OPRA and OPMA Bills Amended

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correct size blogAt their June 29 meeting, the Senate Budget and Appropriations Committee amended and released without recommendation, S-1045, which amends the Open Public Meetings Act, and S-1046, which amends the Open Public Records Act. The bills now await consideration by the full Senate, although we do not expect a vote until after the November election. The Assembly companion legislation is referenced to the Assembly Judiciary Committee and has not advanced.

Unfortunately, the League and others were unable to testify in opposition to the bills at the June 29 hearing. While we did present detailed written comments on the bills,  no verbal testimony was taken from anyone other than the bill’s sponsor. During her remarks, Senator Weinberg noted that she had sent a letter to all the Mayors in the State and only heard back from one Mayor expressing concerns with the proposed legislation. If you have not already done so, we strongly suggest that you contact Senator Weinberg expressing your concerns with the proposed legislation.

The amendments to the Open Public Records Act (OPRA) bill include provisions, which:

  • Change the requirements on petitions for a protection order to limit the number of and scope of requests, as follows:
    • Requires a filed verified petition to the Superior Court instead of an appearance before Superior Court.
    • Must allege that the requestor has sought records, under OPRA, for the sole purpose to harass a public agency.
  • Add language that permits the governing body to enter into an agreement with a volunteer fire company or volunteer fire department so the municipal clerk can serve as the records custodian for the volunteer fire company/department.
  • Amend the alarm system exemption in OPRA to only private alarm systems and surveillance cameras.
  • Add “an intern and volunteer employee” to the definition of Public Employee.
  • Remove the language that exempted from OPRA the disclosure of personal identifying information of persons under the age of 18.
  • Remove the address of record provision of the bill which would have permitted an individual to provide an address other than their home address for disclosure purposes.
  • Add the award of any contract to “advisory, consultative or deliberative material” definition. As a result, material that is used and relied upon during the consultative process prior to the completion of a competitive application, the award of any contract, or adoption of an ordinance, rule, regulation…..would be considered “advisory, consultative, or deliberative” and exempt from OPRA.
  • Add e-mail addresses provided to the public agency as contact information on any official government form as an exemption to OPRA
  • Add EZ pass records (or substantially similar) to the definition of public record thereby making it subject to OPRA. However, law enforcement usage of EZ pass would be exempt.
  • Change requirements for redaction of records, as follows:
    • Permits the records custodian to provide a certified statement instead of an affidavit.
    • Requires the custodian to redact information by deleting or obscuring only that information; while not altering, in any manner, the space in the government record formerly occupied by such redacted information.
  • Amend the provision that allows the records custodian to direct the requestor to the public agency’s website where the records can be found and deem the request to be fulfilled. The language amended requires the requestor, within 7 business days, to “respond to the records custodian with specificity” that they prefer to purchase copies rather than “advising the requestor”.
  • Add the requirement that the public agency which maintains a government record in a format or medium that can be inspected without charge to the requestor to:
    • Inform the requestor of the place and time that the record will be available for inspection in such format or medium;
    • Permit the requestor to purchase copies of such records, at the requestor’s option; and
    • Allow the requestor 7 business days to respond to the custodian, specifying that they prefer to purchase the copies, otherwise the request may be deemed fulfilled.
  • When the request is a commercial request:
    • The public agency may charge, in addition to the actual cost of duplicating the record, a special administrative charge;
    • A special administrative charge shall be reasonable and related to ongoing operational expense and shall be for expenditures eligible for inclusion;
    • GRC is to establish the criteria and parameter for expenditures eligible for inclusion; and
    • The commercial requestor must certify to the fact that the request is for commercial use.
      • The public agency may require a requester to state whether the requested records are for a commercial purpose
      • However, the public agency shall not require the requestor to provide the exact purpose of the commercial request
    • Provide that a Municipal records custodian:
      • May direct any officer or employee of that municipality having custody of the record to act on the records custodian behalf and make the record available for inspection, examination, copying, or purchase of copies.
      • However, such direction does not relieve the records custodian of any responsibility under OPRA.
    • Amend the composition of the Government Records Council, as follows:
      • 1 person who has experience with the news media (instead of 2).
      • 1 person who is a member of the Municipal Clerks Association (instead of a person who has experience with powers, functions or duties of a municipal clerk).
      • 1 person who is a member of the New Jersey Press Association.
      • The person with experience in State government must have experience as public records custodian.

