P.E.R.C. No. 2003-22, Morris Cty

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of COUNTY OF MORRIS, Respondent, -and- Docket No. CO-H-2000-74 MORRIS COUNCIL NO. 6, NJCSA, IFPTE, AFL-CIO, Charging Party. ¶

AppearancesAppearances: ¶

For the Respondent, Courter, Kobert, Laufer & Cohen ¶

attorneys (Stephen E. Trimboli, of counsel) ¶

For the Charging Party, Fox & Fox, attorneys ¶

(Craig S. Gumpel, of counsel) ¶

DECISION ¶

On October 5, 1999, Morris Council No. 6, NJCSA, IFPTE, AFL-CIO filed an unfair practice charge against the County of Morris. Count I of the charge alleges, in part, that the County violated N.J.S.A. 5.4a(1) and (5)1/ of the New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq ., when it refused to provide Council 6 with a list of names and home ¶

Note1/ These provisions prohibit public employers, their representatives or agents from: "(1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this act. (5) Refusing to negotiate in good faith with a majority representative of employees in an appropriate unit concerning terms and conditions of employment of employees in that unit, or refusing to process grievances presented by the majority representative." ¶

addresses of all employees in the negotiations unit represented by Council 6. 2/ Council 6 seeks this list to communicate with all unit employees and to fulfill its statutory duty to represent them fairly. 3/ ¶

On March 28, 2000, a Complaint and Notice of Hearing issued. The County filed an Answer admitting that it had refused to provide the list, but asserting that doing so would violate Executive Order No. 11 and its employees' privacy rights. ¶

On August 9, 2000, Hearing Examiner Charles A. Tadduni conducted a hearing. The parties examined witnesses, introduced exhibits, and filed post-hearing briefs. ¶

On March 26, 2002, the Hearing Examiner issued his report. H.E. No. 2002-12, 28 NJPER 189 (¶33068 2002). He concluded that the County had violated 5.4a(1) and (5) and he recommended that the Commission order the County to provide Council 6 with a list of unit employees and addresses. He relied on Burlington Cty., P.E.R.C. No. 88-101, 14 NJPER 327 (¶19121 1988), aff'd NJPER Supp .2d 208 (¶183 App. Div. 1989), and other cases; and he rejected the employer's reliance on Executive Order ¶

Note2/ The parties settled Count II and several other allegations in Count I. ¶

3/ While this case was pending before us, another case involving the same employer and a different majority representative arose presenting the same issue. County of Morris and Communications Workers of America, Local 1040, AFL-CIO , Dkt. No. CO-2002-39. The parties in that case have just recently stipulated the facts and submitted briefs. It was therefore not possible to decide that case today. ¶

No. 11 (1974) and its argument that the record showed particular needs not to disclose the addresses of unit employees in the Prosecutor's Office, the Youth Detention Center, the Youth Center, the Office of Aging, and the Office of Nutrition. ¶

On April 24, 2002, the County filed exceptions. It argues that recent cases and the record support its decision not to provide the requested list. It argues in particular that United States Dept. of Defense v. FLRA, 510 U.S . 487 (1994), and other post-Burlington cases warrant withholding addresses; Executive Order No. 11 (1974) justifies withholding; it has a constitutional right to regulate access to its property; the Hearing Examiner erred in relying on hearsay evidence to find problems with the interoffice mailing system, and the Hearing Examiner erred in finding that it refused to negotiate in good faith. ¶

On May 17, 2002, Council 6 filed a response. It argues that the Hearing Examiner's findings of fact are supported by the record and are not based on hearsay and that his conclusions of law are well-supported by precedent. ¶

On July 12, 2002, the County submitted a letter asking us to consider Executive Order No. 21 issued on July 8, 2002. It asserts that paragraph 3 of this order bars disclosure of home addresses and that it has met its obligation under the Act by being willing to negotiate over other ways to accommodate Council No. 6's need to communicate with the employees it represents. 4/ ¶

On August 29, 2002, Council 6 submitted a letter noting that the Governor had issued Executive Order No. 26. This order rescinded and replaced paragraph 3 of Executive Order No. 21. ¶

We have reviewed the record. The Hearing Examiner's findings of fact nos. 1-7 and 9-39 are supported by the record and are not contested by exceptions. We adopt and incorporate them without further discussion. ¶

