Governor Signs Post-Retirement Volunteer Bill

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correct size blogOn August 17 Governor Murphy signed into law A-1627/S-1873, which protects the pension rights of former employees who continue to serve their communities as volunteer first responders.  The new law provides that PERS and PFRS retirees can continue to provide volunteer firefighter or emergency services after retirement while collecting pensions based on their prior paid service. The law clarifies the definition of ‘bona fide severance’ in order to comply with State and federal law.  The law permits a public employee who also volunteers as a firefighter or first aid worker, rescue squad worker, or emergency medical technician in the municipality to continue to serve as a volunteer after retirement. If the retired public employee job duties were similar, there must be a break of service of at least 30 days after retirement. The new law still does not permit a paid firefighter employed by a part-paid fire department to serve as a volunteer with the department from which they retired.

The League strongly supported this legislation which stems from a League Conference resolution in 2014 as a result of the Division of Pension and Benefits guidance on post-retirement employment restrictions for public employees. We thank the sponsors Senators Sarlo and Kean, Assemblywoman Schepisi, and Assemblymen Bucco, Auth, Danielson, and DiMaio for their efforts in advancing this legislative fix to permit volunteers to continue to serve their communities.

P.L. 2018, c. 96 took effect on August 17, 2018.

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

 

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Court Rules That Police Dash Camera Footage Pertaining to Investigations Exempt From OPRA

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correct size blogOn Monday, the State Supreme Court issued its ruling in Paff v. Ocean County Prosecutor’s Office.  In this case the Court was asked to determine whether or not dash camera recordings, made in compliance with a municipal police chief’s general order, are subject to OPRA disclosure.  The Court in a 4-3 decision ruled that dash camera recordings are exempt from disclosure as such recordings are excluded from OPRA’s definition of government record as it is a criminal investigatory record.

This case involved a denial of an OPRA request for police dash camera footage, from an incident where a driver attempted to elude police.  During the apprehension of the driver, a police canine was deployed.  The officer’s decision to deploy the dog was drawn into question which led to an internal investigation and criminal charges against the officer.  The OPRA requestor challenged the withholding of the footage, relying on the municipal police chiefs order that police use dash cameras to record certain incidents.  Arguing that chiefs order meant the dash camera footage was “required by law” to be made.

While OPRA generally favors disclosure there are several categories of records that OPRA excludes from its definition of government records.  Criminal investigatory records are one of those items specifically excluded.  Criminal investigatory records are defined as “a record which is not required by law to be made, maintained or kept on file that is held by a law enforcement agency which pertains to any criminal investigation or related civil enforcement proceeding.” In this case, the underlying question at hand was whether or not the dash camera recordings were “required by law to be made.”   This question was recently addressed in another State Supreme Court decision, N. Jersey Media Grp., Inc. v. Township of Lyndhurst, where use of force reports were requested under OPRA.

In Lyndhurst, the Court ruled that use of force reports should be disclosed under OPRA after it was determined that a State Attorney General Directive ordering all law enforcement agencies to create and maintain such reports carried the force of law and were therefore “required by law to be made.”  The Court distinguished the Lyndhurst decision from the case at hand; finding that even though the dash camera recordings were made in accordance with a municipal police chief’s order, unlike a directive from the Attorney General, the police chief’s order does not carry the force of law. Therefore the dash camera recordings were not “required by law” to be made and were exempt from disclosure under OPRA.

This ruling, when viewed in conjunction with the Lyndhurst decision, effectively means that all police dash camera footage pertaining to a criminal investigation are exempt from disclosure under OPRA.  This of course could changeif the use of police dash cameras becomes mandated, either through legislation or through a directive from the Attorney General.

While the Court determined the dash camera recordings were exempt from disclosure under OPRA, it did not analyze or reach a determination of disclosure under the common law right to access.  Instead, the Court remanded the case to the trial court where disclosure under the common law would be reviewed.  The Court did however briefly comment on how similar the matter was to the Lyndhurst decision, where it found that under the common law, dash camera recordings of a police shooting should be made public.  This was done after applying a balancing test in which the Court found there would be only minimal if any impact on the ongoing investigation. And, police involved shootings are of such great interest to the public that any impact to the investigation was outweighed in favor of disclosure.

Although the Court reached the determination that dash camera recordings are excluded from disclosure under OPRA by way of the criminal investigatory records exemption, it nonetheless addressed two other issues raised on appeal, providing additional insight into exemptions from OPRA.

The Court first examined OPRA’s “investigations in progress” exemption, which exempts records from being disclosed when (1) they pertain to an investigation in progress by a public agency, (2) disclosure would be inimical to the public interest, and (3) the records were not available to the public before the investigation began.

