Preemption or Public Awareness? Two Approaches to a New Public Safety Challenge

Tags

Lyft, Public Safety, Taxi, Uber

 

It appears that the Legislature might soon choose to make it much easier for certain high-tech innovators to do business anywhere in our Garden State. We hope that decision respects the concerns of all local officials in protecting the public’s interest.

The League of Municipalities opposes S-2179 and A-3695. These proposals would create a new class of taxis, exempt from local oversight. Instead, the legislation establishes State-level safety and insurance requirements for transportation network companies.  According to the bill, a transportation network company (Uber or Lyft, for example) is an individual or entity that uses a digital network or software application to connect a passenger to a transportation network company driver for the purpose of providing transportation to the passenger. Provisions in both bills exempt these entities and individuals from any local regulation.

Since 1917, in order to protect prospective passengers and the general public, and to preserve order, municipalities have been empowered by statute to license and regulate ride-for-hire businesses. Throughout that period, in order to protect the public, local governing bodies have been responsive to concerns raised by passengers, drivers, pedestrians, local merchants and other motorists. Local first responders have attended to accidents. Local law enforcement has responded to incidents. While no level of regulation is perfect, municipalities have clearly demonstrated their effectiveness in this area for close to 100 years.

The manner in which the service is dispatched and provided does not materially alter the responsibilities that local governments will bear. Nor will the manner of dispatch obviate the concerns of local elected officials in ensuring the public’s legitimate interests in public safety. Further, enactment of this bill could motivate traditional taxi and limousine businesses to, similarly, avoid local over-sight, by a change to their business models. That, in turn, could make it more difficult for older residents and for the economically disadvantaged to access transportation alternatives. On that basis, absent deletion of the preemption provisions, the League of Municipalities cannot support this legislation.

As an alternative, and on its own merits, the League supports S-2415.  This bill, which does not preempt local interests, looks to create a For-Hire Vehicle License Plate Task Force to design uniquely colored licenses plates, for display on for-hire vehicles. Under the bill, “for-hire vehicle” includes a taxi, limousine, and personal motor vehicle used to provide passenger transportation for which a fee is paid and is prearranged through a digital network.

The task force would be given six months to deliver findings and recommendations to the Governor and the Legislature. After appropriate action by State elected officials, the Motor Vehicle Commission (MVC) would issue special license plates to the owners of for-hire vehicles.  The MVC would also establish a public awareness campaign to inform the public about the uniquely colored license plates and to post signs with this information at each airport, motorbus, rail, light rail, and ferry terminal and station.

This bill would help the public and the police to identify all vehicles that are authorized to provide ride-for-hire services. It would also help local police better enforce safety requirements.

Please contact your State Legislators and communicate your concerns with S-2179 and A-3695, as currently drafted.   And, please ask that instead for their support for S-2415.

Contact:

Jon Moran, Sr. Legislative Analyst, jmoran@njslom.org, 609-695-3481, x121.

 

 

Compromise UEZ Extension Bill Advances

Update, posted November 7, 2016.

A-4189 was approved by the Assembly Commerce and Economic Development Committee on October 6.   This was then 2nd referenced to the Assembly Appropriations Committee, who in turn approved the bill on October 27.  It now awaits a floor vote by the General Assembly.

Senators Jeff Van Drew and Shirley Turner sponsor the Senate companion, S-2670.    This bill awaits consideration by the Senate Economic Growth Committee.

End update. 

The League was a strong supporter of A-2576, which would have extended the Urban Enterprise Zone (UEZ) designation for participating municipalities for another 10 years, so that business in those communities could continue to benefit from the economic incentives provided under the long-running program.  The extension recognized the setbacks experienced by the qualifying businesses, due to the national recession and our State’s slow recovery.

The bill was conditionally vetoed by the Governor, who criticized the UEZ program as ineffective and costly to the State; and, along with his conditional veto, the Governor rejected any extension of UEZ redevelopment incentives. Instead, he asked the Legislature to direct the Commissioner of the Department of Community Affairs to conduct a study of the UEZ program “… which shall include, without limitation, an assessment of whether an alternative, location-based program to assist fiscally distressed municipalities is appropriate, and, if so, recommendations for the parameters of such a program …”

Respecting the Governor’s desire for a comprehensive analysis of the program, a pair of bills have been introduced as a compromise. The new legislation, A-4135 and A-4189, accepts the Governor’s recommendation regarding a DCA study of the program and research into alternatives. However, the bill provides a two year extension to the five UEZs that are set to expire at the end of this year.

