Amendments to OPRA and OPMA Advance in Senate

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correct size blogOn June 14, by a vote of 4-0, the Senate State Government Committee amended and released S-106, which revises the Open Public Meetings Act (OPMA), and S-107, which revises the Open Public Records Act (OPRA). The League testified, along with the New Jersey Association of Counties and the School Boards Association, in opposition.

The bills were amended as follows:

S-106 (OPMA)

  • Permits legal counsel or independent consultants or advisors to communicate privately to members of the governing body during a meeting about matters on an agenda;
  • Requires the Legislature to keep comprehensive, rather than reasonably comprehensible, minutes of its meetings;
  • Clarifies that minutes must be available to the public as soon as possible but no later than 15 business days after the next meeting;
  • Provides municipalities with 5,000 or fewer residents, according to the most recent census, a board of education with 500 or less pupils and public authorities with less than $100 million in assets will have 20 business days after the next meeting to make their minutes available to the public;
  • Permits a governing body to vote in favor of a reasonable delay in making the minutes available by the mandatory 15 or 20-day deadline. Prior to taking such a vote, the governing body must announce and provide a detailed explanation of the reason for the delay. The minutes must contain the explanation. The amendments also defined “emergency” to mean “any sudden, unexpected, or unforeseeable event or condition, natural or man-made, which interferes with the conduct of normal business operations of a public body for three or more calendar days. Without limiting the generality of the foregoing, an emergency may arise when a condition such as any one or more of the following arises: forces of the natural elements, fire, explosions, epidemics, power failures, labor disputes, transportation failures, war, riots, civil disturbances, and other acts of lawlessness or violence.”
  • Requires the Legislature to record its all of its public meetings;
  • Requires subcommittees to prepare reports of meetings that are closed to the public; and
  • Removes the language requiring subcommittee reports to be open in the same manner as minutes.

S-107 (OPRA)

  • Amends the definition of “public agency” and “quasi-governmental agency” to exclude volunteer fire company or volunteer fire department or volunteer first aid, rescue or ambulance squad. As a result, also removed the provision that permitted a volunteer fire company/department to contract with municipality to have the municipal clerk serve as the fire company’s records custodian;
  • Exempts from disclosure any portion of a document that discloses personal and identifying information of minors, except when permitted by law for the New Jersey Motor Vehicle Commission, or when driver information is disclosed to insurance companies for use in connection with claims investigation activities, antifraud activities, rating or underwriting;
  • Removes interns and volunteers employees from the definition of “public employees”;
  • Permits a public agency to charge a special service charge whenever
    • a person requests a paper copy of record that is available electronically after they were advised that the record may be emailed at no charge or
    • A person is advised as to the specific online location of the record;
  • Removes the requirement that the sole purpose of a person’s request must be to harass a public agency in order for the agency to file a petition in court against the requestor;
  • Incorporates into the “New Jersey Open Data Initiative” law rather than creating a new section of law, the requirement that the State maintain a single, searchable Internet website providing certain State agency information;
  • Requires the Office of Information Technology, in consultation with Department of Community Affairs, Government Records Council, a representative from Municipal Clerks Association of New Jersey, New Jersey Association of Counties and the League, to develop and maintain a searchable, online database to which units of local government may submit any government record for retention on the database

Over the past several years, the League has met with the sponsors to discuss our concerns with the proposed amendments.  We appreciate the strides the sponsors have taken to address issues through the proposed amendments, such as addressing both the privacy issues surrounding OPRA and the issue of commercial request for records.

However, we still have major concerns with the bills and must continue to oppose S-106 and S-107.

In addition to some technical concerns with the amendments, our concerns include:

  1. Subcommittees (OPMA): 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. 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 digest and vet information informally but do not expend public funds nor make binding decisions. That power remains with the governing body. By their very nature, subcommittees are advisory, deliberative, and consultative. Advisory, deliberative and consultative materials are exempted from the Open Public Records Act and thus subcommittees remain not subject to the provisions of the Open Public Meetings Act.
  2. Expands the definition of Government Records (OPRA): 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’s liability but the Records Custodian will still be in violation of OPRA. We strongly believe this should be addressed in the legislation and not by the courts.
  3. Prevailing Attorney Fees (OPMA & OPRA): 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. Courts and the Government Records Council need the flexibility to award reasonable attorney’s fees based on the given circumstances of a particular case.
  4. Exemption of the Legislature (OPMA & OPRA): 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 apply to the legislature and the legislators should be removed. The rules that the legislation makes applicable to other governmental bodies should apply equally to all governmental levels and officials.

