COMMUNICATIONSWORKERS OF AMERICA, AFL-CIO; MICHAEL LOMBARDI; and ALAN HARDY v. CHRIS CHRISTIE, GOVERNOR OF THE STATE OF NEW JERSEY
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4829-16T4
COMMUNICATIONS WORKERS OF
AMERICA, AFL-CIO; MICHAEL
LOMBARDI; and ALAN HARDY,
Appellants,
v.
CHRIS CHRISTIE, GOVERNOR
OF THE STATE OF NEW JERSEY,
Respondent.
_______________________________
Argued September 18, 2017 - Decided February 21, 2018
Before Judges Messano, Accurso and Vernoia.
On appeal from Executive Order No. 225.
Charlette Matts-Brown argued the cause for
appellants (Weissman & Mintz, LLC,
attorneys; Charlette Matts-Brown and Steven
P. Weissman, on the brief).
Peter Slocum, Assistant Attorney General,
argued the cause for respondent (Christopher
S. Porrino, Attorney General, attorney;
Melissa H. Raksa, Assistant Attorney
General, of counsel; Peter Slocum and
Melanie R. Walter, Deputy Attorney General,
on the brief).
PER CURIAM
On June 1, 2017, former Governor Christie issued Executive
Order No. 225, directing the State's Chief Technology Officer
(CTO) to transfer the responsibility for certain agency-specific
software applications from the Office of Information Technology
(OIT) to the Executive Branch agencies for which they were
developed.
49 N.J.R. 1577(b) (June 19, 2017). The Order also
directed the CTO to undertake "a thorough review of the State's
information technology infrastructure" and inform the Governor
within 180 days of the CTO's plan for consolidating IT
"infrastructure assets and functions." Id. at 1578.
The Order arose out of a comprehensive IT review by the
CTO, which he presented to the Governor in a report entitled
"Multi-Phase Plan for the Modernization and Optimization of
Information Technology Services in the State of New Jersey,
Executive Branch." The Plan traced the history of the efforts
of several administrations to centralize IT resources across the
Executive Branch beginning with Governor Kean's comprehensive
effort in EO84, Exec. Order No. 84 (Oct. 17, 1984), 1 Laws of
New Jersey 1984 1336, to consolidate in OIT's predecessor the
mainframe processing infrastructure within the Departments of
Human Services, Labor, Law and Public Safety, and
Transportation.
2 A-4829-16T4
The Plan detailed how the evolution from mainframe
technology to "newer distributed server technologies" allowed
the departments "to reestablish their own respective IT
infrastructure footprints." State of New Jersey Office of
Information Technology, Multi-Phase Plan for the Modernization
and Optimization of Information Technology Services in the State
of New Jersey, Executive Branch, at 3 (2017). IT infrastructure
re-sprouted across departments led to Governor Whitman's effort
in EO87, Exec. Order No. 87 (Sept. 4, 1998),
30 N.J.R. 3569(a)
(Oct. 5, 1998), "to refocus on consolidation and integration" by
coordinating IT "planning and budgeting on a statewide basis to
effectively realize operating efficiencies." Multi-Phase Plan,
at 3.
Following another statewide IT assessment in 2006, Governor
Corzine issued EO42, Exec. Order No 42 (Nov. 20, 2006),
38 N.J.R. 5195(b) (Dec. 18, 2006), establishing the position of CTO
with "the overall responsibility and authority for all IT
operations in the Executive Branch," including agency
operations. Multi-Phase Plan, at 3. EO42, codified the
following year in the Office of Information Technology
Reorganization Act,
N.J.S.A. 52:18A-224 to -234, "led to a
second consolidation of Executive Branch data centers, beginning
with the Department of Transportation." Multi-Phase Plan, at 3.
3 A-4829-16T4
Since that time, however, the CTO opined that although "OIT
was created for the primary purpose of managing statewide
information technology and infrastructure needs of the Executive
Branch, it has also become responsible for developing and
maintaining agency-specific software applications on behalf of
individual agencies." Id. at 2. In his view, an "imbalance of
functions between OIT and the Executive Branch agencies" had
developed, resulting in OIT being "responsible for developing
and maintaining agency-specific software applications on behalf
of individual agencies," and "individual departments and
agencies largely maintain[ing] their own information
infrastructures rather than relying upon the shared resources
and expertise that OIT can provide." Ibid.