The amendments to the Open Public Meetings Act (OPMA) bill include the following:

  • An amended definition of Agenda, which would:
  • Remove the language “for which notice was given 48 hours prior to the meeting”. Instead, the bill states “no public body shall act upon a matter that is not listed on the agenda.”   Please note, the bill still permits the adding on an agenda item after the agenda becomes available, if a majority votes that the item is “of such urgency and importance that a delay for the purpose of providing adequate notice would likely result in substantial harm to the public interest” and the minutes must include the reason why it was added, not on the original agenda, and  why delaying action would result in substantial harm to the public.
  • Remove the requirement to simultaneously make available any government record that is an attachment, appendix, or other documents on the public body’s website.
  • Add a requirement that the agenda must include a statement that an attachment, appendix or other documents that are a government record is available for inspection, copying or purchase of copies. If such a request is received at least 24 hours prior to the meeting, the records custodian must send an electronic copy of the government record.  If such a request is received within 24 hours of a meeting, the documents must be made available to the requestor at the meeting of the public body.
  • The timeframe, in which minutes must be made available to the public, would be changed from 60 days after the meeting to “15 days after the next meeting of the public body occurring after the meeting for which the minutes were prepared.” The bill still includes the language with the exception of closed session matters.
  • Removal of the requirement to include copies of any electronic communications that may take place during a public meeting. Instead, the electronic communication must be filed with the municipal clerk for a period of time determined by the State Records Committee to “permit their use in litigation, to enforce the provisions of the Open Public Meetings Act, or for public access”.
  • Changes to the requirements for posting minutes on the municipal website. Municipalities will still be required to post their minutes, except closed session. However, a statement that the closed session minutes are available upon request if those minutes have been deemed a government record pursuant to OPRA.
  • An added requirement that reports of the subcommittees be open to the public in the same manner as minutes.

As a result of the amendments, the League has the following new concerns with the legislation:

  1. Protection Order: The bill changes the requirements of a records custodian or public agency seeking a protective order limiting the number of and scope of the request.  The new language requires that the public agency/custodian allege that the requestor has sought records for the sole purpose to harass a public agency.  This threshold makes this provision a ‘toothless tiger’ and will never be met.
  2. Expand the definition of public employee:  The bill would expand the definition of public employee to include interns and volunteers. This provision is too broad, unnecessary, and otherwise ambiguous.  Currently, any work product of an intern is subject to OPRA under the definition of a government record.  However, we question who will fall under the definition of volunteer.  For example, is it the member of the volunteer first aid squad that is a non-profit or the Little League football coach to be considered a public employee?
  3. Exemption of alarm systems and surveillance cameras: The bill would limit the disclosure of information, including location, of alarm systems and surveillance cameras to private systems only.  As a result, publicly owned alarm system and surveillance camera information, including location, would be subject to disclosure under OPRA.  The League is concerned regarding security and privacy issues that may arise as a result of public disclosure of the location of the publicly owned alarm systems and surveillance cameras. 
  4. Release of Minutes: The bill would require that minutes be made available as soon as possible, but no later than 15 days after the next meeting of the public body occurring after the meeting for which the minutes were prepared.   The League appreciates the intent of this provision, however, this mandated requirement will be challenging in smaller municipalities and in municipalities with limited resources. 
  5. Municipal Clerks as Volunteer Fire Company Records Custodian: The bill would permit a municipality to enter into an agreement with its volunteer fire company/department where the municipal clerk would serve as the records custodian for the volunteer fire company/department.  Significant implementation and practical issues could arise from this well-intended provision.  By their very definition, most volunteer fire companies/departments are independent of the municipality.  They have their own headquarters, leadership, and policies and procedures.  How will the records custodian be able to ascertain if a record exists or access the records?

The League continues to be concerned with the following outstanding issues:

  1. Subcommittees:  The definition of subcommittees has been changed to “any subordinate committee of a public body, except the Legislature, regardless of label, that is formally created by that body, comprised of two or more members, but less than a quorum, of the public body, and recognized by the public body as a subcommittee thereof.”  Subcommittees would be required to prepare at least quarterly reports of their meetings that must include; the number of meetings held since the last report, the names of members of the subcommittee, and a concise statement of the matters discussed.  Every subcommittee must file at least one report with the public body.  A subcommittee report is available for public access in the same manner as minutes of a meeting of the public body.  If the subcommittee has given an oral report at a meeting of the public body, then they are not required to submit the written report for that quarter. The public body must determine if a subcommittee meeting is open to the public.  If the meeting is open to the public, adequate notice must be provided. The purpose of subcommittees is to make recommendations to the governing body for the governing body to take action. Subcommittees are designed to digest and vet information informally. Subcommittees do not expend public funds nor make binding decisions. That power remains with the governing body. Therefore, they should not be subject to the provisions of the Open Public Meetings Act.   Please note that Senator Weinberg strongly believes the language in the bill permits the governing body to make a subcommittee open to the public but does not mandate the requirement.  We respectfully disagree.
  2. Prevailing Attorney Fees: The OPRA bill continues to mandate prevailing attorney fees for violation of OPRA, and the OPMA bill is changing prevailing attorney fees from permissive to mandatory. The Courts and the Government Records Council need the flexibility to award reasonable attorney’s fees based on the given circumstances of a particular case. The inherent ambiguities of OPRA often times require clarity which can only be achieved through the GRC. The cost for clarifying these ambiguities is more often than not bore entirely by municipalities and property taxpayers.
  3. Expands the definition of Government Records:  The bill expands the definition of government record to include a record that is “required by law to be made, maintained or kept on file.”  Currently, if an OPRA request is received for a document that does not exist, the OPRA request is denied and there is no violation of OPRA.  By expanding the definition, a Records Custodian will be in violation of OPRA if the record was required to be made (e.g. an old municipal budget) but they are unable to locate the archived record.  The bill does provide protections to limit the record custodian liability, but the Records Custodian will still be in violation of OPRA.
  4. Exemption of the Legislature:  Both bills continue to exempt the Legislature from many requirements of the Open Public Meetings Act and all of the requirements of the Open Public Records Act.  In the interest of transparency and openness, the various exceptions in the Open Public Meetings Act and Open Public Records Act that applies to the Legislature should be removed. The rules that the legislation makes applicable to other governmental bodies should apply equally to all governmental levels and officials.

