delivered the opinion of the Court.
This appeal arises from a challenge by initiative to the City of Camden’s decision to disband its municipal police department and to contract with Camden County for the delivery of police services to the City of Camden by a countywide police department. The City of Camden’s transition from municipal to county police services followed more than a decade of State oversight of the City’s fiscal affairs in a pilot program conducted pursuant to the Municipal Rehabilitation and Economic Recovery Act (MRERA),
N.J.S.A.
52:27BBB-1 to -79, in conjunction with several statutes governing municipal finance: the Special Municipal Aid Act (SMAA),
N.J.S.A.
52:27D-118.24 to -118.31, the Transitional Aid to Localities program (TAL),
N.J.S.A.
52:27D-118.42a, and the Local Budget Law (LBL),
N.J.S.A.
40A:4-1 to -89. Citing
Defendants, a group of City voters acting as a Committee of Petitioners (Committee), attempted to block the regionalization of the City’s police services. The Committee invoked the Optional Municipal Charter Law, N.J.S.A. 40.-69A-1 to -210, known as the Faulkner Act, which provides for initiative and referendum in accordance with procedures set forth in the statute. The Committee submitted an initiative petition for the adoption of a proposed ordinance that would have required the City of Camden to create and maintain its own police force, and would have enjoined the City from disbanding its municipal police force and replacing it with a regionalized or countywide police force. The Committee obtained, on its petition, the number of voter signatures required by the Faulkner Act. It sought to have its initiated ordinance certified by the municipal clerk, considered by the City Council, and, if not enacted by the Council, placed on the ballot for voter approval in the 2012 General Election.
Plaintiffs Mayor Dana L. Redd (Mayor Redd), Camden’s Mayor, and Camden’s Council President Francisco Moran (Council President Moran) filed a complaint seeking to enjoin the Committee’s Faulkner Act initiative. Mayor Redd and Council President Moran argued that the proposed initiated ordinance unlawfully restrained the City’s legislative power and that it was preempted by MRERA, SMAA, TAL, LBL, and the Police Force Statute, N.J.S.A. 40A:14-118.
The trial court found that the proposed ordinance constituted an invalid divestment of the City’s legislative authority. The Appellate Division reversed the trial court’s judgment and remanded for a determination whether the state fiscal statutes preempt the proposed ordinance.
Redd v. Bowman,
433
N.J.Super.
178, 198,
We granted the parties’ petitions and cross-petition for certifica» tion.
Redd, supra,
217
N.J.
293,
However, we note that one component of MRERA,
N.J.S.A.
52:27BBB-23(a)(2), affords to the Commissioner of the Department of Community Affairs (Department) a veto power over
ordinances passed by the council, subject to override. We hold that any initiative and referendum process affecting Camden’s compliance with MRERA must be harmonized with that
Notwithstanding our holdings that the proposed ordinance neither effected an unlawful divestment of legislative power nor was preempted by state statutes, the relief sought by the Committee in its 2012 petition may not be granted in a manner consistent with the Faulkner Act. The Committee’s initiated ordinance would have prevented Camden officials from disbanding the City of Camden’s municipal police department and regionalizing its police force in a county department. Because the reorganization that the ordinance was intended to forestall was completed more than two years ago, the ordinance as drafted is inconsistent with current circumstances. Accordingly, the ordinance may no longer be supported by all of the citizens who backed it with their signatures, and it cannot meaningfully be evaluated by the voters. The • presence of an out-of-date ordinance on the ballot would contravene the Faulkner Act’s objective that voters be presented with a clear, understandable proposed ordinance that they may accept or reject as they see fit.
Accordingly, we affirm in part and reverse in part the judgment of the Appellate Division and remand to the trial court for entry of a judgment barring the Camden Municipal Clerk from certifying the Committee’s petition. If the Committee seeks to challenge the Camden police reorganization under the Faulkner Act, it may do so with a new petition and a revised ordinance that reflects the current status of Camden’s police services.
I.
A.
Since 1961, Camden has operated under a Mayor-Council form of government under the Faulkner Act, pursuant to
N.J.S.A.
40:69A-32.
McCartney v. Franco,
82
N.J.Super.
570, 576,
In 2002, recognizing that “[t]here exists in certain municipalities a continuing state of fiscal distress which endures despite the imposition of a series of measures authorized pursuant to law,” the Legislature enacted MRERA. L. 2002, c. 43 (codified at N.J.S.A. 52:27BBB-2(a)). Pursuant to MRERA, the State funded projects in Camden under the supervision of a State Economic Recovery Board and a State-appointed Chief Operating Officer (COO). See N.J.S.A. 52:27BBB-6, -7, -36.
On October 28, 2002, pursuant to MRERA, the State assumed comprehensive oversight of Camden’s financial, fiscal, and budgetary affairs. The State’s oversight of Camden’s finances proceeded in two stages prescribed by MRERA. During the “rehabilitation” period, which concluded with the expiration of the COO’s
In addition to the extraordinary fiscal constraints imposed by MRERA, Camden has operated subject to the terms of the LBL, and two statutes governing State aid to municipalities, SMAA and TAL. See N.J.S.A. 40A:4-1 to -89 (LBL); N.J.S.A. 52:27D-118.24 to -118.31 (SMAA); N.J.S.A. 52:27D-118.42a (TAL). As provided for by SMAA and TAL, Camden has applied for and received State transitional aid during every fiscal year relevant to this ease. 1 Pursuant to the terms of MRERA and SMAA, the Department’s Division of Local Government Services has required Camden to enter into a series of Memoranda of Understanding setting forth the requirements imposed by the State on the City of Camden as a condition of its receipt of municipal aid. According to Camden’s Finance Director, the City’s failure to comply with the terms of a Memorandum of Understanding would cause the State to reduce or terminate Camden’s receipt of municipal aid. See N.J.S.A. 52:27D-118.29(b) (stating that State aid payments may be withheld if “municipality fail[s] to implement fiscal recovery measures”); see also N.J.S.A. 52:27D-118.42a(a).
