through

2007.     CEC is incorporated as a for-profit corporation under the

laws of Delaware and has its principal place of business in New

Jersey.    EHCA's president formed CEC for the purpose of

operating halfway houses, other jail facilities, and inmate

treatment services.    At the time of this action, CEC was




                                  9                          A-4309-12T2
operating such facilities and services in seventeen states.      The

president of EHCA, Joseph J. Clancy, also serves as the chairman

and the chief executive officer of CEC.    Several other

executives hold positions in both CEC and EHCA.    Over the years,

CEC has received from EHCA all but two dollars of the $62 to $75

per diem rate of the County contracts for each inmate CEC housed

in its two facilities in Newark.

    With respect to which inmates can be transferred to Delaney

and Logan Halls, the Essex County Department of Corrections has

formally established eligibility criteria.    Generally, Essex

County inmates are eligible if they are designated minimum or

medium custody status and do not have federal or state-level

detainers lodged against them.     Excluded from eligibility are

those inmates whose bail is set higher than $100,000 and those

charged with murder, kidnapping, escape, sexual assault,

carjacking, endangering the welfare of a child, or arson.

    The security features of Delaney and Logan Halls include

"360 degrees . . . perimeter security barrier" monitored by

closed-circuit television.

         Entrance to the facility is closely
         monitored by staff and can only be
         accomplished through the Guard House that
         leads into a sally port, which is monitored
         by camera and by a manned 24-hour central
         office. All windows are sealed and the
         safety glass/laminate combination has been
         tested to ensure its ability to withstand



                                 10                         A-4309-12T2
            breakage attempts using objects such as
            rocks and hammers.

CEC has directors, managers, and supervisors to operate the two

facilities and hires "counselors" to provide inmate services and

to oversee the inmates as the functional equivalent of

corrections officers.

    The County contends it supervises the operations of Delaney

and Logan Halls on a daily basis.       The County's Department of

Corrections issued a memorandum in August 2012 directing shift

commanders at the County jail to assign a senior officer each

day on each shift "to tour" and "to inspect" the living areas of

the two facilities.    Nevertheless, plaintiffs allege that many

security breaches and disruptions have occurred at the two

facilities.    They allege that CEC's counselors receive a low

rate of pay and are not adequately trained as corrections

officers.     In sum, plaintiffs argue the contract illegally

delegated to private entities the "core governmental function"

of confining and maintaining inmates and the County abdicated

its own responsibilities and duties.

                                 III.

    The parties dispute whether the Legislature has authorized

county governments to enter into a private contract such as the

one in this case.    Plaintiffs argue there is no statutory

authority affirmatively granting the County the power to



                                  11                          A-4309-12T2
delegate operation and control of jail facilities to private

companies, and so, the County does not have such power.

Defendants respond that the County has broad power to execute

its duties, and there is no statutory authority prohibiting

county government from contracting with a private company to

provide inmate services.

    Our Supreme Court has stated that "the county is a creature

of the State.    Its existence and powers depend upon the

Legislature's determinations.    It is subject to the dominion of

the Legislature."    Clark v. Degnan, 83 N.J. 393, 400 (1980).

Consequently, a county may "exercise only such powers as may be

granted to it by the Legislature."     Borough of Pittman v.

Skokowski, 193 N.J. Super. 215, 220 (App. Div. 1984) (citing

City of Camden v. Byrne, 82 N.J. 133, 157 (1980)).

    The Legislature has enacted statutes that address the

management and operation of county detention and penal

facilities.    See N.J.S.A. 30:8-1 to -69.   Plaintiffs claim these

statutory provisions grant no authority to the County to enter

into a contract for the private operation of inmate confinement

services.     Specifically, plaintiffs contend the sheriff of a

county is responsible for operating county jails and must "keep"

all county inmates in such government controlled facilities.




                                  12                           A-4309-12T2
See N.J.S.A. 30:8-17.2   The statutes also authorize a county

board of chosen freeholders to take over the responsibility for

the confinement of inmates.   N.J.S.A. 30:8-19.3   Where, as in

this case, the freeholders have undertaken that responsibility,

they must appoint a "keeper" or "warden" to be responsible for

the confinement of inmates.   See N.J.S.A. 30:8-22.4   Plaintiffs

contend these statutory provisions direct that control and

custody of inmates "lies solely and exclusively with the County,

its designated Warden and no one else."

