407 West State Street, Trenton, NJ 08618  (609)695-3481  New Jersey League of Municipalities logo 
William G. Dressel Jr, Executive Director - Michael J. Darcey, CAE, Asst Executive Director

Legal Q & A

 

Civil Service "Opt Out"
Open Public Meetings Act and
Retirement Health Benefits



Deborah M. Kole
League Staff Attorney

Q For many years, our municipality has been part of the civil service system. However, we would now like to "opt out" of the system, but we cannot seem to find the procedure for doing so. How can we accomplish this?

A There is a simple reason why you cannot find this procedure—it does not exist. Although it may seem illogical, a municipality cannot "opt out" of civil service once it has become part of the system. The reason for this oddity is historic. The civil service system is intended to encourage fair employment practices in government, and therefore, once a municipality has chosen to go this preferred route, it is in the system permanently.

Another way in which civil service employment receives a kind of special treatment can be seen in the Local Government Ethics Law. The general one year prohibition on employment for compensation by an independent local authority of a former member after he or she leaves the authority does not apply to a civil service position filled by open competitive examination under N.J.S.A. 40A:9-22.5 b. (3). The civil service system, in this instance, is relied upon to prevent any favoritism or unfair benefit to the former authority member.

Q The Planning Board in my municipality had a closed meeting with a developer some time ago concerning some claims ma e by the developer. Later, this same developer made an application for a subdivision before the Planning Board. All of the subsequent subdivision proceedings before the board complied with the Open Public Meetings Act. Does the earlier closed meeting taint the approval of the subdivision plan? Also, don't conventions where all of a municipal body's members attend violate the Open Public Meetings Act?

A The Planning Board's closed meeting does not create an OPMA problem, according to the recent Appellate Division decision in Gandolfi v. Town of Hammonton, 367 N.J.Super. 527 (2004). As long as the discussions at the closed meeting did not culminate in a vote or any other action being taken, there was no violation of the Open Public Meetings Act. The Appellate Division also found no violation of OPMA when two Planning Board members met with the Board's engineer and representatives of a developer in a closed meeting, since no action was taken on the matter discussed except at open meetings complying with the requirements of the Act (Neu v. Planning Board of the Township of Union, 352 N.J. Super. 544, 2002).

 

 

As for conventions of municipal officials, the Open Public Meetings Act specifically exempts from its requirements meetings "...attended by or open to all the members of three or more similar public bodies at a convention or similar gathering." (N.J.S.A. 10:48 b. (2))

Q Our municipality provides post retirement health benefits to employees who retire after at least 25 years of service, although we are not part of the State Health Benefits Program. We provided these benefits to all municipal employees by resolution years ago. A married couple who have each put in 25 years of service are about to retire and have each requested a continuation of their current individual retirement health coverage with their spouse as a dependent. Like most New Jersey municipalities, we are having fiscal problems, and we really cannot afford to pay for this kind of "double coverage" for an indefinite time. It is a large cost to us, and of limited value to them. Can we fulfill our obligation to provide them with post retirement health coverage by just providing coverage for one of them with the other as a dependant?

A Unfortunately for your municipal budget, recent case law indicates that you are obligated to fulfill their request. In Bonze/la v. Monroe Township, A-3239-02T3, decided on March 29, 2004, a similar fact pattern was found by the Appellate Division to create a municipal obligation to provide the "double coverage" to the couple. The court found that the retiring employees had each fulfilled the requirements for obtaining individual health coverage with dependant coverage by completing 25 years of service, and that therefore such coverage was a "condition of employment" that could not be rescinded at this point. The Court further noted that this cross-coverage had substantial value to the former employees, and that because it had not yet been provided, they had incurred substantial health care expenses since retirement that would have been covered with two policies in place. The resolution that provides such coverage to municipal employees creates a contractual right to the coverage for each employee after 25 years of service, and this right cannot be changed or limited because the individual is married to another retiring employee with the same right.