The League remains concerned with the legislation’s impact on daily operations, staff time and resources, with the subcommittee language, with the continued exemption of the Legislature, and with a municipality’s increased exposure to liability and frivolous lawsuits.

We ask you to carefully consider the impact that these bills would have on municipal operations and budgets. Based on those considerations, please contact your State Legislators, urging them to oppose S-1045 and S-1046.

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

 

 

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Federal Infrastructure Funding Update

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When Congress returns from recess next week, members face a daunting inventory of program expiration deadlines. The debt limit will have to be raised. The National Flood Insurance Program (NFIP) will need to be renewed by the end of September. The Children’s Health Insurance Program (CHIP) could expire on September 30.  Legislative action will be needed to extend the life of the Federal Aviation Authority (FAA). And the new Federal Fiscal Year will begin on October 1. On top of all that, Congressional action will be needed to address the devastation wrought by Hurricane Harvey.

Facing this long line of hurdles, and according to Press reports, Speaker of the House Paul Ryan believes that a Continuing Resolution (CR) will likely be needed to extend federal spending authority in the coming fiscal year. As you recall, after a series of Continuing Resolutions, the final appropriations bill for the current fiscal year was signed into law this past May 5.

Reliance on a Continuing Resolution would likely freeze current year spending levels for federal programs and agencies, pending final action on FY 2017-2018 appropriations. In 2015, Congress passed and the President signed the five-year Fixing America’s Surface Transportation (FAST) Act. That act authorized annual increases in federal aid to State departments of transportation, subject to annual Congressional appropriations. This year, absent separate treatment of US Department of Transportation appropriations, a CR would likely freeze transportation infrastructure funding at current year levels, at least until completion of the FY ‘18 appropriations process.

Word out of Washington also portends a further delay in the introduction of the Administration’s long-promised $1 trillion infrastructure program. With tax reform now gaining prominence, infrastructure will likely remain on the back burner until 2018.

Meanwhile, the US DOT has reconfigured some existing grant programs and launched the Infrastructure for Rebuilding America (INFRA) discretionary grant program through a Notice of Funding Opportunity (NOFO) in the Federal Register. (Applications must be received by November 2, 2017.)

According to US DOT, “the INFRA program will make approximately $1.5 billion available to projects that are in line with the Administration’s principles to help rebuild America’s crumbling infrastructure  In addition to providing direct federal funding, the INFRA program aims to increase the total investment by state, local, and private partners.” As the Department’s Press Release states:

INFRA advances a pre-existing grant program established in the FAST Act of 2015 and utilizes updated criteria to evaluate projects to align them with national and regional economic vitality goals and to leverage additional non-federal funding. The new program will increase the impact of projects by leveraging capital and allowing innovation in the project delivery and permitting processes, including public-private partnerships.

Additionally, the new program promotes innovative safety solutions that will improve our transportation system. INFRA will also target performance and accountability in project delivery and operations.

The Department will make awards under the INFRA program to both large and small projects.  For a large project, the INFRA grant must be at least $25 million.  For a small project, the grant must be at least $5 million. For each fiscal year of INFRA funds, 10% of available funds are reserved for small projects.

The INFRA grant program preserves the statutory requirement in the FAST Act to award at least 25% of funding for rural projects. The Administration understands that rural needs may well exceed this limit, and the Department will consider rural projects to the greatest extent possible.  For rural communities in need of funding for highway and multimodal freight projects with national or regional economic significance, INFRA is an opportunity to apply directly for financial assistance from the federal government. For these communities, DOT will consider an applicant’s resource constraints when assessing the leverage criterion.

INFRA grants may be used to fund a variety of components of an infrastructure project, however, the Department is specifically focused on projects in which the local sponsor is significantly invested and is positioned to proceed rapidly to construction. Eligible INFRA project costs may include: reconstruction, rehabilitation, acquisition of property (including land related to the project and improvements to the land), environmental mitigation, construction contingencies, equipment acquisition, and operational improvements directly related to system performance.

Applicants may resubmit their previous FASTLANE application, but must explain how the project competitively addresses the improved INFRA Grant criteria.  This NOFO will remain open until 8:00 PM EST, November 2, 2017.