     Defendants respond that N.J.S.A. 30:8-19 must be read in

conjunction with N.J.S.A. 30:8-235 and Article IV, section VII,


2
  N.J.S.A. 30:8-17 provides: "Except as otherwise in this chapter
provided the sheriff of every county shall have the care,
custody and control of the county jail or jails and all
prisoners therein, and shall be responsible for the conduct of
any keeper appointed by him."
3
  N.J.S.A. 30:8-19 provides: "It shall be lawful for the board of
chosen freeholders of any county in this state to assume and
thereafter to exercise the custody, rule, keeping and charge of
the county jails in their respective counties, and of the
prisoners therein . . . ."
4
  N.J.S.A. 30:8-22 provides: "All persons committed to a county
jail which has been taken over by the board of chosen free-
holders . . . shall be delivered to the keeper or warden of such
jail and by him held in custody until discharged by due process
of law."
5
  N.J.S.A. 30:8-23 provides: "the board of chosen freeholders
. . . shall prescribe rules and regulations for the management
and conduct of such jail, and the employment, maintenance and
keeping of the prisoners therein . . . ."



                                13                         A-4309-12T2
paragraph 11 of the New Jersey Constitution,6 and that these laws

permit the freeholders to provide inmate services and related

housing by means of a contract with a private entity.    They urge

affirmance of the trial court's decision that the County has

"broad authority . . . to oversee and manage county correctional

facilities" and that "[i]mplicitly and necessarily, this grant

of authority includes the ability to procure the services needed

to execute it."

     Legislative intent is the "paramount goal when interpreting

a statute and, generally, the best indicator of that intent is

the statutory language."   DiProspero v. Penn, 183 N.J. 477, 492

(2005).   Courts must "ascribe to the statutory words their

ordinary meaning and significance, and read them in context with

related provisions so as to give sense to the legislation as a

whole."   Ibid. (internal citations omitted).   A court's "task

requires that every effort be made to find vitality in the

chosen language."   In re Civil Commitment of J.M.B., 197 N.J.

563, 573, cert. denied, 558 U.S. 999, 130 S. Ct. 509, 175 L. Ed.


6
  N.J. Const. art. IV, §VII, ¶ 11 provides that the State
Constitution shall be "liberally construed" in favor of counties
with respect to any laws concerning them, and also states that
"[t]he powers of counties . . . shall include not only those
granted in express terms but also those of necessary or fair
implication, or incident to the powers expressly conferred . . .
."




                                14                         A-4309-12T2
2d 361 (2009).    A court should not "resort to extrinsic

interpretive aids when the statutory language is clear and

unambiguous, and susceptible to only one interpretation . . . ."

DiProspero, supra, 183 N.J. at 492 (internal citations and

quotation marks omitted).

    We do not read the language of the cited statutes and

constitutional provision as susceptible to only one

interpretation.     The statutes do not state expressly one way or

the other whether a county may delegate to a private entity the

responsibility for confining county inmates and providing inmate

services to them.     Cf. State, Comm'r of Health v. Bd. of Health

of the Twp. of Morris, 208 N.J. Super. 415, 417-18 (App. Div.)

(statute requiring municipality to hire full-time health officer

was clear in its language and did not permit contracting of

health officer's duties to a private entity), appeal dismissed,

107 N.J. 50 (1986).

    Both sides in this dispute offer reasonable interpretations

of the cited statutes and constitutional provision.     Therefore,

we must look beyond those provisions to resolve the dispute.

                                 IV.

    In a related argument, plaintiffs contend that, even if the

statutes do not expressly prohibit the disputed contract, the

Legislature has preempted the field of inmate confinement and




                                  15                        A-4309-12T2
services and thus the County may not do what the Legislature has

not specifically authorized in the statutes.    Plaintiffs argue

the Legislature intended to regulate county jail operations

comprehensively through N.J.S.A. 30:8-1 through -69, and there

is no room for the County to deviate from the express terms of

those statutes.

    Local action is preempted when the Legislature intended

"its own actions, whether it exhausts the field or touches only

part of it, to be exclusive."   Mack Paramus Co. v. Mayor &

Council of Paramus, 103 N.J. 564, 573 (1986) (internal quotation

marks and citation omitted).    "The ultimate question is whether,

upon a survey of all the interests involved in the subject, it

can be said with confidence that the Legislature intended to

immobilize the [local governments] from dealing with local

aspects otherwise within their power to act."    Summer v. Twp. of

Teaneck, 53 N.J. 548, 555 (1969).

