Continuing “State of Emergency” Could Cost Jersey City Millions

The hypothetical reader of this blog may recall that I find the overuse of states of emergency troubling.1 The COVID state of emergency has continued for nearly three years now and it, coupled with some bad contract-drafting on the city’s part, is likely to cost Jersey City millions of dollars.

The city’s contracts with some of its labor unions call for double-time payments for work performed during a state of emergency. While they probably had in mind those two-day or so snow emergencies that sometimes are declared during the winter and presumably were intended to provide “fairness” between those public employees who were excused from work and still got paid and those who actually had to work, that’s not what the contracts said.

In its 2021 decision, Jersey City Public Employees, Inc., Local 245 v. City of Jersey City (unpublished), the Appellate Division reversed a trial court decision which had affirmed an arbitrator’s decision that the contract language, “Employees who work during a State of Emergency covering the City of Jersey City, as declared by the Governor of New Jersey, will receive[] double time pay for all hours worked during the State of Emergency.” was ambiguous. That case involved a seven-day weather related state of emergency that caused a much briefer closing of Jersey City’s municipal offices. The appellate court found no ambiguity:

We do not see an ambiguity in the language, and consider the meaning to be self-evident and straightforward. In those cases, arbitration decisions may be reversed. . . . .

The phrase regarding an emergency declaration “covering the City of Jersey City” is modified by the language which follows: “as declared by the Governor of New Jersey….” The language could have said, but did not, “covering the City of Jersey City as established by a closure of City Hall,” or “covering the City of Jersey City as determined by interference with normal City operations.” The negotiated language was precise. It simply stated if the Governor issued a declaration of a state of emergency, then City employees were entitled to double time pay.

The City’s position that the language should be interpreted to be a reference to normal operations is understandable. However, that reading of the agreement has no support in the wording of the plain language of the section. Nor does the language distinguish between essential and non-essential workers, in addition to not requiring City operations be disrupted.

Paying municipal employees double time for a week is small potatoes, however, to the COVID state of emergency which is about to celebrate its third anniversary. Earlier this week NJ.com reported that the city council was considering a resolution “to hire a consultancy agency to provide actuarial services for a payment plan . . .”

Jay Bohn

January 25, 2023

  1. As I noted in Superstorm Sandy, Ten Years Later: The State of Emergency Continues, we are still in the state of emergency declared in connection with Superstorm Sandy in 2012. [↩]

Social Media Regulation the Antithesis of Free Speech

Sometimes I feel as if no one is listening. “Free speech” means that the speaker is allowed to be anti-(whatever you’re for) as well as racist, sexist and any other -ist. We’re all in danger if, as advocated in “Social media needs rules,” an op-ed published on NJ.com yesterday, the government regulates the content of social media (or forces/coerces the platforms themselves to regulate it).

The author of the piece goes out of her way to criticize what she considers to be “far-right extremists” with no corresponding example of left-wing ideas. They must not need moderation.

The cure for misinformation is complete and accurate information. This requires articles that report facts, not just reporting the helpful bit and turning every story into a tool to advance the newspaper’s editorial agenda.

Jay Bohn

January 23, 2023

Now We’re Cooking With Gas, But For How Long?

Recently there has been a lot of press about comments made by U.S. Consumer Product Safety Commissioner Richard Trumka Jr., suggesting that the agency might ban gas stoves dues to concerns that they cause indoor air pollution((See “Is a proposed ban on gas stoves imminent or just noise? Here’s what you need to know“)) and many others claiming the response ot be an over-reaction.((E.g., Drew Shenemen’s cartoon and editorial “The culture wars hit the kitchen” (paywall); “How the humble gas stove became the latest flash point in the culture wars“)) The effort has been made to minimize Trumka’s comments.

I think that Trumka was chosen to float up a trial balloon and take the heat (get it?) for threatening the beloved gas stove. His comments were not the first suggestion that the government does not favor using natural gas as an energy source.((See, for example, “Cities tried to cut natural gas from new homes. The GOP and gas lobby preemptively quashed their effort.“)) Governor Phil Murphy’s energy master plan seeks to eliminate its use in this State by 2050.((NJ.com has published a number of individual editorials that can provide additional insight into this facet of the plan: “Murphy’s ambitious energy plan will saddle taxpayers with additional expenses” (pointing out that natural gas heats three-quarters of the NJ’s homes and accounts for half the state’s electricity generation); “Cooking with gas? Not if Governor Murphy’s plan goes through;” and “State’s Energy Master Plan is priceless – but not in a good way” (DEP corrected projection that conversion of boilers from gas to electric would increase costs by 4.2 to 4.9 percent, true projected costs are 4.2 to 4.9 times as much).))