The CTO proposed a three-phase strategy for addressing
those problems. First, the CTO recommended transferring the
responsibility for maintaining and developing agency-specific
software to the agencies, requiring each agency "to maintain and
develop its own software unique to that agency, with OIT
providing support as necessary." Id. at 4-5. That change,
accomplished in Phase One, would result in the CTO, "[s]ubject
to any required approval from the Civil Service Commission,"
transferring 192 OIT employees to eight departments in the
Executive Branch. Id. at 5. The employees would be transferred
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from OIT to the agency for which they were performing daily
assignments. Ibid.
Phase Two would address the problem of IT infrastructure
scattered across the Executive Branch. The CTO reported that
"most of the employees engaged in activities related to the
management of server, storage, network, and data center assets
are employed by agencies other than OIT." Id. at 5-6. "In
Phase Two[,] various enterprise infrastructure functions and
operations in the Executive Branch currently performed by
agencies will be consolidated and assigned to OIT." Id. at 6.
Although the CTO believed that consolidation would "lead to
a significant reduction in information technology infrastructure
redundancies while enabling the maximum utilization of the
State's computing, network, and storage resources within its
enterprise-class data centers," he acknowledged OIT was not
"apprised of the full extent of all assets and personnel
connected to such infrastructure." Ibid. Accordingly, he
proposed "a comprehensive survey among the various agencies in
the Executive Branch to inventory all such assets and resources"
followed by the development of a "comprehensive proposal to
determine which assets and resources, and which corresponding
functions and operations, should appropriately be transferred to
OIT." Ibid.
5 A-4829-16T4
In Phase Three, the CTO proposed addressing the many
outdated legacy applications in the Executive Branch. The Plan
called for OIT to assist the departments and agencies in
identifying applications relying on outdated programming
languages and inefficient interfaces with the goal to "modernize
or decommission these legacy systems." Ibid.
Responding to the Plan and acknowledging his
"responsibility . . . to define and establish the overall
direction, standards, and priorities for the information
technology community in the Executive Branch,"
N.J.S.A. 52:18A-
234, Governor Christie issued EO225 in June 2017 to begin
implementation of the CTO's multi-phase plan. Exec. Order No.
225 (June 1, 2017),
49 N.J.R. 1557(b) (June 19, 2017).
Declaring that
aligning the State's core information
technology infrastructure footprint through
server virtualization and the consolidation
of dozens of server rooms into shared,
enterprise-class data centers would enhance
the efficiency, security, and reliability of
State data and information technology
services and ensure the protection of the
State's information across the Executive
Branch in a consistent and uniform manner,
thereby enabling the State to better carry
out its essential governmental functions and
protect against cyber threats;
the Governor directed the CTO to
6 A-4829-16T4
1. . . . take any actions as are necessary
and appropriate to accomplish the plan to
decentralize software development and
maintenance functions and operations for
agency-specific applications that do not
serve shared business requirements across
the Executive Branch.
2. . . . undertake a thorough review of the
State's information technology
infrastructure, defined as computer,
storage, network, and data center assets, to
identify opportunities for centralizing
common information technology functions and
operations.
3. . . . be specifically authorized to ask
department and agency heads to submit an
inventory of all information technology
infrastructure assets within a department's
or agency's server room(s) or otherwise
under the management of department or agency
staff to the CTO within 30 days in a manner
prescribed by the CTO. The CTO shall be
authorized to transfer the ownership and
management of any information technology
infrastructure assets included in the
aforementioned inventory submission.
4. . . . be specifically authorized to ask
department and agency heads to submit a
roster of all staff performing information
technology infrastructure functions and
operations to the CTO within 30 days in a
manner prescribed by the CTO.
5. . . . inform the Governor of his plan
for consolidating information technology
infrastructure assets and functions pursuant
to this Order no later than 180 days
following the issuance of this Order.
[Id. at 1577-78.]
The EO further directed that
7 A-4829-16T4
6. The aforementioned recommendations from
the CTO shall conform to the applicable
provisions of the Office of Information
Technology Reorganization Act, N.J.S.A.