    To determine whether the Legislature intended to preempt a

particular field, courts must make the following inquiries:

         1. Does the [local governmental action]
         conflict with state law, either because of
         conflicting policies or operational effect
         (that is, does the [local action] forbid
         what the Legislature has permitted or does
         [it] permit what the Legislature has
         forbidden)?

         2. Was the state law intended, expressly or
         impliedly, to be exclusive in the field?



                                 16                        A-4309-12T2
            3. Does the subject matter reflect a need
            for uniformity?

            4. Is the state scheme so pervasive or
            comprehensive that it precludes coexistence
            of [local] regulation?

            5. Does the [local action] stand "as an
            obstacle to the accomplishment and execution
            of the full purposes and objectives" of the
            Legislature?

            [Overlook Terrace Mgmt. Corp. v. Rent
            Control Bd. of W. New York, 71 N.J. 451,
            461-62 (1976) (internal citations omitted).]

       Applying these tests, defendants dispute that the

Legislature intended to preempt the field of operating county

inmate facilities.    They point to N.J.S.A. 30:8-16.17 and -16.28


7
    N.J.S.A. 30:8-16.1 provides:

            It shall be lawful for the board of chosen
            freeholders of any county in this State to
            establish and maintain facilities to provide
            services for therapy for drug addicts or
            users while confined to the jail, workhouse
            or penitentiary of any such county. It
            shall also be lawful for such board to
            provide therapy for such drug addicts or
            users after discharge from the jail,
            workhouse or penitentiary. Such facilities
            may be provided as a part of the jail,
            workhouse or penitentiary, and at such other
            locations as the board shall determine. It
            shall also be lawful for such board to
            contract with any municipality or any other
            county to provide such needed facilities and
            services, and to pay the whole or any part
            of the cost of such facilities under such
            contract. Each board of chosen freeholders
                                                        (continued)


                                   17                       A-4309-12T2
to support their argument that the Legislature left room for

county government to act independently and in accordance with

individual county needs.    Those statutes grant a county the

discretion to provide alcohol and drug abuse counseling for

inmates outside the operations of the county itself, but they

make no specific reference to private contracting for those

rehabilitative services.

       More generally, defendants rely on N.J.S.A. 30:8-16.4,

which provides for cooperation between the State and counties in

distinguishing between violent inmates and those non-violent

inmates that can be "dealt with more effectively in county

correctional facilities and programs."    The statute makes

reference to a State "financial assistance program for the



(continued)
          is authorized to appropriate and expend the
          moneys necessary to carry out the purposes
          of this act.
8
    N.J.S.A. 30:8-16.2 provides:

            It shall be lawful for any board of chosen
            freeholders in this State to erect and
            maintain as a part of its jail, workhouse or
            penitentiary, a suitable building, buildings
            or additions for the treatment, while
            confined in such jail, workhouse or
            penitentiary, of inmates having a history of
            alcoholism; such board shall have power to
            appropriate and expend the moneys necessary
            in its judgment for such purpose.




                                   18                         A-4309-12T2
construction and renovation of county correctional facilities"

and to "viable alternatives to State confinement."     N.J.S.A.

30:8-16.4.

    These statutes do not expressly authorize contracting with

a private entity for the provision of substance abuse, rehabili-

tation, and related services, but defendants contend they

contradict a legislative intent to preempt the field of inmate

services.    Defendants emphasize a twenty-year history of the

County providing inmate services through private contracts and

also an established practice of confining County inmates at

Delaney and Logan Halls.     They also cite N.J.A.C. 10A:31-26.1(b)

and (c) as regulatory authority for counties to contract with

outside vendors to provide "[d]rug and alcohol addiction

counseling," "[f]amily counseling," "[c]risis intervention," and

"[v]ocational counseling."

    We agree with defendants that these statutes and

regulations indicate that the Legislature did not intend "its

own [legislative] actions" pertinent to county correctional

institutions "to be exclusive" of local decisions regarding how

to provide certain inmate services.    See Mack Paramus, supra,

103 N.J. at 573.   "[A]n intent to occupy the field must appear

clearly."    Summer, supra, 53 N.J. at 554 (citing Kennedy v. City

of Newark, 29 N.J. 178, 187 (1959)).    Here, the Legislature




                                  19                        A-4309-12T2
granted authority to county governments to devise means and

methods to provide inmate rehabilitative and similar services.

