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Legal Q & A

Loitering Ordinances, the
'Whistleblower Act' and Recreation Commissioners


Deborah M. Kole
League Staff Attorney
books
Deborah M. Kole, League Staff Attorney

Q I am a new member of the governing body, and I have just been informed that the loitering ordinance in our municipality may be unenforceable. I found that surprising, since it has been in place for many years. Has something happened in the past few years to undermine the enforceability of such ordinances in New Jersey?

A A case decided by the Appellate Division of the New Jersey Superior Court in the past few years has called into question the validity of municipal loitering ordinances. In State of New Jersey (Township of West Orange) v. Carl A. Paserchia, 356 N.J. Super. 461 (2003), the Court ruled that N.J.S.A. 2C: 33-1 to -28 “reveals a (state) policy to comprehensively address street behavior and other conduct in public places which may disturb citizens and disrupt peaceful society.” These statutes are a part of New Jersey’s Criminal Code, and under the preemption provision of that Code, N.J.S.A. 2C: 1-5d, local governments cannot enact or enforce ordinances in conflict with or preempted by the Code.

The ordinance in question provided that “No person shall disturb, by any violent, abusive, loud or threatening language, or disorderly or indecent behavior of any kind, any lawful congregation or assembly of any kind or description in any place or building within the Township.” The Court found that N.J.S.A. 2C: 33-2, which makes intentional or reckless “improper behavior” or use of “offensive language” in public a petty disorderly persons offense, “addressed the same subject matter” as the ordinance. Therefore, the Court said that the Code preempted regulation of this type of conduct, and the ordinance was invalid.

This case may call into question the validity of parts or all of other local loitering laws. Along with the disorderly conduct provision of the Code discussed above, the Criminal Code addresses rioting and failure to disperse, harassment, obstructing public roads, and disrupting meetings and processions. Therefore, we urge you to consult with your municipal attorney to make sure your municipality’s ordinances do not conflict with or regulate areas preempted by the criminal statutes in light of the Paserchia ruling.

 

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Q We are a large municipality, and for many years, as long as it has been required, we have prominently posted the necessary notice to our employees required by the Conscientious Employee Protection Act, or “Whistleblower Act.” However, our new municipal attorney has informed us that this posting is no longer enough, and that some type of individual notice to each employee is required. When did this change come about, and what exactly is required?

A An amendment to the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 et seq. requires New Jersey employers with 10 or more employees to display and distribute an annual written or electronic notice to all New Jersey employees setting forth the employees’ “protections, obligations, rights and procedures” under CEPA, in English, Spanish and any language spoken by the majority of employees (at the employer’s discretion).

Under this new law, posting the notice is not enough. The notice must actually be distributed to each employee at least once a year. A copy of the required notice is available through the Department of Labor website. www.state.nj.us/labor/ (Click on “Conscientious Employee Protection Act” box on the lower left).

Q I thought that municipal recreation commissions under the New Jersey Statutes could only have three members. That is the number of members we have on the board in our municipality. However, our population has grown enormously in the past few years, and we would like to increase the number of people on the board. I notice that other municipalities seem to have more members on their recreation commissions. Is there a law that allows this increase in number of commissioners.

A N.J.S.A. 40:12-1 allows the mayor of a municipality to appoint from three to seven commissioners to a board of recreation commissioners. All commissioners must be citizens and residents of the municipality and receive no compensation for their services. The statute further provides: “In case of the increase of a board from three to five members or…five to seven members, the additional commissioners shall be appointed one for 4 years and one for 5 years, and in case of the increase from three to seven members, two of the additional commissioners shall be appointed for four years and two for five years.” After the increase, all appointments to five or seven person boards of recreation commissioners shall be for five-year terms, in contrast to the three-year terms of members of three person boards

This column is for informational purposes only, and is not intended as legal advice.

 

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