The County does object to finding no. 8. That finding states: ¶

Council 6 has encountered a number of serious problems with the County interoffice mail system. Council 6 receives complaints from unit employees that their mail (from Council 6 and County offices) frequently arrives late -- days, even weeks late, especially at outlying locations. Most troublesome, however, is that Council 6 frequently receives mail delivered to its box which has been opened somewhere during handling. Further, unit members complain to Council 6 that their interoffice mail has been opened and read. It is an ongoing problem. The County has no policy prohibiting one employee from opening the interoffice mail of another employee. ¶

The County asserts that this finding is based solely on the hearsay testimony of Council 6's president and thus must be rejected. Council 6 responds that the finding is properly based on the president's first-hand knowledge that she had received ¶

Note4/ The County has also requested oral argument. We deny that request as the case has been fully briefed. ¶

complaints and was properly limited to the fact that complaints were received. ¶

We adopt finding no. 8. Council 6's president personally experienced instances when interoffice mail addressed to her had been opened (T30) and she personally received complaints from unit members that interoffice mail had not been received or had been delayed (T30-T31). Employees in the road department often complained to Council 6's president about these problems (T31). Finding no. 8 is thus grounded in the president's personal knowledge about her own mail and about complaints she has received. No competent, countervailing evidence was offered to show that the interoffice mail system operated without the types of problems cited. ¶

We also supplement finding no. 8. Sometime before 1994, the president complained to the County about the problems Council 6 had experienced, but Council 6 did not file a formal grievance or make a contract proposal or raise the issue during labor-management committee meetings (T61-T62, T70-T72). The County's Director of Labor Relations was not aware of Council 6's problems with interoffice mail before the hearing (T74). ¶

We now analyze whether Council 6 has a right under the New Jersey Employer-Employee Relations Act to request and receive a list of home addresses of unit employees and whether any other source of law prohibits disclosure. We will break our analysis down into these questions. First, do Burlington Cty. and other ¶

Commission precedents support disclosure? Second, do other cases decided since Burlington prohibit disclosure? Third, does any statute or executive order bar disclosure? Fourth, does the County have a constitutional right to withhold home addresses? And fifth, does the record support withholding home addresses of any employees for special security reasons? ¶

A. Burlington and Other Precedents ¶

Section 5.3 of the Act empowers an employee organization selected by a majority of employees in a negotiations unit to be the exclusive representative of all the employees in that unit. Lullo v. IAFF, 55 N.J . 409 (1970). With that power goes a duty: the majority representative must represent all negotiations unit employees fairly, regardless of whether an employee is a union member. D'Arrigo v. New Jersey State Bd. of Mediation, 119 N.J . 74 (1990). ¶

Section 5.3 also requires public employers and majority representatives to negotiate with each other in good faith over terms and conditions of employment. An employer violating that duty commits an independent unfair practice under 5.4a(5) and a derivative unfair practice under 5.4a(1). ¶

The Act's unfair practice provisions parallel their counterparts in the National Labor Relations Act ("NLRA") governing private sector labor relations. 29 U.S.C. § 158 and § 160. Precedents under the unfair practice provisions of the federal act may guide us in interpreting our Act. Ridgefield Park Ed. Ass'n v. Ridgefield Park Bd. of Ed., 78 N.J . 144, 159 n.2 ¶

(1978); Galloway Tp. Bd. of Ed. v. Galloway Tp. Ass'n of Ed. Secretaries, 78 N.J. 1 (1978). ¶

In the private sector, the mutual duty to negotiate in good faith imposes a specific duty on both employers and majority representatives to provide each other with requested information relevant to contract proposals and grievances. See generally NLRB v. Truitt Mfg. Co., 351 U.S . 149 (1956); NLRB v. Acme Industrial Co., 385 U.S . 432 (1967); Hardin and Higgins, The Developing Labor Law , 856-870 (4th ed. 2001). In particular, the employer must provide non-confidential information requested by the majority representative so that it can carry out its representational duties. Developing Labor Law at 858. The Commission has followed these precedents. See, e.g , State of New Jersey (OER), P.E.R.C. No. 88-27, 13 NJPER 752 (¶18284 1987), recon. den. P.E.R.C. No. 88-45, 13 NJPER 841 (¶18323 1987), aff'd NJPER Supp .2d 198 (¶177 App. Div. 1988); Shrewsbury Bd. of Ed ., P.E.R.C. No. 81-119, 7 NJPER 235 (¶12105 1981). ¶