As Camden’s municipal government and the State worked to restore the City to fiscal solvency, the Camden Police Department was subject to particular scrutiny. In Fiscal Year 2012, police-related expenditures accounted for approximately one-third of the City’s total budget expenditures, and during Fiscal Years 2010, 2011, and 2012, Police Department salaries and wages comprised almost one-half of the total salaries and wages paid by Camden to its employees. On January 18, 2011, Camden conducted a layoff of 168 officers. In the wake of the layoff, the police presence on Camden’s streets was far short of the 400-officer force recommended by the City’s security consultant.
On August 9, 2011, the Camden City Council approved a resolution authorizing “the proper officers ... to enter into a Memorandum of Understanding with the State Department of Community Affairs and the County of Camden to prepare a plan for the creation of the Camden County Police Department.” On August 25, 2011, Camden, the County, and the Department entered into a Memorandum of Understanding, in which they agreed to a series of steps leading to the formation of a Camden County Police Department.
The Camden City Council approved the immediate implementation of the terms of the August 25, 2011, Memorandum of Understanding in a Resolution dated December 27, 2011. In that Resolution, the City Council resolved to “take all steps necessary to finalize the immediate implementation of the Memorandum of Understanding in furtherance of the establishment of the Camden County Police Department.” The Council recognized that with the formation of a Camden Metro Division of the countywide
The City’s resolution was followed by a corresponding resolution by the County’s Board of Chosen Freeholders, introduced January 26, 2012, committing to “the necessary and appropriate measures to establish the Camden County Police Department.” By early 2012, planning for the regionalization of Camden’s police services had reached an advanced stage.
B.
The Committee of Petitioners, consisting of defendants Vance Bowman, Larry Gilliams, Eulisis Delgado, Mary I. Cortes, and Robert Davis, opposed the creation of a County Police Force on the ground that such a force would “simply result in less experienced officers, who are not familiar with the City of Camden, policing the [C]ity.” On April 11, 2012, the Committee circulated and submitted a petition for the adoption of a proposed ordinance pursuant to the initiative provision of the Faulkner Act, N.J.S.A. 40:69A-184. The proposed ordinance provided:
BE IT ORDAINED THAT: Section 87-1 of Chapter 87 of the Code of the City of Camden, is hereby amended to read as follows:
A. There shall be created and maintained in continued existence, in, for and by the City of Camden, its own Police Department which shall remain the police department for the City of Camden and which shall consist of a Police Director, a Chief of Police and members and officers as shall be deemed necessary by the governing body of the City of Camden which shall, from time to time, determine the number of persons, including, without limitation, temporary officers and members in an emergency, to be appointed to these positions, together with their compensation, all as provided for under N.J.S.A 40A:14-118.
B. The City of Camden shall not disband its police department pursuant to the creation of any county wide Police Department established by or for the County of Camden and shall not participate or join in the creation of any such Police Department established by or for the County of Camden, nor participate in any consolidation of or regionalization of police services sought to be created by any establishment of a county wide police department, and shall instead continue to maintain its own police department.
On April 20, 2012, the Camden Municipal Clerk advised the Committee that he would move the certified petition forward as an ordinance to be considered at the May 8, 2012, City Council meeting. 2
II.
Mayor Redd and Council President Moran commenced this action on May 2, 2012. In their verified complaint, they sought a declaration that the Committee’s proposed ordinance was null and void, and entry of an order (1) enjoining the Council from considering the ordinance, (2) the County
A week later, the trial court entered temporary restraints enjoining the Camden Municipal Clerk from certifying or submitting the proposed ordinance to the City Council. On June 12, 2012, the trial court issued an opinion and order prohibiting the municipal clerk from certifying the petition to the Camden City Council. It held that the initiated ordinance would create an undue restraint on future legislation. The trial court rejected the plaintiffs’ argument that the ordinance unduly restricted the municipality’s exclusive statutory authority under the Police Force Statute, N.J.S.A. 40A:14-118. Citing the potential impact of its decision on a pending, separate legal challenge to the Camden police reorganization, the trial court did not reach the question whether MRERA or the state fiscal statutes preempted the Faulkner Act initiative pursued by the Committee. The Committee appealed. It initially pursued a motion to accelerate the appeal, which was ultimately denied by the Appellate Division.
While the Committee’s appeal was pending, Camden and the County took the final steps to regionalize Camden’s police services. Effective January 1, 2013, the County formally established the Camden County Police Department. On April 30, 2013, the City of Camden disbanded the Camden Police Department and permanently laid off the members of that department. On May 1, 2013, the Camden Metro Division of the County Police Department began providing police services to the City of Camden. It continues to provide those services today.
The Appellate Division reversed the determination of the trial court, holding that the initiated ordinance did not constitute an improper divestment of the municipal governing body’s legislative
power.