We will do our best to keep you posted on further developments or lack thereof.

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

 

Changes When Financing Environmental Infrastructure and Recent EIT Program Revisions

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The Division of Local Government Services recently issued Local Finance Notice 2017-16, “Environmental Infrastructure Trust: the “WISE” Act and Recent Program Changes” jointly with the New Jersey Environmental Infrastructure Trust (EIT) summarizing recent EIT related legislation along with new requirements when financing environmental infrastructure projects.

In May, Governor Christie signed the “WISE” Act (P.L. 2017, c.71) which made changes to both the EIT program as well as implementing new requirements for municipalities financing environmental infrastructure projects.  Beginning November 7, 2017, any local government unit financing $1 million or greater for any environmental infrastructure project (or project component) without using the EIT Program must first complete an EIT Financial Cost Estimate by using EIT’s WISE Calculator. A pdf of the Cost Estimate must be included with the local unit’s emailed Supplemental Debt Statement. If the local unit is submitting an application with the Local Finance Board for financing their project, then a printed Cost Estimate must be included with their application. The Local Finance Board has reserved the right to request a printed Cost Estimate for applications submitted prior to November 7.

EIT’s Wise Calculator Cost Estimate will compare the cost of financing environmental infrastructure project through an independent bond issuance versus EIT. “Utilizing independent financial data and the borrower’s submitted information, the Calculator immediately generates a Cost Estimate report detailing annual cash flow projections and total estimated debt savings over the life of the loan.”

For questions regarding the WISE Calculator contact the EIT at 609-219-8600.

Recent EIT Program Revisions

The New Jersey Environmental Infrastructure Program (NJEIFP) is a low-interest financing program offered jointly by the Department of Environmental Protection (DEP) and EIT. The following recent changes have been made to the program to enhance flexibility and attractiveness of EIT financing to local governments.

  • Maximum loan terms have been extended to 30 years, but not to exceed the useful life of a project, to reduce annual debt service payments.
  • Applicants can apply for and receive short-term project financing from EIT anytime throughout the year, subject to DEP project certification.
  • Submission and review process is available online through the H2Loans portal.
  • Expedited Review of Equipment Loan applications for such equipment as a street sweeper, sewer flushing, and dump trucks in under 60 days.
  • NJEIFP loan applications will be approved by DLGS Director instead of the Local Finance Board.
  • Elimination of Local Finance Board approval for non-conforming maturity schedules for NJEIFP loan.
  • Automatic statutory waiver of the 5% down payment requirement for bond ordinances that exclusively fund EIT projects.
  • Short-Term Construction Loans, up to 3 full fiscal years, to allow for the completion of a project. Acts like a line of credit wherein a borrower receives funds for eligible project expenses upon approval of submitted invoices and only pays interest on funds drawn.
  • SAIL” Program provides quick access to short-term funding in the aftermath of a declared disaster.

We suggest you review this notice with your Chief Financial Officer and local bond counsel.

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

Accounting for Uniform Construction Code Enforcement Fees

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correct size blogOn August 11 the Division of Local Government Services issued Local Finance Notice 2017-15 jointly with the Division of Codes and Standards to remind municipalities of statutory fee limitations and how construction code fees must be accounted and budgeted.  According to the notice, the Division issued it into the response to “instances where municipal construction code enforcement offices are consistently earning revenue well in excess of the offices’ operating costs.”

N.J.S.A. 52:27d-126a requires the municipality, by ordinance, to set enforcing agency fees for plan review, construction permit, certificate of occupancy, demolition permit, moving of building permit, elevator permit, and sign permit, in accordance with standards established by DCA.  However, those fees cannot exceed the annual costs for the operation of the construction office.  By regulation (N.J.A.C. 5:23-4.17(c)), the fees must be calculated to reasonably cover the municipal costs of enforcing the regulations to ensure that construction code revenue is used only for construction code enforcement purposes and by the means to make revenue available year to year.  The regulations further define which costs can be covered.  They include salary and employment benefits; cost of motor vehicle used for enforcement; direct costs in support such as equipment, supplies, furniture, maintenance of equipment, printing, safety equipment; professional expenses; fees for contracted private on-site inspection agencies; documented legal costs in connection with construction code enforcement litigation; annual audit fees; and indirect overhead, and other expenses of the municipality in support of the enforcing agency. Indirect and overhead expenses cannot exceed 12% of all other costs of the construction office unless the indirect and overhead expense of the municipality exceeds 12% of the municipal budget.  Then indirect and overhead construction office cost can be increased in proportion to the municipal budget’s overall indirect and overhead expenses.

If construction code enforcement is provided by a shared service agreement, one uniformed fee schedule must be applied by all parties of the agreement.  The lead agency is responsible for collecting the fees with no additional fee required to be paid by an applicant to any municipality or county.  If construction code enforcement is provided by a private on-site inspection and plan review agency the fees cannot exceed the contracted amount the municipality pays to the third party vendor, except to cover additional overhead and other operational cost incurred by the municipality.