It did not preempt the action of counties in devising innovative

ways to provide those services.

       We conclude the doctrine of preemption does not prohibit

the County from contracting with private entities for inmate

rehabilitation and similar treatment services.    Contrary to

plaintiffs' contention, we further conclude that the County is

not restricted by statute to providing such services within the

County's own facilities.    Since the housing of inmates who

receive rehabilitative and similar services may be necessary in

conjunction with providing those services, we conclude that the

statutes upon which plaintiffs rely neither prohibit nor preempt

the County from confining inmates who are in need of and

receiving rehabilitative and similar services in private

facilities such as Delaney and Logan Halls.

                                   V.

       Also with respect to inmate treatment services, plaintiffs

contended in the trial court that the disputed contract violates

N.J.S.A. 30:4-91.2,9 which limits to non-profit entities any


9
    N.J.S.A. 30:4-91.2 provides:

            The commissioner [of the State Department of
            Corrections] or his duly authorized agent,
                                                        (continued)


                                   20                      A-4309-12T2
private contract for the provision of inmate treatment services

that includes confinement.   Plaintiffs contended that the

contract awarded to EHCA does not comply with that statute

because Delaney and Logan Halls are operated by a profit-making

entity, CEC.

    N.J.S.A. 30:4-91.2, however, applies to the State

Department of Corrections and not to county governments or

jails.   On appeal, plaintiffs have not repeated their claim that

the statute applies literally in this case to prohibit the

County's disputed 2011 contract.     Instead, they contend the

statute renders untenable the claim that the County is permitted

to contract, in effect, with a for-profit entity such as CEC.

Plaintiffs question how the County could exercise greater


(continued)
          may designate as a place of confinement any
          available, suitable, and appropriate
          institution or facility whether owned by the
          State or otherwise, and may at any time
          transfer a person from one place of
          confinement to another.

          The word "facility" shall include private
          nonprofit community-based residential
          treatment centers which provide for the
          care, custody, subsistence, education,
          training and welfare of inmates.

          Any such private nonprofit community-based
          residential treatment center must be
          certified annually by the commissioner as a
          secure and appropriately supervised place of
          confinement.



                                21                           A-4309-12T2
authority to transfer custody and care of its inmates to a

private profit-making entity when the State is prohibited from

doing so with its inmates.

    Defendants respond that the State Department of Corrections

and the State Office of Purchasing have consistently approved

its contracts with EHCA, with full knowledge that inmates are

confined at Delaney and Logan Halls and that EHCA subcontracts

with CEC to operate those facilities.

    We agree with defendants that N.J.S.A. 30:4-91.2 is not

applicable to the disputed contract.    We cannot discern in a

statute directed to the operations of State correctional

facilities a legislative intent to apply the same controls to

correctional facilities and inmates under the jurisdiction of

county government.   We decline to apply N.J.S.A. 30:4-91.2

beyond its express terms.

                               VI.

    Plaintiffs dispute that the purpose of Delaney and Logan

Halls is to provide inmate rehabilitative and similar services.

In the trial court, all parties agreed to proceed summarily, and

they represented that the essential facts in this case are

undisputed for the purposes of the court's legal decision with

respect to the County's authority.     But the two sides differ




                                22                          A-4309-12T2
significantly in their characterization of the services provided

by EHCA and CEC.

    Plaintiffs contend the disputed 2011 contract is

essentially for alternative jail facilities and that the primary

function of EHCA and CEC is to confine a large population of

County inmates.    They contend CEC does not offer substance abuse

and rehabilitative services to all the inmates housed at Delaney

and Logan Halls but mainly performs the County's function of

housing and guarding inmates in those facilities.   Plaintiffs

assert that the County's reference to "residential inmate

treatment services" is a euphemism for the operation of a

privatized jail to confine a large percentage of County jail

inmates without regard to their need for rehabilitative or

related services.

    Plaintiffs concede that ancillary services for inmates,

such as provision of food, medical care, and transportation, may

be accomplished through private contracts.   They distinguish

those services from the "core governmental function" of

confining inmates.   They contend the scope and actual effect of

the disputed 2011 contract is an abdication of the County's

responsibility to confine and sustain its inmates and,

therefore, is a violation of the non-delegation doctrine.




