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Legal Q & A

 

OPRA Requests,
Mayors' Powers
and Cash Awards


Deborah M. Kole
League Staff Attorney
books
D. Kole

Q I am the clerk for my municipality, and like most municipal clerks, I have handled many requests under the Open Public Records Act over the past couple of years. However, I have finally received an OPRA request that I do not know how to handle. A resident who had a variance application denied has asked me for all “similar variance denials” by the municipality. Even if I knew what denials he would consider “similar” to his, I would not know how to begin gathering this information. How should I handle this?

A According to rulings of the Government Records Council and the Appellate Division, this request is not an appropriate Open Public Records Act request. OPRA requests must be for specific, identifiable records, rather than information. The requester cannot require that the records custodian do research to find all records on a broad topic like the one you describe. In Reda v. TP. of West Milford, GRC Complaint No. 2002-58 (January 17, 2003), an individual asked for information regarding a municipality’s liability settlements, but did not request specific records. The GRC rejected the request, noting that the custodian is only required to retrieve records, and the requester must do any research and analysis required.

The Appellate Division reversed the Law Division order requiring defendant to comply with an improper OPRA request in MAG Entertainment. LLC v. Division of Alcoholic Beverage Control, 375 NJ Super 534 (App. Div. 2005). The requester asked for all records concerning ABC suspensions of liquor licenses for serving liquor to an intoxicated person in connection with a fatal auto accident or concerning such suspensions for more than 45 days for “lewd or immoral activity.” In denying the request, the Court said “…OPRA does not countenance open-ended searches of an agency’s files…(T)he request failed to identify with any specificity or particularity the governmental records sought…”

Similarly, the request that was made to you is not an appropriate OPRA request. You should explain to the requester in your denial why you cannot comply with the request as given. If he can identify the records sufficiently so that you can retrieve them without extensive research and analysis, then you should, of course, do so.

 

 

 

Q I am a council member in a municipality governed by the Mayor-Council form of government under the Faulkner Act. The council has always retained professional consultants for the council by resolution, without the participation of the mayor. The new municipal attorney has called this procedure into question, claiming that the mayor must negotiate all contracts for the municipality under our form of government, subject to the approval of council. I always thought that the mayor and council were equal in power in the mayor-council form, and that therefore the council would have sole responsibility concerning contracting with professionals who would work with the council. After all, these consultants aid us in exercising our “legislative and investigative” functions under N.J.S.A. 40:69A-32(b). Who is right?

A Your municipal attorney is right, according to a recent New Jersey Supreme Court case concerning a similar fact pattern. In Municipal Council of the City of Newark v. Sharpe James, Mayor of the City of Newark, 183 NJ 361(2005), the court noted the statute section you mention, allotting certain general functions to the mayor and other general functions to the council in the mayor-council form of government, but pointed out that this general division of powers applied under the law “ …unless the explicit terms and context of (any) statute require a contrary construction.” Therefore, the court said, the allocation of powers expressed in N.J.S.A. 40:69A-32(b) has no relevance to the negotiation of contracts in such a municipality, because N.J.S.A. 40:69A-40 j. specifically gives the mayor the duty to “Negotiate contracts for the municipality, subject to council approval.” It is unnecessary to analyze whether contract negotiation is a legislative (council) function or an executive (mayoral) function because the statute specifically assigns this power to the mayor.

Q Can a municipal governing body give out cash awards to its employees? Is this an appropriate use of municipal funds?

A New Jersey specifically authorizes cash and other awards to county and municipal officers and employees under N.J.S.A. 40A:9-18, as long as they are given as part of an awards program established by resolution. These awards may be in the form of “cash, medals, certificates, insignia, or other appropriate devices or tokens of appreciation…” The statute also provides that funds may be appropriated for such a program.

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

 

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