June 28, 2019 Edition
Statute of Limitations
As you may recall, on May 13th, Governor Murphy signed into law Senate, No. 477 (Vitale D-19/Scutari D-22), which eliminates the statute of limitations in certain civil actions for sexual abuse and expands the categories of defendants liable in such actions effective December 1, 2019.
In light of the concerns expressed by NJAC, the New Jersey State League of Municipalities (NJLM), and the New Jersey School Boards Association (NJSBA) that this new law would eliminate the safeguards provided local governing bodies under the New Jersey Tort Claims Act (TCA) as all lawsuits are defended with limited property taxpayer dollars, Governor Murphy including the following language at the bill signing. “I am also signing the bill based on a commitment from the bill’s sponsors to introduce and swiftly pass a bill that will correct an error in the section of the bill relating to the liability of public entities. This section inadvertently fails to establish a standard of proof for cases involving claims filed against public entities. If unaddressed, the lack of clarity would create uncertainty and likely lead to additional litigation. I have received assurances that the Legislature will correct this omission by clarifying that public entities should be held to the same standard of liability that is applied to religious and nonprofit organizations. Applying a different standard would be unjustified. “
As such, Senators Joe Vitale (D-19) and Nicholas Scutari (D-22) and Assemblywomen Annette Quijano (D-22) and Assemblywoman Carol Murphy (D-7) introduced Senate, No. 3739, which would establish new liability standards in sexual abuse lawsuits filed against public entities and public employees. In general, the measure would establish standards that would be identical to the liability standards applied to non-profit organizations under the Charitable Immunity Act. Given that S-477 eliminated the protections under the Tort Claims Act, NJAC, NJLM, and NJSBA have been advocating for the Legislature to pass S-3739 as it would re-establish some additional layers of protection for local governing bodies while preserving the intent of the new law. Governor Murphy is expected to sign the measure into law shortly. Please note that S-477 and S-3739 present several complex legal challenges, and we recommend county counsels to review both measures in their entirety as this summary provides an abridged version of the matter.
Open Public Meetings and Records
On May 17th, NJAC, the New Jersey State League of Municipalities (NJLM), and the New Jersey School Boards Association (NJSBA) testified before the Senate Budget and Appropriations Committee on Senate, Nos. 106 & 107 (Weinberg D-37/Pennacchio R-26), which would revise the Open Public Meetings Act (OPMA) and Open Public Records Act (OPRA) respectively.
Although NJAC commends Senator Weinberg for taking the time to work with stakeholders as the Association is a strong proponent of openness and transparency in government and appreciates the fact that this legislation would modernize the government records process and authorize local governing bodies to impose surcharges on commercial entities under certain circumstance, we remain concerned with the provisions below and their impact on daily operations, staff time and resources, and exposure to liability given the following generalizations: a clerk of the board of chosen freeholders typically employs between 3-4 staff members; county governments process between 250 to 3000 record requests each year; a single record’s request may take up to 10 hours to process; only two counties currently pay transcribing services to record meeting minutes; a clerk of the board or county administrator generally serve as the custodian of records.
- Agenda Matters: the Open Public Meetings Act OPMA legislation under S-106, would require providing adequate notice, which “shall include each individual time to be discussed or acted upon, and a brief description thereof, and shall identify the names of the parties to and approximate dollar amounts of any contracts, including employment contracts, to be discussed or acted upon.” Does identifying the names of the parties to and approximate dollar amounts of any contracts, including employment contracts, include the total value of a collective bargaining agreement? This section needs additional clarification.
- Meeting Minutes: the OPMA legislation would require providing comprehensive meeting minutes that include “the time and place, the members present, the subjects considered, the actions taken, including all motions made, the identities of the moving and seconding parties members, the vote of each member, and each member’s stated reasons if any, for his or her action or vote, the identity of each member of the public who spoke and a summary of what was said….” The requirement to include the stated reasons, if any, for a member’s action on a vote would impact county operations and may force counties to hire a transcribing service to make sure that accurate meeting minutes are taken.