                                 23                         A-4309-12T2
    The non-delegation doctrine is grounded in "state and

federal doctrines of substantive due process . . . ."

Ridgefield Park Ed. Ass'n v. Ridgefield Park Bd. of Ed., 78 N.J.

144, 163 (1978).    "[P]ublic officials [are] charged with

governmental responsibility they cannot lawfully abdicate or

bargain away."     Rutgers, State Univ. v. Rutgers Council of AAUP

Chapters, 256 N.J. Super. 104, 115 (App. Div. 1992), aff'd, 131

N.J. 118 (1993) (internal quotation marks omitted).

    "The general rule is that a power or duty delegated by

statute to an administrative agency cannot be subdelegated in

the absence of any indication that the legislature so intends."

Mercer Council #4 v. Alloway, 119 N.J. Super. 94, 99 (App.

Div.), aff'd, 61 N.J. 516 (1972).      "To be constitutionally

sustainable, a delegation must be narrowly limited, reasonable,

and surrounded with stringent safeguards to protect against the

possibility of arbitrary or self-serving action detrimental to

third parties or the public good generally."      Ridgefield Park,

supra, 78 N.J. at 163-64; accord Paterson Police PBA Local #1 v.

City of Paterson, 87 N.J. 78, 94 (1981).

    Defendants argue that the non-delegation doctrine applies

to "governmental policymaking power," Ridgefield Park, supra, 78

N.J. at 163, not to routine administrative and operational

functions of government.    We disagree that the non-delegation




                                  24                         A-4309-12T2
doctrine is so limited.   The doctrine also applies to functions

that are traditionally the core operational duty of government.

    Courts have found certain functions to be central to the

purposes and duties of government, and those functions cannot be

delegated to private entities without express legislative or

constitutional authority.   See 515 Assocs. v. City of Newark,

132 N.J. 180, 188 (1993) (law enforcement and protective

functions of the police); Prudential Ins. Co. v. U.S. Gypsum

Co., 991 F.2d 1080, 1086 (3d Cir. 1993) (adjudicatory

responsibility of the courts); Skehan v. State Sys. of Higher

Educ., 815 F.2d 244, 248 (3d Cir. 1987) (public education); see

also Johnson v. DOT, 98 P.3d 773, 778 (Utah Ct. App. 2004)

(listing examples of "nondelegable [core] functions and powers"

of government under Utah law), aff'd, 133 P.3d 402 (Utah 2006).

    Even functions that are less evidently part of the core

powers and duties of government have been held to require

legislative authority before a local government may delegate

them to private entities.   Compare Reid Dev. Corp. v. Twp. of

Parsippany-Troy Hills, 10 N.J. 229, 233 (1952) (discussing the

functions of local government in providing a public water

supply), with N.J.S.A. 40:62-96 (permitting private contracts to

construct and operate water systems).   See also Eckert v. Town

of W. Orange, 90 N.J.L. 545, 548 (E. & A. 1917) (holding that a




                                25                          A-4309-12T2
municipality was under no obligation to collect and dispose of

garbage from private properties); N.J.S.A. 40:66-4 (permitting

municipalities to enter into private contracts for street

cleaning and garbage collection).

    Here, plaintiffs make a strong argument that the confining

of inmates, and the concomitant responsibility for their welfare

and the security of the public, is a core governmental function

that must be performed by the designated governmental agency,

unless the Legislature has expressly permitted its delegation to

private entities.   We agree and so hold.

                               VII.

    We cannot conclude, however, on the record presented in the

summary proceedings that the County has in fact delegated the

core governmental function of confining County inmates to EHCA

and CEC.   The issue that the summary record does not

satisfactorily resolve in favor of either party is whether

Delaney and Logan Halls are being utilized for the permitted

purposes of providing substance abuse, rehabilitative, and

similar services to inmates, or whether they are merely

alternative jail facilities for the incarceration of County

inmates.

    Throughout their joint brief in this appeal, defendants

describe the function of the disputed contract and Delaney and




                                26                          A-4309-12T2
Logan Halls as providing "residential inmate treatment services"

rather than merely confining inmates.   They point to the history

of "the treatment program at issue" and describe the disputed

contract in terms of "a residential inmate treatment program as

an alternative to traditional incarceration."

