P.E.R.C. No. 2010-13, NJ/State (State Police)

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of STATE OF NEW JERSEY (DIVISION OF STATE POLICE), Respondent, -and- Docket No. RO-2006-087 NEW JERSEY STATE TROOPER CAPTAINS ASSOCIATION, Petitioner. ¶

SynopsisSYNOPSIS ¶

The Public Employment Relations Commission adopts, with modification, a Hearing Officer’s report and recommended decision in a representation petition filed by the New Jersey State Troopers Captain’s Association seeking to represent a collective negotiations unit of state police captains employed by the State of New Jersey (Division of State Police). The employer opposed the petition asserting that all of the captains are managerial executives or confidential employees ineligible for inclusion in any negotiations unit pursuant to the New Jersey Employer- Employee Relations Act, N.J.S.A. 34:13A-1 et seq. The Commission affirms the Hearing Officer’s recommendation that some of the captains are managerial executives or confidential and some are eligible for inclusion in the unit. The Commission rejected the Hearing Officer’s finding that the executive officers have a conflict of interest and holds that most of the executive officers are eligible for inclusion in the unit with the exception of those in confidential or managerial executive positions. ¶

This synopsis is not part of the Commission decision. It has been prepared for the convenience of the reader. It has been neither reviewed nor approved by the Commission. ¶

CaptionSTATE OF NEW JERSEY BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the Matter of STATE OF NEW JERSEY (DIVISION OF STATE POLICE), Respondent, -and- Docket No. RO-2006-087 NEW JERSEY STATE TROOPERS CAPTAINS ASSOCIATION, Petitioner. ¶

AppearancesAppearances: ¶

For the Respondent, Genova, Burns and Vernoia, attorneys (Douglas E. Solomon, of counsel) ¶

For the Petitioner, Loccke, Correia, Schlager, Limsky and Bukosky, attorneys (Marcia J. Tapia, of counsel) ¶

DECISION ¶

On June 2, 2006, the New Jersey State Troopers Captains Association filed a card check representation petition. The Association seeks to represent a collective negotiations unit of approximately 45 state police captains employed by the State of New Jersey (Division of State Police). The employer opposes the petition asserting that all of the captains are managerial executives or confidential employees ineligible for inclusion in any negotiations unit pursuant to the New Jersey Employer- Employee Relations Act, N.J.S.A. 34:13A-1 et seq. We affirm the Hearing Officer’s recommendation that some of the captains are managerial executives and some are eligible for inclusion in the unit. We reject the Hearing Officer’s finding that certain executive officers have a conflict of interest and hold that most of the executive officers are eligible for inclusion in the unit. ¶

Hearing Officer Elizabeth McGoldrick conducted 13 days of hearing between October 12, 2006 and January 9, 2008 at which the parties examined witnesses and introduced exhibits. The record closed on May 8, 2008 and the parties submitted post-hearing briefs by June 25. On October 30, the Hearing Officer issued her report and recommendations. H.O. No. 2009-2, 34 NJPER 389 (¶127 2008). She concluded that captains employed by the Division of State Police, including but not limited to: the captains in the Identification and Information Technology Section (Administration Branch); Intelligence Services Section (Investigations Branch); Investigations Section (Investigations Branch); Field Operations Section- Troops A, B, C, D and E; and Homeland Security Branch are eligible for representation and inclusion in an appropriate unit. She recommended the exclusion of managerial executives, confidential employees, employees with a conflict of interest, non-supervisory employees, non-police civilian employees, captains serving as section executive officers, and captains in the following offices and bureaus: Office of State Police Affairs Regional Operations and Intelligence Center Task Force; Office of Strategic Initiatives; Office of Public Information; Office of Recruiting and EEO; Internal Affairs Investigations Bureau; Internal Affairs Intake and Adjudication Bureau (Office of Professional Standards) ( “OPS” ); Fiscal Control Bureau; Budget Operations Bureau; Grants Administration Bureau; Human Resources Management Bureau; Employee Services Bureau; Office of Operation Cease Fire; all personnel represented in other negotiations units; lieutenants; sergeants first class; sergeants; detectives; and all troopers. ¶

On December 19, 2008, the employer filed exceptions and a request for oral argument.1/ The employer claims that the Hearing Officer: did not apply the correct legal standard for determining managerial executive status; did not give appropriate legal weight to the captains’ role in strategic planning; failed to consider captains as a group rather than on a case-by-case basis; incorrectly concluded that standard operating procedures ( “SOPs” ) circumscribe and limit the captains’ policy and decision making authority; and did not consider the employer’s public policy argument. ¶

On February 2, 2009, the Association filed a response in opposition to the employer’s exceptions and cross-exceptions contending that the Hearing Officer incorrectly found that a conflict of interest would exist between captains serving as executive officers and other captains. ¶

On March 9, 2009, the employer filed a response to the Association’s cross-exceptions and a brief in further support of its exceptions. ¶

We have reviewed the extensive record. We incorporate the Hearing Officer’s undisputed findings of fact (H.O. at 3-94). We will summarize the relevant facts on appeal and then examine each of the parties’ exceptions. ¶

The Division is part of the New Jersey Department of Law and Public Safety ( “LPS” ). The Division’s core missions include protecting the public, preventing and investigating crimes, apprehending offenders, and providing homeland security by responding to all crimes and hazards. ¶

At the top of the Division’s organizational structure is the Superintendent and Colonel, Joseph R. Fuentes. Fuentes reports to the Attorney General and the Governor to broadly determine the Division’s priorities. Significant policy issues are brought to the attention of the Office of the Attorney General ( “OAG” ). Certain of the Division’s administrative functions are subject to the LPS Administrator’s approval. ¶

Reporting to Fuentes are two lieutenant colonels and three deputy superintendents. The second in command is Lieutenant Colonel Thomas R. Gilbert. ¶

