Articles Posted in Government & Administrative Law

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At issue in this appeal was a judgment requiring the release, pursuant to the Open Public Records Act (OPRA), of the constitution and bylaws of a volunteer fire company that was a member of a fire district established pursuant to N.J.S.A.40A:14-70. The New Jersey Supreme Court held the fire district, to which the OPRA request was made, was obliged to release such documents in its possession or to obtain them from a member volunteer fire company under its supervision and release them. "OPRA demands such transparency and accountability of public agencies, and the fire district is undoubtedly a public agency subject to OPRA." However, to the extent the holding under review also concluded that the member volunteer fire company was a public agency subject directly and independently to OPRA requirements, the Supreme Court disagreed and modified the judgment below accordingly. View "Verry v. Franklin Fire District No. 1" on Justia Law

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The issue before the New Jersey Supreme Court in this case was whether, after a public entity denies a citizen's record request pursuant to the New Jersey Open Public Records Act (OPRA) and the common law right of access, the entity can be precluded from instituting a proceeding under the Declaratory Judgment Act (DJA). A month after the Appellate Division declared the New Jersey Firemen Association to be a public entity, plaintiff Jeff Carter submitted a request for the Association to release certain financial relief information issued to an Association member, John Doe. The Association refused, contending that disclosure would compromise the reasonable expectation of privacy that applicants, such as Doe, have when seeking its assistance. Carter renewed his request, claiming he was entitled to certain payroll records with appropriate redactions. The Association responded by filing a declaratory judgment action to obtain a judicial determination of its responsibilities under OPRA when it is asked to disclose the personal financial information of its members. Carter answered, counterclaimed, and filed a third-party complaint against Doe. At that point, Carter narrowed his records request to the relief checks paid to Doe. The trial court found that, under OPRA and the common law, Doe's privacy interest outweighed the public's interest in disclosure. The Appellate Division reversed and held that the Association s DJA complaint was improper because OPRA exclusively vests the requestor, not the custodian, with the right to institute a proceeding. The Appellate Division also determined that Doe's privacy interest was not substantial enough to outweigh the public's interest in government transparency. The New Jersey Supreme Court reversed the Appellate Division, concluding OPRA does not, in all instances, prohibit a public entity from instituting proceedings under the DJA to determine whether records are subject to disclosure. In addition, after carefully balancing the public's interest in accessing information against the private interest in confidentiality, the Court found find the relief checks to Doe were exempt from disclosure under OPRA and the common law right of access. View "In the Matter of the New Jersey Firemen Association Obligation to Provide Relief Applications Under the Open Public Records Act" on Justia Law

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This appeal involved the collective negotiations agreements CNAs between: (1) Atlantic County and the Fraternal Order of Police, Atlantic Lodge #34 (FOP Lodge 34); (2) Atlantic County and the Atlantic County Prosecutor s Office, P.B.A. Local #77 (PBA Local 77); and (3) Bridgewater Township and the Policemen s Benevolent Association, Local #174 (PBA Local 174). Atlantic County informed FOP Lodge 34 and PBA Local 77 that when their respective CNAs expired the County would no longer implement the incremental salary scheme provided for in those contracts. Both unions filed charges with the Public Employment Relations Commission (PERC or the Commission), claiming that Atlantic County had engaged in an unfair labor practice, contrary to the Employer-Employee Relations Act (EERA). The hearing examiner agreed with the unions and found that Atlantic County's departure from the dynamic status quo, in this case, the refusal to pay automatic increments, constituted a unilateral change in a mandatory subject of negotiations in violation of the [EERA]. Atlantic County petitioned PERC for review, and the Commission came to the opposite conclusion. All three unions appealed. The Appellate Division consolidated the cases and reversed the Commission. The New Jersey Supreme Court did not determine whether, as a general rule, an employer must maintain the status quo while negotiating a successor agreement. In these cases, the governing contract language required that the terms and conditions of the respective agreements, including the salary step increases, remain in place until a new CNA is reached. Therefore, the judgment of the Appellate Division was affirmed on other grounds. View "In the Matter of Atlantic County" on Justia Law