In the private sector, employers have repeatedly been required to provide majority representatives, upon request, with the home addresses of the employees they represent. See, e.g., NLRB v. CJC Holdings, 97 F .3d 114 (5th Cir. 1996); United Aircraft Corp. v. NLRB, 434 F .2d 1198 (2nd Cir. 1970); Prudential Ins. Co. v. NLRB, 412 F .2d 77 (2nd Cir. 1969), cert. den. 396 U.S. 928 (1969); Standard Oil Co. of California v. NLRB, 399 F .2d 639 (9th Cir. 1968); Bryant and Stratton Co., 323 NLRB 410 (1997). The ¶

Commission has likewise ordered disclosure of home addresses and the Appellate Division has affirmed its order. Burlington Cty. Two paragraphs in our analysis in Burlington bear quotation: ¶

We agree with the Hearing Examiner that the County was obligated to release the names and home addresses of representation fee payers. An employer must supply information that may help a majority representative carry out its statutory duties. State of New Jersey (Office of Employee Relations ), P.E.R.C. No. 88-27, 13 NJPER 752 (¶18284 1987), app. pending App. Div. Dkt. No. A-2047-87T7, Shrewsbury Bd. of Ed., P.E.R.C. No. 81-119, 7 NJPER 235, 236 (¶12105 1981). Names and home addresses are relevant to enable the majority representative to communicate with the employees it represents. As the Court held in Prudential Ins. Co. of America v. NLRB ,. . . "it seems manifest beyond dispute that the union cannot discharge its obligation unless it is able to communicate with those in whose behalf it acts." [ Id. at 328] ¶

* * * ¶

We consider all the circumstances of a case in deciding the extent of an employer's duty to supply information, including an employee's privacy interest, the union's need for the information and the employer's business reasons for not supplying requested information. Here the scales tip to the union's needs. The union requires the information to comply with its obligation to notify employees under the representation fee statute, N.J.A.C . 19:17-3.3, as well as to communicate with the employees it represents. Further, there is no indication that the union will use this information for any improper purpose. The intrusion on employees' privacy is minimal: they will receive some mail which will ensure their constitutional right to information concerning representation fee payments and will receive other mail which they may elect not to read. Therefore, under these circumstances, the public interest in collective negotiations and satisfactory performance of the union's statutory duty outweighs the employee's privacy interests in not disclosing a home address. ¶

[ Id. at 329] ¶

The County asserts that Burlington should be confined to the fact that it involved a request for the home addresses of representation fee payers. Our analysis was not so limited, nor are the private sector precedents underpinning Burlington . What is critical is the majority representative's ability to communicate with all employees encompassed within its statutory duty of fair representation, not simply its ability to communicate with employees covered by a representation fee clause. Prudential makes this clear.5/ So does CJC Holdings . We add that confining a union's communications to the workplace may cause communications to be less private than represented employees may ¶

Note5/ We reject the argument that Prudential did not recognize the relevance of home addresses generally and should be limited to its facts. Prudential states: ¶

The kind of information requested by the Union in this case has an even more fundamental relevance than that considered presumptively relevant. The latter is needed by the union in order to bargain intelligently on specific issues of concern to the employees. But data without which a union cannot even communicate with employees whom it represents is, by its very nature, fundamental to the entire expanse of a union's relationship with the employees. [ Id. at 84] ¶

While the record in Prudential demonstrated extreme difficulties in union-employee communications, the record in this case also establishes significant difficulties. Those difficulties include lack of confidentiality in the workplace, problems with the interoffice mail system, problems with calling employees at their work stations, lack of bulletin board or e-mail access, multiple work sites and shifts, lack of stewards at some work sites, and low attendance at union meetings. ¶

desire, increase the possibility of employer interference with such communications, and interfere with workplace operations. ¶

Burlington and the other cited precedents provide strong authority for requiring the County to supply the home addresses of the support staff represented by Council 6. But the employer argues that subsequent cases undercut Burlington . We will consider the relevance of those cases before deciding whether to reaffirm Burlington's principles. ¶

