Scope of Government Record Under OPRA Widens

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Today, the New Jersey Supreme Court decided, John Paff v. Galloway Twp., and Thalia C. Kay, a case in which the League joined as Amicus.  This decision was widely anticipated as it addressed the scope of a municipality’s obligation to disclose electronically stored information in accordance with the New Jersey Open Public Records Act (OPRA).

The Court ruled against the Township of Galloway and found that government records include “information stored or maintained electronically” and that, “information stored or maintained electronically” includes any information stored electronically.  The effect of this ruling is that it widens the scope of what can be requested and must be provided under OPRA.  According to the Court’s decision, information such as an email’s; sender, recipient, date, and subject constitute a government record and, absent any exception or exemption to OPRA, must be provided upon request from the citizenry.

The now widened scope of what is considered a government record under OPRA is not limited to the ancillary information associated with emails as dealt with in Paff.  The ramifications of the Court’s ruling are far more widespread.  It is not difficult to imagine what information can be requested and must be provided now that the scope of government record has been widened to include any electronically stored information.

Even though the boundaries of what constitutes a government record has been expanded the Court remained cognizant of the balancing act between disclosure and privacy concerns that record custodians are faced when dealing with OPRA requests.  Keeping these two important issues in mind along with public policy reasons for the various exceptions and exemptions to OPRA, the Court reiterated that all government records are subject to being withheld from disclosure should they meet one of the exceptions or exemption.  So, while the scope of what is a government record has been broadened to include any electronically stored information, a government entity subject to OPRA maintains the ability to withhold disclosure should doing so be barred under the exceptions or exemptions to the law.

This ruling and the effects it has on your municipality should be reviewed with your municipal attorney.  In addition this information should be shared with your clerk and other various record custodians within your municipality.

Contact:  Frank Marshall, Esq., League Staff Attorney, fmarshall@njslom.org, 609-695-3481 x. 137.

 

Federal FY ’18 Budget Proposal Could Break Federal-Local Partnership

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Yesterday, Office of Management and Budget Director Mick Mulvaney released the Administration’s full Fiscal Year 2018 budget proposal to Congress. While we knew that vital programs for municipalities would likely be subject to significant reductions, the full budget proposal is even more concerning than expected.

The proposal calls for $54 billion in cuts to domestic programs and even more severe cuts to social welfare spending. It includes the total elimination of some 66 programs, including Community Development Block Grants, Community Service Block Grants, Health Professions and Nursing Training programs, HOME Investments Partnership program, the Low Income Home Energy Assistance Program, and the National Infrastructure Investments (TIGER) Grant program. The budget also looks to cut $610 billion from the Medicaid program, over the next 10 years, while slashing $400 million from support for local substance abuse and mental health programs.

The proposal assumes the elimination of the Affordable Care Act, which, according to one independent analysis, would cost New Jersey $31 billion, over the next 10 years. That Urban Institute analysis also projects that New Jersey would lose 20 percent of the federal funding it would otherwise receive, under the ACA. That would make our State the hardest hit of any in the Nation.

The proposal now goes to Congress, which still retains the power of the purse.  The Federal budget year commences on October 1.  Thus, Congress will have until midnight, September 30, to enact legislation to govern federal spending throughout the next Fiscal Year – or to enact a stop-gap measure to keep the government offices open and federal programs operational.

League President, Mayor Al Kelly of Bridgeton, and our League Officers, will be contacting all the members of New Jersey’s Congressional delegation, expressing our concerns with the proposal and the need for major changes. Likewise, our federal partners in Washington, at the National League of Cities (NLC), will do their best to convince all (or, at least a majority) in the Senate and the House of the need for significant modifications.

But to save the vital programs that make our State and our municipalities strong and stable, we need your help. Click here to send a letter to your members of Congress today and tell them how the Administration’s budget proposal will impact your community. By sharing real examples of how your hometown leverages federal funds to build your community, we can stop this budget proposal from becoming reality.

Contact:   Jon Moran, Senior Legislative Analyst, jmoran@njslom.org, 609-695-3481 x121.

Next Generation 9-1-1 Cannot Wait ‘til Next Year

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Though we have concerns about the sufficiency and reliability of the funding, provided for in the bill, the League of Municipalities supports A-1821. This bill will require 9-1-1 service facilities to be equipped with systems, approved by the Office of Emergency Telecommunications Services (OETS), for the processing of requests for emergency services sent via text message, within three years following enactment of the bill.