- Meeting Minutes: The OPMA legislation would require that “minutes shall be made available to the public as soon as possible but not later than 15 days after the next meeting of the public body occurring after the meeting for which the minutes were prepared….” Requiring meeting minutes to be made available to the public not later than 15 days after the next meeting of the public body occurring after the meeting for which the minutes were prepared would impact county operations and may force counties to hire additional staff and reduce services elsewhere. NJAC recommends that if a public body video or audio records a public meeting, then providing access to the video or audio recording should supplant the need to take and provide comprehensive meetings minutes as means to streamline the process and provide an open and transparent record of the meeting.
- Attorney’s Fees: The OPMA legislation would require “any party, other than a public body, that prevails in an action brought pursuant to this section, shall be awarded the amount of reasonable attorney’s fees incurred in bringing the action. The cost of any attorney’s fee awarded by the court shall be paid by the public body.” NJAC recommends that the courts and Government Records Council should retain the flexibility to award reasonable attorney’s fees as such fees are paid for by property taxpayer dollars.
- Redaction of Records: The OPRA legislation under S-107 and as amended, would require the custodian of a government record whom redacts information from copy of the record to provide “the requestor with a redacted version of the document and one written statement for the entire request that states the date of the record, the originator or author of the record, the subject matter or title of the record, the number of pages with redactions, and the specific statutory provision or other lawful basis for each such redaction. The custodian shall redact any such information by deleting or obstructing only that information and shall not alter in any manner the space in the government record formerly occupied by such redacted information….” Although NJAC certainly appreciates the proposed changes, the new language would still impose an undue burden on county operations and force an administrator to assign an attorney to process requests at a significant expense. As noted above, counties typically assign its clerk of the board or administrator as the county’s custodian of records.
The Committee favorably reported the measure, but the Senate did not vote on the bills on June 20th as initially expected. The companion versions Assembly, Nos. 1018 & 1019 (Johnson D-37/Benson D-14) are currently in the Assembly State and Local Government Committee awaiting consideration.
Isolated Confinement
Thank you to Senator Nellie Pou (D-35) and Assemblywoman Nancy Pinkin (D-18) for taking the time to meet with NJAC and the New Jersey County Jail Wardens Association (NJCJWA) to discuss Assembly, No. 314 (Pinkin D-18/Sumter D-35)(Pou D-35/Cunningham D-31), which would limit the use of isolated confinement in State and county correctional facilities. Both houses passed the legislation on June 20th, and Governor Murphy is likely to sign the measure into law.
The bill as amended addresses several of our operational concerns as it would generally prohibit inmates from being placed in isolated confinement unless the correctional facility establishes by clear and convincing evidence that there is reasonable cause to believe that the inmate or others would be at substantial risk of immediate or serious harm as evidenced by recent threats or conduct, and any less restrictive intervention would be insufficient to reduce that risk. The bill as amended would define isolated confinement as “confinement of an inmate in a correctional facility, pursuant to disciplinary, administrative, protective, investigative, medical, or other classification, in a cell or similarly confined holding or living space, alone or with other inmates, for approximately 20 hours or more per day in a State correctional facility or 22 hours or more per day in a county correctional facility, with severely restricted activity, movement, and social interaction.” As introduced, the measure would have prohibited a county correctional facility from holding an inmate for more than 20 hours, which would have presented significant staffing, resource, logistic, and safety challenges, so the change to 22 hours is very much appreciated. Please note that current State regulations and federal guidelines are set at 23 hours.
A-314 would also require qualified healthcare personnel to conduct a personal and comprehensive medical and mental health examination before a State inmate may be placed in isolated confinement. With respect to county inmates, the bill as amended would require a preliminary examination by medical staff within 12 hours of confinement and a clinical examination within 48 hours of confinement but may be extended to 72 hours if staffing levels require. As introduced, the measure would have required county correctional facilities to conduct an examination at 48 hours, which would have required hiring or contracting for additional medical staff, so extending the time frame to 72 hours is also very much appreciated. Additionally, the bill would provide inmates with the opportunity to contest the confinement and have the right to an initial hearing within 72 hours of placement, absent exigent circumstances, with subsequent reviews every 30 days. Inmates would have the right to appear at the hearing presided over by an independent hearing officer, have representation, and receive a written statement explaining the reasons for the decision made at the hearing. The facility administrator would be responsible for making the final decision to place an inmate in isolated confinement and to remove an inmate who no longer meets the standards for confinement.