Redd, supra,
433
N.J.Super.
at 193-94,
We granted the petitions for certification filed by Mayor Redd and Council President Moran, and the cross-petition for certification filed by the Committee.
Redd, supra,
217
N.J.
293,
III.
Mayor Redd and Council President Moran urge the Court to either grant judgment in their favor or dismiss the appeal as moot. They note that Camden has already disbanded its Police Department and has contracted to receive its police services from the County police force, an action that cannot be undone in a reasonable manner. They contend that the Committee should have proceeded by referendum after the Council passed an ordinance disbanding the municipal police force, rather than prospectively challenge Camden’s
Mayor Redd and Council President Moran argue that the trial court was correct to find that the proposed ordinance would have constituted an unlawful prior restraint on the legislative power of the governing body. They assert that in light of the State’s comprehensive supervision, regulation, and occupation of the field with respect to Camden’s finances through MRERA, SMAA, TAL and LBL, as well as agreements between Camden and the State, the Committee’s Faulkner Act ordinance is preempted under the five-part test of Overlook Terrace Management Corp. v. Rent Control Board of West New York, 71 N.J. 451, 461-62, 366 A.2d 321 (1976). Moran offers the additional argument that the initiated ordinance is preempted by the Police Force Statute, N.J.S.A. 40A:14-118.
The Committee argues that the Court should not dismiss the appeal as moot because the question of mootness was not raised in the Appellate Division, and the question before the Court is not moot. It observes that Camden voluntarily proceeded with the police reorganization knowing that the Committee’s appeal was pending. The Committee contends that, notwithstanding the events of the past two years, the voters of Camden may vote on the proposed ordinance because the ordinance sets standards in general and prospective terms, and is not confusing.
Further, the Committee urges the Court to decide the preemption issue, notwithstanding Camden’s police reorganization, because of the potential for future Faulkner Act challenges to the decisions of Camden’s governing body. It dismisses the argument of Mayor Redd and Council President Moran that a referendum, rather than an initiative, was the proper procedure under the Faulkner Act, on the grounds that the argument was not raised before the trial court and is wrong on its merits. The Committee also contends that the trial court erred when it held that the initiated ordinance would unlawfully divest the Camden governing body of its legislative power. Finally, the Committee challenges the Appellate Division’s remand for consideration of the preemption issue, arguing that the Legislature has not clearly stated an intention to bar Faulkner Act challenges to actions by the Camden governing body with respect to municipal finances or police services.
Amicus curiae New Jersey Appleseed addresses only the issue of divestment of legislative power. It argues that the Appellate Division correctly determined that the trial court erred with respect to the question of an unlawful restraint on municipal legislative authority, but that the panel’s reasoning was incorrect. It contends that because the Committee’s initiated petition is an ordinary enactment with only “inertial” force against future law makers, and that nothing in the ordinance makes it impossible or unusually burdensome for future City Councils to amend or repeal it, it is a valid application of the Faulkner Act.
As amicus curiae, the Department of Community Affairs supports the position of Mayor Redd and Council President Moran that the Committee’s proposed ordinance is preempted by MRERA, SMAA, and TAL. It asserts that the ordinance expressly prohibits the regionalization of Camden’s police services, which is one of several “exceptional measures” mandated by the Department. The Department notes that pursuant to a 2010 amendment to MRERA,
N.J.S.A.
52:27BBB-23(a)(2), in Camden’s “recovery” phase, ordinances and resolutions adopted by its governing body remained subject to review and veto
IV.
A.
As a threshold matter, we do not concur with the assertion of Mayor Redd and Council President Moran that this appeal should be dismissed as moot. An issue is “moot when our decision sought in a matter, when rendered, can have no practical effect on the existing controversy.”
Deutsche Bank Nat’l Trust Co. v. Mitchell,
422
N.J.Super.
214, 221-22,
We review de novo the legal determinations of the trial court and Appellate Division as to the interplay between the Faulkner Act, MRERA, and the relevant State fiscal and police force statutes.
In re Petition for Referendum on Trenton Ordinance 09-02,
201
N.J.
349, 358,
Governed by these principles, we consider the Legislature’s intent when it conferred on the voters the initiative power set forth in N.J.S.A. 40:69A-184. That provision was the product of a 1982 legislative reform intended to “make[ ] uniform the initiative and referendum procedures of municipalities operating under the ‘Walsh Act[J [N.J.S.A. 40:70-1 to 76-27,] and the ‘Faulkner Act.’ ” 3 S. Cnty. & Mun. Gov’t Comm. Statement to S. 763 (Mar. 1, 1982). The 1982 amendments followed a finding that “[t]he initiative and referendum provisions of the Walsh Act,’ which date from 1911, are rather vague, often confusing, and use archaic terms. Those of the ‘Faulkner Act,’ written in 1950, while more complete and modern, lack certain of the stronger provisions of the Walsh Act.’” Ibid.
As amended, the Faulkner Act’s initiative provision confers on the voters the right to propose an ordinance, if the petition includes a sufficient number of signatures. See N.J.S.A. 40:69A-184.