Municipalities have two options on how to dedicate any revenues earned from the construction code enforcement fees.  The first is to state the fee revenues in a separate section of the municipal budget together with appropriations for the purposes to which such revenues are applicable; with the total of anticipated revenues equaling the total appropriations.  When using this method, the current year revenue cannot exceed the prior year realized revenue, with certain exceptions.  The second method is to dedicate the Uniformed Construction Code Enforcement fees using a “dedicated by rider.”  This method permits the accumulation of funds at a reasonable level to offset future code enforcement expense.

State regulation also requires that the appropriation and expenditures for the construction code fee revenues be tested annually as part of the municipal audit.   DCA will notify municipalities if they are required to perform further sample testing by March 1 for Calendar Year municipalities and September 1 for State Fiscal Year municipalities.  The outcome of such testing must be a separate opinion in an addendum to the annual Audit.

We suggest you review this notice along with the Local Finance Notice with your Chief Financial Officer, Construction Code Official, and Municipal Auditor.

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

 

Recent Court Decisions Impacting OPRA

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correct size blogTwo recent court decisions have been issued dealing with the Open Public Records Act (“OPRA”).  The first case issued on August 3, 2017, is an Appellate Court decision concerning the ability of the Superior Court to issue civil penalties for the “knowingly and willful” violations of OPRA.  The second, a NJ Supreme Court case issued on August 7, 2017, deals with a question regarding a fire district and a volunteer fire company’s status as a public agency subject to OPRA.

You should review both of these cases with your municipal attorney for information on how these cases may impact you.

OPRA’s Civil Penalties

On August 3, 2017 the Appellate Division published its opinion in North Jersey Media Group Inc., d/b/a The Record v. State of New Jersey Office of the Governor. This case dealt with whether or not the Superior Court has the power to issue civil penalties under certain OPRA provisions or whether the authority to issue these civil penalties rests exclusively with the Government Records Council (“GRC”).

Due to some unclear language within the OPRA statute, the question was raised as to whether or not the Superior Court shared authority with the GRC to issue civil penalties for “knowingly and willful” violations of OPRA.  The State took the position that the statute allows for the civil penalty for an OPRA violation to be handed down only by the GRC, despite the aggrieved requestor having the option to bring a dispute before either the GRC or the Superior Court.  North Jersey Media Group (“NJMG”) countered that this interpretation of the statute was flawed.  In their view, it would make no sense for the civil penalty to be limited only to disputes brought before the GRC when the aggrieve requestor has the choice to bring the dispute in either venue.

The trial court agreed with the State, the Appellate Division, however, did not and ruled that both the Court and the GRC had the authority to hand down OPRA’s civil penalty and that a reading of the statute otherwise would frustrate the purpose of the penalty.

Defining a Public Agency Under OPRA – A Tale of an Instrumentality of an Instrumentality

On August 7, 2017, the NJ Supreme Court issued its opinion in Robert A. Verry v. Franklin Fire District No. 1 (A-77-15)(077495).  This case dealt with whether or not a fire district and a volunteer fire company that is part of that fire district are public agencies and therefore subject to the requirements of OPRA.  In a 5-2 decision, the Court ruled that the Fire District is a public agency and therefore subject to OPRA but that the volunteer fire department, which is part of the Fire District, is not a public agency and therefore not subject to OPRA.

This conclusion was reached after the Court found the fire district to be an instrumentality of a political subdivision and therefore subject to OPRA.  Further, the Court decided that the volunteer fire department, which is part of the Fire District, is only an instrumentality of an instrumentality and therefore not subject to OPRA.  The Court reasoned that the volunteer fire department is not subject to OPRA because only public agencies are subject to OPRA and the law does not define an instrumentality of an instrumentality as a public agency.

The reasoning for the decision is complicated and you may find the breakdown below helpful in following the Court’s reasoning.

Fire District = Instrumentality of Political Subdivision (municipality) = Public Agency = Subject to OPRA

Volunteer Fire Company = Instrumentality of Instrumentality (Fire District) = Not Public Agency = Not Subject to OPRA

While the Court ruled that the volunteer fire department, which is part of the Fire District, itself is not subject to OPRA it did rule that the fire district is, and because the district acts as the supervising agency of the department, the fire district “has certain responsibilities under OPRA to provide public access to records relating to that supervision.”  Therefore, any documents which are necessary for the district’s supervision of the volunteer department should be made available under OPRA via a request to the district, even though those records do not need to be made available through an OPRA request to the department.

For more information in connection to this blog click here.

Contact: Frank Marshall, Esq., League Staff Attorney, fmarshall@njslom.org or 609-695-3481 x137.

Governor Takes Action on Bills of Interest

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On August 7 Governor Christie took action on 51 bills.  Below is a summary of action taken on bills of municipal interest:

BILL SIGNINGS:

S-169/A-4329: Allows certain emergency squad volunteers holding municipal elective office to vote on emergency squad concerns.  Specifically for municipalities with a population below 5,000, an elected official would be required to recuse themselves from voting on a matter concerning a volunteer squad or company only if that elected official also serves as an officer, director, or trustee of the squad or company. P.L. 2017, c. 181, which the League supported, took effect on August 7, 2017.