The legislation would further require that qualified healthcare personnel conduct a daily mental health and physical health status examination of State inmates to determine whether the inmate is a member of a vulnerable population; and county inmates would be evaluated by a member of the medical staff at least once per week. Inmates determined to be a member of a vulnerable population would be immediately moved to an appropriate placement. The bill would define an as a member of a vulnerable population: “if he or she is 21 years of age or younger; is 65 years of age or older; has a disability based on a mental illness, a history of psychiatric hospitalization, or has recently exhibited conduct, including but not limited to serious self-mutilation, indicating the need for further observation or evaluation to determine the presence of mental illness; has a developmental disability; has a serious medical condition which cannot effectively be treated in isolated confinement; is pregnant; is in the postpartum period, or has recently suffered a miscarriage or terminated a pregnancy; has a significant auditory or visual impairment; or is perceived to be lesbian, gay, bisexual, transgender, or intersex.” At the request of NJCJWA, the bill as amended would define “postpartum period” as 45 days after childbirth.
A-314 as amended would also restrict inmates placed in isolated confinement to not more than 20 consecutive days, or for more than 30 days during any 60-day period. As introduced, the bill would have restricted isolated confinement to not more than 15 days, or for more than 20 days during any 60 period, which would have created substantial staffing, resource, security, and logistic challenges. One final change worth noting, is that the sponsors also agreed to amend the legislation to prohibit “a county correctional facility from directly releasing from isolated confinement to the community during the final 30 days of the inmate’s incarceration, unless it’s necessary for the safety of inmate, staff, other inmates, or the public.” As introduced, the measure would have prohibited the release of an inmate within 180 days, so this change was critical as most inmates in county jails are awaiting trial with an average length of stay of 21 days.
Special thanks to Passaic County Jail Warden Mike Tolerico, Burlington County Jail Warden Matthew Leith, Retired Burlington County Jail Warden Millie Scholtz, and Hudson County Deputy County Administrator Oscar Aviles for their leadership and hard work on this important and sensitive matter.
County Correctional Police Officers
On June 27th, both houses passed Senate, No. 1739/Assembly, No. 3236 (Van Drew D-1/Oroho R-24)(Land D-1/Andrzejczak D-1), which would retitle county correction officers as county correctional police officers.
Earlier this year, the Assembly Law and Public Safety Committee amended the legislation to clarify that the measure would not authorize the transfer of pension benefits from the Public Employee Retirement System (PERS) to the Police and Firemen’s Retirement System (PFRS) for county correction officers. NJAC advocated for this change to clarify that the bill would not alter the pension benefits of any person whose title would change. In general, county correction officers that participate in PERS are typically hired by counties at 35 years of age or older or fail to meet other PFRS requirements. Approximately 250 county correction officers statewide fall into this category, and that the transfer of these employees from PERS to PFRS would cost approximately $3.7 million per year statewide for active employees. Please note that the current employer pension contribution rate for PERS employees is 13.37% of an employee’s annual salary, while the current employer pension contribution rate for PFRS employees is 27.3%. This figure does not include employees who would transfer from PERS to PFRS and then retiree, and that PFRS retirees are costlier for local governing bodies as their pension benefits are greater and may be taken for a longer.
In general, the measure would direct the Civil Service Committee to retitle county correction officers as county correctional police officers, sergeants as county correctional police sergeants, lieutenants as county correctional police lieutenants, captains as county correctional police captains as county correctional police captains, deputy wardens and county correctional police deputy wardens, and wardens as county correctional police warden. The legislation would also require any fees associated with the retitling to be borne by the corrections officer whose title has been changed such as any costs associated with an updated uniform, badge, or equipment. Governor Murphy is expected to sign the bill into law to mirror the title change made for State correctional police officers in 2017.
Code Blue Alerts
On June 20th, the Senate passed by a vote of 34-2 Senate, No. 3422 (Singer R-30/Kean R-21), which would require counties to declare a Code Blue alert when the National Weather Service (NWS) predicts the temperature to be 32 degrees Fahrenheit or lower.