B. Post-Burlington Cases ¶

The Commission issued its Burlington decision in 1988 and the Appellate Division affirmed that decision in 1989. Since then, the NLRB and reviewing courts have continued to require employers to provide majority representatives with the home addresses of negotiations unit employees under the NLRA. CJC Holdings; Bryant; Stratton . The County argues, however, that three cases decided under other statutory schemes make disclosure of home addresses improper under our Act and the NLRA. ¶

The first case is Doe v. Poritz, 142 N.J . 1 (1995). In that case, our Supreme Court rejected a sex offender's claim that his privacy interests made unconstitutional a notification law requiring disclosure of his home address and personal information. Id . at 77-91. Finding that disclosure of that information might expose a sex offender to harassment, the Court concluded that disclosure implicated a privacy interest. Id . at 82-84, 87. Nevertheless, the Court found that the information requested was not deserving of a particularly high degree of protection -- in contrast to psychiatric or medical information -- and that the state interest in public disclosure outweighed the plaintiff's interest in privacy. The notification law thus passed constitutional muster under both the United States and New Jersey constitutions. Id. at 87-91. ¶

Doe v. Poritz does not warrant overruling Burlington . Disclosure of home addresses does implicate a privacy interest of County employees, but that privacy interest is even less significant then the diminished expectation of privacy in Poritz because the record does not show any danger of harassment and because the information is not being released to the public at large. And as in Poritz , there is a public interest in disclosure that outweighs the diminished expectation of privacy. That is the public interest in allowing a majority representative to communicate with the employees it represents through a channel that ensures confidentiality. ¶

The second case is United States Dept. of Defense v. Federal Labor Relations Authority, 510 U.S. 487 (1994) ("DOD"). In DOD , the United States Supreme Court held that a majority representative of federal employees was not entitled to a list of employee home addresses under the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7101-7135, because disclosure was not required under the Freedom of Information Act, 5 U.S.C. § 552, and was therefore prohibited by the Privacy Act, 5 U.S.C. § 552a. This holding rests on an interpretation of interlocking federal statutes and is not binding on state agencies and state courts interpreting provisions and policies of state statutes. To understand DOD , one must track through an array of federal statutes, beginning with the federal labor relations statute which expressly subordinated the duty to supply information under that statute to prohibitions on disclosure in other statutes without any consideration of reasons for disclosure under the labor relations statute. 6/ We need not repeat that tracking since the New Jersey statutory framework is so different and must be analyzed apart from the federal laws. We do note, however, that the Court held that an individual's privacy interest in not having a home address disclosed was "far from insignificant" given that a requirement of disclosure in that case would necessarily have entitled the public at large, including commercial advertisers and solicitors, to receive the same information under the federal Freedom of Information Act. 510 U.S . at 501. That point is a dispositive one under the complex of federal statutes, but not in a case like this one where New Jersey laws govern and disclosure will be limited to the majority representative rather than the public at large. ¶

The third case is Sheet Metal Workers Int. Ass'n v. United States Dept. of Veteran Affairs , 135 F.3d 891 (3d Cir. ¶

Note6/ The balancing test applied in DOD was not the same as is applied to disclosure of assertedly confidential information under private sector labor law. Detroit Edison Co. v. NLRB, 440 U.S. 301 (1989). Under DOD , unlike Detroit Edison , other federal statutes precluded considering labor relations concerns and policies as part of that balance. ¶

1998). In that case, the Court rejected a demand for release of employee home addresses under the federal Freedom of Information Act. The Court followed the interpretation of federal statutes called for by DOD , an interpretation which does not govern the duty to disclose information under our Act or address the interrelationship of duties under our Act and possible prohibitions under other sources of New Jersey law. Sheet Metal Workers, like DOD and unlike the instant case, also involved the issue of whether the public at large, rather than simply a single entity, would be entitled to receive the home addresses. ¶

C. New Jersey Statutes and Executive Orders ¶

The County asserts that Executive Order No. 11 (1974) justified non-disclosure and that Executive Order No. 21 (2002) compels non-disclosure. Council 6 disagrees and adds that Executive Order No. 26 (2002) permits rather than prohibits disclosure. We will now consider these three orders. ¶