Over the past decade, the Division has become more complex, as evidenced by increases in the number of lieutenant colonels and majors. In 1998, there were two lieutenant colonels and eight majors. In 2001, there were two lieutenant colonels, a deputy superintendent of administration, a deputy superintendent of investigations, a deputy superintendent of operations and nine majors. Today, the Division has 4,400 employees. Enlisted personnel are organized in a paramilitary hierarchy: five lieutenant colonels/deputy superintendents; 14 majors; 49 captains; 198 lieutenants; 961 first class, detective and staff sergeants; 272 detectives; and 1,506 troopers. The Division operates throughout the State in approximately 110 facilities. ¶

The Division is organized into four branches: administration, investigations, field operations and homeland security. In addition, the office of the chief of staff is equivalent to a fifth branch. Each branch is headed by a lieutenant colonel or deputy superintendent. Branches are further subdivided into sections, supervised by majors, and sections are subdivided into bureaus or offices, supervised by captains. The smallest organizational segment is the unit, supervised by lieutenants or sergeants. The Division is characterized by adherence to the chain of command typical of paramilitary police organizations. ¶

Strategic Planning ¶

As a result of a consent decree with the federal government, the Division has instituted strategic planning. An important goal in strategic planning is consent decree compliance.2/ Strategic plans are documents containing, in descending specificity, vision, values and mission statements, goals and objectives, and most specifically, strategies and tasks for achieving goals and objectives. Strategic plans identify responsible persons and time lines for achievement that lay out the methods and means by which the Division will achieve its goals. All bureaus have strategic plans. Strategic plans are goal-oriented, look to the future in defining what is to be achieved, and state in detail how the particular unit, bureau, section, and troop will achieve the goal or objective. ¶

An Operations Instruction for strategic planning defines strategic planning as: ¶

the process by which a law enforcement agency examines its internal and external environment in order to determine the best strategy for achieving its desired end. Strategic planning is . . . a management tool. ¶

Only executive level commanders, defined as captains, majors and lieutenant colonels, prepare strategic plans. Captains are held accountable for the achievement of the goals, objectives and strategies in their bureaus’ plans. ¶

Strategic plans did not exist before 2006. In that year, the Division contracted with an expert who led all majors, most captains and some lieutenants through the strategic planning process. The process began in 2006 but was not fully implemented that year. ¶

Strategic planning begins with the agreement of the Governor, Attorney General, and Superintendent about the Division’s overarching goals. In the past, they have included law enforcement’s approaches to the problems of illegal guns, gangs and drugs; recently, official corruption has been added. The Superintendent develops the global strategic plan for the entire Division, which contains statements of mission, goals, vision and values for the upcoming year. The Superintendent communicates his priorities to all of the lieutenant colonels, who then prepare branch strategic plans in the same template. Approved deputy superintendents’ strategic plans are issued to their subordinate majors, who prepare section strategic plans. Majors communicate their plans to captains who prepare bureau strategic plans. At each level, the goals, objectives, strategies, time lines and responsible parties become more specific, refined and focused. The strategic plans that follow the Superintendent’s plan parallel and complement the overall Division plan. The plans collectively outline how the vision will be accomplished in specific detail bureau by bureau. ¶

At the section level, a major sets forth the general strategies that will be used to accomplish the goals and objectives that the deputy superintendent and the Superintendent have developed. Within the confines of the policy objectives set up by the Superintendent, deputy superintendents and majors, captains establish the specific strategies to be used within their bureaus to accomplish those goals and objectives. ¶

In the Investigations Branch, the majors in the forensic sciences, special investigations and intelligence sections develop plans consistent with the deputy superintendent’s plan, further breaking down the goals and objectives into those goals and objectives that are germane to their areas, containing responsible parties and due dates. ¶

Captains in the Field Operations Branch do not prepare strategic plans. In that section, after a major has issued the section plan, troop commanders, who are also majors, develop strategic plans. The plans are sent to the section major for approval. ¶

The Operations Instruction ( “OI” ) issued by Fuentes defines strategies as: ¶

the specific action which measures in terms of work outcomes. Strategies include all the work products, statistics and measures along with the associated time frames for the accomplishment of the work . . . [and include] the responsible . . . person. ¶

According to the OI, strategies are not policy. Captains determine the strategies in a bureau's strategic plan, relying on majors’ strategic plans and prior years’ bureau plans to guide their preparation. Captains also consult with the lieutenants and sergeants in charge of each unit, because their expertise provides the most realistic way to determine the strategies. Captains resolve the conflicts among and prioritize all units’ strategies. Units do not have formal strategic plans. A captain may direct lieutenants and sergeants to produce strategies that will best work for their units. This builds dual accountability for achieving goals. Goals are committed to a prioritized list that both the lieutenant and sergeant will be required to accomplish. Completed bureau strategic plans are discussed between the captain and major. Some bureaus’ goals remain highly consistent over time, requiring less re-invention. ¶

New or reassigned captains have 60 days to become familiar with the bureau's strategic plan and can prepare a new plan. Plans keep bureaus on task – - achieving what is necessary or expected, despite changes in leadership. ¶

Whether a captain can use discretion in coming up with strategic plan strategies to achieve the goals depends upon the degree of specificity in the major’s strategic plan. Captains and majors’ strategic plans are very consistent and share goals, objectives and strategies. ¶

Deputy Superintendent Rogers described the strategic planning process in its early stage: ¶

Q: [Do] you and the Colonel and Major leave to the discretion of the captains how they feel it is best to achieve the goals and objectives set forth in the bureaus' strategic plans? ¶

A: I wouldn’t necessarily say [we] leave it to them. They propose and we accept them, I know in many cases . . . most [of the strategic plans] were returned for more work, you know, to tighten them up to be in closer compliance [with] what we [were] looking for, not the least of reasons is the fact that this was the first time we did it. ¶

Q: For what types of reasons would they be returned? ¶

A: Number one, being inconsistent with my priorities and not being specific enough. In many cases they were either too general or overly ambitious [and] due dates weren’t realistic. We were looking to establish a contract with those different bureaus that was realistic and obtainable. [7T33-34] ¶

Captains’ plans are necessarily consistent with the Superintendent’s and lieutenant colonel’s objectives. ¶

The plans are sent through the chain of command to the Superintendent for approval. Captains submit their bureau-level plans to majors or their executive officers who review, approve, ask for revisions, and then prepare and revise the section strategic plan using a few of the highest priority goals from each bureau. ¶