Although NJAC commends senators Singer and Kean for their efforts to provide comfort for at-risk individuals during severe weather events, this legislation does not contain a funding mechanism or State appropriation to offset the costs associated with extending the 2017 law that counties, municipalities, social service agencies, and non-profit organizations have struggled to implement. As you may recall, in that year, Governor Christie signed into law legislation that requires county governing bodies, through their offices of emergency management or other appropriate offices, agencies or departments, to establish plans for issuing Code Blue alerts to municipalities, social service agencies, and non-profit organizations that provide services to at-risk individuals and are located within the county’s borders. In summary, the new law requires emergency management coordinators to declare a Code Blue alert after evaluating weather forecasts and advisories produced by the National Weather Service that predict the following weather conditions in the county within 24 to 48 hours: temperatures will reach 25 degrees Fahrenheit or lower without precipitation; or 32 degrees Fahrenheit or lower with precipitation; or, the National Weather Service wind chill temperature will be 0 degrees Fahrenheit or less for a period of 2 hours or more.
Under the leadership of Senator Troy Singleton (D-7) and Assemblywoman Pintor Marin (D-29), Governor Phil Murphy recently signed into law A-4177, which now authorizes county governments to increase the homelessness housing fund surcharge from $3.00 to $5.00 and to use the $2.00 increase to support emergency shelter for homeless services provided during a Code Blue alert. NJAC supported this important and timely initiative as one of our top legislative priorities as it should help freeholder boards provide adequate shelter for homeless individuals during inclement weather without affecting existing programs that support permanent housing and self-sufficiency. Although certainly well intended, S-3422 would establish an even greater financial burden to the 2017 law that would make issuing a Code Blue alert more costly and difficult to implement, manage, and sustain. In fact, setting the parameters for issuing a Code Blue alert at 32 degrees Fahrenheit or lower would double the amount of Code Blue nights and would lead to increased costs as noted above, depleted staff and resources, and fatigued volunteers. A companion version of the legislation does not currently exist in the General Assembly.
Local Aid Allocations
On June 26th, Governor Murphy signed into law Senate, No. 2863 (Sarlo D36)(Sweeney D-3)(Benson D-14)(Jone D-%), which revises the requirements for receiving grant funding from the Local Aid program under the Transportation Trust Fund (TTF). The final version of this new law addresses the vast majority of our initial concerns with the bill as introduced; and, thank you to the New Jersey Society of County Engineers for their leadership and hard work on this matter.
In summary, this new law now requires the New Jersey Department of Transportation (DOT) to execute agreements with a county receiving Local Aid funds 90 days from the date that the county applies for funding or by April 1st of the following year, whichever is later; and, with a municipality receiving Local Aid funds 90 days from the DOT distributes the award letter to the municipality or by March 1st of the following year, or whichever is later. The law further requires a county to begin expending aid allotments within 3 years from the date that the county receives notification from DOT of that year’s allotment and a municipality to begin expending aid allotments within two years from the date that the municipality receives notification from DOT that year’s allotment. The new law also allows the DOT Commissioner to reallocate rescinded Local Aid awards to non-Local Aid projects; and, changes the circumstances under which a municipality may request an extension for up to 6 months. Lastly, the measure requires all bidders on Local Aid program funded construction contracts valued at more than $5,000,000 to be prequalified by DOT. S-2863 took effect immediately.
Explainer: Where Governor, Lawmakers Differ on Budgeting for a Downturn by John Reitmeyer, June 26, 2019
A key area where Gov. Phil Murphy and lawmakers remain at odds in the final days before a new state budget must be enacted is over how the state should prepare for the next recession. Two different funds — both part of the state budget — actually serve this purpose. But those reserve funds don’t operate in the same way and that difference is at the heart of the ongoing disagreement between Murphy and lawmakers.