The UEZ Program – first created in 1983 – offers incentives to participating businesses, designed to encourage business growth and stimulate local economies. Approximately 6,800 certified UEZ businesses participate and benefit from the advantages of the UEZ program statewide. These include a number of tax and financial incentives, including tax credits to hire local workers. The program authorizes qualifying retail businesses in the UEZs to charge and collect the State’s sales and use tax (sales tax) at one-half of the normal rate.

Those incentives allow businesses to attract customers to, and create employment opportunities in, economically distressed municipalities. UEZ designation is a vital tool in the tool kit of local leaders, working to bring their communities back from decades of decline, caused by housing and transportation policy decisions over which they had no control.

We commend the sponsors and urge approval of A-4135/A-4189.

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

CY 2016/SFY 2017 Best Practices Checklist Issued

Tags

Best Practices

On Monday, the Division of Local Government Services issued the CY 2016/SFY 2017 Best Practices Checklist.  Local Finance Notice 2016-13 provides guidance on this year’s process.  Calendar Year municipalities must submit their Best Practices checklist by Friday, October 21, 2016.  State Fiscal Year municipalities will have until Friday, April 7, 2017.

There have been some significant changes to this year’s Best Practices Checklist as a result of the Governor’s budget language changes to the SFY2017 State Budget (See August 11 blog post).  First, prospective questions are no longer permitted.  The questions are “yes” or “no” with limited “not applicable” answers.  Some questions will require additional information in the comment section.  It is important to note that “the majority of questions asked in this year’s Best Practices are also curable, meaning that compliance can be achieved prior to the submission deadline.”

Secondly, Director of the Division of Local Government Services was given the authority to determine not only the minimum acceptable score, which is 22 out of 30, but to withhold any or all of a municipality’s CMPTRA funding.    Unfortunately, at this time the amount of aid to be withheld is unknown as “the Division reserves the right to determine withholding percentages upon receiving all completed CY 2016 Best Practices Inventories”.   Meaning, it is open-end what penalties municipalities could receive if they do not achieve the necessary positive credit on 22 questions.

As in previous years, the completed Best Practices Checklist must be an agenda item for discussion at a municipal governing body meeting.  The Chief Administrative Officer, the Chief Financial Officer, and Municipal Clerk must certify the Best Practice Checklist.

Municipalities may submit appeals before the submission deadline but after their Best Practices Checklist has been submitted to the Division.  The Division encourages that appeals be submitted in conjunction with the Best Practices Checklist submission.  Appeals to the Director must be submitted no later than the close of business Friday, October 21, 2016 for calendar year municipalities.

We are concerned that the Best Practice Checklist continues to attempt to manage municipalities from Trenton without any consideration for home rule. For instance, there are questions that may require a municipality to expend limited funds to get a positive answer for a practice or action that is not necessarily needed in that municipality.

We are also troubled by the lack of disclosure of how much CMPTRA & Energy Tax Receipt funds are in jeopardy.  Without knowing how much aid can be withheld a municipality is unable to make an informed decision if it is fiscally feasible to implement a Best Practice.

Contacts:  Jon Moran, Sr. Legislative Analyst at 609-695-3481 x121, jmoran@njslom.org or
Lori Buckelew, Sr. Legislative Analyst at 609-695-3481 x112,
lbuckelew@njslom.org

A-4114 Will Protect Municipalities from Increased Transportation Project Costs

Tags

Property Taxes, Public Finance, Transportation Trust Fund (TTF)

UPDATE:   This bill was amended and approved by the Assembly Transportation and Independent Authorities Committee on Thursday, September 22.   This bill will require the State Department of Transportation to compensate local governments for delay damages on transportation projects that result from Executive Order 210.      Further, as amended by the Committee, the bill permits local governments to use their own funds to continue or complete a project that was halted as a result of the Executive Order, and prohibits the DOT or any Executive Branch agency from withholding , revoking or canceling funds if the local government chose to proceed.   

__________________________

The League of Municipalities supports A-4114, which would protect local governments from any increased costs resulting from the State’s stop-work order on any transportation infrastructure projects funded by the Transportation Trust Fund (TTF).    This bill is scheduled for consideration by the Assembly Transportation and Independent Authorities Committee on Thursday, September 22.

As the sponsor has said, this proposal will “require the Department of Transportation (DOT) to consider shutdown related delay damages realized by local governing entities on transportation projects supported through the local aid program to be compensable delays. As such, these delay damages would be paid by the State DOT rather than by property taxes raised at the local level.”