Majors may reject the captains’ proposed strategies and there can be a lot of give and take before they are finalized. The majors’ plans are then vetted through the lieutenant colonel. The lieutenant colonels’ plans go back to the Superintendent for approval. Implementing the Division’s goals is the responsibility of all employees. ¶

Lieutenant colonels and deputy superintendents review, approve and incorporate certain priorities from captains’ and majors’ plans into branch-level strategic plans. All strategic plans are submitted to the Superintendent who accepts, rejects or modifies them. ¶

Strategic plans are dynamic documents that will change during the year - goals turn out to be not reachable, or have been achieved and no longer belong in the plan. Every six months strategic plans are reviewed, updated and may be revised. ¶

Since they contain specific goals, time lines and responsible parties, strategic plans enable progress to be monitored. The goal of strategic plans is to enhance the Division’s effectiveness. The Superintendent, lieutenant colonels and majors hold monthly management accountability conferences ( “MACs” ) where selected sections and bureaus are reviewed. At these meetings, strategic plans and performance data generated by the Office of Strategic Initiatives3/ ( “OSI” ) are reviewed with managers, thus enabling lieutenant colonels, majors and above to evaluate the bureaus’ performance. Captains attend MACs only when their bureaus are being reviewed or on behalf of their majors. MACs facilitate accountability, the identification of obstacles or problems in achieving goals, and provide a forum for problem-solving. ¶

MACs can result in requests for additional personnel and funding and do result in the “after-action” reports that identify who will take further action. The commander running the MAC decides who will perform the tasks. In field operations, MACs are run by troop commanders (majors) and every troop and section has them. ¶

The goals and objectives of strategic plans are the guides to where the Division is headed, whereas SOPs are the procedures that make plain how the Division carries out its mission. ¶

Captains do not have authority to issue SOPs or strategic plans independent of the planning bureau’s oversight and procedures and the chain of command. SOPs are issued under the Superintendent’s authority. ¶

SOPs are directives that stay in place until changed; they have no automatic expiration and are more permanent than strategic plans. An OI is a temporary order, distributed under the Superintendent’s authority and used in lieu of creating an SOP. OIs are policies or procedures designed to be in effect for a relatively short period of time and often have an expiration date. Both OIs and SOPs are orders. SOPs, OIs and rules apply to the entire Division, whereas strategic plans apply to one bureau, section or branch and may not affect the entire Division. ¶

SOPs are prepared by the Planning Bureau subject to endorsement and authorization by the Superintendent. Captains may propose modifications to SOPs that are then reviewed by the Planning Bureau for submission to and approval by the Superintendent. ¶

SOPs are drafted initially by an office with primary interest ( “OPI” ) in the subject of the SOP; OPIs consult with the planning bureau on form and content. The Superintendent can reject proposed modifications to SOPs. ¶

Another difference between orders (OIs and SOPs) and strategic plans are the consequences of failing to follow orders versus failing to reach the goals and objectives in strategic plans. If an order is violated, disciplinary charges may be filed, but charges would not be brought if the bureau does not achieve the goals set forth in the strategic plan. One can be disciplined for not carrying out responsibilities under the strategic plan but only where there is also a violation of an SOP, rule or regulation. ¶

Executive Officers ¶

Nine captains serve as executive officers to majors in the management of sections: ¶

1. In the Administration Branch, Administration Section, Captain Paul White is the section executive officer. ¶

2. In the Administration Branch, Human Resources Management Section, Captain Robin Blaker is the section executive officer. ¶

3. In the Administration Branch, Identification and Information Technology Section, Captain James Beshada is the executive officer. ¶

4. In the Intelligence Branch, Intelligence Section, Captain Matthew Hartigan is the executive officer. ¶

5. In the Intelligence Branch, Special Investigations Section, Captain Thomas Alexander is the executive officer. ¶

6. In the Field Operations Branch, Field Operations Section, Captain Louis Klock is the executive officer. ¶

7. In the Homeland Security Branch, Emergency Management Section, Captain Jerome Hatfield is the executive officer. ¶

8. In the Homeland Security Branch, Special Operations Section, Captain Annemarie DeAngelo is the executive officer. ¶

9. In the Office of Professional Standards, Captain Keith Hackett is the executive officer to Major Thomas Flarity. At the time of the hearing, Captain William Toms was the executive officer reporting to Major Robert Cicchino. ¶

Captains who serve as executive officers are their majors’ principal assistants, managing the section’s day-to-day administrative functions and screening problems for their majors. They act in place of their majors in his or her absence and are the majors’ principal assistants in the preparation of section strategic plans. ¶

In the Intelligence Section, the executive officer, Captain Matthew Hartigan, is expected to be “on top of” everything going on in the section’s five bureaus, and to assist and consult with the major on all section business. In the Human Resources Section, Major Marshall Brown is ultimately responsible for the three bureaus’ effectiveness, but his executive officer supervises them and acts as major in Brown’s absence. ¶

Executive officers, despite holding the same rank as captains in charge of bureaus or troops, are regarded as higher in the chain of command. Bureau captains are obligated to go through executive officers to have their concerns presented to majors. In the Investigations Branch, a captain’s decision to move staff around to facilitate a wiretap or something similar would be made with the major’s or his or her executive officer’s approval. In OPS, the captains in charge of the two bureaus report to the executive officer and are considered “a level below” him. In the Human Resource Management Section, Captain Ed Fanelle is in charge of the Human Resource Management Bureau, but as executive officer Captain Dan Morocco is “a half-step” above Fanelle and Fanelle is obligated to go through Morocco to Major Brown. ¶