S-678/A-1967: requires local government units to certify compliance with certain federal hiring requirements when filing annual budgets. Specifically, the governing body would be required to certify that the municipality’s hiring practices comply with the “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964”.  P.L. 2017, c. 183, which the League opposed as duplicative since this review is currently part of the audit process, took effect on August 7, 2017.

S-726/A-4460: extends full protection of Law Against Discrimination to persons having liability for service in Armed Forces of United States; guarantees equal employment opportunity in State contracting to all veterans. This law clarified the existing Law Against Discrimination to ensure that persons having liability for service in the Armed Forces of the Unites States are a protected class in the same regard as other protected classes.  A person having liability for service in the Armed Services is now held in the same esteem as other protected classes, such as; race, creed, color, national origin and others.  This law also allows for an expanded definition of affirmative action plans for public works contracts by removing the previous limitation for such programs to only “Vietnam era” veterans and expanding these programs to all veterans. P.L. 2017, c. 184 took effect on August 7, 2017.

S-1219/A-936: requires reporting of suspected abuse of institutionalized elderly to police and that facility employees receive notice of reporting requirement annually; designated as “Peggy’s Law.”  Originally introduced, the bill required anyone to, ‘immediately’, report suspected abuse to local law enforcement. That would have subjected any non-professional family member or friend visiting a nursing home to the penalty provisions of this law. The final bill allows, but does not require, such reporting.   P.L. 2017, c. 186, which the League supported as amended, took effect on August 7, 2017.

S-1497/A-3225: designates Killed in Action flag as an official State flag; mandates it be displayed at certain public buildings. The Killed in Action flag is a red flag which depicts the silhouette of a helmet on top of a firearm next to a service member.  The law requires that the Killed in Action be displayed at the principal municipal building in each municipality, county, and State House during normal business hours.  P.L. 2017, c. 188 took effect on August 7, 2017.

S-1731/A-2368: permits municipality to establish a civil penalty for smoking in public places.  The new law will permit a municipality to adopt an ordinance establishing a civil penalty of up to $200 for smoking in a public place where it is prohibited by the municipality or the owner or person responsible for the operation of a public place. Prior to the enactment of this statute, a violation of a ‘no smoking’ ordinance had to be a criminal petty disorderly persons offense, which carried a penalty of imprisonment for up to 30 days or a criminal fine of up to $200, or both. P.L. 2017, c.191, which the League supported, took effect on August 7, 2017.

S-1739/A-2167: establishes sexual assault training requirements for law enforcement officers.  All law enforcement officers would be required to attend training, to be developed by the Attorney General, every three years and the Attorney General would be responsible for ensuring completion of the training program by law enforcement officers Statewide. The Office of Legislative Services anticipated local costs to be minimal, given that some law enforcement agencies may already provide training on this topic and that the required training program could be incorporated into existing in-service continuing education schedules.  The League originally had opposed this bi1l, but amendments provided local law enforcement with more flexibility and eliminated the requirement that initial training for all officers is completed within 90 days. .P.L. 2017, c. 192 takes effect March 1, 2018.

S-2884/A-4484: declares that deed restrictions or agreements that prevent raising or constructing of a structure to certain flood elevation standards are unenforceable.  P.L. 2017, c. 199 took effect on August 7, 2017.

A-1185/S-2771: requires State Comptroller to report findings of audit compliance reviews.  Specifically, the State Comptroller will be required to report on the findings of any subsequent review to the Governor, Senate President and Assembly Speaker within 3 years of the initial audit.  The report must include the corrective or remedial action taken and the effect of such action.  P.L. 2017, c. 204 took effect on August 7, 2017.

A-1690/S-660: allows fire district elections to be moved to November; eliminates certain fire district budget referenda, and eliminates certain fire district capital purchase referenda.  P.L. 2017, c. 206 takes effect January 1, 2019.  For more on this bill please see our recent blog post.

A-3381: authorizes municipal volunteer programs for free removal of snow from certain residential properties occupied by seniors or disabled persons. Municipalities may establish a volunteer program for free snow and ice removal from the entrance ways, driveways, and abutting sidewalks of qualified residential properties.  If a municipality establishes such a program they are required to appoint a coordinator, who cannot receive compensation, to administer the program.   As introduced, this bill required municipalities to create these programs and raised a number of concerns about an unfunded mandate as well as liability concerns.    In response to the concerns raised by the League, the sponsor agreed to amend the bill to make it optional for municipalities.   P.L. 2017, c. 212 took effect on August 7, 2017.

A-3908/S-3021: establishes 9/11 Memorial Registry within the Division of Travel and Tourism.  The registry, which must be posted on the State’s website, will provide the location and condition of all 9/11 memorials in the State owned, operated, or maintained by a governmental entity. P.L. 2017, c. 216 took effect on August 7, 2017.