NJLM - Legal Q & A - November 2004
407 West State Street, Trenton, NJ 08618  (609)695-3481  New Jersey League of Municipalities logo 
William G. Dressel Jr, Executive Director - Michael J. Darcey, CAE, Asst Executive Director

Legal Q & A

 

Civil Service "Opt Out"
Open Public Meetings Act and
Retirement Health Benefits



Deborah M. Kole
League Staff Attorney

Q For many years, our municipality has been part of the civil service system. However, we would now like to "opt out" of the system, but we cannot seem to find the procedure for doing so. How can we accomplish this?

A There is a simple reason why you cannot find this procedure—it does not exist. Although it may seem illogical, a municipality cannot "opt out" of civil service once it has become part of the system. The reason for this oddity is historic. The civil service system is intended to encourage fair employment practices in government, and therefore, once a municipality has chosen to go this preferred route, it is in the system permanently.

Another way in which civil service employment receives a kind of special treatment can be seen in the Local Government Ethics Law. The general one year prohibition on employment for compensation by an independent local authority of a former member after he or she leaves the authority does not apply to a civil service position filled by open competitive examination under N.J.S.A. 40A:9-22.5 b. (3). The civil service system, in this instance, is relied upon to prevent any favoritism or unfair benefit to the former authority member.

Q The Planning Board in my municipality had a closed meeting with a developer some time ago concerning some claims ma e by the developer. Later, this same developer made an application for a subdivision before the Planning Board. All of the subsequent subdivision proceedings before the board complied with the Open Public Meetings Act. Does the earlier closed meeting taint the approval of the subdivision plan? Also, don't conventions where all of a municipal body's members attend violate the Open Public Meetings Act?

A The Planning Board's closed meeting does not create an OPMA problem, according to the recent Appellate Division decision in Gandolfi v. Town of Hammonton, 367 N.J.Super. 527 (2004). As long as the discussions at the closed meeting did not culminate in a vote or any other action being taken, there was no violation of the Open Public Meetings Act. The Appellate Division also found no violation of OPMA when two Planning Board members met with the Board's engineer and representatives of a developer in a closed meeting, since no action was taken on the matter discussed except at open meetings complying with the requirements of the Act (Neu v. Planning Board of the Township of Union, 352 N.J. Super. 544, 2002).

 

 

As for conventions of municipal officials, the Open Public Meetings Act specifically exempts from its requirements meetings "...attended by or open to all the members of three or more similar public bodies at a convention or similar gathering." (N.J.S.A. 10:48 b. (2))

Q Our municipality provides post retirement health benefits to employees who retire after at least 25 years of service, although we are not part of the State Health Benefits Program. We provided these benefits to all municipal employees by resolution years ago. A married couple who have each put in 25 years of service are about to retire and have each requested a continuation of their current individual retirement health coverage with their spouse as a dependent. Like most New Jersey municipalities, we are having fiscal problems, and we really cannot afford to pay for this kind of "double coverage" for an indefinite time. It is a large cost to us, and of limited value to them. Can we fulfill our obligation to provide them with post retirement health coverage by just providing coverage for one of them with the other as a dependant?

A Unfortunately for your municipal budget, recent case law indicates that you are obligated to fulfill their request. In Bonze/la v. Monroe Township, A-3239-02T3, decided on March 29, 2004, a similar fact pattern was found by the Appellate Division to create a municipal obligation to provide the "double coverage" to the couple. The court found that the retiring employees had each fulfilled the requirements for obtaining individual health coverage with dependant coverage by completing 25 years of service, and that therefore such coverage was a "condition of employment" that could not be rescinded at this point. The Court further noted that this cross-coverage had substantial value to the former employees, and that because it had not yet been provided, they had incurred substantial health care expenses since retirement that would have been covered with two policies in place. The resolution that provides such coverage to municipal employees creates a contractual right to the coverage for each employee after 25 years of service, and this right cannot be changed or limited because the individual is married to another retiring employee with the same right.

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


 

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