In short order the Court found that the first and third requirement of the investigation in progress exemption was satisfied.  However, the Court found that the second requirement had not been met as the Ocean County Prosecutor failed to provide any support that disclosure of the dash camera recordings would undermine its investigation.  The Court also found that there was strong public interest in the interaction of police officers with the public and therefore disclosure would be favored.

The second additional issue addressed by the Court involved the application of OPRA’s privacy clause, which would exempt disclosure under OPRA.  The privacy clause of OPRA instructs a public agency to refrain from disclosing, “a citizen’s personal information with which it has been entrusted when disclosure thereof would violate the citizen’s reasonable expectation of privacy.”  In addition, in the case at hand, the defendant had personally objected to the release of the dash camera recording over privacy concerns.

The Court was unpersuaded by this as it ruled that there was no reasonable expectation of privacy as the incident in the dash camera recording took place in public and there was no other specific reasoning given for the privacy concerns, only a generic objection.   The Court indicated that there could in fact be circumstances where a person’s reasonable expectation of privacy would warrant withholding of a police video.  However, the facts of the matter at hand were examined there was no expectation of privacy, and therefore withholding or redacting the video under the privacy exemption was not warranted.

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

Federal Appeals Court Upholds NJ Bail Reform

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correct size blogOn Monday, a Federal Appeals Court upheld New Jersey’s recently enacted bail reforms, in Holland v. Rosen.  Last year’s Constitutional amendment and the associated Criminal Justice Reform Act, changed the State’s pretrial release system from cash-based bail system to public safety assessment model.  Under the changes, the newly created Pretrial Services would perform public safety assessment where each of the eligible defendants would receive a score relating to their risk of failing to appear and for new criminal activity.  Not all defendants are eligible under the new reform, only those accused of committing less serious and nonviolent offenses.

Using the risk score, defendants are given conditions for pretrial release that do not include cash bail.  These conditions include reporting once a month by phone or in person to Pretrial Services, and for some electronic monitoring and/or home detention.  Each defendant is afforded a pretrial release hearing before a judge which must occur within 48 hours of their arrest.  At this hearing, the prosecutor may request the defendant by held regardless of the outcome of the risk assessment if they have good cause to believe the defendant is a flight risk or is likely to commit additional violent crimes if released.

In Holland, the defendant was arrested and charged with assault after a fight at a bar.  Under the guidelines of the new pretrial release standards, his release was conditioned on electronic monitoring through an ankle bracelet and was confined to his house only able to leave for work purposes.  The defendant argued that the new bail reform law violated the U.S. Constitution’s Excessive Bail Clause because the new pretrial release conditions were too strict, and further argued that the Constitution provides a right to cash bail.  The defendant sought a preliminary injunction which would have precluded further use of the bail reform portions of the Criminal Justice Reform Act until a trial on the Constitutional merits could be held.

The Appeals Court upheld the lower court’s denial of the injunction, finding that there is no substantive right to cash bail and because of this the defendant is unlikely to succeed on the merits of his case, a requirement necessary before a court will grant an injunction.  This ruling allows the new pretrial release structure to remain in place and the analysis found within the holding acts as a shield for additional Constitutional based attacks on the Criminal Justice Reform Act.

While it may not seem apparent there is a municipal impact to this ruling.  Under the Criminal Justice Reform Act, each defendant is entitled to a detention hearing and is entitled to representation at the hearing.  When the defendant cannot afford representation an attorney is provided for them, this means the public defender.   When the charge is based on a disorderly persons offense the municipal public defender under certain circumstances has been tasked with providing representation at the Superior Court level.   Although the League was able to secure some relief to this requirement (see here) there are still some occasions where the municipal public defender must travel to the Superior Court to defend an individual.  Had the Federal Appeals Court ruled differently and imposed an injunction this requirement on municipal public defenders would have been alleviated as well, at least until a decision was made on the merits.

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

 

League Opposes “Bag Bill”

correct size blogOn June 25, the State Legislature sent to the Governor, legislation that would impose a statewide fee on single-use carryout bags provided to customers at retail check-out counters.  The League of Municipalities opposes the legislation (A-3267/S2600), which would, in part, supersede and preempt local ordinances that are being readied for adoption, and that are meant to address problems caused by non-reusable carriers.

Already, a number of towns have taken positive action to encourage retailers and shoppers to better protect the environment by using more durable carriers. These ordinances are grandfathered by the proposal; but, others are in the process of doing the same. We see no environmental benefit in preempting their actions.