The bills have been referenced to the Senate Budget and Appropriations Committee. Senator Weinberg made a commitment to continue to work with the stakeholders, including the League, over the summer, to address the remaining issues.

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

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Thank You. On the ETR, You Have Been Heard

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correct size blogThanks are due to every local official who contacted their legislators, urging them to protect the Energy Tax Receipts Property Tax Relief Fund (ETR), in the State’s upcoming budget. And thanks are due to Senate Budget and Appropriations Chair, Senator Paul Sarlo, and Assembly Budget Chair, Assemblywoman Eliana Pintor Marin, for listening to League Members and preserving this dependable and significant source of municipal property tax relief, now and for the future. Finally, thanks are due to every legislator who has recognized the importance of this.

Our work on this, however, is not yet done.    We must continue to press the Legislature and the Administration to preserve ETR lockbox and keep this dedicated funding off-budget.

The annual Appropriations Act bills that the State Senate (S-2019) and General Assembly (A-4200) will vote on tomorrow reverse the Administration’s proposed ETR shift and put the lid back on the ETR ‘lockbox.’  That provision of the proposed Appropriations Act will help local officials better serve their neighbors and constituents for years to come.

As you know, for over 100 years, municipalities have been able to count on certain taxes paid by energy producing utilities. These were originally assessed and collected locally, to compensate local citizens for the utilities’ use of public rights of way and for local services provided to power suppliers. In 1980, the State decided to centralize tax collection. It also promised to distribute the proceeds to New Jersey municipalities. That promise wasn’t always kept, but when utility taxes were reformed in 1997, the new statute set up a dedicated fund – the Energy Tax Receipts Property Tax Relief Fund – and assured annual distribution amounts.

In each of the twenty years since its creation, the ETR ‘lockbox’ has ensured reliable and meaningful property tax relief funding for every New Jersey municipality.

To be clear, the Administration’s proposal would not have decreased the tax relief funding that any towns will get, this year. We appreciate that. But it would have set a dangerous precedent. Specifically, the Governor’s proposal would have opened the ETR ‘lockbox,’ which has always been funded through taxes (Sales and Corporate) levied on energy suppling utilities. Instead, that proposal would deliver level funding with Income Tax dollars. The shift would have shaken the foundations of the ETR and placed future funding in jeopardy.

There remain serious differences, on myriad issues, between the Legislature and the Governor, on the State’s next budget. But we are encouraged by the ETR provisions in the pending bills.

You have asked your legislators to protect ETR property tax relief. They have taken the first step to do that. Now is the time to thank them for that. And, as discussions toward a possible budget compromise continue, you can also ask them to stand firm on the ETR.

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

 

Impact of Expiration of 2% CAP Looming

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correct size blogRecently, we had a conversation with a “Trenton insider” about the need to renew the 2% cap on interest arbitration and found the response curious.    We were told that since the IA cap expired and “…the sky isn’t falling…”, there was no need to extend the cap.      We took the time to explain that the Public Employment Relations Commission (PERC) determined (correctly in our view) that contracts that expired on December 31, 2017, were still bound by the 2% interest arbitration cap.    Because of that determination (which could still be appealed),  contracts that expire after January 1, 2018, will no longer be under the IA cap, including the several dozen contracts with expiration dates at the end of calendar year 2018, that would see the impact.   We further noted that the impact of the IA cap expiration was, in fact, being felt now, as it is inhibiting negotiations.

So while we corrected this misimpression of the “insider,” it is emblematic of a false narrative that is being spun regarding the IA cap.    And we need you to help us correct this false narrative and continue to engage your Legislators and the Governor on the pressing need to renew the 2% cap on interest arbitration awards.    In the upcoming weeks, the League will provide you another sample resolution for your consideration.     But in the meanwhile, it is paramount to press your State representatives on this issue, particularly if you have contracts expiring later this year.

