RICKEY BROWN v. OCEAN COUNTY BOARD OF HEALTH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2414-09T3

RICKEY BROWN, DONNA DETER-GILLICH,

LAURENCE FINAN, CLYDE FLANEGAN,

JOHN GRAHAM, STEPHAN KLANIECKI,

GEORGE McCOY, LAWRENCE NEWMAN,

DWIGHT GERDES, CHRISTINE WHITEHEAD,

and OFFICE AND PROFESSIONAL

EMPLOYEES INTERNATIONAL UNION

LOCAL 32,

Plaintiffs-Appellants,

v.

OCEAN COUNTY BOARD OF HEALTH,

Defendant-Respondent.

____________________________________

November 22, 2010

Submitted September 29, 2010 - Decided

Before Judges Lihotz and J. N. Harris.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-0046-09.

Mets Schiro & McGovern, LLP, attorneys for appellants (Kevin P. McGovern, of counsel and on the brief).

Berry, Sahradnik, Kotzas & Benson, attorneys for respondent (John C. Sahradnik, of counsel; Mr. Sahradnik and Lauren M. Dooley, on the brief).

PER CURIAM

Individual plaintiffs, Rickey Brown, Donna Deter-Gillich, Laurence Finan, Clyde Flanegan, John Graham, Stephan Klaniecki, George McCoy, Lawrence Newman, Dwight Gerdes and Christine Whitehead (collectively plaintiffs), are employed by defendant, Ocean County Board of Health (defendant), as licensed registered environmental health specialists, N.J.S.A.26:1A-41, who are responsible for inspections in connection with the enforcement of public health laws within Ocean County. The parties have stipulated county health specialists inspect and provide surveillance of restaurants and similar retail food establishments, inspect recreational bathing centers, tanning salons, well and septic systems, youth camps, campgrounds, and perform certified water inspections, water supply inspections, and lead inspections. Plaintiffs were members of plaintiff union, the Office and Professional Employees International Union Local 32 (Local 32), which served as the majority representative of a collective negotiations unit on behalf of plaintiffs and other county employees.

During the term of plaintiffs employment, pursuant to a contract negotiated by Local 32, defendant advertised for bids to perform supplemental health inspection services of retail food establishments. Subsequently, defendant entered into a one-year contract with Food Safety, Inc. (Food Safety). The contract term began on January 1, 2009 and ended on December 31, 2009. Food Safety is owned and operated by Lucy DeBoard, a licensed registered environmental health specialist and former employee of defendant. DeBoard performed all inspections requested by defendant under the one-year contract.

Plaintiffs filed a complaint in lieu of prerogative writs, challenging defendant s authority to contract with Food Safety or other private firms for the performance of health inspection services. On cross-motions for summary judgment, Judge Grasso dismissed plaintiffs' complaint against defendant with prejudice. On appeal, plaintiffs and Local 32 argue defendant may not contract with a private for profit entity to perform services otherwise performed by the county employees who are registered environmental health specialists. Plaintiffs seek an expansive reading of our holding in New Jersey v. Bd. of Health, Twp. of Morris, 208 N.J. Super.415 (App. Div. 1986),1to support their argument that the Local Health Services Act, N.J.S.A.26:3A2-1 to 26:3A2-38, precludes defendant from contracting with a private firm to provide county health inspections.

With that background, we conclude plaintiffs' appeal must be dismissed as moot. "A case is technically moot when the original issue presented has been resolved, at least concerning the parties who initiated the litigation." DeVesa v. Dorsey, 134 N.J. 420, 428 (1993) (Pollock, J., concurring). "An issue is 'moot' when the decision sought in a matter, when rendered, can have no practical effect on the existing controversy." Greenfield v. Dep't of Corr., 382 N.J. Super. 254, 258 (App. Div. 2006) (quoting New York Susquehanna & W.Ry. Corp. v. Div. of Taxation, 6 N.J. Tax 575, 582 (Tax Ct. 1984), aff'd, 204 N.J. Super. 630 (App. Div. 1985)).

"Mootness is a threshold justiciability determination rooted in the notion that judicial power is to be exercised only when a party is immediately threatened with harm." Betancourt v. Trinitas Hosp., 415 N.J. Super. 301, 311 (App. Div. 2010). Generally, "courts should not decide cases where a judgment cannot grant relief." Marjarum v. Twp. of Hamilton, 336 N.J. Super. 85, 92 (App Div. 2000). Courts refrain from the dismissal of a matter on grounds of mootness if the issue in the appeal is an important matter of public interest, Reilly v. AAA Mid-Atlantic Ins., 194 N.J. 474, 484 (2008), and capable of repetition, Joye v. Hunterdon Cent. Reg'l High School Bd. of Educ., 176 N.J. 568, 583 (2003), or a party to the litigation "still suffers from the adverse consequences . . . caused by [the] proceeding[.]" New Jersey Div. of Youth & Family Servs. v. A.P., 408 N.J. Super. 252, 262 (App. Div. 2009), certif. denied, 201 N.J. 153 (2010).

The record does not present any of these circumstances. Here, defendant's contract with Food Safety terminated on December 31, 2009. Plaintiffs offer no evidence of adverse consequences suffered or that the controversy may be repeated.

1 In Township of Morris, supra, 208 N.J. Super. at 416, we examined a challenge to the Township Board of Health's decision to contract with a private company to provide the services of the County Health Officer. The State Board of Health contended the contract violated N.J.S.A. 26:3A2-14, mandating that every local health agency be administered by a full-time health officer. Id. at 416-17. We held a municipal health officer must be an individual on the public payroll, functioning on a full-time basis during all regularly scheduled work hours so that delegation of the municipal health officer's supervisory duties to a private firm was improper. Id. at 417. Further, we held that the direction and supervision of public health activities and employees, along with the duties of enforcement of the public health laws, were "duties of a discretionary nature [which] in the absence of specific authority are nondelegable." Id. at 418.