The League has asked the Governor to veto the bill or, in the alternative, to conditionally veto the bill to remove the municipal preemption.   Please contact the Governor’s Office to express your concerns.

Contacts:

  • Jon Moran, Senior Legislative Analyst, jmoran@njslom.org, 609-695-3481 x121.
  • Michael F. Cerra, Assistant Executive Director, mcerra@njslom.org,609-695-3481 x120.

 

Call to Action: Senators Introduce Preemptive Small Cell Deployment Bill

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correct size blogOn June 29, Senators John Thune of South Dakota and Brian Schatz of Hawaii introduced S.3157, otherwise known as the Streamlining the Rapid Evolution and Modernization of Leading-edge Infrastructure Necessary to Enhance (STREAMLINE) Small Cell Deployment Act.  This bill would have a similar effect as the recent FCC rulemaking efforts we have written about over the past year (see, here, and here) and severely limits the actions local governments can take on small cell wireless facility siting.  The bill would, amongst other things, limit local control of the municipal right-of-way and restrict the amount of fees that can be charged for use of the ROW.

The National League of Cities (NLC), the League’s national affiliate, has been advocating against the preemptive measures found in this bill and under consideration by the FCC but the best way to thwart this attack on local control is for local leaders to contact their members of Congress.  To do this, the NLC has set up a convenient tool to assist local leaders with contacting their members of Congress and opposing this bill or similar legislation.  This tool can be accessed here.  While there is no House companion bill one is expected shortly and the Senate is poised to move in this bill quickly, because of this, we urge you to reach out to your Federal Representatives today and oppose this attack on local governments.

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

Bill to help volunteers awaits Governor’s action

correct size blogOn June 25 the State Senate, by a 38-0 vote, and the General Assembly, by a 75-0 vote, gave final approval to A1627/S1873.    The League of Municipalities strongly supports A-1627, which would permit a person with a pre-existing volunteer relationship as a firefighter or first aid with their employer to retire from service covered by PERS or PFRS and continue to serve that employer as a volunteer.    This is an issue in many municipalities and have heard from local elected officials statewide about the difficulties in retaining qualified volunteers.

This bill previously passed both houses but was pocket vetoed by then Governor Christie.  We urge you to contact the Governor’s office and ask that he vote this important initiative into law.

This legislation stems from a League conference resolution in 2014 and we thank the sponsors, including Senators Sarlo and Kean, Assemblywoman Schepisi and Assemblyman Bucco for their efforts.    The text of the 2014 resolutions is below.

The resolution was advanced because 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 not to 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 employment 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 and first aid members, who are public employees, have been required to resign from their volunteer position 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.

Contact: Michael F. Cerra, Asst. Executive Director,  mcerra@njslom.org or 609-695-3481 x120.

New Jersey State League of Municipalities Resolution No. 2014 – 05

 Approved at Annual League Business Meeting, November 20, 2014

Amended and Approved at League Resolutions Committee, November 18, 2014

 Resolution Calling upon the Federal and State Governments to Clarify Volunteer Position Do Not Impact Retirement Benefits for Public Employees

WHEREAS, the Division of Pension and Benefits recently issued a notice concerning bona fide severance of employment-post retirement employment restrictions for individuals covered by any New Jersey State administered retirement system; and

WHEREAS, the Division has issued this guidance and is implementing a new procedure to preserve the qualified Internal Revenue Service (IRS) status of PERS, TPAF, PFRS, SPRS and JRS plans and to protect retirees from a 10% excise tax penalty on their monthly retirement payments; and

WHEREASN.J.A.C. 17:1-17.14.2(a) defines a “bona fide severance from employment” as “the complete termination of the employee’s employment relationship with the employer for a period of at least 180 days; and

WHEREAS, 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, is considered to be employment by the same employer; and

WHEREAS, 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; and

WHEREAS, the IRS does not consider a pre-arranged return to public employment to be a bona fide severance from employment no matter how long the break in employment; and

WHEREAS, if the employer and employee make an arrangement prior to employee’s retirement to return to the same employer in any capacity, including as a volunteer – at any future time, regardless whether the position is covered by the former retirement system – the employer/employee relationship is not completely severed and the retirement will be invalid; and

WHEREAS, if an individual returns to public employment, even as a volunteer, with the former employer 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; and

WHEREAS,  Division of Pensions and Benefits have advised employees that they must sever all relations with their employer, including volunteer positions, for 180 days or they risk losing their pensions; and

WHEREAS, public employees tend to volunteer in the communities they live and work in as volunteer fire fighters, First Aid responders, celebration committee members or PTA’s, to name a few; and