A-4673/S-3095: concerns assessment of buildings or structures on real property located in certain counties following material depreciation thereof.  This law changes the date for notice to the tax assessor for material depreciation for property owners in the Monmouth County Real Demonstration program.  Specifically, when such a depreciation of value of a building or structure occurs after October 1 and before May 1 of the following tax year, the tax assessor, upon notice of that material depreciation given by the property owner before May 3, must determine the value of the parcel of real property as of May first of the tax year, and assess the property according to that value, including an improvement value for the building or structure that reflects its prorated value as of January 1 for the number of days before depreciation, within the final tax list delivered to the county board of taxation on or before May 5 of that tax year.  P.L. 2017, c. 228, which the League supported, took effect on August 7, 2017.

Contacts:

 

 

 

New Law Permits Moving of Fire District Elections to November

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On August 7 Governor Christie signed into law A-1690/S-660, which allows fire district elections to be moved to November; eliminates certain fire district budget referenda, and eliminates certain fire district capital purchase referenda.  This new law (P.L. 2017, c. 206) takes effect on January 1, 2019.

The Board of Fire Commissioners will have the option of moving the annual Fire District election, by resolution, from February to the same day as the General Election.  Once the Board of Fire Commissioners moves the Fire District election it cannot be changed.  However, before the date can be changed the County Board of Elections must certify the election districts.

By January 30, 2019 the County Board of Elections must determine whether an annual Fire District election can be held at the General Election based on election district boundaries.  If it is determined that the election can take place during the General Election the County Board of Elections must send a certificate to the Fire District’s Board of Commissioners as well as the Governing Body of the municipality.  If it is determined that the election cannot be held during the General Election, the County Board of Elections must send a letter to the Fire District.  However, the County Board of Elections may revise or readjust the boundary lines of any election district and the Board of Fire Commissioners, if authorized by ordinance adopted by the municipality, may revise or readjust the boundary lines of any fire district, including by means of consolidation or subdividing districts, as necessary to align the fire district boundaries with the election district boundaries.   Please note that any proposed consolidation or subdivision must be approved by the Local Finance Board.  Also, the Fire District must notify the Division of Local Government Services of any boundary adjustments.

Petitions to run for Fire Commissioner will continue to be the same for the elections held in February.  For the General Election districts, candidates will need to file their petition, with the lesser of 10 signatures or 2% of the voters who voted in the last Fire District election, to the County Clerk before 4:00 p.m. on the last Monday in July.  A candidate who wishes to withdraw from the General Election must file written notice of withdrawal to with the County Clerk 70 days prior to the November election.

If the annual election is moved to the General Election the term for the Fire Commissioner elected at the General Election will begin at 12 noon on the 1st Tuesday in December and will expire 3 years later at 12 noon the 1st Tuesday in December.  Any vacancy in membership is filled by the remaining members until the next succeeding General Election.  The person elected to fill the vacancy will be elected for the unexpired term.

The law also establishes two different budget adoption processes.  For Fire Districts with February elections, the voters must approve the annual Fire District’s budget.  For Fire Districts with the General Election voters only vote on the budget if the budget exceeds the 2% Property Tax levy cap.  The law does permit all Fire Districts to submit a public question to increase the levy greater than the 2% property tax levy cap at an election held the 3rd Saturday in February.

The law also amended the statute pertaining to the acquisition of property and equipment for fire districts; limitations; referendum for the issuance of bonds (N.J.S.A. 40A:14-85).  Specifically, the Board of Fire Commissioners can purchase a firehouse or other buildings, including but not limited to, administrative, communications, or training buildings, or buildings for the maintenance of fire apparatus in addition to the existing fire engines, apparatus, or other appliance for the extinguishment of fires and acquire lands or buildings or erect buildings for the housing of such equipment.  In addition, Fire Districts may use a lease-purchase agreement instead of a bond issue.

The Department of Community Affairs, in consultation with Division of Elections, has been given rulemaking authority to effectuate this law.

For more information in connection to this blog, click here. 

Contact:

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

 

Proposed Rulemaking

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town-crier_facebookWe would like to alert you to a few new rules and amendments being proposed by various state agencies.  The League is in the process of working with stakeholders in reviewing the proposed rules and will be providing an analysis of the potential municipal impact.  We encourage you to review these proposed rules and if you have any comments or concerns which you would like to bring to our attention please feel free to contact us.  After our review and with feedback from our members we anticipate submitting comments on these proposed rules and amendments.

N.J.A.C. 2:24-2.3(a), 2.4, 4.2, 5.1 (Proposed Amendments)N.J.A.C. 2:24-7 (Proposed New Rule) – Disease of Bees

  • The rules proposed by the State Board of Agriculture have not yet been published in the NJ Register but are available for review in their pre-publication form.  These rules seek to implement the Board’s exclusive authority to regulate beekeeping within the State.  Specifically, these rules seek to define certain industry terms and set standards governing the breeding and keeping of bees within the state.  These rules are of particular importance to municipalities as local units must adopt the rules by specific reference in order for the local unit to enforce them.