These orders all address the subject of exemptions from New Jersey's Right To Know Law, N.J.S.A . 47:1A-2. That law has been revised recently to broaden public access to government records and to narrow exemptions. ¶

Before the recent amendment, N.J.S.A. 47:1A-2 provided, in part: ¶

Except as otherwise provided in this act or by any executive order of the Governor, all records which are required by law to be made, maintained or kept on file . . . shall . . . be deemed to be public records. ¶

Governor Byrne issued Executive Order No. 11 to address public access to personnel records under that law. That order stated, in part: ¶

Except as otherwise provided by law or when essential to the performance of official duties or when authorized by a person in interest, an instrumentality of government shall not disclose to anyone other than a person duly authorized by this State or the United States to inspect such information in connection with his official duties, personnel or pension records of an individual, except that the following shall be public: ¶

a. An individual's name, title, position, salary, payroll record, length of service in the instrumentality of government and in the government, date of separation from government service and the reason therefor; and the amount and type of pension he is receiving. ¶

The Open Public Records Act ("OPRA") substantially changed the Right To Know Law. N.J.S.A . 47:1A-10 now deals with personnel records. That section provides: ¶

Notwithstanding the provisions of P.L. 1963, c. 73 (C. 47:1A-1 et seq.) or any other law to the contrary, the personnel or pension records of any individual in the possession of a public agency, including but not limited to records relating to any grievance filed by or against an individual, shall not be considered a government record and shall not be made available for public access, except that: ¶

an individual's name, title, position, salary, payroll record, length of service, date of separation and the reason therefor, and the amount and type of any pension received shall be a government record; [and] ¶

personnel or pension records of any individual shall be accessible when required to be disclosed by another law, when disclosure is essential to the performance of official duties of a person duly authorized by this state or the United States, or when authorized by an individual in interest. . . . ¶

Another new section created a Privacy Study Commission to make a report within 18 months of OPRA's effective date. That study commission will review the "current and proposed means used for the collection, processing, use and dissemination of information by State and local government agencies" in light of the need for openness in government and the duty of a public agency to safeguard the privacy rights of individuals. N.J.S.A. 47:1A-1, as amended, specifies that: ¶

a public agency must safeguard a citizen's personal information with which it has been entrusted when disclosure thereof would violate the citizen's reasonable expectation of privacy. ¶

On July 8, 2002, the Governor issued Executive Order No. 21. Paragraph 3 provided: ¶

In order to effectuate the legislative directive that a public governmental agency has the responsibility and the obligation to safeguard from public access a citizen's personal information with which it has been entrusted, an individual's home address and home telephone number, as well as his or her social security number, shall not be disclosed by a public agency at any level of government to anyone other than a person duly authorized by this State or the United States, except as otherwise provided by law, when essential to the performance of official duties, or when authorized by a person in interest. Moreover, no public agency shall disclose the resumes, applications for employment or other information concerning job applicants while a recruitment search is ongoing, and thereafter in the case of unsuccessful candidates. ¶

On August 13, 2002, the Governor issued Executive Order No. 26. That order rescinds paragraph 3 and replaces it with this new paragraph 3: ¶

No public agency shall disclose the resumes, applications for employment or other information concerning job applicants while a recruitment search is ongoing. The resumes of successful candidates shall be disclosed once the successful candidate is hired. The resumes of unsuccessful candidates may be disclosed after the search has been concluded and the position has been filled, but only where the unsuccessful candidate has consented to such disclosure. ¶

Paragraph 5 of this latest order charges the Privacy Study Commission with studying the issue of "whether and to what extent the home address and home telephone number of citizens shall be made publicly available by public agencies" and with reporting back to the Governor and the Legislature within six months. ¶

We do not believe that the disclosure of employee home addresses to a majority representative violates any of these executive orders or the statutes they implement. Unlike the federal labor relations statute construed in DOD , disclosures required by the Employer-Employee Relations Act are not subordinated to the privacy provisions of other statutes. To the contrary, the provisions of the New Jersey statutes and executive orders dealing with personnel records permit disclosure when otherwise provided by law. Compare Valley Programs, Inc., 300 NLRB No. 39, 135 LRRM 1208 (1990) (disclosure of home addresses required under NLRA despite claim disclosure prohibited by state law). Our Act is a law providing otherwise for the limited purpose of disclosure to a majority representative. It may be that an employee's home address is not a "public record" disclosable to any member of the public upon demand. Nevertheless, an address may still be disclosed on a limited basis for a proper purpose pursuant to a specific statute, as is the case here. ¶