Recent events, unfortunately, now require the remedy sought in A-4114.  As we await a final legislative solution to a long-term, sustained funding source for the State Transportation Trust Fund (TTF),   local governments, and by extension, New Jersey’s property taxpayers should not bear the burden of the ongoing impasse.

By way of background, municipal budget and contracting processes are different from the State’s processes.   For example, the State typically has in its contract a provision that future payments would be “subject to future appropriation.”     Municipal contracts do not include this language, but will typically include language that the funds are available in a specific account as municipalities cannot award contracts unless the Chief Finance Officer has certified the availability of funds.   Local governments have entered into contracts based upon that certification from the State.  

Public confidence in government is enhanced when the level and branch of government that issues an order resulting in increased costs to local taxpayers recognizes its obligation to account for those costs.

Staff contacts:

Michael Cerra,  Asst. Executive Director, mcerra@njslom.org or 609-695-3481,x 120              Jon Moran, Sr. Legislative Analyst,  jmoran@njslom.org or 609-695-3481, ext. 121

Bill on 3rd Party Property Tax Appeals Advances

Tags

Property Taxes, Public Finance

Senator Robert Singer and Assemblyman Reed Gusciora sponsor companion legislation that would prohibit third parties from filing property tax appeals with respect to the property of others. S-2212/A-3888 would still permit a property owner to appeal their assessment or tax exempt status, but would no longer allow any entity or individual that pays property taxes to challenge the assessment or exempt status of any other property in the county in which they pay property taxes.    The League supports this common sense reform that will bring stability to municipalities, property taxpayers and property tax-exempt organizations.

On Monday, the Assembly State and Local Government Committee made a minor amendment and approved A-3888, which now stands at 2^nd reading and can be scheduled for a floor vote.

This legislation would prohibit third parties from filing property tax appeals with respect to the property of others.  As you may know, current law allows any entity or individual that pays property taxes to challenge the assessment or exempt status of any other property in the county, in addition to their own.  The sponsor’s intention is to reduce the number of costly tax appeals and bring certainty to local government finances, as local government representatives are best suited to challenge assessments or the exempt status of a property.

Contact:

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

 

 

League Statement on Appeal of Appellate Court Housing Ruling

While the League opposed the request to appeal the Appellate Division’s July 11 ruling on the GAP period (see: http://www.njslom.org/letters/2016/2016-0711-gap-period.html), we are not surprised by the Court’s decision to hear the appeal.  In its order, the Court states that they will hear the appeal and stay the ruling:

…in the interest of judicial economy and efficiency based on the large number of actions involved.   The Court makes no findings as to the reasonable probability of success on the merits, irreparable harm, or the relative hardship to the parties…

League Assistant Executive Director Michael Cerra stated the following:

“While we are not surprised that the Court will consider the issue, it will unfortunately further delay what has been a drawn-out, costly process for taxpayers.    Ultimately, we fully expect the well-reasoned, unanimous Appellate ruling to be upheld.   Perhaps once this decision is upheld, we can bring finality to costly litigation and get around to the business of compliance.”

Contact: Mike Cerra at mcerra@njslom.org

Saving Public Control Over Rights Of Way, Briefer on A-641

Revised and updated September 9.

The New Jersey State League of Municipalities opposes A-641. This legislation was approved by the Assembly Telecommunications and Utilities Committee on Thursday, September 8.

A-641 would allow broadband telecommunications service providers to use poles belonging to public utilities and CATV companies in certain instances. Essentially, this legislation would allow telecommunications infrastructure to be placed in the right of way without municipal consent.

The right of way is an important area for any community. The little bit of ground next to the road transports natural gas, electricity, phone and internet connectivity to all citizens. And, it’s local government’s job to manage it. However A-641, a proposed bill in the legislature, would side step local government and give wireless broadband providers immediate access to the ROW. The lack of local oversight created by such legislation is problematic for orderly use of the right-of-way.

The Federal Telecommunications Act (TCA) specifically protects local government’s ability to oversee the siting of wireless facilities and manage the public’s right of way. See 47 U.S.C. § 332(c)(7)(A) and 47 U.S.C. §253 (c). Further, New Jersey law requires that utilities receive local approval to use the rights of way.( N.J.S.A. 58:17-11), and, municipal consent is required for the use of existing poles ( N.J.S.A. 48:3-19).