Text message technology may be the only safe way for some victims to communicate their danger to emergency dispatch. For a child hiding under a bed or in a closet, for a victim of human trafficking, or for a hearing-disabled individual witnessing a crime, fire or accident, text messaging can be a life-saver.

The bill temporarily increases the 9-1-1 System and Emergency Response Fee by 10 percent, and requires that it only be used to fund the 9-1-1 service facilities with the enhanced Next Generation 9-1-1 systems. Currently, the 9-1-1 System and Emergency Response Fee, which is used to fund the 9-1-1 system, is a $0.90 monthly fee imposed on mobile service customers and telephone company customers in this State.  The bill increases the monthly fee to $0.99.

When the need arises, the people of New Jersey have a right to expect efficient emergency response, which is only possible when citizens, dispatchers and responders have access to effective communications options. Based on a recommendation of the President’s Commission on Law Enforcement and Administration, in 1968 9-1-1 became the national emergency number for the United States. Further technological progress led to the development of Enhanced 9-1-1 (E911) services, which allowed emergency response to identify the source location of a call for assistance.

In response to the rapid pace of change in communications technology and to the public’s embrace of the new technology, in 2000 the National Emergency Number Association (NENA) identified a need for Next Generation 9-1-1 (NG9-1-1), which would allow the public to transmit text, images, video and data to a PSAP, and which could accommodate additional types of emergency communications and data transfer. In order to finance the installation of new NG9-1-1 infrastructure over time and the training of PSAP operators, while properly maintaining current services in the interim, the Governor and the Legislature, in 2004 agreed to create the “911 System and Emergency Response Trust Fund” (the Trust Fund), to be funded by a 90 cent, per month, fee on every land line and cell phone service.

During the next few years, the Trust Fund provided over $118 million, with over $42 million of that dedicated to NG9-1-1 upgrades, and with more millions of dollars distributed, as grants, to municipal and county PSAPs, which handle the vast majority of 911 calls. But, beginning in 2009 and continuing since, State budget makers have diverted monies from the Trust Fund to finance other priorities, shortchanging callers who rely on, and local units which operate, the system.

When it comes to emergency response, saving time is saving lives, and that can best be accomplished by a rededication of Trust Fund dollars to the purpose for which they were intended.

In addition to our support for this bill, we will call on State budget makers, as they consider the Governor’s proposed budget for the State’s next Fiscal Year, to end the diversion of the resources collected for the 911 System and Emergency Response Trust Fund and to rededicate our State to providing our citizens with the State of the Art emergency communications system that they were promised and that they have been paying for since 2004.

Contact:   Jon Moran, Senior Legislative Analyst, jmoran@njslom.org, 609-695-3481 x121.

 

SCOTUS Opens The Door On Local Government Claims Under The FHA, But Then Slams A Window Shut…

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On May 1, 2017, the Supreme Court of the United States issued its opinion in Bank of America Corp. Et Al. v. City of Miami Florida, No. 15-1111 (U.S. May 1, 2017).  This case involved the City of Miami bringing action against Bank of America and Wells Fargo for the banks’ violations of the Federal Fair Housing Act (FHA).  Specifically, Miami’s suit alleged that the banks violated the FHA when they used unfair and discriminatory mortgage lending practices on minorities living in certain Miami communities.  The city alleged that the banks’ violations of the FHA lead to higher foreclosure and mortgage default rates in these areas when compared to non-minority areas,  which in turn caused lower home values and a dramatic drop in property tax revenue.   In addition to the drop in property tax revenue the city also contends that the plight brought about from the foreclosures and mortgage defaults lead to an increase demand in municipal services such as police and fire protection.  The city sought monetary damages from the banks.

In its ruling the Supreme Court sought to determine two issues:

  • Is a city authorized to bring suit under the FHA as an aggrieved party? and,
  • If a city can indeed bring suit under the FHA as an aggrieved party, what standard should be used to determine if damages suffered by a city are sufficiently related enough to a bank’s FHA violation for that city to make out a claim under the FHA?

On the first issue, the Court confirmed that under the right circumstances a city would in fact be considered an aggrieved party, thus entitling them to bring suit under the FHA.  This is victory for Miami and possibly other municipalities across the country.  In reaching this conclusion the court relied on its prior rulings regarding aggrieved parties and the fact that legislative amendments to the FHA which occurred subsequent to these rulings failed to substantively alter the aggrieved parties language of the FHA.  The Court reasoned that by leaving the aggrieved parties portion of the FHA intact even after Congress had ample opportunities to change it only reaffirmed the Court’s expansive interpretation of the term.