52:18A-224 [to -234], the State Agency
Transfer Act,
N.J.S.A. 52:14D-1 [to -8], and
the Civil Service Act,
N.J.S.A. 11A:1-1 [to
11A:12-6], as well any other applicable
state or federal requirements.
7. The CTO shall be specifically authorized
to ask department and agency heads to submit
to the CTO a roster of legacy applications
in need of modernization within 60 days, as
well as proposals for the modernization or
decommissioning of such applications within
180 days, in a manner prescribed by the CTO.
8. The CTO shall enter into Service Level
Agreements, Memoranda of Understanding, or
such other arrangements, as well as take
such other actions, as are necessary and
appropriate in the judgment of the CTO, to
accomplish the recommendations contained in
the aforementioned report and to carry out
this Order.
9. This Order shall take effect
immediately.
[Id. at 1578.]
Plaintiffs Michael Lombardi and Alan Hardy were among the
State employees transferred from OIT to other agencies pursuant
to EO225. They and their union, the Communication Workers of
America, AFL-CIO, "seek the rescission of those portions of
EO225 that authorize the CTO to transfer to other agencies of
State government software and application development and
8 A-4829-16T4
maintenance functions — core functions that OIT and its
predecessor . . . have performed for decades."
Plaintiffs contend the Governor's transfer of those
"statutorily-assigned functions" by executive order violates
constitutional principles of separation of powers, N.J. Const.
art. III, ¶ 1, because it conflicts with the OIT Reorganization
Act. We disagree and hold the former Governor acted pursuant to
the OIT Reorganization Act in issuing EO225 and, consequently,
not in violation of the separation of powers doctrine.
It is well-settled that "[e]xecutive orders, when issued
within their appropriate constitutional scope, are an accepted
tool of gubernatorial action." Commc'ns Workers of Am., AFL-CIO
v. Christie,
413 N.J. Super. 229, 254 (App. Div. 2010). "When,
as here, the Governor purports to be acting consistently with
express or implied authority from the Legislature, []he
'exercises not only [his] own powers but those delegated by the
legislature.'" Bullet Hole, Inc. v. Dunbar,
335 N.J. Super.
562, 575 (App. Div. 2000) (quoting Worthington v. Fauver,
180 N.J. Super. 368, 376 (App. Div. 1981), aff'd,
88 N.J. 183
(1982)). Accordingly, the only question before us is whether
the directive in EO225 authorizing the CTO to transfer software
and application development and maintenance functions from OIT
to the agencies can reasonably be construed to conform with the
9 A-4829-16T4
OIT Reorganization Act, the statute under which the Governor
purported to act. See In re Highlands Master Plan,
421 N.J.
Super. 614, 625 (App. Div. 2011).
In enacting the OIT Reorganization Act, the Legislature
found and declared that
a. Since its inception, the Office of
Information Technology (OIT) has served an
integral role in providing essential State
services, developing the State's technical
infrastructure, and maintaining an efficient
and transparent State government;
b. Beyond its core responsibilities of
application development and maintenance,
data center operations, and
telecommunications, OIT provides invaluable
data management, Internet development, and
geographic information systems to
departments and agencies within the
Executive Branch of State Government;
c. From developing the Department of
Human Services' computer-based disability
insurance systems to maintaining criminal
databases utilized by the State Police, and
from designing the Motor Vehicle
Commission's online services to assisting
the Division of Taxation in collecting State
revenues, OIT provides the critical
resources to connect various layers of State
Government and deliver services to State
residents;
d. Despite its achievements, OIT has
been restrained by a lack of accountability,
control, and monitoring in planning,
developing, and conducting department and
agency information technology projects;
10 A-4829-16T4
e. The lack of oversight has
contributed to disorganization and economic
inefficiencies, while also restricting
growth, limiting innovation, and
discouraging creative input within OIT;
f. In order to realize the office's
potential, keep pace with technological
advancements, and meet the needs of
residents and businesses throughout the
State, it is necessary to reinforce OIT's
role with a new structure, leadership, and
mission; and
g. Therefore, the State must take a
proactive approach in coordinating and
integrating information technology planning,
budgeting, and spending throughout the
Executive Branch to advance cost savings,
improve the quality of services, and retain
operating efficiencies.