A-641 limits local government’s ability to manage the right of way and to make land use decisions regarding the siting of wireless broadband facilities. The ability to make these decisions is very important because of recent changes in federal law. In 2014, the FCC enacted a collocation order that would allow wireless developers to increase the size of wireless facilities, including small cell nodes and DAS systems, once they’ve been installed. IMO Acceleration of Broadband Deployment by Improving Wireless Siting Policies, WT Docket No. 13-238, 11-59, 13-32, ¶172,(10/17/14).

Thus, A-641 would eliminate the only local discretion left to local government in the FCC’s collocation order; that being the community’s ability to review the initial applications of wireless developers. If A-641 were to become law, municipalities would have no say on the placement of DAS and small cells in the public’s rights of way and thereafter, under the collocation order, local governing bodies would have no say as they increase in size.

A-641 would also deny local property taxpayers of any compensation from an entity looking to profit from the use of the public’s right of way. Municipalities rely on franchise fees to offset the costs of local government services. A-641 does not permit local government to negotiate a franchise fee with “broadband telecommunications” companies. Without this source of non-property tax revenue, municipalities could be forced to increase their reliance on the property tax. This is not an acceptable result.

The League respects the great strides that telecommunications companies have made in broadband infrastructure.  To promote these new technologies the federal Telecommunications Act places restrictions on municipalities’ ability to regulate telecommunications infrastructure. Thus, there are tools available to broadband developers if they feel they are being unfairly treated. We believe A-641 goes too far by denying the public any compensation for the use of its rights of way and by totally limiting local discretion.

Contact: Edward Purcell, Esq., Staff Attorney.  epurcell@njslom.org or 609-695-3481 x137.

Appellate Division Issues Important Ruling Regarding OPRA and Access to Investigatory Records

Tags

OPRA, Public Records

The Appellate Division has issued an important ruling regarding OPRA and access to investigatory records through OPRA. In North Jersey Media Group v. Bergen County Prosecutor’s Office, the court held:

1. that the Glomar doctrine, i.e. the ability to refuse to confirm or deny the existence of responsive records when those records are exempt under an existing exemption, is available under OPRA in certain circumstances;
2. pursuant to N.J.S.A. 47:1A-9(b) an exemption exists for information received or maintained by law enforcement agencies regarding a person who has not been arrested or charged with an offense ; and
3. reiterated that Vaughn indexes are not appropriate in every case, particularly when there is a  valid Glomar response.

In Bergen County Prosecutor’s Office, a local newspaper requested records under OPRA and the common law regarding a specific individual. The BCPO responded by stating:

You have requested records related to someone who has neither been arrested nor charged with committing an offense. In essence, this amounts to inquiring whether a person who has neither been arrested nor charged with committing an offense is, or has been, the subject of an investigation. The [BCPO] will neither confirm not deny whether an individual who has neither been charged nor arrested is, or has been, the subject of an investigation….Id. Slip. Op at 4.

The plaintiff appealed this denial, seeking a declaratory judgment that the BCPO had violated OPRA and the common law right of access. The trial court upheld the denial. The Appellate Division affirmed.

The Appellate Division held that the Glomar doctrine, i.e. the ability to refuse to confirm or deny the existence of responsive records when those records are exempt under an existing exemption, is available under OPRA in certain circumstances. This doctrine originated under the Federal Freedom of Information Law. See Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976). However, the Appellate Division made clear that, “the agency that relies upon a Glomar response must provide the applicability of a specific exemption.” Ibid. Bergen County Prosecutor’s Office, Slip. Op. at 15. Additionally, the “agency may satisfy this burden by submitting an affidavit that describes the justifications for nondisclosure with reasonable specific detail, demonstrates that the information withheld logically falls within the claimed exemptions, and shows that the justifications are not controverted by contrary evidence in the record or by evidence of bad faith.” Id. at 15-16; citing Hunt v. CIA, 981 F.2d 1116, 1119 (9^th Cir. 1992).

The Appellate Division clarified that, pursuant to N.J.S.A. 47:1A-9(b), an exemption exists for information received or maintain by law enforcement agencies regarding a person who has not been arrested or charged with an offense. Ibid. Bergen County Prosecutor’s Office at 25.  The court stated:

N.J.S.A. 47:1A-9(b) has three requirements for a grant of confidentiality to shield a record from disclosure under OPRA. First, there must be a grant of confidentiality established or recognized by any of the enumerated authorities. Second, the nature of the privilege must provide a reasonable basis for the restriction of public access to the record. Third, the privilege must have been established or recognized prior to the enactment of OPRA. Id. at 23.

