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NEW JERSEY COPS ■ MARCH 2014
No ‘fundamental fairness’ in Camden PERC election
Recently, an election for a Majority Representative was held in the Camden County Metro
Police Department. The petitioners were NJ
State PBA Local 35 and the newly-formed FOP
Lodge. The election was held after conducting
an election via the New Jersey Public Relations
Commission; the FOP prevailed by merely two
votes.
Interestingly, PERC notified the parties shortly thereafter that there were irregularities with at
least three ballots received by the post office that
were not counted. The parties were further notified that the post office changed certain procedures, utilizing
new technology in place of postmarks, and that the new technology may have had a negative impact on the actual results.
Having learned of these changes and understanding that at
least three ballots were in controversy, the PBA undertook the
initiative to petition New Jersey PERC for a new election, or, in
the alternative, to have the three ballots opened and counted.
The basis of the PBA’s petition was one of fundamental fairness
and to “enfranchise” voters.
Certainly, a new election would have resulted in a different
outcome and most certainly, counting the three ballots in question could have resulted in a different outcome. The PBA was
more concerned about fundamental fairness and to ensure all
legitimately received ballots are counted. The PBA understood
that counting the three ballots may have only resulted in either
three more votes for the FOP or three more votes for the PBA,
which then would have allowed the PBA to win the election by
Stuart
Alterman
one vote or a split vote. The FOP and Camden County opposed
and vehemently resisted the PBA’s request for a new election
but, interestingly, also vehemently opposed the alternative
request to count the three ballots. Neither party knew the contents of the ballots, yet the FOP and Camden County position
declared that those three ballots should remain unopened and
uncounted.
Importantly, representatives from PERC and U.S. Postal Service supervisors indicated that a total of nine ballots were
received, and that based upon the new technology, six of the
nine ballots would have been received after the deadline, but
three of the nine ballots, according to the new technology, were
processed by the U.S. Post Office on Saturday, Sept. 28, 2013,
three days prior to the ballot count. The three ballots in question were not in the New Jersey PERC’s post office box on Oct.
1 or Oct. 3, but certainly were in the stream of commerce
through the postal system.
The point is that three ballots should have been received
because they were mailed on a timely basis by voters who had
a legitimate expectation of having their votes counted. Unfortunately, PERC ultimately found otherwise.
PERC decided this matter on Nov. 1, 2013 and found that even
though PERC specifically noted in the decision, “although the
USPS utilizes technology that allows it to identify the time, date
and location of processing for ballots sprayed with an orange fluorescent identification tag, that technology cannot determine
when a ballot is placed in the Commission’s post office box.
Accordingly, the USPS prediction that ballots first received on
Sept. 28, 2013 (that’s when the three ballots in controversy were
received) should have been in the Commission post office box
cannot form the basis upon which (we) decide to open ballots in
the face of concrete evidence that ballots were not in the post
office box on the date projected by USPS.
The PBA relied on a Monmouth County decision wherein ballots postmarked four (4) days prior to the date of the ballot count
should have been opened. The PBA relied upon other case law
demonstrating that the voters should be enfranchised rather than
disenfranchised. Despite the fact that PERC acknowledged the
PBA’s arguments that failing to count the after-acquired ballots
violates voter’s fundamental rights and the fundamental fairness
doctrine, arguing that technical quibbles and procedural detail
should not govern the Director’s decision. The Director of Representation failed to adopt the PBA’s arguments in spite of favorable case law for reasons that make no sense.
While the FOP touts its victory, the margin of the victory does
not demonstrate a huge majority of support. The fact that three
ballots remained uncounted despite valid arguments otherwise
cast a dark cloud on the entire election process and highlight a
result and process that remains suspect.
The PBA stands by its position and shall continue to represent and advocate for its members in their best interest.d
Stuart J. Alterman, Esq. is the Principal Attorney at Alterman
& Associates, LLC. He served as a municipal police officer, as
well as a county corrections officer and municipal prosecutor. He has represented police officers for more than 20 years.
The viewpoints expressed in this article are not necessarily
those of the NJSPBA.