Other captains report to executive officers. For example, in the Administration Section, Captain Scowcroft, head of the Logistics Bureau, reports to the section’s executive officer, Captain White. In the Investigations Branch, Major James Fallon is in charge of the Special Investigations section; his executive officer is Captain Thomas Alexander. Alexander has day-to-day oversight of all five bureaus; he is “the number two person in charge,” and all matters that get to the major are screened and/or handled by Alexander. In the Administration Branch, Planning Bureau Captain Kathleen Devlin sent her recommendations for changes in the reporting of violations to Captain Toms, the executive officer in OPS at the time. Toms screens all suggestions before sending them on to be considered and approved by those higher in the chain of command. In Field Operations, Captain Annemarie DeAngelo is the executive officer in the Special Operations Section of the Homeland Security Branch. The section has seven bureaus. The captains in charge of these bureaus report to DeAngelo or the major. ¶

A second-in-command at the section level is required because of the wide span of control in certain sections. The Administration Section has 189 employees in five bureaus; Human Resources Section has 157 employees; Intelligence Section has 230 employees in five bureaus; Field Operations section has 64 employees in seven units; Identification and Information Technology Section has 278 employees in four bureaus; and the Special Operations Section has 920 employees in more than 20 units across the State. ¶

Executive officers assist in preparing sections’ strategic plans. Executive officers screen bureau strategic plans. Captain Edward Donovan was the executive officer in the OPS. Donovan authored the strategic plan for OPS for Fiscal Year ( “FY” ) 2006. In the Intelligence Section, the executive officer prepared the FY 2006 section strategic plan. Executive officers compile and consolidate bureau strategic plans into draft section plans. ¶

Captains serving as executive officers also have a role in evaluating whether bureaus’ goals were achieved. According to Fuentes, “The responsibility to make sure that the bureau chief is . . . meeting those goals is the responsibility of the branch commander, section commander [and] executive officer. [These] are the intervening layers of command” (9T33-9T34). ¶

Captains are expected to introduce well-researched ideas, taking into account where the idea has been implemented, the results, the pros-and-cons, cost analysis, and how the idea fits in with the Division’s priorities. These ideas will be considered by executive officers and above, and may be previewed at the Superintendent’s daily morning meeting before their presentation at a monthly command meeting. ¶

Executive officers attend MACs and other management meetings and interact with the Superintendent and deputy superintendents more often than do other captains. ¶

We now review the employer’s exceptions as they pertain to the Hearing Officer’s application of the statutory exception for managerial executives set forth in N.J.S.A. 34:13A-3(f): ¶

“Managerial executives” of a public employer means persons who formulate management policies and practices, and persons who are charged with the responsibility of directing the effectuation of such management policies and practices, except that in any school district this term shall include only the superintendent or other chief administrator, and the assistant superintendent of the district. ¶

Employer’s Exceptions ¶

1. The Hearing Officer improperly failed to apply the correct legal test for determining whether certain Captains were managerial executives. ¶

The employer argues that the Hearing Examiner analyzed only whether captains were responsible for the formulation of management policies and that she did not analyze whether or not the captains direct the effectuation of policy. In particular, the employer points to the captains’ role in the strategic planning process to argue that the process includes determining the strategies by which the goals and objectives of a particular bureau will be achieved and thereby demonstrates that captains direct the effectuation of policy or determine the method, means and extent of reaching a policy objective. ¶

We grant this exception and will now apply the second prong of the managerial executive test to the undisputed facts. We have independently reviewed the record and find that the captains’ role in the strategic planning process does not equate with directing the effectuation of policy. ¶

In New Jersey Turnpike Authority v. AFSCME, Council 73, 150 N.J. 331 (1997), our Supreme Court adopted this test to determine managerial authority: ¶

A person formulates policies when he develops a particular set of objectives designed to further the mission of a segment of the governmental unit and when he selects a course of action from among available alternatives. A person directs the effectuation of policy when he is charged with developing the methods, means and extent of reaching a policy objective and thus oversees or coordinates policy implementation by line supervisors. Whether or not an employee possesses this level of authority may generally be determined by focusing on the interplay of three factors: (1) the relative position of that employee in his employer’s hierarchy; (2) his functions and responsibilities; and (3) the extent of discretion he exercises. ¶

[Turnpike Auth., 150 N.J. at 356] ¶

Sustaining the lower court’s holding that a managerial executive need not possess organization-wide power, the Supreme Court rejected other portions of the lower court’s opinion that would have expanded the managerial executive definition to exclude all employees above first-line supervisors and to adopt the private sector exclusion of all managerial employees who effectuate managerial policies. The Supreme Court reasoned that the problem of divided loyalties is of less concern in the public sector than in the private sector because public employees do not have a right to strike; public employees have a much narrower scope of negotiations; public employers are not seeking to maximize profits; and public employers and public employees share a stronger common interest in the mission of the organization. The Court stressed that the Legislature had rejected a managerial executive definition that would have excluded persons “effectuating and making operative” management policies and practices and had instead confined that part of the exclusion to persons “directing the effectuation” of such “policies and practices.” The Court concluded that “directing the effectuation” connotes a higher level of authority than does “effectuating and making operative.” Id. at 355. ¶

Under Turnpike Auth., we differentiate managerial executives from lower-level employees on a case-by-case basis. The analysis in each instance focuses on the weight and interplay of the employee’s position in the hierarchy, his or her functions and responsibilities, and extent of discretion. The goal is to determine whether the employee has the authority and accountability of a managerial executive to formulate or direct the effectuation of management policies and practices. ¶

The employer’s main evidence to establish that captains are managerial executives is the captains’ participation in the strategic planning process. We reject strategic planning as evidence of a captain’s directing the effectuation of policy as explained in detail in our analysis of the employer’s second exception. There is no evidence in the record that the captains included in the unit have the level of discretion required to direct the effectuation of their bureau or office’s purpose. The captains position in the hierarchy is under four and sometimes five superior officers who review almost all of their decisions and every one of their proposals. With the exception of the captains excluded in our order, the remaining captains are supervisors and not managerial executives. ¶

Homeland Security Captains ¶

The Hearing Officer found that no facts in the record suggest that the captains in the Homeland Security Branch are managerial executives or confidential employees. She held that they are not high in the Division’s hierarchy; have limited participation in management meetings; have limited authority over particular segments of the Division, and do not have discretion over staffing, budgeting and disciplinary procedures. ¶