They all seem to prefer electricity, too bad about the cost. How much more gasoline will we need to burn to run even bigger generators the next time that power is out for days at a time during freezing weather?

Jay Bohn

January 19, 2023

News Media Should At Least Get Legal Basics Right

A large portion of my internet surfing involves looking at news sites, including so-called “aggregators” like MSN. Despite the dross, sometimes these sites provide links to interesting stories that don’t show up elsewhere. For example, yesterday there was a story entitled “Supreme Court backs Maine consumer protection law.”1 The headline piqued my curiosity because I know that the U.S. Supreme Court (which is the supreme court to which the headline refers) has yet to issue an opinion this Term. The story includes four paragraphs about the decision (with quotations), citing in part “court documents” (which turn out to be Maine’s brief in opposition to the petition for certiorari), purporting to report how the Supreme Court ruled. As I suspected, the story misstates what happened.

In 2020 Maine’s legislature passed a law that requires cable companies to provide a pro rata rebate for the month in which a subscriber cancels service, essentially requiring billing for the final month to be on a daily rather than monthly basis. Cable companies challenged the law, claiming that it was preempted((Preemption arises when state and federal laws conflict. Under the Constitution’s Supremacy Clause, federal laws trump state laws.)) by the Cable Communications Policy Act of 1984 which prohibits state regulation of “the rates for the provision of cable service.” The cable companies won at the district court level but lost at the circuit level and sought review in the U.S. Supreme Court by means of a petition for certiorari.((Certiorari was one of the common law prerogative writs whereby a superior tribunal ordered an inferior tribunal to send up its record on a case.))

Let me pause for a moment to explain how “appealing” to the Supreme Court works. The Supreme Court has discretion whether or not to take the vast majority of cases eligible for its review when such review is sought. The “right” to appeal to the Supreme Court is very limited, if it exists at all. The party seeking to have the Court take a case files a petition for certiorari; four justices must vote to grant the writ. Most petitions are denied without so much as a comment, but occasionally a justice may choose to write a brief opinion commenting on the denial or dissenting from the Court’s action granting or denying. The denial of a petition for certiorari has no legal effect beyond that particular case; it does not mean that the Court concludes that the decision below was correct.

So, where were we? Right, the cable companies lost in the court of appeals, so they asked the Supreme Court to take the case. The Court’s docket reflects the following action on January 9, 2023: “Petition DENIED.” The four paragraphs reporting on (and quoting) the Supreme Court’s ruling are inaccurate. Maybe the average American should not be expected to know the ins and outs of Supreme Court procedure, but journalists attempting to report on its activities should be more careful.((Although this post is about media inaccuracies, not the merits of the cable companies’ preemption argument, I do have to comment on a portion of the Maine attorney general Aaron Frey’s press release celebrating the denial of certiorari. He is quoted as saying, “Just as it would be unacceptable for a restaurant to charge for undelivered food or Amazon to charge for an undelivered package, large cable companies should not be permitted to charge for cable that is not provided.” The better simile might be whether a restaurant should have to proportionally refund the cost of a half-eaten meal because it was more food than the customer ultimately wanted or whether a city must refund part of the cost for a parking meter if the driver leaves before the time is up.))

Jay Bohn

January 16, 2023

Post script

While this post is not intended to be about the merits of the cable companies’ claim, I should point out that on October 15, 2021, New Jersey’s intermediate appellate court, the Appellate Division of the Superior Court, ruled that a New Jersey regulation requiring the same kind of proration was preempted by federal law. The NJ Supreme Court has granted review and heard oral argument today.((The cable company involved also obtained relief in federal district court, but the court of appeals ordered that case dismissed for procedural reasons.))

J.B.B.

January 17, 2023

  1. MSN’s source for the story was the Washington Examiner. [↩]

Justice Gorsuch’s Dissent in Arizona v. Mayorkas a Good Read

Among the tools used by the Trump and, with some apparent hesitation and distaste, the Biden Administrations to prevent entry into this country by non-citizens was an emergency decree, popularly called “Title 42,” premised upon the COVID pandemic. On November 15, 2022, the United States District Court for the District of Columbia invalidated the practice. Several States sought to intervene on appeal to defend the policy, but the U.S. Court of Appeals for the District of Columbia Circuit denied the application to intervene.