The voters of any municipality may propose any ordinance and may adopt or reject the same at the polls, such power being known as the initiative. Any initiated ordinance may be submitted to the municipal council by a petition signed by a number of the legal voters of the municipality equal in number to atleast 15% of the total votes cast in the municipality at the last election at which members of the General Assembly were elected. An initiated ordinance may be submitted to the municipal council by a number of the legal voters of the municipality equal in number to at least 10% but less than 15% of the total votes cast in the municipality at the last election at which members of the General Assembly were elected, subject to the restrictions set forth in [N.J.S.A. 40:69A-192],
[Ibid.] 4
“The ‘salutary purposes’ of both initiative and referendum include ‘arousing public interest’ and ‘placing in the hands of the voters ... direct means of controlling proposed or already enacted municipal legislation and also of accomplishing the enactment of legislation which has neither been proposed nor adopted.’ ”
City of Ocean City v. Somerville,
403
N.J.Super.
345, 352,
The Legislature’s clear expression of intent to grant to voters in Faulkner Act municipalities broad powers of initiative provides the setting for our review of the Committee’s challenge to the Camden police reorganization.
B.
We concur with the Appellate Division that, as applied in this case, the Committee’s Faulkner Act initiative petition does not
constitute an unlawful restraint on the Council’s future exercise of its legislative power.
See Redd, supra,
433
N.J.Super.
at 188-94,
As the trial court and Appellate Division recognized, in the absence of specific authorization from the Legislature, a governing body cannot “ ‘divest its successors of legislative power.’ ”
Redd, supra,
433
N.J.Super.
at 188-89, 77 A 3d 1230 (quoting
Ocean City, supra,
403
N.J.Super.
at 359,
If a majority of the qualified electors voting on the proposed ordinance shall vote in favor thereof, such ordinance shall thereupon become a valid and binding ordinance of the municipality and be published as in the case of other ordinances. No such ordinance shall be amended or repealed within 3 years immediately following the date of its adoption by the voters, except by a vote of the people. The council may, within 3 years immediately following the date of adoption of the ordinance, submit a proposition for the repeal or amendment of that ordinance to the voters at any succeeding general election or regular municipal election. If the proposition submitted shall receive a majority of the votes cast at that election, the ordinance shall be repealed or amended accordingly. If the provisions of two or more measures approved or adopted at the same election conflict then the measure receiving the greatest affirmative vote shall control.
[N.J.S.A. 40:69A-196(a); see also L. 2009, c. 339 (amending N.J.S.A. 40:69A-196 to add paragraph (b), but leaving paragraph (a) intact).]
As this Court has observed in applying the referendum provision of the Faulkner Act, “[i]t is the function of the Legislature, not the courts, to determine how much direct democracy through referendum should be conferred on the voters of a municipality.”
Ordinance 04-75, supra,
192
N.J.
at 467,
By virtue of this short-term constraint created by the Legislature, which would temporarily limit the authority of Camden’s current and successor legislatures in the event that the Committee’s initiated ordinance were adopted, the ordinance would not constitute an improper restraint on future legislative authority. We affirm the Appellate Division’s determination regarding this issue.
C.
“[A] court may declare an ordinance invalid if it ... is preempted by superior legal authority.”
Rumson Estates, Inc. v. Mayor of Fair Haven,
177
N.J.
338, 351,
In Overlook, supra, this Court set forth the following five-factor test for determining whether a state law preempts a municipal ordinance:
1. Does the ordinance conflict with state law, either because of conflicting policies or operational effect (that is, does the ordinance forbid what the Legislature has permitted or does the ordinance permit what the Legislature has forbidden)?
2. Was the state law intended, expressly or impliedly, to be exclusive in the field?
3. Does the subject matter reflect a need for uniformity? ...
4. Is the state scheme so pervasive or comprehensive that it precludes coexistence of municipal regulation?
5. Does the ordinance stand “as an obstacle to the accomplishment and execution of the full purposes and objectives” of the Legislature?
[71 N.J. at 461-62,366 A.2d 321 (citations omitted).]
The
Overlook
factors have served as the governing standard in several settings in which courts determined whether state law preempts a local ordinance.
See, e.g., Mack Paramus Co. v. Mayor of Paramus,
103
N.J.
564, 566, 573-74,
The preemption standard of
Overlook
is consistent with the principles stated in two recent opinions in which this Court rejected challenges to referendum petitions submitted pursuant to the Faulkner Act,
Trenton Ordinance 09-02, supra,
201
N.J.
at 859-64,
In
Ordinance Oi-75, supra,
the Court rejected the reasoning of a line of cases that exempted “administrative” ordinances from the reach of the Faulkner Act. 192
N.J.
at 467-70,
That sampling clearly establishes that the Legislature has determined, on multiple occasions, those municipal matters that should not be called before the voters in a referendum. Because the Legislature has made exceptions to N.J.S.A. 40:69A~185 with such precision in a multitude of statutes, we cannot find that it intended an amorphous legislative/administrative distinction that cannot be gleaned from the statute’s text, legislative history, or place in the larger statutory scheme.
[Id. at 467,931 A.2d 595 .]
Following the analysis of
Ordinance 04-75,
the Court held in
Trenton Ordinance 09-02, supra,
that the Municipal Utilities Law,
N.J.S.A.
40:62-1 to -151, which provided for Board of Public Utilities review of the sale of Trenton’s water works system, was
not intended to deprive the public of its referendum power under the Faulkner Act. 201
N.J.
at 353, 359-68,
where the legislative intent is not dear “from the statute’s text, legislative history, or place in the larger statutory scheme[,]” an intention to immunize an ordinance from a Faulkner Act challenge will not be found. Put another way, in the absence of an unequivocal legislative expression to the contrary, citizens in a Faulkner Act municipality are empowered to protest any ordinance under the Act. The burden is on the party seeking to defeat the Faulkner Act to clearly establish the existence of a contrary legislative intent.