D. The New Jersey Constitution ¶

The County asserts that it has a constitutional right to impose reasonable restrictions on access to government property. But it does not specify a provision of the New Jersey Constitution conferring such a right upon a governmental entity. The cases it relies upon are inapt. United States Postal Service v. Council of Greenburgh Civic Ass'n, 453 U.S. 114 (1981); Perry Ed. Ass'n v. Perry Local Educators' Ass'n , 460 U.S. 37 (1983); and Cornelius v. NAACP Legal Defense Ed. Fund , 473 U.S . 788 (1985), all recognize that the constitutional rights of citizens under the First Amendment do not override reasonable governmental restrictions on access to a non-traditional public forum. But none of these cases grants a constitutional right to a governmental entity to determine whether it will disclose information it deems non-public. That Council 6 may not have a constitutional right to demand access to a record does not mean that the County itself has a constitutional right to withhold that record. Disclosure can still be required if another source of law -- such as our Act -- compels disclosure. The County's control over its records must yield to the Legislature's directives. ¶

E. Prosecutor's Office Employees and Juvenile Detention Officers ¶

Even if disclosure of the home addresses of some employees is required by our Act, the County asserts that we should not order disclosure of the addresses of negotiations unit employees who work in the Prosecutor's Office or as juvenile detention officers. We disagree for the reasons stated in the Hearing Examiner's comprehensive findings (Nos. 23-28) and analysis (H.E. at 28-34). Unlike the drug informant and striker replacement cases cited in that analysis, there is no likely danger that the majority representative will use the home addresses to harass or retaliate against employees. Nor do we see any likely danger that the majority representative will divulge the home addresses to criminal offenders or juvenile detainees or that the duties of the negotiations unit employees would make them targets of retaliation if that happened. United Aircraft. ¶

F. The Remedial Order ¶

The County's last argument is that the Hearing Examiner erred in recommending that it be ordered to stop "refusing to negotiate in good faith with Morris Council 6 concerning terms and conditions of employment, particularly by not disclosing relevant information." H.E. at 38. The County notes that it has been willing to negotiate over alternatives to releasing addresses. That is true, but it is not a defense to a refusal to provide non-confidential information relevant to carrying out representational duties. See Curtiss-Wright Corp. v. NLRB, 347 ¶

F .2d 61 (3d Cir. 1965); contrast Detroit Edison Co. v. NLRB, 440 U.S . 301 (1979) (psychological test results were confidential). A refusal to supply such information violates the duty to negotiate in good faith so an order can logically refer to that duty. ¶

OrderORDER ¶

The County of Morris is ordered to: ¶

A. Cease and desist from: ¶

1. Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by the Act, in particular by refusing to provide Morris Council No. 6, NJCSA, IFPTE, AFL-CIO with the names and home addresses of all employees in its negotiations unit. ¶

2. Refusing to negotiate in good faith with Morris Council No. 6, NJCSA, IFPTE, AFL-CIO, in particular by refusing to provide it with the names and home addresses of all employees in its negotiations unit. ¶

B. Take this action: ¶

1. Provide Council 6 within 20 days with a list of all negotiations unit employees and their home addresses. ¶

2. Post in all places where notices to employees are customarily posted, copies of the attached notice marked as Appendix "A." Copies of such notice on forms to be provided by the Commission shall be posted immediately upon receipt thereof, and, after being signed by the Respondent's authorized representative, shall be maintained by it for at least sixty (60) consecutive days. Reasonable steps shall be taken to ensure that such notices are not altered, defaced or covered by other materials. ¶

3. Notify the Chair of the Commission within thirty (30) days of receipt what steps the Respondent has taken to comply herewith. ¶

BY ORDER OF THE COMMISSION ¶

Millicent A. Wasell ¶

Chair ¶

Chair Wasell, Commissioners Katz, Mastriani, McGlynn, Ricci and Sandman voted in favor of this decision. Commissioner Buchanan abstained from consideration. ¶

DATED: September 26, 2002 ¶

Trenton, New Jersey ¶

ISSUED: September 27, 2002 ¶