This concern is particularly striking following the release of a recent Monmouth University Poll, in which 45% of the respondents cited property taxes as the most important state issue, significantly higher than any other concern.     So while our voters continue to cite property taxes as their top concern, State Leaders have yet to take the common-sense action of extending the IA cap, which was a valuable tool in curtailing taxes.     Every report of the Interest Arbitration Task Force has provided all the evidence needed to draw that conclusion.     You can click here for the reports from 2011 through 2016.     And you can click here for the 2017 report, which is not considered final because the employee representatives chose not to vote on its approval.

In talking to your Legislators, please keep the following in mind:

The interest arbitration cap marked a dramatic change to the arbitration process, which is available to only police and fire unions, and assisted municipalities to control the never-ending rise in public safety personnel costs.   The interest arbitration cap took a playing field that was weighted heavily to the benefit of the unions and leveled it so that collective bargaining was once again a “give and take” between the parties.  There are many examples where municipalities’ negotiated contracts with significant savings because the unions recognized that if they went to arbitration they would only receive a 2% increase.  Steps were lengthened, sick leave incentives were reduced or eliminated, and vacation time was reduced, providing savings to taxpayers.

  • New Jersey voters have identified property taxes as their #1 concern.

 

  • The IA cap worked. The 2% Interest Arbitration cap has controlled one of the largest municipal expenses, public safety salaries, not only through arbitration awards but also by encouraging fruitful contract negotiations.

 

  • Accountability. The IA cap is a reasonable limit on the ability of an unelected third-party, who is not accountable to the voters or responsible for finding the money to pay for his or her decisions, to impose annually increasing costs on our property taxpayers

 

  • The levy cap is permanent. Municipalities are statutorily limited to raise their property tax levy by no more than 2%, with very limited exceptions which do not include personnel expenses.

 

  • Local governments will be hit hard if the IA cap is not renewed. Failure to reinstitute the 2% cap on interest arbitration awards will force municipalities throughout the State to further reduce or even eliminate crucial services, personnel, and long-overdue infrastructure improvement projects in order to fund an arbitration award. 
  • Taxpayers will be hit hard. If the cap on interest arbitration is not revived, while the 2% property tax levy cap remains in effect, municipalities will be forced to reduce or eliminate municipal services in order to fund interest arbitration awards, or will need to seek voter approval to exceed the 2% property tax cap in order to fund an arbitration award.

Contacts:

Action Needed on Energy Tax Proposal

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In testimony before the Legislature on Monday, and again on Tuesday, State Treasurer Elizabeth Maher Muoio again cited the State’s ‘need’ to lay claim to Energy Tax (ETR) revenues that, for twenty years, have been dedicated to municipal property tax relief. We do not doubt the Administration’s commitment ‘to providing the municipalities with an equal level of support in FY ’19.’

We sincerely appreciate the fact that this ‘accounting adjustment’ will result in no reduction in property tax relief funding, this year. We have, however, asked State budget-makers to look beyond their own immediate needs. We have asked them to consider the longer-term implications of the ETR shift.

Our arguments seem to have made little headway. But there is still time to change that.

Please contact your State Legislators regarding the proposal. Remind them that:

  • Since 1997, municipalities have been able to count on annual baseline distributions from the off-budget, dedicated Energy Tax Receipts Property Tax Relief Fund.
  • Before the Fund existed, utility tax revenues, meant for municipal property tax relief, were commonly diverted in State budgets to address annual State-level concerns.
  • In order to create a dependable and predictable source of property tax relief, which would enable municipalities to engage in responsible budgetary planning, local officials, State leaders and representatives of the taxpaying utilities joined together to advocate for the creation of the ETR.
  • The proposed accounting shift, to be effected by budget language, mirrors the genesis of the Consolidated Municipal Property Tax Relief Aid (CMPTRA) program, which replaced funding from Sales and Corporate Tax sources, for a number of revenue replacement programs, with Income Tax dollars.
  • That shift led – not immediately, but inevitably – to the deterioration of CMPTRA property tax relief. (In its first year, CMPTRA was funded at $755 million. In 2001, CMPTRA’s best year, the fund provided $818.5 million. By 2010, due to cuts and the steady shift of property tax relief dollars from CMPTRA to the ETR, funding was down to $264.7 million. And this year’s budget proposal calls for the distribution of $263.3 million through CMPTRA.)

You might also want to mention the fact that unless the Legislature adjusts the proposal, this will be the eighth straight year of level ETR/CMPTRA funding. And in the three preceding years, as the State struggled to balance its budget during the great recession, the level was lowered by about $320 million. In a recent NJSpotlight story, Colleen O’Dea noted that, since 2007, the CPI has risen by 22%; while property tax relief funding from these sources has decreased by 17%.