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The New Jersey Supreme Court addressed the scope of a municipality's obligation to disclose electronically stored information in accordance with the New Jersey Open Public Records Act (OPRA). Plaintiff John Paff filed a request with Galloway Township's records custodian for specific information in emails sent by the Township's Municipal Clerk and Chief of Police over a two-week period. From those emails, Paff sought only information contained within the following fields: sender, recipient, date, and subject. Paff did not request the contents of the emails. The Township contended that only the emails (not specific information embedded within them) were government records subject to disclosure under OPRA. On that basis, the Township denied the records request. The trial court ordered the production of the fields of information sought by Paff because OPRA defined a government record as information stored or maintained electronically by a municipality. A panel of the Appellate Division reversed, concluding that OPRA required only the production of the emails, not information electronically stored within them. The Supreme Court held the Appellate Division's overly constrictive reading of OPRA "cannot be squared with OPRA s objectives or statutory language." The Appellate Division erred in finding that the government record is the email itself and not the easily accessible fields of information that were maintained electronically. View "Paff v. Galloway Township" on Justia Law

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Petitioners-parolees challenged the constitutionality of the practices of the New Jersey State Parole Board in administering polygraph examinations to sex offenders serving either parole supervision for life (PSL) or community supervision for life (CSL) sentences. . Although it recognized the controversy concerning polygraph examination accuracy, the trial court explained that the Parole Board exercised care in incorporating exam results into decision-making and never used the results as the exclusive basis to justify a modification of parole. Further, the trial court found expert testimony indicating that polygraph examinations were a valuable tool in the therapeutic treatment of sex offenders to be particularly compelling. The Appellate Division thereafter upheld the Parole Board’s use of polygraph testing, subject to certain restrictions. The Supreme Court upheld the Parole Board’s use of polygraph testing with the same limitations as the Appellate Division, but added that the Parole Board’s regulations had to be further supplemented to buttress the parolees’ Fifth Amendment right against self-incrimination. View "J.B. v. New Jersey State Parole Board" on Justia Law

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The Washington Township Education Association was the major union representative for employees of the Robbinsville Township Board of Education. Relevant to the events in this matter, the Board and the Association were bound by a collective negotiation agreement during the period of July 1, 2008 through June 30, 2011. According to Article 5.3 of the Agreement, the teachers salaries were based on the number of school-year work days, which contract negotiations established to be 188 days for new teachers and 185 days for all other teachers. On March 17, 2010, during a time of declared fiscal emergency, the State notified the Board that State education funding to the district would be reduced by fifty-eight percent for the upcoming 2010-2011 school year. Reeling from that significant funding reduction, the Board took action: it revised its budget for the next school year by cutting educational programs, freezing salaries, and laying off approximately thirteen teaching and staff positions. Because those attempts were insufficient to balance the school district's budget, on March 19, 2010, the Board asked the Association to re-open contract negotiations for the 2010-2011 school year. The Association, citing its members best interests, declined to re-open discussions mid-contract. The Association also did not respond to the Board s subsequent request on April 13 to reconsider re-opening negotiations. The Board announced a decision to impose involuntary furlough days on teachers, knowing that the furloughed days would impact the affected employees' wages. An unfair labor charge was filed with the Public Employment Relations Commission (PERC). The Appellate Division granted summary judgment in favor of the Board. But the Supreme Court reversed, finding that the Appellate Division's decision was based on an overly broad and mistaken reading of the controlling case-law for this matter. View "In the Matter of Robbinsville Twp. Bd. of Education v. Washington Township Education Assn." on Justia Law

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The Township of Bloomfield (Township) declined to release a day's worth of videotape footage from a security camera attached to the second story of Bloomfield Town Hall, adjacent to the police station. The request came from a citizen request pursuant to the Open Public Records Act (OPRA). According to the Township, allowing unrestricted access to security camera videotape -- which would reveal not only what is and is not captured by the security camera, but also when and how well it is captured -- would undermine the purpose of having a security camera system protecting the buildings and people within them. The Township asserted that the security exclusions of OPRA permitted withholding the videotape. The Supreme Court agreed with this assertion and held security exclusions precluded disclosure under OPRA of the videotape requested in this matter. View "Gilleran v. Township of Bloomfield" on Justia Law