[Id at 362,990 A.2d 1109 (quoting Ordinance 04-75, supra, 192 N.J. at 467,931 A.2d 595 ).]
Thus, the
Overlook
standard that generally governs questions of state preemption of municipal ordinances, and the Court’s two recent decisions applying the referendum provision of the Faulkner Act, direct that we discern whether the Legislature intended to deny voters the power of initiative in the setting of this case. The broad statutory language, on which the Court’s holdings in
Ordinance 04-75
and
Trenton Ordinance 09-02
rest, finds an exact counterpart in the initiative provision of the Faulkner Act. The Act permits the voters of any municipality to “propose any ordinance and ... adopt or reject the same at the polls.”
N.J.S.A.
40:69A-184;
see Ocean City, supra,
403
N.J.Super,
at 357,
The Memorandum of Understanding, which prompted the regionalization of the Camden police force, followed years of State oversight of Camden’s finances, and is rooted in the LBL, SMAA, TAL, and, most directly and specifically, MRERA. The LBL generally charges the Department’s Division of Local Government Services with significant oversight of municipal budgets, which
must be certified by the Director of the Division.
N.J.S.A
40A:4-76 to -79.
6
The LBL requires local
For municipalities such as Camden that were eligible for municipal aid, SMAA prescribes a procedure by which the Director of the Division of Local Government Services determines that the “municipality is experiencing fiscal distress and may require assistance under [N.J.S.A. 52:27D-118.24 to 118.31],” and reports that finding to the Local Finance Board. N.J.S.A. 52:27D-118.28. After reviewing the municipality’s finances and meeting with the governing body and other “interested parties,” the director is required to “notify the board of the findings of the review and ... recommend to the board actions necessary to be taken by the municipality, which may include the provision of short-term financial aid.” Ibid. The Legislature clearly stated in SMAA that the implementation of reforms necessary to the municipality’s financial recovery was a condition of receiving State aid under N.J.S.A 52:27D-118.24 to -118.31:
As a condition of receiving assistance under the provisions of [N.J.S.A. 52:27D-118.24 to -118.31], an eligible municipality shall implement any government, administrative and operational efficiency, and oversight measures necessary for the fiscal recovery of the municipality as recommended by the director and approved by the board, and be subject to management and fiscal audit by the director.
b. The director may withhold from an eligible municipality any State aid payments that are disbursed by the Division of Local Government Services if the director finds the municipality has failed to implement fiscal recovery measures approved by the board. Upon withholding an aid payment, the director shall report to the board the circumstances surrounding the reasons for withholding aid. The board shall then hold a hearing to give the eligible municipality an opportunity to explain why such aid payments should not continue to be withheld, and what action the eligible municipality plans to take to implement the fiscal recovery measures. Upon completion of the hearing, the board shall determine if State aid payments should continue to be made to the municipality, establish a schedule for such payments when appropriate, and determine what other actions should be taken.
[N.J.S.A. 52:27D-118.29.]
In 2011, TAL replaced the SMAA scheme and two other existing municipal aid programs. See S. Budget & Appropñations Comm. Statement to S. 3118 (Dec. 8, 2011). The Senate Budget and Appropriations Committee declared that “[a]pplying for aid under this program is a declaration that the municipality is not capable of managing its finances without special State assistance and intervention.” Ibid. Under TAL, the Director of the Division of Local Government Services exercises broad oversight of the municipality’s operations, focusing on, but not limited to, its fiscal management. See N.J.S.A. 52:27D-118.42a(a).
The Director of the Division of Local Government Services in the Department of Community Affairs shall determine conditions, requirements, orders, and oversight for the receipt of any amount of grants, loans, or any combination thereof, provided to any municipality through the [TAL] program or any successor discretionary aid programs for municipalities in fiscal distress. Conditions, requirements, or orders deemed necessary by the director may include, but not be limited to, the implementation of government, administrative, and operational efficiency and oversight measures necessary for the fiscal recovery of the municipality, including but not limited to requiring approval by the director of personnel actions, professional services and related contracts, payment in lieu of tax agreements, acceptance of grants from State, federal or other organizations, and the creation of new or expanded public services.
[Ibid.]
SMAA and TAL plainly reveal the Legislature’s determination that municipal aid for Camden and other qualified municipalities is premised on the municipalities’ compliance with a broad spectrum of conditions and requirements imposed by the State. See N.J.S.A. 52:27D-118.24 to 118.31; N.J.S.A. 52:27D-118.42a. Under SMAA and TAL, a municipality’s failure to comply with the State directives authorized by the Legislature may have dire fiscal consequences. See N.J.S.A 52:27D-118.29(b). Nonetheless, neither statute bars a municipality from enacting ordinances by initiative or referendum under the Faulkner Act that contravene a condition imposed by the State. Although such an ordinance might imperil state funding under SMAA or TAL, it is not preempted by either statute.
In enacting MRERA in 2002, the Legislature clearly viewed the statute as an extraordinary response to a crisis of both fiscal management and public safety. 8 Citing “a continuing state of fiscal distress which endures despite the imposition of a series of measures authorized pursuant to law,” and “a lack of internal audit controls, accountability and oversight,” the Legislature ac knowledged the failure of prior efforts to encourage economic growth. N.J.S.A. 52:27BBB-2 (a), (g).