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

NJ Supreme Court OPRA Decision Diminishes Privacy Rights

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town-crier_facebookOn Wednesday, the NJ Supreme Court issued its decision in William J. Brennan v. Bergen County Prosecutor’s Office, a case that examined the Open Public Records Act’s competing interests of government transparency and individual privacy. In this case, the Court was asked to determine whether OPRA compels disclosure of documents containing the names and addresses of persons who successfully bid at an auction of public property?

Unfortunately, as is often the case, transparency interests prevailed to the detriment of privacy concerns.  The Court found that those who participate in a public auction for public property are aware that their names, addresses and other information which they have provided will be available to the public.  Therefore, there is no reasonable expectation of privacy which must be protected and the unredacted records should be disclosed.

Also, in this case, the Court created what appears to be a new rule for whenever courts are tasked with examining the release of records and balancing transparency with privacy.  Typically, when privacy considerations are presented as reason for withholding disclosure under an OPRA request, courts would use what is known as Doe factors to analyze whether privacy would trump the need for disclosure.  The Doe factors examine, among other things; the type of record requested, the information contained in those records, the potential harm of disclosure, and the degree of need for access to the records.

In the case at hand, the Court determined that “courts are not required to analyze Doe factors each time a party asserts that a privacy interest exists.  A party must first present a colorable claim that public access to records would invade a person’s reasonable expectation of privacy.”  Based on this, it would appear that courts must now first examine the threshold questions of whether or not a reasonable expectation of privacy exists prior to examining the Doe factors.  Where a colorable claim of a reasonable expectation of privacy has not been made, the courts will not need to examine the Doe factors.  While on many occasions lower courts have seemingly made this threshold determination, the Court’s ruling in Brennan sets out a more bright-line requirement for courts to do so.

You should review this decision with your municipal attorney and your records custodian for more information on this ruling and the impact on your municipality.

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

 

 

 

IRS to Issue Guidance on SALT Deduction and Charitable Trust Issue

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correct size blogOn May 4 in East Rutherford, Governor Murphy signed S-1893, which permits municipalities, counties, or school districts to establish one or more charitable funds, each for a specific public purpose; and permits property tax credits in association with certain donations. This legislation is a response to the new cap on the Federal SALT property tax deduction. New Jersey’s new law will take effect on July 3, 2018. The state is in the process of drafting rules to implement the law. We will continue to share updates as they become available. For more on the new law please read our earlier Town Crier blog post.

Yesterday, the Federal Treasury Department and Internal Revenue Service (IRS) announced their intentions to propose guidance on payments made in exchange for State and Local Tax Credits.

While it is premature to fully assess what the impact of this IRS guidance will be, it appears that the agency is seeking to prohibit the legislative intent of S-1893.   We call your attention to this language:

Despite these state efforts to circumvent the new statutory limitation on state and local tax deductions, taxpayers should be mindful that federal law controls the proper characterization of payments for federal income tax purposes.

Click here for a copy of the IRS notice.

Governor Murphy immediately offered a comment indicating that the State may challenge any regulations that will invalidate the new State law.

We will continue to advise you of all developments related to this issue.

Contacts:

Governor Signs “Workplace Democracy Enhancement Act”

On May 18 Governor Murphy signed A-3686, the “Workplace Democracy Act”. This law, which became effective today, imposes mandatory requirements on public employers to ensure that public unions are able to carry out their statutory duties by having access to, and the ability to communicate with, their public employee members. The new law was enacted in response to public employee union concerns regarding the possible outcome of a case, Janus v. American Federation of State, County, and Municipal Employees, Council 31, which was argued before the U.S. Supreme Court earlier this year.

In signing this bill, Governor Murphy acknowledged that the new law may be in conflict with the U.S. Supreme Court’s ultimate decision, but he is willing to work closely with the sponsors to enact any required changes. In addition, the Governor noted his “sensitive to the privacy concerns of our public employees and recognize the need to prevent the improper use of personal identifying information collected under the terms of this act.” Therefore, the Governor has directed State agencies to develop “sufficient procedures to protect sensitive personal employee information and to restrict its use solely to achieve the act’s purposes” when implementing the law.

