Union Goes to Court to Block Christie’s Changes to State Cybersecurity

John Reitmeyer | August 10, 2017 | More Issues
The CWA, the largest union of state workers, is challenging governor’s reorganization of information technology department

A powerful labor union is seeking to block the state from implementing a series of changes to the government’s technology infrastructure — changes the government says it needs to prevent hackers from posing a threat.

Gov. Chris Christie issued an executive order several weeks ago that called for the changes, but the Communications Workers of America, the largest union of state workers, has challenged the order in court. The CWA is claiming part of Christie’s cybersecurity initiative amounts to an overreach of gubernatorial authority that conflicts with the state constitution. Christie’s order would require a reorganization of the state’s IT department.

In its brief, the CWA is asking the court to invalidate a section of the Christie executive order that calls for, among other things, a decentralization of important computer software application development and maintenance duties.

Under the executive order, roughly 180 employees of the centralized Office of Information Technology would be reassigned to other departments across state government, a shift that can only be done through legislation, CWA lawyers argue.

The Christie administration is due to file a brief responding to the union’s arguments by the end of next week, and oral arguments are scheduled for early September.

Latest dispute between union and governor

The legal dispute over the executive order is the latest case pitting the powerful labor union against the two-term Republican governor, as they’ve also fought in court in recent years over pension funding and civil-service rules. The latest CWA challenge also comes as lawmakers are faulting another reorganization of state government that Christie — who is in his final months in office thanks to the state constitution’s term limits — has called for as he seeks to enhance state mental health and addiction services.

In fact, lawmakers in the Assembly recently approved separate resolutions to express their formal opposition to Christie’s calls to change the information-technology and mental-health and addiction services.

Christie announced the signing of the information-technology executive order during a June 1 news conference, referring at times to his own experiences with hacking as a former federal employee whose personal information was obtained during a breach of U.S. government computer infrastructure. He said the state initiative, which includes changes to codes and other applications that are designed to help the state keep up with consumer demand, would also improve “customer service” for a new generation that relies heavily on laptops and smartphones. The IT reorganization would occur as his administration has also invested $10 million to bolster the state’s cyber defenses over the last year, Christie said.

Christie: Changes would improve IT operations

“Secure and efficient IT operations are of little value if they are not reliable, which is why we are engaging in multi-year projects to boost the dependability of the state’s network and hosting environment,” he said. “We are making New Jersey’s digital domain better than we found it.”

But CWA officials later countered Christie’s claims by arguing the part of the executive order that calls for decentralizing some software services could make operation of the state’s IT services less efficient, as employees are moved out of a central hub and into individual departments, a total of nine in all.

The union’s legal brief, meanwhile, makes the case that the Legislature’s Office of Information Technology Reorganization Act of 2007 specifically called on the agency to serve as an “in but not of” affiliate of the state Department of Treasury, a specific legal designation that gives the OIT more independence from the executive branch. The same 2007 law, according to the CWA brief, also gave the agency the “core responsibilities of application development and maintenance.”

But Christie’s decentralization plan transfers the core functions of IT related to “agency-specific application development” and “maintenance functions “to other State agencies — effectively undoing the Legislature’s decision to centralize and consolidate these critical functions under a single agency,” the CWA brief said.

“By transferring functions statutorily-assigned to OIT via executive order, rather than by seeking appropriate legislation, the Governor exceeded his authority and violated separation of powers principles and the Presentment Clause of the New Jersey Constitution,” the brief went on to say.

Lame-duck realities

The CWA lawyers also cited action taken by the state courts during Christie’s first term in office — to reverse his attempt to fold the state Council of Affordable Housing into the state Department of Community Affairs— as an applicable legal precedent. (The council was initially created by lawmakers as an “in but not of” agency, and the state Supreme Court ultimately blocked Christie’s power move on the grounds that he didn’t have the constitutional authority to fully absorb COAH into the executive branch.)

“Similarly here, the OIT Reorganization Act cannot be rewritten without affirmative legislative agreement in the form of an amendment to the enabling legislation,” the CWA brief said.

Getting the Legislature to act in a way that would uphold all the changes that are called for in Christie’s executive order does not appear to be in the cards for the governor — especially as he’s called for these changes to occur when he is a lame duck due to leave office in January 2018.

A resolution that was passed by the Democratic-controlled Assembly on July 31 formally voiced the lower house’s opposition to the plan to transfer software development and maintenance functions to other departments. In addition to raising constitutional issues similar to those spelled out in the CWA brief, the Assembly resolution also said reassigning the workers from the OIT to other departments could “cause inefficiencies and delays that impair the State’s critical information technology infrastructure.”

“Moreover, the disbursement of these specialists throughout different agencies hinders their ability to identify waste, fraud, and abuse relative to State information technology contracts and programs, as well as access and share information with other technical experts,” the resolution said.

CWA officials said they’re hoping a Senate version of the resolution will win approval later this month.

Asked for comment on the issue yesterday, Christie’s office referred questions to the state Attorney General’s Office, which declined comment citing the ongoing litigation.