In regards to the second issue, the Court was to clarify, under an FHA claim what standard should be used to determine the relationship between the bank’s actions and the city’s damages.  As the Court explained in its opinion, an FHA claim is akin to a tort claim and in order to make out a successful tort claim the aggrieved party must show causation.  That is to say that the plaintiff must show that the actions of the defendant is what caused the damages suffered by the plaintiff.   The courts will use a variety of different standards when evaluating causation, depending on the circumstances and claim.

One standard, which was followed by the lower court, is the foreseeability standard.  Following this standard would mean that the city could recover for damages so long as the banks could have or should have reasonably foreseen that their violation of the FHA would have caused the damages suffered by the city.  As far as causation standards are concerned, the foreseeability standard is relatively easy to meet.

A second standard is known as direct cause.   Compared to the Foreseeability standard, the direct cause standard is much more difficult to prove.  In order to prove causation between the banks’ actions and the city’s damages  using the direct cause standard, the city must prove that it suffered damages as a direct result from the bank’s violation of the FHA.  Unlike the Foreseeability standard the city must go beyond proving that the bank should have or could have known that their actions would cause the damages that it did.

Ultimately, the Court ruled that the far more difficult to prove, direct cause standard must be used by the courts when ruling on FHA claims from cities.  This portion of the ruling can be seen as a victory for the banks and could mean defeat for Miami and other similarly situated municipalities looking to recover under the FHA.   While the Court ruled that the standard for causation would be direct cause, it would not expand further on what this entails.  Instead, the Court punted the issue back to the lower courts to have them flesh out the details of direct causation under the FHA.  We now must wait for the lower court to hear the case and rule on the issue, which will provide further guidance on what details a city would need to provide in order to prove direct causation under the FHA.  Until then, similarly situated municipalities nationwide will likely eagerly await the results of lower courts before pursuing a claim against any bank under the FHA.

Contact:  Frank Marshall, Esq., League Staff Attorney, fmarshall@njslom.org, (609) 695-3481 x. 137.

Support A-536/S-2107, Clarifies Certain Volunteer Position Does Not Impact Retirement Benefits for Public Employees

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On Thursday, May 11 Assembly Law and Public Safety will consider A-536/S-2107, which would permit a person with a pre-existing volunteer relationship as a firefighter, first aid worker, rescue squad worker, or emergency medical technician with their employer to retire from service covered by PERS or PFRS and continues to serve that employer as a volunteer.  The League supports this much needed legislation.

In 2014, the Division of Pension and Benefits issued guidance on post retirement employment restrictions for public employees. The guidance noted that there must be a “bona fide severance of employment”, a complete termination of the employee’s employment relationship with the employer for a period of at least 180 days, in order to not jeopardize the employee’s retirement benefits. The Division considers re-employment by a different unit of the same public entity, whether the position is covered by the same retirement system or a different retirement system, to be employed by the same employer. If an employee holds more than one position with the employer they must separate from all employment in order to retire, even if the positions are covered by different retirement systems, or the second position is not subject to pension contributions.

If an individual returns to public employment with the former employer, even as a volunteer, prior to satisfying the requirements of a bona fide severance from employment, the employee will be required to repay all retirement benefits received from the date of retirement and may be required to re-enroll in the same or different retirement system. As a result, volunteer firefighters, who are public employees, have been required to resign as a volunteer firefighter in order to receive their retirement benefits.

Volunteers are the backbone of communities providing services to the residents at no cost to taxpayers while freely giving of their time and expertise. Employees affected by the Division of Pensions ruling generally are at least 55 years of age. In their volunteer positions, they often serve as mentors to the new and younger members, typically providing guidance and direction.

While well intended, the Division of Pensions has created an unintended consequence which, if not changed, will impact every public employee who volunteers in the state and will not only drive up property taxes, but would also reduce the quality and level of essential public services.

We thank the sponsors Assembly representatives Schepisi and Bucco and Senators Sarlo and Kean for advancing this legislation.  Please contact your Assembly representative and urge them to support A-536/S-2107.  Furthermore, we suggest you contact the members of the Assembly Law and Public Safety Committee and urge them to advance common sense legislation.