The Homeland Security Branch consists of the Emergency Management Section and Special Operations Section, both headed by majors. Lieutenant Colonel Drew Leib is in charge of the branch. Reporting to Leib are Major Richard Arroyo, in charge of the Emergency Management Section, and Major John D. Hunt, in charge of the Special Operations Section. Reporting to Hunt are the executive officer, Captain Annemarie DeAngelo, and through DeAngelo are Captain Edward Centar in charge of the Technical Response Bureau, Captain James O’ Neil in charge of the State Governmental Security Bureau, Captain Christopher Simmermon, in charge of the Marine Services Bureau, and Captain John McKevitt, bureau chief of the Aviation Bureau. ¶

Reporting to Major Arroyo through executive officer Captain Jerome Hatfield are Captain Kenneth McCarthy, in charge of the Emergency Preparedness Bureau, and Captain Joseph Hines, in charge of the Recovery Bureau. ¶

We agree with the Hearing Officer that Homeland Security captains do not formulate policy and find that they do not direct the effectuation of policy either. They prepare strategic plans, but no evidence suggests that they have the higher level of authority needed to direct the effectuation of the policy. Their participation in the strategic planning process is to implement the directives from the higher ranks. The majors set forth the general strategies for achieving the Superintendent’s and deputy superintendents’ objectives. By determining what specific strategies a unit will take, the captains are implementing the policy directives of the higher ranks, not directing their effectuation. Turnpike Auth. ¶

Identification and Information Technology Captains ¶

The Hearing Officer found that the three captains in the Identification and Information Technology Section are not managerial executives or confidential employees and should be included in the petitioned-for unit because they: do not have input into the Division’s budget; cannot hire or terminate other employees; and have limited ability to transfer or reassign personnel. ¶

The Identification section oversees the maintenance of all of the Division’s criminal and information databases and compiles traffic, criminal and uniform crime reports. The section is composed of three bureaus: Criminal Justice Records, the State Bureau of Identification, and Information Technology. Major Francis White is the section supervisor; reporting directly to White is the section executive officer, Captain Plaza. ¶

The captain in the Criminal Justice Records Bureau oversees the Division’s collection, classification and analysis of key crime reports, the technical systems support of troopers, the responses to court discovery requests, the interfaces with court databases and the maintenance of the database and data processing systems. The captain in the State Bureau of Identification oversees the automated fingerprint identification, Criminal Justice Information Systems Unit, Criminal Information Unit, Records Assembly Unit, National Instant Criminal Background Check Unit, and the Identification Records and Expungement Units. The captain in charge of the Information Technology Bureau oversees units responsible for programming databases, maintaining and supporting existing programs, and staffing the help desk. ¶

The record establishes that the Identification and Information Technology Section captains effectuate and supervise others’ implementation of information and technology policies in relatively important but limited areas of the Division’s operations. They do not formulate fundamental management policies nor direct the effectuation of the Division’s or their bureaus’ policies. The policy directives are coming from the higher ranks. By determining the specific strategies that will be taken, these captains are implementing the policy objectives of others and not directing their effectuation. Thus, they are not managerial executives and are included in the appropriate unit. ¶

Intelligence Section Captains ¶

The Hearing Examiner recommended that the captains in the Intelligence Management, Counter Terrorism, and Central and South Regional Organized Crime Bureaus are eligible to be included in the proposed negotiations unit. The Intelligence Section has 230 employees, is supervised by Major William Toms, and has five bureaus: Intelligence Management, Counter Terrorism, and the North, South and Central Regional Organized Crime Bureaus. Captain Matthew Hartigan, the section’s executive officer, reports to Toms. Hartigan is Tom’s principal assistant, managing the Section’s day-to-day administrative affairs and screening all matters before they are sent to the major. Hartigan is “on top of” the activity in the five bureaus. There are 200 personnel in the Section, including 30 civilian analysts and support personnel. ¶

The Hearing Officer concluded that the captains in the Intelligence Section are not managerial executives or confidential employees because the captains in the Intelligence Management4/ and Counter Terrorism Bureaus oversee high level intelligence experts and federal investigators, however, she found these duties do not rise from high level supervisory status into the managerial executive category. She concluded that the evidence does not support a finding that they determine the policies for these bureaus apart from approvals by their major, the branch’s deputy superintendent and the Superintendent. The Hearing Officer also found that the captains in the Intelligence Management and Counter Terrorism Bureaus have limited discretion and independence from those ranks above them and that they cannot hire, promote, or deploy staff without the major’s approval and have no role in determining the budget. Most of the enlisted employees in the Counter Terrorism Bureau report to an FBI special agent. ¶

The Hearing Officer found that the captains in charge of the Regional Organized Crime Bureaus5/ have very high level supervisory responsibilities over segments of the Division that are relatively narrow and there is no evidence that they formulate or determine the policies for these bureaus, apart from the three levels of approval above them and that they have no role in the formulation of the budget and limited authority about staffing levels. Discipline, hiring and deployment decisions must be cleared by their superiors. ¶

We have independently reviewed the record and do not find nor has the Division presented evidence that the captains in the Intelligence Section are managerial executives under the Act. We agree with the Hearing Officer that they do not formulate policy and the Division has not provided evidence that they direct the effectuation of policy. Turnpike Auth. Thus, the captains in the intelligence section are eligible for inclusion in the unit. ¶

Special Investigations Section Captains ¶

The Hearing Officer also found that the captains in the Forensic Investigations, Violent Crimes, Computer Crimes/High Technology, and Applicant Investigations Bureaus are not managerial executives within the meaning of the Act and should be included in the proposed unit because they have the same positions in the hierarchy as most other captains; they report to their major through an executive officer and important decisions are reviewed and approved by the deputy superintendent and Superintendent; matters such as purchasing, hiring, promotions and changes to SOPs are reviewed and approved through the branch’s chain of command; they have no role in the Division’s budget; many of the bureaus’ policies, practices and procedures are codified in Memoranda of Understanding, SOPs, IOs, forensic protocols and a myriad of federal and State statutes and regulations. ¶