Repeals and New Rules, N.J.A.C. 5:30-9A.4 and 9A.6 / Amendments, N.J.A.C. 5:30-9A.1, 9A.2, 9A.3, 9A.5, and 9A.7 and 5:31-4.1 and 4.2 / Repeal, N.J.A.C. 5:30-9A.8     – Electronic Disbursements and Claimant Certification

  • The Local Finance Board seeks to expand the current use of procurement cards to include the authorized use of standard electronic funds transfer technologies.  The proposed new rules set forth standards which must be followed for the use of procurement cards and also requires municipalities and other entities to develope a policy for their use.

N.J.A.C. 5:30-18 – Employee Compensation Disclosure

  • With this new rule proposed by the Local Finance Board, the Board seeks to use its statutory authority to implement a 2007 law and create an employee compensation disclosure form to be used when a municipality seeks to ratify a collectively negotiated agreement or an individual employment contact.  The purpose of the form is to provide a comparison of the employee’s salary, year over year in order to keep the public better informed of salary decisions.

N.J.A.C. 5:33-1.1 – Electronic Tax Lien Sales

  • The Division of Local Government Services has proposed new rules concerning the electronic sale of delinquent tax liens and municipal charges.  The proposed rule seeks to expand the current pilot program and includes some changes to the procedures and parameters currently in place for the sale of these liens via the internet.

Amendments, N.J.A.C. 16:41C – Roadside Sign Control and Outdoor Advertising

The Department of Transportation seeks to amend the rules concerning outdoor advertisement.  The proposed amendments would put limitations on the types and manner in which signs could appear bike share stations.  The proposed amendment would include charging a permitting fee to municipalities before the posting of a sign on a bike share station.

Contacts: 

 

Supreme Court Issues Opinion on Declaratory Judgments and Privacy Concerns in Regards to OPRA

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town-crier_facebookOn August 3, 2017 the NJ Supreme Court issued its opinion on, In the Matter of New Jersey State Fireman’s Association Obligation to Provide Relief Applications Under the Open Public Records Act (A-68-15)(077097).  This case involved the Fireman’s Association request to the court for a declaratory judgment regarding the Association’s obligation to provide certain documents under an OPRA request.

The Court ruled that under the Declaratory Judgment Act (“DJA”) after a public entity denies a request for records under an OPRA, the public entity could not seek a declaratory judgment affirming the denial.  The Court reasoned that there was no active controversy once a public entity makes the decision to deny the OPRA request and under the DJA an active controversy is required in order to obtain a declaratory judgment.

The Court’s reasoning then begs the question – can a public entity seek a pre-denial declaratory judgment for an unsettled issue?  To this, the Court succinctly answers, “We do not reach the question of whether a public entity may file a pre-denial declaratory judgment action when confronted with an unsettled question that has not been litigated before and that implicates OPRA’s privacy prong, N.J.S.A. 47:1A-1.”  In a concurring opinion, which has no precedential value, Justice Albin took the additional step to say that under no circumstance, pre-denial or otherwise, should a public entity by able to receive a declaratory judgment when OPRA concerns are involved.

In the League’s view, the downside to not allowing declaratory judgments on unclear OPRA issues is that public entities are then at the will of the aggrieved requestor to decide whether or not to seek further clarification from the courts or the Government Records Council.  More importantly, should clarification after a denial of a request be sought the public entity is put at risk of needing to pay for the attorney fees for the aggrieved requestor.  The public entity would be responsible for attorney fees even if the denial of a request was due to ambiguity in the OPRA law while the entity sought to protect citizen privacy.

The positive take away from the case is that the Court recognizes the two key competing interests found in OPRA – disclosure, and protection of privacy interest.  In a somewhat rare move, the Court took the opportunity to overturn the Appellate Divisions decision to require disclosure of financial relief checks rather than remand the issue back down for further review.   In this case, the Court ruled that because of public policy reasons the citizen privacy concerns outweigh the need for disclosure of certain sensitive financial documents and therefore the nondisclosure by the Fireman’s Association was proper.  The Court ruled on the side of privacy in regards to both the OPRA requests and the request under the common law.  The Court did this using the existing factor tests outlined in Burnett v. County of Bergen for OPRA and Loigman v. Kimmelman for the common law right to know.

Overall the League sees this ruling as a step in the right direction after a slew of OPRA rulings seemingly eroded citizens’ reasonable expectation of privacy.  Additionally, this ruling addresses certain public policy concerns where circumstance may arise where a citizen could be hesitant to seek assistance from public entities, out of fear of their information being subject to disclosure either under OPRA or the common law.  The League sees this as a signal from the Court to the lower courts, that privacy interests should be more carefully considered when ruling on issues of disclosure.

Contact: Frank Marshall, Esq., League Staff Attorney, fmarshall@njslom.org or 609-695-3481 x137.