The law immediately imposes new mandates and requirements on public employers that have been traditionally negotiated during the collective bargaining process. In addition, it expands who is covered under a collective bargaining agreement to include regular full-time and part-time employees who perform “negotiations unit work”. “Negotiations unit work” is defined as work that is performed by any employees who are included in a union, without regard to job title, job classification or number of hours worked, except that employees who are confidential employees or managerial executives as defined by N.J.S.A. 34:13A-3, or elected officials, members of boards and commissions, or casual employees. Casual employees are employees who work an average of fewer than four (4) hours per week over a 90 calendar day period. Within 90 days (August 16) employees who were not included in the union because they did not meet the time threshold must be included in the union.

The law requires public employers to provide unions with access to their members. The law defines access to include, but not be limited, to:

  • The right to meet with individual employees on premise during the work day to investigate and discuss grievances, workplace related complaints, and other workplace issues;
  • The right to conduct on premise worksite meetings during lunch and other non-work breaks, before and after the workday, to discuss workplace issues, collective negotiations, the administration of collective negotiations agreements, other matters related to the duties of an union, and internal union matters involving the governance or business of the exclusive representative employee organization;
  • The right to meet with newly hired employees for a minimum of 30 to a maximum of 120 minutes within 30 calendar days from the date of hire. The meeting can take place during new employee orientations or at individual or group meetings, if the employer does not have new employee orientations;
  • The employer must provide the union in an excel format, or other agreed upon format, the name, job title, worksite location, home address, work phone number, home and personal cell number on file, date of hire, work email address and any personal email on file within ten (10) calendar days of hiring a new employee; and
  • After January 1, 2019, every 120 calendar days the employer must provide the unions, in an excel format, or other agreed upon format, the name, job title, worksite location, home address, work, home and personal cell numbers, date of hire, work email address and any personal email on file of all union employees.

Please note that the law does exempt the home addresses, phone numbers, email addresses, dates of birth, and negotiation units and groupings of employees, and the emails or other communications between the union and their members, prospective members, and non-members, from the definition of government records; thereby creating an exemption to the Open Public Records Act (OPRA).

The law also gives the unions the right to use the public employer’s email system to communicate with union members regarding collective negotiations, the administration of collective negotiations agreements, the investigation of grievances, other workplace related complaints and issues and internal union matters involving the governance or business of the union.

Further, the law gives the unions the right to use government buildings and other facilities owned or leased by the public employer to conduct union meetings. However, the meetings cannot be for the purpose of supporting or opposing any candidate for partisan political office, or for the purpose of distributing literature or information regarding partisan elections. A public employer may charge the union using a public building for maintenance, security and other costs related to the use of the government building or facility that would not otherwise be incurred by the government entity.

These new provision establish the minimum requirements for access to and communication with negotiations unit employees by union. At the request of the union, a public employer must negotiate in good faith contract provisions to memorialize the parties’ agreement to memorialize this new law. Negotiations must begin with ten (10) calendar days from the date of the request by the union to meet, even if a collective bargaining agreement is in effect at the time of the request. If you are unable to reach an agreement regarding access to and communication with the union members, the union or employer may file a petition with the Public Employment Relations Commission (PERC) to resolve the negotiations dispute. Upon receipt of a petition, PERC must appoint an arbitrator, who shall issue a binding award resolving the parties’ negotiations disputes.

The law also prohibits a public employer from encouraging union members to resign or relinquish their union membership or revoke their authorization of deduction of union dues. A public employer cannot encourage or discourage an employee from joining, forming or assisting a union. Any public employer that violates this provision will be found to have engaged in an unfair practice pursuant to N.J.S.A. 34:13A-5.4. Upon finding a violation has occurred, PERC shall order the public employer to make whole the union for any losses suffered by the union as a result of the public employer’s unlawful conduct and any other remedial relief deemed appropriate.

A public employee may revoke their union dues payroll deduction within ten (10) days following each anniversary of their date of employment by written notice to the employer. Within five (5) days of receipt of the written notice, the public employer must provide notice of the revocation of union dues to the union. The revocation of union dues becomes effective on the 30th day after the anniversary of the date of employment.

PERC has been given rulemaking authority under this new law.