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In 2010, the Township of Franklin (the Township) adopted an ordinance revising its regulation of signs, including billboards. The ordinance permits billboards, subject to multiple conditions, in a zoning district proximate to an interstate highway but expressly prohibited digital billboards anywhere in the municipality. A company seeking to install a digital billboard challenged the constitutionality of the ordinance. The Law Division declared unconstitutional that portion of the ordinance barring digital billboards. The trial court viewed the Township's treatment of such devices as a total ban on a mode of communication. In a reported opinion, the Appellate Division reversed. Applying the "Central Hudson" commercial speech standard and the "Clark/Ward" time, place, and manner standard to content-neutral regulations affecting speech, the appellate panel determined that the ban on digital billboards passed constitutional muster. The Supreme Court disagreed: "simply invoking aesthetics and public safety to ban a type of sign, without more, does not carry the day." The Court declared the 2010 ban on digital billboards as unconstitutional and reversed the judgment of the Appellate Division. View "E&J Equities v. Board of Adjustment of Franklin Township" on Justia Law

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In 2013, the State Board of Nursing invoked N.J.A.C. 13:37-1.3(c)(2) to deny accreditation to the Licensed Practical Nurse to Registered Nurse Bridge Program (Bridge Program), a nursing program instituted by Eastwick College (Eastwick). Interpreting the term graduating class in N.J.A.C. 13:37-1.3(c)(2) to include all graduates of the program who took the licensing examination during a given calendar year, regardless of the year a particular student graduated from the program, the Board found that Eastwick's Bridge Program's first and second graduating classes failed to achieve the 75% pass rate mandated by the regulation. Eastwick appealed the Board's determination, challenging the methodology used by the Board to calculate the pass rate of the Bridge Program's graduates on the licensing examination. Eastwick contended that only students who graduated during a specific calendar year and took the licensing examination in that year should be included in that year's graduating class. Using that methodology, Eastwick argued that its second graduating class had a pass rate in excess of 75%, and that the Board improperly declined to accredit its nursing program. An Appellate Division panel affirmed the Board's determination denying accreditation. Based on the plain language of N.J.A.C. 13:37-1.3(c)(2), the New Jersey Supreme Court concluded that the Board's construction of its regulation was plainly unreasonable, and accordingly held that the Board improperly denied accreditation to Eastwick's Bridge Program. The Court therefore reversed the Appellate Division's judgment affirming the Board's action, and remanded this matter for further proceedings. View "In the Matter of the Revocation or the Suspension of the Provisional Accreditation of and/or the Imposition of Probation on Eastwick College LPN-to-RN Bridge Program" on Justia Law

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The issue before the New Jersey Supreme Court in this case was whether the 2011 suspension of State pension cost-of-living adjustments (COLAs) contravened a term of the contract right granted under the earlier enacted non-forfeitable right statute, L.1997, c.113 (codified as N.J.S.A.43:3C-9.5). Qualifying members of the State's public pension systems or funds were granted a non-forfeitable right to receive benefits as provided under the laws governing the retirement system or fund. By codifying that non-forfeitable right to receive benefits, the Legislature provided that the benefits program, for any employee for whom the right has attached, could not be reduced. Whether COLAs were part of the benefits program protected by N.J.S.A. 43:3C-9.5 depended on whether the Legislature, in enacting N.J.S.A. 43:3C-9.5(a) and (b), intended to create a contractual right to COLAs. The Supreme Court found in this instance, proof of unequivocal intent to create a non-forfeitable right to yet-unreceived COLAs was lacking. Although both plaintiff retirees and the State advanced plausible arguments on that question, "the lack of such unmistakable legislative intent dooms plaintiffs' position." The Court concluded that the Legislature retained its inherent sovereign right to act in its best judgment of the public interest and to pass legislation suspending further COLAs. Having determined that there was no contract violation, and because the additional arguments advanced by plaintiffs were not meritorious, the Court reversed the Appellate Division's judgment holding to the contrary. View "Berg v. Christie" on Justia Law