On December 27, 2022, the U.S. Supreme Court granted certiorari to review that decision and stayed the District Court’s judgment in the interim. The Court’s action does not mean that it is going to decide the legal validity of the Title 42 policy, merely whether the States can intervene to defend it.

I commend to any reader’s attention Justice Gorsuch’s dissenting opinion (which was joined by Justice Jackson). Justice Gorsuch correctly notes that the public health justification for the exclusion orders is no longer in force. “The States contend that they face an immigration crisis at the border and policymakers have failed to agree on adequate measures to address it.” But, as Justice Gorsuch concludes, “courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency.”((I see some similarity to my observation about the increasing inability of those who feel strongly about an issue to separate the merits of a particular policy from the power of a supportive official to implement that policy. The Misuse of Emergency Powers.))

Jay Bohn

January 12, 2023

The Silver Lining of the Speakership Brouhaha

Early Saturday morning, on the fifteenth ballot, Rep. Kevin McCarthy of California made the deal to get himself elected Speaker of the House of Representatives.((While it is not the purpose of this post to comment on the terms of the deal, it does seem that the terms are not all bad and that they will result in a more democratic (note the small “d”) House.)) From the beginning McCarthy had the public support of former President Donald Trump, yet it was the opposition by Trump supporters whose failure to vote for McCarthy led to the protracted proceedings.

It may be wishful thinking, but I see this as a strong sign that Trump’s influence is on the wane. Now that he no longer holds office, he is a has-been. His “supporters” may still want his policies, but if he cannot reward their loyalty, their own ambition will lead to the support of some other candidate.

I certainly hope so.

Jay Bohn

January 9, 2023

We Cannot Simply Ignore the Parts of the Constitution We Don’t Like

Recently the Star-Ledger Editorial Board opined that “The 2nd Amendment is a curse.”1 While I am not entirely convinced that we would not be better off without that constitutional guaranty, I am unwilling to pretend that it is not part of the Bill of Rights or that its meaning must necessarily reflect my own view of the best public policy.

For once I would like a discussion of the Second Amendment to start with its text: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” While the wording could certainly be clearer, it does not limit the right to State militias, it is expressly guaranteed to “the people.”2 But what exactly the right is is not specified with any clarity, and “Arms” may not mean every sort of weapon.

I would like to think that we can deduce some textually faithful middle ground between those who find no limit acceptable and those who believe that no ordinary citizen should have a gun.

Jay Bohn

January 5, 2023

  1. That’s the title of the on-line version. The print version published on January 3, 2023, was given a slightly different title: “The 2nd Amendment is our nation’s curse.” I’m still waiting for an explanation of the need to have different titles for the same content on-line and in print. [↩]
  2. The text of the Tenth Amendment, proposed at the same time, shows well that the First Congress know how to distinguish the two: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” [↩]

Now You Can See Donald Trump’s Tax Returns. Do You Feel Better?

Last Friday one group of Trump-haters (and some merely curious) got their wish as six years’ worth of the former President’s personal and business tax returns were made public.((See my earlier post about this subject: The Demand for Trump’s Tax Returns Could Lead to Weaponization of Tax Laws.)) The public release of these returns had no legislative purpose. Sure, the Democratic members of the Ways and Means Committee (and their partisan supporters at the Star-Ledger((The newspaper published the editorial on December 27, 2022, with the title, “The IRS went easy on Trump. We deserve to know why?” NJ.com posted it the same day, with the title “The IRS went easy on Trump. Don’t we deserve to know why?” I still don’t understand why the same piece has different titles in print and on-line.

The editorial is particularly strident in tone: “It’s  just a gratifying side effect that it will embarrass Trump . . . .”))) claim it was all about examining the efficacy of the requirement((Is it a law, a regulation, or just a custom, like presidential candidates’ releasing their own tax returns?)) to audit a sitting president’s tax returns, which apparently wasn’t done for most of the years involved, but the establishment of this dereliction (assuming it is a real requirement) did not hinge on the public release of the returns.

If the media believe so strongly that a presidential candidate’s tax returns are fair game for public viewing, what about the members of, at least, the Congressional tax-writing committees or (gasp) reporters and media tycoons?

I’m not saying that the President’s tax returns shouldn’t be audited or that Congressional oversight might require the release to a Congressional committee of an individual’s tax return, but (1) the point of this exercise was always to harass Donald Trump and to give his opponents ammunition to use against him, and (2) it is hard to see how the public release of any individual’s returns strengthens oversight.

Now that the returns are public, will the same media that pushed for their release engage in a true analysis and report if the positions taken in those returns (which show little in the way of taxes paid because of deductible losses) are defensible, or are those losses irrelevant?