We have independently reviewed the record and do not find, nor has the Division presented, evidence that the captains in the Special Investigations Section are managerial executives under the Act. We agree with the Hearing Officer that they do not formulate policy and the Division has not provided evidence that they direct the effectuation of policy. Turnpike Auth. Thus, the captains in the Special Investigations Section are eligible for inclusion in the unit. ¶

Field Operations Section Captains ¶

The Hearing Officer found that the captains in the Field Operations Section, Office of Criminal Investigations, Office of Division Operations, and Operations Safety Bureau are not managerial executives because no evidence in the record supports their having proposed or directed the establishment of any policies. The Hearing Officer also recommended that the nine captains in the five roadway and patrol troops, Troops A, B, C ,D and E are not managerial executives and may seek representation for collective negotiations over their terms and conditions of employment. ¶

The Field Operations Branch consists of the Field Operations Section and five troops. The branch is headed by Lieutenant Colonel Gayle Cameron and is run by a major who supervises an executive officer (captain), a captain in charge of the Criminal Investigation Office, and a captain in charge of the Traffic Bureau. The five troops provide regional police services. There are approximately 1500 to 1600 troopers in field operations. A major is the highest ranking officer in a troop. Captains are designated as either regional troop commanders or deputy troop commanders. Every captain reports to a major; troop majors report to the section major. Captains’ authority to take personnel actions such as promotions and transfers are reviewed and approved by both the major in charge of the troop and the major in charge of the section. Captains’ authority to purchase equipment and supplies goes through the chain of command. ¶

Troops’ strategic plans are prepared by majors. The Division’s budget preparation was centralized by the Administration Branch so sections and troops no longer prepare budgets and have limited input into their development. All five troops are staffed with lieutenants who report directly to the troop major and serve as the troop’s liaison with the Office of Professional Standards (OPS). All other lieutenants in the troop report to the captain. A captain in field operations can investigate or initiate a program or idea but it will be vetted and may be modified by the troop commander (a major) to make sure it fits in with the troop’s goals and strategic plan objectives, and then through the Field Operations section executive officer and major. Thus, the recommendations of captains in field operations are subject to review and approval by another captain and two majors before proceeding to the branch lieutenant colonel. ¶

Any direct contact between captains in field operations and the Superintendent is task-related; captains mostly go through their troop commanders and section majors and have very sporadic interaction with the Superintendent. Captains in field operations do not meet regularly with the Superintendent. ¶

Troop commanders (majors) attend monthly command staff meetings along with the Superintendent, lieutenant colonel, deputy superintendent, captain in the Office of State Police Affairs, captain in the Office of Strategic Initiatives, and captain in the Recruiting Bureau. ¶

In Field Operations, captains do not impose discipline; any disciplinary recommendations go to the OPS through an integrity officer or troop commander. ¶

The roadway and patrol troops’ captains report to a major who reports to another major, who reports to the deputy superintendent for field operations. Thus, they are lower in the hierarchy than their counterparts in the other branches. None of these captains have division-wide areas of responsibility and many have jurisdiction over a specific geographical area. However, they do not possess significant authority to influence or effectuate policy in their own segment of the Division. For promotions, transfers and other personnel actions, their authority is diffused and limited by the authority of the majors above them. This limitation is seen in the Division’s current system of ranking promotional candidates by consensus, and the fact that these captains cannot even effectively veto a candidate for promotion. They have no role in the preparation of the budget. ¶

We agree with the Hearing Officer that no evidence suggests these captains have initiated or effectively determined policy. There is also no evidence that they direct the effectuation of policy. Turnpike Auth. As with many other captains, their authority is circumscribed by the hundreds of SOPs, IOs, rules and statutes and the limits on discretion inherent in a quasi- military working environment. Thus, we find that the Field Operations Captains may be included in the proposed negotiations unit. ¶

2. The Hearing Officer incorrectly failed to give proper legal weight to the captains’ role in strategic planning in determining that captains are not managerial executives under the Act. ¶

The employer argues that the captains’ role in strategic planning equates to directing the effectuation of policy because the captain is required to set forth a time line for achieving the strategies that they developed. The employer contends that the Hearing Officer failed to comprehend or recognize that the captains’ role in determining the strategies by which a bureau will achieve its goals constituted proof that captains direct the effectuation of policy or that they determine the method, means and extent of reaching a policy objective because the captains are required to come up with the details of how to actually perform and support the task. ¶

We have independently reviewed the record and agree with the Hearing Officer that the evidence does not support a finding of managerial executive status for the included captains by virtue of their participation in the strategic planning process. The Hearing Officer specifically rejected the evidence presented of the captains’ responsibility in the strategic planning process on a Division-wide basis when she rejected the evidence for the captains she excluded from the proposed unit. She found that the captains’ role in strategic planning is limited by approvals, disapprovals and modifications by their respective superiors and by the fact that strategic planning is a top-down process requiring captains’ plans to conform to those generated by majors, lieutenant colonels, the deputy superintendent, and the Superintendent. The strategic planning process begins with the Superintendent and is fine tuned at each rank ending with captains. The paramilitary structure of the State Police provides for review from higher ranks, which diminishes the captains’ independence and does not permit the level of discretion required to effect the Division’s or the units purpose so as to require exclusion from the collective negotiations unit. When the captains come up with the strategies to implement the policy directives from above, they are effectuating policy - not directing the effectuation of policy. Thus, we find the captains role in strategic planning is neither formulating policy nor directing the effectuation of policy. Turnpike Auth. ¶

3. The Hearing Officer improperly failed to consider the captains as a group rather than case-by-case, given the frequency with which they change assignments within rank. ¶

The employer asserts that the Hearing Officer disregarded its argument that captains should be treated as a group for purposes of determining whether they constitute managerial executives under the Act. To support its argument that all captains are more or less managerial executives at some time, the employer relies on the Recapitulation Rosters in evidence, which establish that within a 14-month period, only 16 of 49 captains remained in their positions. ¶

The Association responds that because captains move around in positions frequently, their ability to effect the Division’s purpose is diminished. The Association also contends that some of the personnel changes were due to retirements, vacancies or promotions and that many of the captains in titles excluded by the Hearing Officer remained in their positions. ¶