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

Confusion Surrounds Misinterpretation of New Animal Cruelty Enforcement Law

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correct size blogOn January 16 of this year, former Governor Christie signed into law a bill that enacted major reforms, designed to improve enforcement of the State’s animal welfare and animal cruelty statutes. In response to reports of improprieties, the law eliminates the enforcement authority of the New Jersey Society for the Prevention of Cruelty to Animals.  Instead, the law implements a joint municipal-county system.

Please review the statute to make sure that your municipality is not being asked to do more than the statute, Chapter 331 of the Public Laws of 2017 require.   Also, please consult your municipal attorney regarding your responsibilities.

For now, you should be aware of the following:

Section 25 of the law requires the governing body of any municipality that has a police department to ‘submit at least one applicant for designation as a municipal humane law enforcement officer.’ The governing body’s application should go to your municipality’s chief law enforcement officer, or, in the absence of same, to the Superintendent of the New Jersey State Police. That officer will conduct a background check and either approve or reject the applicant. That Section, further, states:

The governing body of a municipality may designate as a municipal humane law enforcement officer any qualified individual.  An animal control officer or a police officer may serve concurrently as a municipal humane law enforcement officer, so long as the officer is able to effectively carry out the duties and responsibilities required of each position held.

d.)  (1) The governing body of a municipality with a full-time municipal police department may authorize a municipal humane law enforcement officer to possess, carry and use a firearm while enforcing the laws and ordinances enacted for the protection of animals if the officer:

(a)  has satisfactorily completed a firearms training course as defined in subsection j. of N.J.S.2C:39-6 and approved by the Police Training Commission; and (b)  twice annually qualifies in the use of a revolver or similar weapon.

(2)  A municipal humane law enforcement officer authorized to possess, carry, and use a firearm pursuant to this subsection shall be subject to the supervision of the chief law enforcement officer of the municipality. 

Section 4 of the law also asserts the governing body’s right to authorize a certified animal control officer to ‘serve concurrently as a municipal humane law enforcement officer.’ Additionally, Section 26 of the act permits a municipal humane law enforcement officer to be designated concurrently by more than one municipality, provided that the officer is able to effectively carry out the duties required of each designation, but excepting a municipal police officer who also serves as the municipal humane law enforcement officer from concurrently serving in that capacity in more than one municipality.  And, we see nothing in the act that would otherwise prevent a municipality from entering into a shared services agreement with a neighboring municipality for such an officer.

Other sections of the new law require the Police Training Commission to develop a program of instruction for a newly appointed municipal humane enforcement officer, which would need to be completed within one year of appointment. The Police Chief of the municipality can request a waiver from all or parts of the training requirements for an appointee who has already completed ‘substantially equivalent’ training.

If a violation of the act is brought to Superior Court by a county prosecutor by a municipal animal control officer or a municipal humane enforcement officer, Section 22 provides ‘ … the fines, penalties, or moneys collected shall be paid as follows:  one half to the municipality in which the violation occurred; and one half to the county  to be used for the purpose of protecting animals in the county .’ If the violation is brought to municipal court, which has a municipal humane enforcement officer, all fines and penalties will be paid to the municipality. If the violation is brought to the municipal court, in a municipality that does not have such an officer, the proceeds will be evenly divided between the municipality and the county. Finally, the Section provides that:

Any fines, penalties, or moneys paid to a municipality pursuant to subsection b. of this section shall be allocated by the municipality to defray the cost of (1)  enforcement of animal control, animal welfare , and animal cruelty laws and ordinances within the municipality; and (2)  the training therefor required of certified animal control officers and municipal humane law enforcement officers pursuant to law or other animal enforcement related training authorized by law for municipal employees.

To be clear, a municipality still needs to appoint an animal control officer. The new law doesn’t change that. It requires the appointment of a humane enforcement officer, also. But one individual can hold both offices.

Again, please review the new law with your Municipal Attorney. And please let us know if it poses any problems in your municipality so that we can petition the Legislature if remedial action is required.

Contacts:

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

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

S-5, PFRS Governance. Updated

 

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July 3, 2018 Update:

The Governor today signed this legislation into law, reflecting his recommendations which include a number of important taxpayer protections.    

Please see this post of May 10 which summarizes those changes.