Contact: Lori Buckelew, Senior Legislative Analyst, lbuckelew@njslom.org 609-695-3481,x 112.

Governor Takes Action

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Governor Conditionally Vetoes Consolidation Bills

On Monday in Trenton, Governor Christie took action on a number of bills, including conditional vetoes of two dealing with municipal consolidation.

S-690/A-2921 was originally introduced ‘to increase flexibility, clarity, and available tools of optional municipal consolidation process.’ The bill included a number of worthwhile provisions. For example, it allowed consolidating municipalities to develop their own process for the equalization of property assessments in the new municipality, subject to the approval of the Director of the Division of Taxation in the Department of the Treasury. It permitted the designation of districts, in the new municipality, based on old or newly established boundaries with unique planning mechanisms, services, and ordinances. It allowed for the apportionment of existing debt, or debt newly created in furtherance of any aspect of a consolidation plan, among special taxing districts. And it allowed the consolidating municipalities to enter into any financial or other agreements, in order to adjust benefits between the municipalities, provide indemnification from legal actions stemming from a consolidation, or provide incentives to facilitate municipal consolidation.

However, we opposed the proposal, because the original bills denied citizens the right to vote on a consolidation proposal and repealed the requirement, in existing law, for the Department of Community Affairs to prepare, and share with the voters, an analysis of the fiscal impact of the proposed consolidation.

After sharing our concerns with the Senate sponsor, he agreed to amendments that allowed us to support the bill. But subsequent amendments on the Assembly side forced us to, again, oppose it. Those amendments actually limited local flexibility, increased consolidation costs and, thereby, discouraged future consolidations. Specifically, the bill that was sent to the Governor granted tenure, continued employment and terminal leave rights to the public safety employees of consolidating municipalities.

We shared the reasons for our opposition with the Governor, and we appreciate the changes that he has advanced in his conditional veto. The bill that he sent back to the Legislature would eliminate those cost-driving provisions. And, while another of his recommendations would allow municipalities with fewer than 100 people to be ‘absorbed’ by a larger municipality without the need for a referendum on the question, we can support the Governor’s position and urge the Legislature to concur with his conditions.

The League had supported S-956/A-2202, which would authorize special emergency appropriations for the payment of certain expenses incurred by municipalities to implement a municipal consolidation. As it was sent to the Governor, the bill would have, also, provided a levy cap exception for non-recurring expenses incurred by a municipality to implement a consolidation.

In his message to the Legislature on this bill, the Governor writes, “Because municipalities would be permitted to spread the non-recurring consolidation costs over five years, there is no need to exempt these costs from the two percent cap. Accordingly, I am recommending this exemption be removed from the bill.” The Governor also conditions his approval of the bill on the addition of a requirement that the special emergency appropriations be subject to approval by the Director of the Division of Local Government Services.

We are evaluating the bill’s usefulness to municipalities considering consolidation, in the light of these recommendations.

Contacts: Jon Moran, Senior Legislative Analyst, 609-695-3481×121, jmoran@njslom.org.

Disparity in State Procurement Study Commission

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On May 1 Governor Christie signed into law the SJR-75/AJR-122, which establishes “Disparity in State Procurement Study Commission”.  The purpose of the Commission is to assess the procurement of goods and services by the State and local government units to determine disparities, if any, between the availability and utilization of small, disadvantaged, and minority- and women-owned business enterprises in particular market areas.

The 15 member Commission will be appointed as follows:

(1) six members of the Senate, four members of the majority party to be appointed by the President of the Senate and two members of the minority party to be appointed by the Minority Leader of the Senate;

(2) six members of the General Assembly, four members of the majority party to be appointed by the Speaker of the General Assembly and two members of the minority party to be appointed by the Minority Leader of the General Assembly;

(3) one member to be appointed by the Governor;

(4) the Director of the Division of Purchase and Property in the Department of the Treasury, or his designee, who shall serve ex officio; and

(5) the Director of the Division of Local Government Services in the Department of Community Affairs, or his designee, who shall serve ex officio.

If there is any vacancy on the commission the seat must be filled in the same manner provided for the original appointment.

The law requires that the Commission members be appointed by May 31, 2017 and must hold their initial organizational meeting as soon as practicable, but no later than 30 days following the appointment of its members.  The chair and vice chair must be selected at the organizational meeting.  The chair is responsible for appointing a secretary, who does not need to be a member of the Commission.