Jay Bohn

January 2, 2023

So Long As Their Goal Is To Maximize Revenue, Colleges Will Never Be Truly Affordable

A college education is expensive, and that expense far exceeds the rate of inflation.((See, for example, footnote 1 of Economics 303: Demand-Side Subsidies and Higher Education: “Between 1978 (the first year in which college tuition had its own CPI category) and the third quarter of 2017, the price of tuition and fees increased by 1,335 percent. This rate of growth exceeded that of medical costs (704 percent), new home construction (511 percent) and the Consumer Price Index for all items (293 percent). [citation and footnotes omitted]”)) Student loans do not make a college education affordable; they merely defer and spread out the pain over time. We should all be more concerned about the actual sticker price and avoid feel-good subsidy programs that merely push it up. As I said before: “Imagine a carrot on a stick attached to a horse, but out of reach. Any effort to address the affordability of higher education solely or primarily by giving money to its consumers to pay whatever the sellers (that is, colleges and universities) choose to charge, is rather like expecting the horse to be able to run fast enough to get the carrot.”

In his recent USA Today article, “What happened to Biden’s free college plan? Cutting cost of higher ed out of feds’ reach,” Chris Quintana says: “The way the U.S. pays for higher education is not working. “After mentioning a few examples of federal student loan relief, the author concludes “None of these measures addresses the upfront cost of college that students, and in some cases their families, confront, in part because the federal government has limited ability to push prices down.”

That is key. A college education will only be affordable if the sticker price is realistic.((Quintana seems to agree that price is the problem: “States typically provide the majority of funding for public institutions, but in recent decades, state lawmakers have cut higher education appropriations to help balance budgets. And private universities can set tuition at whatever they think people are willing to pay for smaller classes, social connections and prestige.”)) As I have previously asserted, government subsidies only encourage schools to increase their prices.((I believe that teaching is not the primary goal of most universities, but it is rather research or some other prestige. Professors who are only good teachers are less likely to be rewarded than those who make news (or money) with research and other activities.))

The federal government conditions receipt of federal funds by colleges on many policies and actions by the school. One of these should be an affordable price. If a school equates its tuition level with prestige, it is free to do so, but taxpayers should not be asked to subsidize it.

Jay Bohn

December 29, 2022

“Temp Worker” Editorial Seeks to Mandate Health Benefits for All Employees

On December 21, 2022, the Star-Ledger published an editorial “End the abuse of temp worker and New Jersey taxpayers.”((The editorial was also published on NJ.com, under the title “Temp agencies exploit taxpayers, too.” I don’t see the value to the reader of having different titles for the same content.)) The ostensible position is that temporary workers are exploited and the Legislature should pass what the editorial calls a “a Temp Workers Bill of Rights.”((The editorial declares that temporary workers “are often subject to unpaid wages, unsafe conditions, overtime violations, and illegal deductions from their paychecks.” Such conduct is already illegal, so why a specific “bill of rights” for temporary workers is needed is not clear to me.))

The real position, however, seems to be mandating that temporary workers be paid the same, and receive the same benefits, as permanent employees.((Part of the reason that employers seek temporary workers, leased from staffing agencies, is that government-mandated benefits for traditional employees have become too expensive. Employers hire fewer employees and expect their current staffs to do more.)) Indeed, the editorial goes so far as to assert that the fact many temporary workers qualify for Medicaid means that the taxpayers are subsidizing((If an employer is paying an employee and providing benefits for a job function that is not worth the total cost of employment to the employer, who is doing the subsidizing?)) their employers.1 So here we have the real point, all employers (at least those, unlike newspapers presumably, that can afford to do so) should be required “to meet their employees’ healthcare needs.”

It’s easy to editorialize in favor of greater benefits so long as “someone else is paying.”

Jay Bohn

December 26, 2022

  1. I wonder if the Star-Ledger walks the walk as well as talks the talk. Do all of its employees, temporary or permanent, receive the same benefits, including health insurance? I have previously posted how the Star-Ledger‘s policies with regard to delivery persons does not match its editorial position on the minimum wage: What’s Good for the Goose I: Practice What You Preach and about its attempt to secure special labor rules for newspapers: Importance of Newspapers Does Not Justify Special Exemption From Labor Laws; Newspaper Industry Must Find Way to Improve ABC Test For all Industries, Not Just Seek Exemption for Itself; and Special Treatment for Newspapers Would Impair Their ‘Watchdog’ Role. [↩]