Given the high crime rates in these municipalities, if economic recovery is to be successful, it is vital that municipal residents feel that them basic safety is assured; accordingly, the State will continue to commit to assist such municipalities in maintaining not less than that number of police officers employed by the municipality at the time of the determination by the commissioner that the municipality fulfills the definition of a qualified municipality and in creating working relationships between State agencies, local law enforcement and the community to identify and develop strategies to improve the quality of life and the security of residents in qualified municipalities.
[N.J.S.A. 52:27BBB-2(Z).]
In MRERA, the Legislature mandated that State and municipal officials focus on the efficacy and cost of police services. See, e.g., N.J.S.A. 52:27BBB-2(b) (providing that municipalities qualified under MRERA “have a history of high crime rates ... that has necessitated the maintenance of large police and fire departments, at enormous taxpayer cost in municipalities without a sound tax base”); N.J.S.A. 52:27BBB-12(d) (mandating study to “analyze the current state of [public safety] services ... and make recommendations for current and future staffing levels in order to realize appropriate levels of service”). Thus, the Legislature disclosed a clear intent that the State and the local governing body, such as Camden, would scrutinize, and, as necessary, reform the delivery of police services to its residents.
In MRERA, however, the Legislature reaffirmed that a municipality’s status as a qualified municipality would leave in place the form of government chosen prior to its entry into the rehabilitation and economic recovery phases prescribed by the statute. The statute provides that “Notwithstanding that a municipality has been placed under rehabilitation and economic recovery under [N.J.S.A. 52:27BBB-1 to -79], the municipality shall remain a body corporate and politic in the same manner as existed prior to rehabilitation and economic recovery.” N.J.S.A. 52:27BBB-34(a). Moreover, MRERA directs that a qualified municipality retain its chosen form of government:
Unless otherwise provided pursuant to [N.J.S.A. 52:27BBB-1 to -79], the governing body shall retain all functions, powers and duties prescribed to it pursuant to the charter and administrative code of the municipality, ... [including] any specific form of government law according to which the municipality is governed, and such other sections or other laws which govern municipal operation or administration.
[N.J.S.A. 52:27BBB-25.]
As those provisions reflect, the Legislature intended that ordinances be enacted in a qualified municipality in accordance with the procedures mandated for the form of government chosen by the municipality. In the case of Camden, a Faulkner Act municipality, three processes are prescribed by the Faulkner Act for the enactment of an ordinance: council vote,
N.J.S.A.
40:69A-180 to - 181; initiative,
N.J.S.A.
40.-69A-184; and referendum,
N.J.S.A.
40:69A-185. An ordinance, however enacted, that undermines an agreement reached by Camden pursuant to MRERA may prompt the State to withhold municipal aid under the statute, but there is nothing in MRERA that expresses a legislative intent to preempt the Faulkner Act process. Instead, MRERA reaffirms
The Legislature has extensively addressed the field of municipal finance in Camden, particularly in SMAA, TAL and MRERA, but it has not done so to the exclusion of a municipal role, as the actions taken by Camden illustrate. See generally N.J.S.A. 52:27D-118.24 to -118.31, 52:27D-118.42a, 52:27BBB-1 to -79. Although the Legislature clearly intended that a decision by Camden not to reform its police services would have serious ramifications for the City, it left open the possibility that Camden would reject the State-imposed conditions, and with that, its State aid. See N.J.S.A. 52:27D-118.29(b), 52:27D-118.42a. It did not purport to bar Camden from enacting ordinances — including ordinances with negative fiscal consequences to the municipality — by initiative or referendum.
Thus, in accordance with the standard set forth in Overlook, and in accord with this Court’s decisions in Ordinance Ob-75 and Trenton Ordinance 09-02, the Legislature’s intent is clear — to preserve the Faulkner Act procedures notwithstanding Camden’s status as a qualified municipality under N.J.S.A 52:27BBB-3. MRERA does not preempt the power of initiative conferred by the Legislature in the Faulkner Act.
Similarly, we discern no legislative intent in the Police Force Statute to preempt the police regionalization ordinance. That statute authorizes “[t]he governing body of any municipality [to] create and establish, as an executive and enforcement function of municipal government, a police force.” N.J.S.A 40A:14-118.
Nothing in the Police Force Statute precludes the voter initiative and referendum procedures set forth in the Faulkner Act.
See Ordinance 04-75, supra,
192
N.J.
at 451-55, 470,
Any such ordinance shall, in a manner consistent with the form of government adopted by the municipality and with general law, provide for a line of authority relating to the police function and for the adoption and promulgation by the appropriate authority of rules and regulations for the government of the force and for the discipline of its members.
[N.J.S.A 40A:14-118]
The Legislature thus expressly acknowledged in the Police Force Statute that a police ordinance would be enacted consistent with the form of government chosen by the municipality-in Camden’s case, the Faulkner Act Mayor — Council form of government prescribed by N.J.SA 40:69A-32. The Police Force Statute does not preempt the Faulkner Act’s mechanisms and invalidate the Committee’s proposed ordinance.
Accordingly, we hold that the Faulkner Act initiated, proposed ordinance at issue here is not invalid by virtue of preemption by either MRERA, SMAA, TAL, LBL, or the Police Force Statute. We reverse that portion of the Appellate Division’s judgment that remanded the matter to the trial court for the development of a record on the issue of preemption.