The Commission will recommend policies, practices, and programs that further this State’s efforts to promote opportunities for small, disadvantaged, and minority- and women-owned business enterprises in purchasing and procurement by State and local government units. The Commission must issue a report of its findings and conclusions, together with any recommendations it may have for legislative or regulatory action, to the Governor and Legislature within one year of its initial organizational meeting.  The Commission will expire on 30 days after the issuance of their report.

Contacts:   Lori Buckelew, Sr. Legislative Analyst, lbuckelew@njslom.org, 609-695-3481 x112.

League Past President Chris Bollwage and NLC Testify on Brownfields Reauthorization

Recently, representatives of NLC and the U.S. Conference of Mayors testified before two House committees to highlight the importance of the U.S. Environmental Protection Agency Brownfields program and ask Congress to make several key improvements to the program as they consider reauthorization.

On March 28, New Jersey League of Municipalities’ Past President and Elizabeth Mayor Chris Bollwage was joined by NLC President Matt Zone, councilmember, Cleveland, at a hearing of the House Transportation and Infrastructure Subcommittee on Water Resources and Environment.

Mayor Bollwage told the Committee,

“I am pleased to be here today to discuss the role brownfields redevelopment can play to build our 21st Century Infrastructure as well as revitalize communities. For many people, brownfields are just the neighborhood eyesore or the former industrial site, but for Mayors they also represent unrealized potential. Mayors see the redevelopment of brownfields as a chance to bring jobs back to a community, revitalize neighborhoods, increase our tax base, and reuse and enhance already existing infrastructure in a more sustainable way. I cannot stress enough that redeveloping brownfields is such a win-win for everyone involved, that Congress should reauthorize the brownfields law, and make some minor improvements, that would make the program even more successful.”

On April 4, Mayor Bollwage joined fellow-Mayor Sal Panto, Easton, PA, who serves as Chair of the NLC Energy, Environment and Natural Resources Federal Advocacy Committee, to testify before the House Energy and Commerce Subcommittee on Environment.

Suggesting improvements to the law and the program, Mayor Bollwage noted,

“The Act should exempt local and state government from CERCLA liability if the government unit (a) owns a brownfield as defined by section 101(39); (b) did not cause or contribute to contamination on the property; and (c) exercises due care with regard to any known contamination at the site. … Although property acquisition is a vital tool for facilitating the development of brownfields, many local governments have been dissuaded by fears of environmental liability. As a result, we have many brownfield properties that are, what we like to call, ‘mothballed.’ While it hasn’t been a major problem in my community, it is a problem in other communities.”

NLC submitted a letter for the record at both hearings outlining priorities for a reauthorization bill, including increasing or maintaining the overall level of funding for the brownfields program, increasing the overall grant funding to allow communities to cleanup more difficult sites, and resolving the disincentives created by potential liability to facilitate reuse of brownfields properties.

Contact: Jon Moran, jmoran@njslom.org or 609-695-3481, Ext. 121.

2017 Financial Disclosure Statements Guidance Issued

The Division of Local Government Services has issued guidance on the filing of the 2017 Financial Disclosure Statements. Local Finance Notice 2017-08 outlines filing procedures that are designed to facilitate efficiency and enhance transparency by using available technology to capture and report the financial disclosure statements collected. The deadline to file the Financial Disclosure Statements (FDS) is on or before April 30th. However, while the Local Finance Board has no statutory authority to extend the filing deadline, due to the delay in opening the 2017 FDS system for filers, the Local Finance Board is expected to delay enforcement of the statutory deadline until May 30, 2017.

The Division has made the following changes for the 2017 filing year:

  • Adopted rules determining the positions that are specifically required to file under the managerial executive section of Local Government Ethics Law.
  • Updated the form to reflect the provisions of P.L. 2015, c. 226 that prohibit the disclosure of certain law enforcement officers’ home addresses and telephone numbers.
  • Home addresses and telephone numbers included in Section 1 of the Financial Disclosure Statement will not appear in the public search results.

Please note that the Local Finance Board may periodically conduct audits for compliance and initiate investigations. Local Government Officer can be assessed an appropriate fine that is not less than $100 nor more than $500 pursuant to N.J.S.A. 40A:9-22.10. In addition, for elected officials, the failure to file a FDS can subject the municipality to a loss of State Aid as it is a question on the “Best Practices” questionnaire.

Contact:  Lori Buckelew, lbuckelew@njslom.org or 609-695-3481, Ext. 112.