[
N.J.S.A. 52:18A-225 (emphasis added).]
Plaintiffs focus on the language of the preamble
identifying "application development and maintenance" among
OIT's "core responsibilities."
N.J.S.A. 52:18A-225(b). They
contend that because OIT "is in but not of" the Department of
Treasury, the Governor did not possess "the authority to order
the transfer of [those] legislatively assigned functions . . .
without amending the OIT Reorganization Act." We do not read
the statute the same way.
There is no question but that OIT was established "in but
not of" the Department of the Treasury and "independent of any
supervision or control" by the Treasurer,
N.J.S.A. 52:18A-
11 A-4829-16T4
227(b), providing it the "double legislative guarantee" of
agency independence.1 See N.J. Exec. Comm'n on Ethical Standards
v. Byrne,
238 N.J. Super. 84, 90 (App. Div. 1990) (noting such
language "represents a double legislative guarantee of the
agency's independence and a warning against departmental
interference with its function"). And, as the Supreme Court
explained in In re Plan for the Abolition of the Council on
Affordable Housing,
214 N.J. 444, 449 (2013), "to abolish or
change the structure of independent agencies, both the
legislative and executive branches must enact new laws that are
passed by the Senate and Assembly and signed by the Governor."
But we do not agree the CTO's transfer pursuant to EO225 of the
responsibility for agency-specific software applications from
OIT to the agencies changed the structure of OIT.
1
The Legislature amended the OIT Reorganization Act in 2013 to
abolish the New Jersey Information Technology Governing Board,
which had, among other things, defined and established the
overall direction, standards, and priorities for the information
technology community in the Executive Branch and transferred
those oversight powers and duties to the Governor. L. 2007, c.
56 § 10. See also Sponsor's Statement to A. 3067 (Feb. 7,
2013); Assembly Regulatory Oversight & Gaming Committee,
Statement to A. 3067 (Feb. 7. 2013); Sponsor's Statement to S.
2603 (Feb. 26, 2013); and Senate State Government, Wagering,
Tourism & Historic Preservation Committee, Statement to S. 2603
(Mar. 11, 2013). As the issue is not implicated in this appeal,
we express no opinion on the effect such transfer may have on
the autonomy traditionally enjoyed by independent "in but not
of" agencies. See generally In re Plan for the Abolition of the
Council on Affordable Hous.,
214 N.J. 444, 449 (2013).
12 A-4829-16T4
Although the Legislature acknowledged in its findings and
declarations that "application development and maintenance" had
been a "core responsibility" of OIT, "[s]ince its inception,"
citing several examples of its work for particular departments
and agencies, it also stressed the need for a "new structure,
leadership, and mission" to allow OIT to "realize [its]
potential, keep pace with technological advancements, and meet
the needs of residents and businesses throughout the State."
N.J.S.A. 52:18A-225(a) to (c) and (f) (emphasis added). Most
critically, the Legislature identified the need for "a proactive
approach" to "coordinating and integrating" IT "planning,
budgeting, and spending throughout the Executive Branch to
advance cost savings, improve the quality of services, and
retain operating efficiencies."
N.J.S.A. 52:18A-225(g).
To that end, the OIT Reorganization Act "established an
Office of Information Technology," "allocated in but not of the
Department of the Treasury," to be "directed by the Chief
Technology Officer," reporting "directly to the Governor," and
made the office responsible for "providing and maintaining the
information technology infrastructure of the Executive Branch of
State Government, including all ancillary departments and
agencies." N.J.S.A. 52:18A-227(a)-(c) and (e)(1) (emphasis
added). Further, the Legislature invested the CTO, "qualified
13 A-4829-16T4
by education, training, and prior experience to direct the work
of the office and to perform the duties, functions and
responsibilities of the position,"
N.J.S.A. 52:18A-229(a), with
the authority to "[e]stablish the internal organizational
structure of the Office" and "[c]oordinate and conduct all
information technology operations in the Executive Branch of
State Government, including agency technology operations,"
N.J.S.A. 52:18A-230(a) and (b) (emphasis added).