D.
Although MRERA does not preempt the Faulkner Act as applied here, it clearly expresses the Legislature’s intent that during the “economic recovery term” as defined in
N.J.S.A
52:27BBB-3 and -6,
During the economic recovery term, in addition to the normal procedures for adopting resolutions and ordinances set forth in the form of government of the qualified municipality, within three business days following each meeting of the governing body, a copy of each ordinance and resolution which has been adopted by the governing body shall be forwarded to the Commissioner of Community Affairs, who shall have 10 days from the receipt thereof to veto the ordinance or resolution, as the case may be. Any veto action by the commissioner shall be submitted to the governing body within 10 days of the veto. Within five business days thereafter, the governing body may override the veto by a two-thirds vote of the fully authorized membership thereof____
[N.J.S.A 52:27BBB-23(a)(2) (emphasis added).]
Accordingly, any ordinance submitted to the Council by initiative petition is subject to the Commissioner’s veto authority as set forth in N.J.S.A. 52:27BBB-23(a)(2). Moreover, the Legislature has clearly stated in SMAA that municipalities that disregard requirements imposed by the Department and Memoranda of Understanding risk the loss of essential state aid. See N.J.S.A. 52:27D-118.29(b).
When we review separate legislative enactments, we have “ ‘an affirmative duty to reconcile them, so as to give effect to both expressions of the lawmakers’ will.’ ”
Trenton Ordinance 09-02, supra,
201
N.J.
at 359,
If an ordinance such as that proposed by the Committee were to be submitted to the Council and the Council did not pass it, thus invoking the procedure in
N.J.S.A
40:69A-191 for submission of the ordinance to the voters, the Commissioner must be afforded the opportunity to veto the proposed initiative ordinance within the ten-day time frame set forth in
N.J.S.A.
52-.27BBB-23(a)(2). Although MRERA is silent as to whether the Commissioner must accompany any veto of the initiated ordinance with a message explaining his or her action, in the setting here, such a message is essential to inform voters about the import of the ordinance.
9
If the Commissioner’s analysis indicates that an ordinance regarding the eountywide police force will result in a substantial reduction
By virtue of the distinctions between the process followed by a governing body in passing ordinances and the initiative procedure of N.J.S.A. 40:69A-184, it is impractical to precisely replicate MRERA’s intended process for the Commissioner’s veto pursuant to N.J.S.A. 52:27BBB-23(a)(2) in a Faulkner Act setting. It is, for example, impossible to impose MRERA’s strict deadlines for the veto process when, under the Faulkner Act, voter review of the initiated ordinance must await a general, regular municipal or special election. See N.J.S.A. 52:27BBB-23(a)(2); N.J.S.A. 40:69A-192. Further, although N.J.S.A. 52:27BBB-23(a)(2) envisions that the Commissioner’s opportunity to veto will follow the governing body’s adoption of an ordinance, that process cannot be duplicated when an ordinance has been proposed by initiative, rejected by the governing body, and submitted by the municipal clerk to the voters under N.J.S.A 40:69A-191. The Commissioner’s veto is necessarily exercised with respect to an ordinance that has not been adopted by the voters. The process that we set forth reconciles the objectives and provisions of the statutes as closely as possible.
Accordingly, in light of Camden’s status as a municipality in the recovery phase of the MRERA process, the Faulkner Act procedure for the enactment of an initiated ordinance for the reorganization of the police force must incorporate the Commissioner’s veto authority as set forth in N.J.S.A. 52:27BBB-23(a)(2). If an initiated ordinance is submitted to the voters of Camden following the Commissioner’s veto, the voters should be informed in an interpretive statement about the Commissioner’s veto and the reasons therefore, including, if applicable, the law enforcement and fiscal consequences that would follow the adoption of the ordinance.
E.
Although a Faulkner Act initiated petition challenging the Camden police reorganization is not invalid as a divestment of legislative power or by virtue of preemption, the ordinance at issue in this case may not be submitted to the voters of Camden. By virtue of the disbanding of Camden’s municipal police force, the creation of the County Police Department and two years of police services provided to the citizens of Camden by the County Department’s Metro Division, the ordinance in this appeal is out of date, inaccurate, and misleading.
The ordinance at issue stands in stark contrast to the current circumstances. Its first paragraph mandates the creation and maintenance “in continued existence” of the Camden Police Department, which has been replaced by the Metro Division. The second paragraph directs Camden not to disband its police department “pursuant to the creation of any county wide police department,” an action that occurred two years ago. That paragraph would also enjoin Camden from participating and joining “in the creation of’ a county police department, or in the “regionalization of
The submission to the voters of this ordinance, as drafted, would undermine the objectives of the Faulkner Act. The voters who signed the Committee’s petition did so at a time when the police reorganization was in the planning stage. 11 Nothing in the record suggests that those voters would support a challenge to the police reorganization two years after the fact.
Moreover, the Legislature has determined that “[a]ny public question voted upon at an election shall be presented in simple language that can be easily understood by the voter.”
N.J.S.A.
19:3-6. In contrast to the ordinance provision upheld in
Stop the Pay Hikes Committee v. Town Council of Irvington,
166
N.J.Super.