    That description is further supported by CEC's website,

which is included in the summary record and states: "Delaney

Hall provides residential reentry treatment services for several

referring sources and its goal is to reduce offender

recidivism."   Delaney Hall, Cmty. Educ. Ctrs. Inc., http://www.

cecintl.com/facilities_rr_nj_006.html (last visited Dec. 11,

2014).   The website adds:

          Delaney Hall treatment services include
          assessments, substance abuse treatment, life
          skills training, individual and group
          counseling, relapse prevention, anger
          management, and education and GED services.

               . . . .

          The Family Services program at Delaney Hall
          serves to reunite residents with their
          families through controlled and therapeutic
          settings and activities.

          [Ibid.]

The website describes similar inmate services provided at Logan

Hall, adding that "[t]he services . . . focus on life skills to

give residents the opportunity to reenter society in a

productive manner."   Logan Hall, Cmty. Educ. Ctrs. Inc.,



                                27                          A-4309-12T2
http://www.cecintl.com/facilities_rr_nj_005.html (last visited

Dec. 11, 2014).

    As defendants describe the history of the contracts with

EHCA, the services provided in the initial contracts beginning

in 2000 were "predominantly for those who have drug or alcohol

abuse problems."   Defendants list the County resolutions over

the years that expanded the services under EHCA contracts but

continued to describe them as "residential treatment programs."

    Furthermore, defendants contend that the County maintains

oversight and supervision of Delaney and Logan Halls.     They

point to the inspections of those facilities that senior county

corrections officers must conduct on every shift every day, and

they emphasize the County's determination of who is eligible to

be transferred to those facilities.   Defendants add that the

County retains responsibility for transportation of inmates, and

that the disputed contract requires CEC to report any

significant event at the facilities that may require County

oversight or disciplinary action against an inmate.     They

contend that inmate discipline is determined by the County and

not by CEC or EHCA.

    Defendants emphasize that the State Department of

Corrections not only approved the inmate treatment services at

Delaney and Logan Halls but, in 2012, approved $18 million in




                                28                             A-4309-12T2
State aid for that year to implement the programs under the

disputed contract.   According to defendants, the State funding

is a far cry from the State prohibiting or preempting the

County's delegation of such services to private entities.     Thus,

defendants contend that the function and primary purpose of the

disputed contract is not to provide substitute, privately-

operated jails, but instead to provide necessary substance

abuse, rehabilitative, and similar treatment services for

inmates.

    Plaintiffs reply by pointing to the 2007 description of the

services provided under the EHCA contract — "alternative

incarceration/residential treatment" — significantly adding

"alternative incarceration" to the prior description of the

contracted services.   The modified description was carried over

into the disputed 2011 RFP and the resulting contract with EHCA.

Plaintiffs argue that the emphasis now is on "alternative

incarceration," and they point to the large number of inmates

that are housed in Delaney and Logan Halls and the absence of an

eligibility criterion that designates an inmate's need for

substance abuse or other rehabilitative services.

    While plaintiffs' evidence is informative, and their

argument potentially persuasive, they did not produce sufficient

proofs in this summary action that the County has in fact




                                29                          A-4309-12T2
contracted for the private operation of its inmate confinement

duties rather than for necessary services for its inmates.      On

this record, we cannot conclude that Delaney and Logan Halls

constitute privately run jails and not distinct correctional

facilities that combine authorized inmate rehabilitative and

similar services with the need to maintain those inmates in

confinement.

    Plaintiffs requested that the matter proceed as a summary

action under Rule 4:67, without discovery of evidence and

without a trial.   But the matter is of vital importance to the

County, to inmates, to plaintiffs and the private-party

defendants, and to the public generally.   The current five-year

contract will expire at the end of 2016, and the County may

choose to advertise for another similar contract and to continue

the operation of Delaney and Logan Halls in the same manner.

The parties and the public are entitled to a definitive decision

on the issue of whether the private contracts are lawful, and

such a decision should be based on an adequate evidentiary

record.   Therefore, we think it appropriate to remand to the

trial court to consider our discussion of the issues and our

holdings, and to explore with the parties whether they wish to

conduct discovery and to proceed in a plenary action, including

a trial if necessary.   See Rule 4:67-5.




                                30                          A-4309-12T2
    Reversed and remanded for further proceedings consistent

with this opinion.   We do not retain jurisdiction.




                                31                      A-4309-12T2