What are the two funds? One is the Surplus Revenue Fund — more commonly referred to as the rainy-day fund. This account is supposed to be replenished during times of economic expansion to ensure the state has enough money socked away to help absorb the big swings in revenue that come during recessions. New Jersey’s rainy-day fund has been neglected for over a decade after it ran dry during the Great Recession, and Murphy, a Democrat, wants a $317 million deposit in it as part of his fiscal year 2020 spending plan. The other account at issue is the Fund Balance — more commonly referred to as simply the surplus. This account is used as a cushion to ensure the budget doesn’t run on too narrow a margin on a year-to-year basis. That helps the state absorb unforeseen expenses or drops in revenue that could derail a given year’s entire budget. The Legislature, which is controlled by Democrats, anticipates a surplus of $1.41 billion in the FY2020 spending bill it sent to Murphy last week. Meanwhile, Murphy budgeted for a surplus of $1.15 billion in the spending request he sent to lawmakers in March.
What’s the key difference between these funds? While both funds were set up to help keep the state prepared for fluctuations in revenues and projected spending, the surplus is generally an unrestricted account. That means the revenue that’s kept in it can be used to pay for pretty much anything, and at any time. By contrast, the monies deposited into the rainy-day fund can by law only be used when there is a significant drop-off in revenue or some other type of budget emergency. State law also calls for revenue to be automatically deposited into the rainy-day fund when certain conditions arise, including unforeseen surges in tax collections. But no such law exists to direct funding into the surplus.
Why is this disagreement important? Keeping money on the side gives governors and lawmakers vital peace of mind because there are always going to be ups and downs in spending and revenue as the 12-month fiscal year progresses. Maintaining robust reserves, including a rainy-day fund, is also a key issue for the Wall Street credit-rating firms that grade New Jersey’s debt every time the state wants to sell bonds to finance long-term investments in things likes roads and schools. Investors can charge the state higher interest rates when the ratings firms flag inadequate budget reserves, and those higher costs are typically passed along to taxpayers.
Another important factor relates to policy changes that lawmakers have passed in recent years as part of a push to get more funding into the public-worker pension system. Those changes, which include shifting to a quarterly pension-payment schedule and dedicating roughly $1 billion in annual state Lottery revenue to the retirement funds, have made it harder for lawmakers to raid money from the pension payment whenever there are revenue shortfalls. Such raids last occurred in 2014 and 2015 when former Republican Gov. Chris Christie was in office. While that’s been good for the pension system — which is another top concern for credit-rating firms — it means there’s no other big pot of money available to backstop the rainy-day fund and the surplus.
What do other states do? Whether it’s building up the rainy-day fund or the surplus, New Jersey has been a national outlier when it comes to budget reserves. A recent analysis by The Pew Charitable Trusts found that as of fiscal year 2018, New Jersey was keeping only enough funds aside in reserves to cover about eight days’ worth of state operating expenses. That was well below the 50-state median of 40.4 days. Another Pew analysis found that New Jersey also remains one of only three states that continue to have no money set aside in a rainy-day fund even as economists have been predicting another recession is right around the corner.
How can this disagreement be resolved? It’s hard to say but, at the end of the day, Murphy will likely have the final say thanks to routine language in the annual budget. That section of the budget supersedes the rainy-day fund law. And it allows for transfers from the rainy-day fund to the General Fund to occur, which is what lawmakers are seeking to do in FY2020 to boost the surplus. But any transfer is also “subject to the approval” of Treasury officials. It’s also worth noting that there really is only a comparatively small difference — less than $100 million — between the combined revenues that Murphy has booked for both the rainy-day fund and the surplus, and the amount that lawmakers want to put entirely into the surplus.
Upcoming NJAC Events
We look forward to seeing you at NJAC’s Annual Night at the Ballpark on July 18th to watch the Hartford Yard Goats take on the Trenton Thunder at Arm & Hammer Park in Trenton. This event is free for county officials, but space is limited, so please visit our website at www.njac.org for additional details.
State House Trivia: Did you know that the first Fourth of July fireworks display was held in 1777 to commemorate the first anniversary of the American Colonies Declaration of Independence; and, that Americans now spend nearly $700 million each year on buying firecrackers, sparklers, and bottle rockets?
“America was not built on fear. America was built on courage, on imagination, and on an unbeatable determination to do the job at hand.” – Harry S. Truman