"When interpreting a statute we look first, and foremost,
to its actual language and ascribe to its words their ordinary
meaning." State v. Sutherland, ___ N.J. ___ (Jan. 11, 2018)
(slip op. at 20). Doing so here makes clear the OIT
Reorganization Act tasks OIT with the responsibility for the
Executive Branch's IT infrastructure and authorizes the CTO to
"[e]stablish [its] internal organization structure" as he deems
necessary in order to "[c]oordinate and conduct all information
technology operations" for the Executive Branch, including all
departments and agencies. See
N.J.S.A. 52:18A-227(e);
N.J.S.A.
52:18A-230(a) and (b) (emphasis added). Nowhere does the
statute say that OIT must perform agency-specific software and
application development and maintenance functions with its own
employees. To the contrary, restructuring OIT so as to transfer
those employees performing such agency-specific IT tasks in OIT
14 A-4829-16T4
to the agencies for which the applications were developed
appears well within the authority the Legislature conferred on
the CTO to dictate OIT's internal structure and "[c]oordinate
and conduct" IT operations in the agencies. Ibid.
Nor is there any merit to plaintiffs' argument that the
Legislature's reference to "application development and
maintenance" as among OIT's "core responsibilities" in the
preamble to the OIT Reorganization Act,
N.J.S.A. 52:18A-225(b),
makes it a "statutorily-assigned function" that cannot be
altered without amending the statute.2 As we noted, that same
2
Both parties rely extensively on the history of executive
orders predating the OIT Reorganization Act in their arguments
to us, noting the Legislature's preservation of "[t]he
functions, powers, and duties granted to the [OIT] by Executive
Order No. 84 of 1984, Executive Order No. 87 of 1998, and
Executive Order No. 42 of 2006" to the extent not "inconsistent
with the provisions of this act."
N.J.S.A. 52:18A-227(f).
Plaintiffs argue those executive orders represent "decades of
policy calling for the consolidation of information technology
functions in a centralized agency," which EO225 reverses by
"foist[ing] those critical IT responsibilities back onto the
agencies." The State uses those same executive orders to argue
that OIT was only ever "responsible for developing and
maintaining only a small fraction of the agency-specific
software applications in the Executive Branch," and that "[o]ne
of the key goals behind the 2007 statute was to allow OIT to
divest itself of those agency-specific applications."
Although it is no doubt possible to find isolated phrases
in the past executive orders to support each of those disparate
views of the history of IT operations in the Executive Branch,
we have no need to endorse either. Because the question before
us is answered by the plain language of the statute, we need not
(continued)
15 A-4829-16T4
preamble declared OIT in need of "new structure, leadership, and
mission" and "a proactive approach" to "coordinating and
integrating" IT "planning, budgeting, and spending throughout
the Executive Branch."
N.J.S.A. 52:18A-225(f) and (g). The
Legislature assigned OIT that new mission in
N.J.S.A. 52:18A-
227(e) and permitted the CTO in
N.J.S.A. 52:18A-230(a) and (b)
to dictate its structure. Although we find no conflict between
the Legislature's findings and declarations in
N.J.S.A. 52:18A-
225 and the text of
N.J.S.A. 52:18A-227(e) and 52:18A-230(a) and
(b), "[t]o the extent that the preamble is at variance with the
clear and unambiguous language of the statute, the preamble must
give way." DiProspero v. Penn,
183 N.J. 477, 497 (2005).
Because we do not find the directive in EO225 authorizing
the CTO to transfer software development and maintenance
functions from OIT to the agencies to be inconsistent with the
OIT Reorganization Act, we reject plaintiffs' arguments that the
executive order violates the statute or the separation of powers
doctrine. Plaintiffs' remaining arguments, to the extent we
(continued)
look beyond that language to divine the Legislature's intent.
See DiProspero v. Penn,
183 N.J. 477, 492 (2005) (instructing
that "[a] court should not 'resort to extrinsic interpretative
aids' when 'the statutory language is clear and unambiguous, and
susceptible to only one interpretation.'" (quoting Lozano v.
Frank DeLuca Constr.,
178 N.J. 513, 522 (2004))).
16 A-4829-16T4
have not addressed them, lack sufficient merit to warrant
discussion in a written opinion. See R. 2:11-3(e)(1)(E).
Affirmed.
17 A-4829-16T4
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