WHEREAS, Division of Pensions and Benefits has advised employees that they cannot go on a leave of absence to fulfill the 180 day requirement but that they must sever all ties to the volunteer position; and

WHEREAS, for volunteer firefighters and first aid responders they would have to reapply to the volunteer organization as a new member; and

WHEREAS, as a new member they would be required to take all necessary test and training including physicals and agility test; and

WHEREAS, employees affected by the Division of Pensions ruling are at least 55 years of age who in their volunteer positions tend to be mentors to the new and younger members typically providing guidance and direction; and

WHEREAS, volunteers are the backbone of communities providing services to the residents at no cost to taxpayers while freely giving of their time and expertise; and

WHEREAS, while well intended the Division of Pensions has created an unintended consequence which, if not changed impact every volunteer in the state and will   not only drive up property taxes but reduce the quality and level of essential public services;

NOW, THEREFORE, BE IT RESOLVED, that the New Jersey State League of Municipalities, in conference assembled, urges the State Division of Pensions and Benefits to revisit their procedure to permit retirees and local elected officials to continue as volunteers without impact to their retirement and not require the complete 180 day separation; and

BE IT FURTHER RESOLVED, that New Jersey’s US Senators and Congressional Delegation review the IRS ruling and advocate for all necessary changes to the IRS Code to permit retirees to continue as volunteers without impact to their retirement and not require the complete 180 day separation; and

BE IT FURTHER RESOLVED, that copies of this Resolution are forwarded to the Governor and Lieutenant Governor of New Jersey, the State Treasurer, the Director of the Division of Pensions and Benefits, the members of the New Jersey State Legislature, the Director of the Internal Revenues Service and the members of the New Jersey Congressional Delegation

 

 

SFY 2019 Budget Adopted

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correct size blogLate Sunday evening, Governor Murphy signed a $37.4 billion state budget. Included in the budget was an amendment to alter the funding source of Energy Tax Receipts. While the amount of the Energy Tax Receipts for this year will remain flat at $788,492, the funding is split between the General Fund ($355,492,000) and the Property Tax Relief Aid Fund ($453,000,000).   To fund energy tax receipts,  the state intends to zero out the Property Tax Relief Aid Fund prior to using the revenues from the General Fund.

While this does not diminish the amount of funding your municipality will see this year, the League strenuously objected to this transfer.   We are rightly concerned that the state may not view this action as a one-time band-aid, but a recurring option to help address state budget funding issues.   History has taught local officials some hard lessons about the erosion of dedicated municipal funds.   If this reoccurs, it could jeopardize the most significant and reliable source of municipal revenues, other than the property tax, in future State budgets.

The budget projects $705 million in new revenue from the millionaire’s tax for those making over $5 million by increasing income tax from 8.97% to 10.75% and a four year surcharge on Corporate Business Tax, which imposes a surcharge on all companies earning more than $1 million per year by increasing the current rate of 9% by 2.5% for two years with a two year phase down. The budget also projects additional revenue from new levies by extending the tobacco products wholesale sales and use tax to liquid nicotine used in electronic cigarettes and similar devices, at the rate of $0.10 per milliliter of liquid nicotine, and a $0.50 rider surcharge, with the rider paying $0.25, on transportation network companies. It also includes additional sale tax revenue from on-line sales as a result of the U.S. Supreme Court Wayfair decision (over $120 million) and tax amnesty program for all state taxes payable to the New Jersey Division of Taxation including the Corporation Business Tax, Sales and Use Tax, and Gross Income Tax.

The budget also restores funding for the Homestead property tax relief program, increases the state income tax deduction for property taxes from $10,000 to $15,000, includes a $3.2 Billion pension contribution, assumes savings from State Health Benefits plan design reforms, and continues the Best Practice Inventory.

The legislation establishing the rider surcharge also included language increasing the Title 39 surcharge for “New Jersey Forensic DNA Laboratory Fund” from $2 to $3.

The budget did not include an increase of the State sales tax from 6.625% to 7% and the surcharge on plastic bags. While the “bag bill” awaits the Governor’s action, the projected revenues are not part of the state budget.   The League opposes this bill and has asked the Governor to either veto the bill or, in the alternative, to conditionally veto it to remove the municipal preemption.    Please click here for more.

As part of the budget compromise, the Governor and legislative leadership agreed to revisions of the school funding formula as outlined in S-2. At this time, S-2 has passed both houses and awaits the Governor’s signature.

We will continue to keep you posted.

Contact: Michael F. Cerra, Assistant Executive Director, mcerra@njslom.org, 609-695-3481 x120.