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May 10.   Earlier today Governor Murphy conditionally vetoed S-5, which would transfer the management of the Police and Fire Retirement System (PFRS) to a Board of Trustees comprised of Labor and Management representatives.  In his veto message Governor Murphy noted that “unlike the State, New Jersey counties and municipalities have only rarely failed to make their full annual employer contribution when required to do so.” The Governor further noted that he is confident that his recommended changes “strike an appropriate balance by both empowering the new board with management of PFRS while continuing to protect the stability of the State’s pension funds, the expectations of PFRS members and, ultimately, the financial interests of the taxpayers of this State.”

 The League and Association of Counties opposed S-5 based on the lack of adequate protections and safeguards for property taxpayers.

The Governor’s conditional veto improves the original legislation, adding taxpayer protections and safeguards.    The League advocated for additional safeguards and protections, including a balanced board between labor and management, which are not included.   But we do appreciate that the Governor understood our concerns and included safeguards, which did not currently exist in either S-5 or the current pension system.

The conditional veto:

·       Continues to have the rate of return determined by the State Treasurer, instead of the Board of Trustees;

·       Requires at least eight (8) votes of the 12-member board for any change in benefits;

·       Prohibits any enhancement or reduction of benefits, including cost of living adjustments and changes to employee contribution rates, unless an actuary certifies that it does not increase employer contribution in the current year, and that such a change will not impact the long term viability of the fund;

·       Requires a majority of the authorized membership for a quorum;

·       Removes the language permitting the actuary to be an employee of the Board of Trustees;

·       Requires the actuary to be a fellow with the Society of Actuaries & an active member of the American Academy of Actuaries;

·       Removes the Board of Trustees’ authority to investment and reinvest the fund’s monies, as the power remains with the State Investment Council and Division of Investments;

·       Gives the Board of Trustees the authority to formulate and establish, amend, modify or repeal polices that will govern the methods, practices, and procedures for investments, reinvestments, purchase, sale or exchange of transactions, which the State Investment Council would follow for the PFRS fund;

·       Gives the Board of Trustees the authority to review and approve agreements which may be necessary and convenient for investment management;

·       Gives the Board of Trustees the authority to inspect and audit the respective PFRS accounts and funds administered by the Division of Investments. (Trustees are also permitted to take appropriate action as necessary to effectuate the long term viability of the system.);

·       The State retains 100% control over the Common Pension Fund L, which is the fund that includes the revenue from the State Lottery transfer;

·       The Executive Director serves without a term and may be removed upon notice and public hearing by a majority vote of the Board of Trustees;

·       Requires the Executive Director to act as a fiduciary to the retirement system and on behalf on the interest of the beneficiaries of the system;

·       Prohibits the Executive Director and Chief Investment Officer from being engaged in any other profession or occupation;

·       Changes the duties of the Chief Investment Officer to develop investment methods, practices and approaches and to coordinate with the Investment Committee;

·       Expands the qualification requirements of the Chief Investment Officer to include experience in direct management, analysis, supervision or investment of assets;

·       Requires a majority of the Investment Committee members to be qualified by training, experience or long term interest in the direct management, analysis, supervision or investment of assets. (Can be supplemented by academic training or practical experience in the fields of economics, business, law, finance, or actuarial science.);

·       State Treasurer remains the custodian of the funds;

·       Removes the mandated employer quarterly pension fund payments;

·       Removes the withholding of any property tax relief payments for non-payment of pension payments; and

·       Removes the Police and Fire Retirement System representatives from the State Investment Council.

Taxpayers will still be responsible for any fund shortfall if the investments returns are poor. Safeguards have been put into places, which have not previously existed, to ensure that benefits are not enhanced at the expense of taxpayers. The conditional veto requires an independent actuary certify that any benefit enhancement does not result in increased employer contributions and that such a change will not impact the long term viability of the fund.

The conditional veto has been returned to the Senate, which is the house of origin.    From there, the Senate is likely to consider accepting the Governor’s recommendations.   If the Senate and Assembly both accept the recommendations in the conditional veto, the bill is returned to the Governor for his consideration and signature.   The earliest the conditional veto can be considered by the Senate is June 7.

The fiscal perfect storm local governments are facing has dissipated a little with the conditional veto of S-5 but on the horizon is the continued expiration of the 2% Interest Arbitration cap, the underfunding of property tax relief and the impact of federal tax changes regarding the state and local government tax deductions. We call upon the Legislature and Administration to act immediately to renew the interest arbitration cap while we await the recommendations of the legislative committee to address the local property tax structure.

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