The court held that,

“all three requirements are met as to confidentiality of information regarding a person who has not been arrested or charged with an offense.” Id. at 24. After reviewing existing case law, the court found that “before OPRA was enacted, judicial decisions recognized the need to maintain a high degree of confidentiality for records regarding a person who has not been arrested or charged.” Id.

Thus, the Appellate Division affirmed the BCPO’s basis for denial.

Lastly, the Appellate Division reiterated that Vaughn indexes are not appropriate in every case. The court stated:

Neither OPRA nor FOIA calls for the production of a Vaughn index in every case in which access is denied. Although the use of such a log has become customary, courts that have considered this issue have cautioned that the production and review of a Vaughn index is not appropriate in every case. Federal courts have ruled that, when an agency submits a Glomar response supported by an affidavit that is “sufficient to establish that the requested documents should not be disclosed, a Vaughn index is not required.” Id. at 20, citing Minier v. CIA,88 F.3d 79, 804 (9^th Cir. 1996).

Thus, the Appellate Division indicates that Vaughn indexes may not always be required, particularly when there is a valid Glomar response.

This is an important decision which might be appealed to the State Supreme Court. We suggest that you review it with your police department and municipal attorney.

Contact: Ed Purcell, Esq. at (609) 695-3481 x. 137 or epurcell@njslom.org

CV Guts Crucial Economic Development Bill

On Wednesday, the Governor Conditionally Vetoed (CVed) legislation that we strongly support. We had urged the Governor to approve A-2576, which passed both Houses back in June. This legislation would have extended the Urban Enterprise Zone (UEZ) designation for participating municipalities for another 10 years, so that business in those communities could continue to benefit from the economic incentives provided under the long-running program.  The extension recognized the set-backs experienced by the qualifying businesses, due to the national recession and our State’s slow recovery.

The Governor’s CV message criticized the UEZ program as ineffective and costly to the State. If the changes he recommends are accepted by the Legislature, instead of extending its benefits and providing a life-line to participating businesses, the Commissioner of the Department of Community Affairs would be required to conduct a study of the UEZ program “… which shall include, without limitation, an assessment of whether an alternative, location-based program to assist fiscally distressed municipalities is appropriate, and, if so, recommendations for the parameters of such a program …”

The UEZ Program – first created in 1983 – offers incentives to participating businesses, designed to encourage business growth and stimulate local economies. Approximately 6,800 certified UEZ businesses participate and benefit from the advantages of the UEZ program statewide. These include a number of tax and financial incentives, including tax credits to hire local workers. The program authorizes qualifying retail businesses in the UEZs to charge and collect the State’s sales and use tax (sales tax) at one-half of the normal rate.

Those incentives allow businesses to attract customers to, and create employment opportunities in, economically distressed municipalities. UEZ designation is a vital tool in the tool kit of local leaders, working to bring their communities back from decades of decline, caused by housing and transportation policy decisions over which they had no control.

The bill, as approved by the Legislature in June, would have extended a life-line to businesses in five UEZ zones (Bridgeton, Camden, Newark, Plainfield and Trenton), scheduled to lose access to the incentives at the end of this year. It, further, provided that, after dedicating 10 percent of the reduced-rate sales tax revenues to the New Jersey Urban Enterprise Zone Authority:

1. during the first three-year extension period, the remaining revenues collected will be appropriated for use by the UEZs in these municipalities with extended UEZs;
2.  during the second three-year extension period, 66 and 2/3 percent of the remaining revenues collected will be appropriated for use by the UEZs in these municipalities with extended UEZs and the remaining 33 and 1/3 percent will be deposited in the General Fund;
3. during the third three-year extension period, 33 and 1/3 percent of the remaining revenues collected will be appropriated for use by the UEZs in these municipalities with extended UEZs and the remaining 66 and 2/3 percent will be deposited in the General Fund; and
4.  in the final year, all remaining revenues will be deposited in the General Fund.

We are disappointed with the CV and we commend the sponsors for their leadership.

 

Labor Day 2016

This week, we also want to recognize those hard-working women and men who have built the America we enjoy today, and those hard at work building the America our children will enjoy, on into the future. We, especially, want to thank those, often unrecognized and under-appreciated, individuals who have dedicated their lives and efforts to public service.

To them, and to all our readers, Happy Labor Day.

Contacts:

Jon Moran, Sr. Legislative Analyst, jmoran@njslom.org, 609-695-3481 x121

Mike Cerra, Asst. Executive Director, mcerra@njslom.org, 609-695-3481 x120.