State High Court Rules Appeal of Zoning Permit a Substantive Right; Must Be Heard By Zoning Board

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The League would like to alert our members to a recent State Supreme Court ruling that will undoubtedly impact how municipal zoning boards handle appeals of zoning permits. Earlier this week the NJ Supreme Court issued its decision Mary Harz v. Borough of Spring Lake, which essentially answered two questions:

  • Does a homeowner, who challenges the issuance of a zoning permit allowing construction on a neighboring property, have a statutory right to be heard before the municipal zoning board? And, if so;
  • Is the right to be heard a substantive right, a violation of which would give rise to an action under the NJ Civil Rights Act?

In regards to the first question, the Court found that the Municipal Land Use Law (MLUL) unambiguously confers on property owners a right to have their appeal of a permit heard before the zoning board.  While the Court, in this case did not have the opportunity to explain what a hearing should entail, it did clarify that a zoning board must hear appeals from any interested party, including neighboring property owners, and within 120 days, render a decision.

Once it determined this threshold issue, the Court then moved on to the second question of determining whether a hearing was a substantive right with Civil Rights Act protections, or merely a procedural right with no such protections.  On this issue, the Court ruled that a hearing before the zoning board on a permit appeal is a substantive right.

This ruling is impactful as it clearly identifies for the first time that property owners have a substantive right to appeal the issuance of permits and have that appeal heard by the zoning board.  Furthermore, because this is a substantive right a cause of action under the Civil Rights Act can be sustained and as with any cause of action under the Act, the plaintiff if successful would be entitled to attorney fees and other redress from the municipality.

Nevertheless, even with the Court’s ruling in regards to appeal hearings and the Civil Rights Act, they still sided with the municipality.  This was because, under the facts presented, the interested party had not exhausted the statutory process available to her to ensure her right to be heard under the MLUL, and suffered no adverseness.  The Court distinguished the facts of this case from those in the Tumpson case where all administrative remedies had been exhausted and the plaintiff’s only option was to file suit.  Unlike in Tumpson, in this week’s case, Plaintiff’s civil rights were properly protected by the municipality when her concerns were addressed and remedied by the zoning officer without the need to resort to a hearing before the zoning board.  In any event, because her complaints were heard and the underlying issues within those complaints were resolved (in her favor) no hearing before the board was required as the matter was rendered moot.  Therefore, because it would have been fruitless, there was no need to have an appeal hearing and in turn, no civil rights violation occurred.

This week’s ruling effectively allows a zoning officer (or other municipal officials) to takes corrective action to resolve zoning complaints received from interested parties prior to an appeal being heard by the zoning board.  And, once resolved, especially when resolved in favor of the complaining party, an appeal hearing before the board is no longer required.

You should review this decision with your municipal attorney as well as your zoning board attorney, for more information on how it could impact your municipality.

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

SCOTUS Ruling Restricts Public Sector Unions’ Power to Collect Fees

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correct size blogOn Wednesday, the Supreme Court of the United States (SCOTUS) issued its ruling in Janus v. AFSCME Council 31.  This highly anticipated case involved a challenge to the ability of public sector unions to force nonmember government workers to pay agency fees.  In a 5-4 decision, the Court ruled that “States and public-sector unions may no longer extract agency fees from nonconsenting employees” reasoning  that such a scheme “violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern.”

In addition, the Court held that neither an agency fee nor any other payment may be deducted from a nonmember’s wages unless the employee affirmatively consents to pay.  Meaning, public sector unions must receive positive indication from non-members that they wish to contribute to the union.  It is no longer permissible for agency fees to be withheld until an opt-out is received.   This portion of the Court’s decision brings into question certain provisions of the State’s Workforce Democracy Enhancement Act (the “Act”), which was recently passed by the Legislature in anticipation of this SCOTUS ruling.

The section of the Act most directly impacted by the Janus decision deals with the authorization of payroll deductions for union dues and fees.  Under the Act, an employee (member or nonmember) can revoke deduction authorization only during the 10 days following each anniversary date of their employment.  The Act goes on further to provide that notice of revocation of authorization becomes effective on the 30th day after the anniversary date of employment.  It is unclear whether this small window for revocation or this limitation on the revocation’s effective date comports with the Court’s ruling in Janus.

For further analysis, please click here to view a blog post written by League Labor Relations Counsel, Joseph Hannon, Esq., and Jennifer Roselle and Ryann Aaron from the Genova Burns law firm.  You should review this information with this decision with your own municipal attorney and labor attorney for more information on how it will impact your municipality.

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