We reject this exception. We are not persuaded to carve out an exception to the managerial executive test for State Police captains. The Hearing Officer considered and rejected the employer’s argument finding that in giving employees the right to organize for collective negotiations and limiting the exceptions to the right, the Legislature did not intend to exclude employees from the rights guaranteed to them by the Act because other employees in the same title or rank exercise other duties exempting them from the Act’s protections. Essex Cty., D.R. No. 89-6, 14 NJPER 659 (¶19279 1988) (confidential secretary was excluded from negotiations unit despite having same secretary title and working in the same location as other clerical employees); City of Newark, D.R. No. 2000-11, 26 NJPER 234 (¶31094 2000), review den. P.E.R.C. No. 2000-100, 26 NJPER 289 (¶31116 2000), aff'd 346 N.J. Super. 460 (App. Div. 2002) (affirming negotiations unit of city’s attorneys that excluded attorneys with confidential duties). In our review of this case, we have concentrated on the specific duties of each captain position as required by the Supreme Court. Turnpike Auth. ¶

As for the argument that all captains should be excluded because some captains have moved into or out of excluded positions, we conclude that the record does not support such a sweeping conclusion. The Division does not regularly rotate captains for training purposes. Some captains, such as those in the Investigations Branch, remain in their positions for most their careers. Accordingly, any conflicts must be dealt with on a case-by-case basis. For example, should a particular captain have knowledge in connection with the collective negotiations process and then move out of that confidential position, the employer may seek to continue to have that captain remain confidential for a reasonable period of time. ¶

4. Whether the Hearing Officer failed to draw an appropriate legal conclusion by finding that SOPs circumscribe and limit the captains’ policy and decision-making authority. ¶

The Hearing Officer found that the Division’s SOPs further circumscribe and limit the captains’ policy and decision-making authority. The employer argues that this conclusion is inappropriate as a matter of law because it relies on a general quote from a lieutenant colonel that SOPs dictate “what captains do, why they do it and how they do it.” The employer contends that this statement should not have been given any weight because it is a generalization and the Hearing Officer did not cite any specific SOP that limited any captains’ ability to determine the method, means and extent of reaching a policy objective. In particular, the employer alleges that there was no testimony of any captain being limited by an SOP in achieving a policy objective. ¶

We reject this exception. There is ample evidence in the record to support the Hearing Officer’s finding that SOPs limit a captain’s discretion. SOPs are orders from the Superintendent that direct how goals and objectives are to be implemented. The Hearing Officer gave as an example traffic safety, finding that a strategic plan would contain traffic safety or reducing fatal crashes as a major goal of the Division, but the SOP would specify how motor vehicle stops should be conducted. This limits the discretion of the captains who authored the strategic plan as captains cannot issue or modify SOPs. The employer has also not pointed to any specific evidence to establish that SOPs do not limit a captain’s discretion. ¶

5. The Hearing Officer improperly failed to consider the employer’s public policy argument. ¶

The employer alleges that the Hearing Officer completely ignored its public policy argument that all captains must be deemed managerial executives under the Act. We grant this exception. Since it involves a legal question, we will consider it in the first instance. ¶

The employer contends that it is in the public interest to permit the employer to maintain a small percentage of its employees at the top of the chain of command as management. According to the employer, 69 out of 4,476 Division employees are excluded from collective negotiations units, which is 1.5% of the total staff and a ratio of 65:1. The employer argues that the Hearing Officer’s recommendation reduces the number of managerial employees in the Division to 37, which is .08% of employees, and reduces the 65:1 ratio, and that this recommendation ignores the Superintendent’s testimony that those in the rank of captain are “crucial policy makers” and “members of . . . [his] inner circle of command staff.” ¶

The employer further argues that permitting captains to organize contravenes the purpose of the Act by placing the Superintendent at potential odds with his inner circle of command staff by permitting them to join an employee organization with which the Superintendent would have to negotiate and possibly proceed to interest arbitration with over terms and conditions of employment. It states that the managerial executive exclusion under the Act aims to avoid this exact situation. ¶

We reject this exception. The Legislature has not expressed, nor has any New Jersey court opined, that an employer should maintain and reserve a certain level of managerial employees. To the contrary, in school districts, the Legislature has limited it to two managerial executive positions per district. N.J.S.A. 34:13A-3(f) (superintendent and assistant superintendent are the only managerial executives in a school district). The managerial executive test protects the employer from the hazards of divided loyalties. The Hearing Officer excluded those titles that could impact the Division’s operations if they were included in the unit. We have no grounds or reason to deviate from the managerial executive test set forth in Turnpike Auth. ¶

Association’s Cross-Exception ¶

1. The Hearing Officer incorrectly held that a conflict of interest would exist between captains serving as executive officers and other captains. ¶

The Hearing Officer excluded captains assigned as executive officers. Executive officers are used in some Division branches to act as a liaison between the other captains in the branch and the major in charge of the branch. The Hearing Officer found that a potential for a substantial conflict of interest exists for the nine executive officer positions. ¶

The Association argues that the facts and evidence presented do not support the Hearing Officer’s finding of a conflict because: executive officers do not supervise or evaluate captains; they do not make recommendations regarding their working conditions; and the interaction between executive officers and majors is the same as all other captains and majors. ¶

The employer responds that the evidence clearly supported the facts described by the Hearing Officer that the executive officer captains have a higher level of authority than other captains and that they are at times responsible for directing other captains and approving or disapproving their requests. ¶

We grant this exception and find that executive officers do not have a conflict and may be included in the unit. Under N.J.S.A. 34:13A-5.3, supervisors are employees who have the power to hire, discharge, or discipline other employees or who can effectively recommend these personnel actions. Supervisors have the right to negotiate collectively, except that N.J.S.A. 34:13A-5.3 and 6(d) prohibit new collective negotiations units made up of supervisors and nonsupervisors. In addition, the Supreme Court has determined that where a “substantial actual or potential conflict of interest exists among supervisors with respect to their duties and obligations to the employer in relation to each other,” then a unit that includes all supervisors is not appropriate. West Orange Bd. of Ed. v. Wilton, 57 N.J. 404 (1971). ¶