197, 207, 210,
Notwithstanding the Committee’s contention, the ordinance before this Court may not be rewritten at this late stage. The Faulkner Act clearly envisions that an initiated ordinance appear on the ballot in precisely the same form in which it was proposed, supported by the required signatures and certified by the municipal clerk.
See N.J.S.A.
40:69A-191 (stating that if municipal council “shall fail to pass an ordinance requested by an initiative petition in
substantially the form requested ...
the municipal clerk shall submit the ordinance to the voters unless” the Committee of Petitioners withdraws it (emphasis added));
N.J.S.A.
40:69A-184;
see also In re an Initiative Petition for the Adoption of an Ordinance to Amend the Jackson Twp. Admin. Code,
437
N.J.Super.
203, 216,
We note that the Committee of Petitioners properly filed a motion to accelerate the appeal, which was denied by the Appellate Division, and the appeal was heard by the Appellate Division in the
In this case, the Committee’s challenge to the police reorganization must start anew with an ordinance that reflects the facts as they now stand. 12
V.
The judgment of the Appellate Division is affirmed in part and reversed in part. The matter is remanded to the trial court for the entry of judgment directing the Camden Municipal Clerk not to certify the Committee’s ordinance pursuant to N.J.S.A. 40:69A-187.
For affirmance in part/reversal in part/remandment — Chief Justice RABNER, and Justices LaVECCHIA, ALBIN, PATTERSON, SOLOMON, and Judge CUFF (temporarily assigned) — 6.
Not Participating — Justice FERNANDEZ-VINA — 1.
The corresponding referendum provision gives the voters "the power to approve or reject at the polls any ordinance submitted by the council to the voters or any ordinance passed by the council,” if a referendum petition meeting the statute's requirements has been submitted.
N.J.S.A.
40:69A-185;
see Tumpson, supra,
Notes
The record reveals that State municipal aid funded more than one-third of Camden’s annual budget during the period relevant to this case. Camden's budget for Fiscal Year 2010 was $185,128,474.34, and the City received $67,000,000 in State municipal aid; Camden's budget for Fiscal Year 2011 was $172,973,295.39, and the City received $69,000,000 in State municipal aid; Camden's budget for Fiscal Year 2012 was $167,232,861.40, and the City received $61,400,000 in State municipal aid.
The Camden Municipal Clerk determined that the petition contained a total of 2354 signatures and that 1379 were qualified signatures of registered voters in Camden. The Committee thus satisfied the Faulkner Act’s requirement that a petition seeking to exercise the power of initiative be "signed by a number of the legal voters of the municipality equal in number to at least 15% of the total votes cast in the municipality at the last election at which members of the General Assembly were elected.” N.J.S.A. 40:69A-184.
The Walsh Act was "the first New Jersey municipal charter law to give voters the power of initiative and referendum.”
Tumpson
v.
Farina,
218
N.J.
450, 465,
Following the expiration of that period, the governing body may amend or repeal the initiated ordinance, as it may amend or repeal any other ordinance, pursuant to the authority granted to it under N.J.S.A. 40:48-1.
LBL provides that "[t]he governing body of each local unit shall adopt a budget for each fiscal year.” N.J.S.A. 40A:4-3. The Director of the Division of Local Government Services will then "examine the budget for detail and accuracy of itemization and for compliance as to form, arrangement and content with the provisions of [Chapter 4] and the regulations of the local government board.” N.J.S.A. 40A:4-76. "Immediately after the making of his examination of the budget, the director shall certify the results of his determination to the governing body. A governing body shall not finally adopt a budget until a certification of approval by the director has been received.” N.J.S.A. 40A:4-79.
As this Court noted in
Ordinance 04-75, supra,
the Faulkner Act's referendum provision "contains at least a partial, if not total, exception to the referendum rule for municipal budgets,” because in
N.J.S.A.
40:69A-185, the Legislature exempted local budget ordinances from the otherwise applicable twenty-day waiting period before they become effective. 192
N.J.
at 465-66,
Camden meets the definition of a "qualifying municipality" under MRERA.
Camden City Bd. of Educ. v. McGreevey,
369
N.J.Super.
592, 607,
(1) that has been subject to the supervision of a financial review board pursuant to the "Special Municipal Aid Act,” L. 1987, c. 75 [N.J.S.A. 52:27D-118.24 to -118.31] for at least one year; (2) that has been subject to the supervision of the Local Finance Board pursuant to the “Local Government Supervision Act (1947),” L. 1947, c. 151 [N.J.S.A. 52:27BB-1 to -23] for at least one year; and (3) which, according to its most recently adopted municipal budget, is dependent upon State aid and other State revenues for not less than 55 percent of its total budget.
[.N.J.S.A. 52:27BBB-3.]
Although the Faulkner Act does not mandate that a petition initiative be accompanied by an interpretive statement, the drafters have indicated that such a statement is permissible.
See N.J.S.A.
40:69A-15;
Polillo v. Deane,
74
N.J.
562, 573 n. 6,
A similar process would occur if the Council approved an initiated ordinance, the Commissioner vetoed that ordinance pursuant to N.J.S.A. 52:27BBB-23(a)(2), and the Council did not override the veto.
This case is distinct from
Brundage v. New Jersey Zinc Co.,
48
N.J.
450, 463,
In light of our ruling, we do not reach the argument, asserted by Mayor Redd, that the ordinance should have been proposed by referendum under N.J.S.A. 40:69A-185, rather than by initiative under N.J.S.A. 40:69A-184.