The record does not support the Hearing Officer’s finding that executive officers have a potential supervisory conflict of interest with other captains in the proposed unit. She found that executive officers carry out administrative functions, speak for majors, and act as majors in their absence. The executive officers are vested with the authority to direct other captains and approve or disapprove their requests. Executive officers also participate in management sessions where performance is evaluated, but the record is devoid of evidence of an executive officer exercising significant power and responsibility over other captains. There is no evidence in the record to establish that executive officers are supervisors of other captains. Executive officers act as a second in command to their major and assist the major in preparing strategic plans, but they cannot hire, discharge or discipline other captains nor is there evidence that they can effectively recommend these personnel actions. West Orange. ¶

Having concluded that executive officers do not have a conflict with the other captains, we must determine whether the executive officers are managerial executives or confidential employees. We find that the executive officers in OPS are confidential employees. The Hearing Officer determined that the captains reporting to the executive officers in OPS are confidential because of the conflicts created by their role in the disciplinary process. The reports and recommendations of the captains in charge of the Internal Affairs Investigations Bureau and the Intake and Adjudication Bureau are sent directly to the OPS executive officers. Neither party has filed exceptions regarding these findings. N.J.A.C. 19:11-7.3(c) (any exception which is not specifically urged shall be deemed to have been waived). Given the undisputed finding of confidential status for the captains reporting through the executive officers, we conclude that the executive officers in the OPS are also confidential employees and ineligible for inclusion in the proposed unit. ¶

In the Administration Branch (Division of Human Resources), we find that the executive officers are confidential employees. The Hearing Officer recommended that the captains in charge of the Human Resource Management Bureau and the Employee Services Bureau be excluded because they are involved in grievances, labor relations matters, promotional processes and career counseling. Neither party filed exceptions to these findings. The Human Resource Management Bureau and Employee Services Bureau captains report through the Division of Human Resources executive officer. Thus, we find that the Division of Human Resources executive officer is a confidential position ineligible for inclusion in the proposed unit. ¶

In the Administration Section, the Hearing Officer found that the captains in charge of the Grants Administration, Fiscal Control, Logistics and Budget Operations Bureaus were managerial executives because they formulate or recommend policies concerning the employer’s acquisition, accounting, budgeting and spending of funds and property. Neither party filed exceptions to these findings. These captains report directly through the executive officer who has a direct role in their managerial decisions. We thus find that the Administration Section executive officer is a managerial executive ineligible for inclusion in the proposed unit. ¶

We find that the remaining executive officers are neither managerial executives nor confidential employees. The record does not support a finding that they formulate policy, direct the effectuation of policy or have responsibilities that give them knowledge of issues involved in the collective negotiations process that would make their inclusion in the unit incompatible with their duties. While their status in the hierarchy of the Division is higher than most other captains, they do not exercise any enhanced authority that elevates them to the managerial executive level. Their functions and responsibilities are more akin to a screener/assistant for their major than a managerial executive. Thus, we order that the executive officers in the Identification and Information Technology, Intelligence, Special Investigations, Field Operations, Emergency Management, and Special Operations Sections be included in the unit. ¶

OrderORDER ¶

The New Jersey State Troopers Captains Association has petitioned for an appropriate higher-level supervisory unit. We remand this petition to the Director of Representation to determine whether a majority of employees in the appropriate unit wish to be represented for purposes of collective negotiations by the New Jersey State Troopers Captains Association. The appropriate unit is: ¶

Included: All captains employed by the Division of State Police, including but not limited to the captains in the Identification and Information Technology Section (Administration Branch); Intelligence Services Section (Investigations Branch), Investigations Section (Investigations Branch); Field Operations Section, Troops A, B, C, D and E; Homeland Security Branch and executive officers in the Identification and Information Technology Section, the Intelligence Section, Special Investigations Section, Field Operations Section, Emergency Management Section, and the Special Operations Section . ¶

Excluded: Managerial executives, confidential employees, non-supervisory employees, non-police civilian employees, captains in the following offices and bureaus: Office of State Police Affairs, Regional Operations and Intelligence Center Task Force, Office of Strategic Initiatives, Office of Public Information, Office of Recruiting and EEO, Internal Affairs Investigation Bureau (OPS), Internal Affairs Intake and Adjudication Bureau (OPS), Fiscal Control Bureau, Budget Operations Bureau, Grants Administration Bureau, Logistics Bureau; Human Resources Management Bureau, Employee Services Bureau, Office of Operation Cease Fire, executive officers in the following sections: OPS, Administration and Human Resources; all personnel represented in other negotiations units, lieutenants, sergeants first class, sergeants, detectives, and all troopers. ¶

BY ORDER OF THE COMMISSION ¶

Chairman Henderson, Commissioners Branigan, Buchanan, Colligan, Fuller, Joanis and Watkins voted in favor of this decision. None opposed. ¶

ISSUED: September 24, 2009 ¶

Trenton, New Jersey ¶

Note1/ We deny the employer’s request for oral argument. The issues have been thoroughly briefed. ¶

2/ In 1999, the Division and the federal government entered into a court-approved consent decree, an agreement that resolved litigation brought by the United States government against the State over alleged unconstitutional and discriminatory practices. The consent decree addressed a broad range of policies and procedures in the Division including traffic stop procedures, supervisory and management methods, investigations of alleged misconduct, and training. The decree provided for increases in annual reporting and data collection, enhanced oversight by the OAG, the elevation of the office of professional standards, and the establishment of an independent monitor to review the Division's implementation of the decree. The Division was subjected to an audit by the independent monitors twice a year. Any change in policy that implicates a subject covered under the consent decree is also subject to the OAG's review and approval. ¶

3/ The OSI contains two units: the Management Awareness and Personnel Performance System ( “MAPPS” ) and a Special Projects Unit. ¶

4/ As of October 2007, the position in charge of the Intelligence Management Bureau is a lieutenant. Lieutenants are not at issue in this case. ¶

5/ The position in charge of the Organized Crime Control Bureau North appears to be a lieutenant (R-104) and not subject to the petition. ¶