Q We recently settled a lawsuit between an employee and the town. We both agreed that the terms of the settlement should be kept confidential and stipulated that in the settlement agreement. Recently a resident filed an OPRA request for the settlement information. Since we agreed to make it confidential, do we have to fulfill the request?
A Yes. In Asbury Park Press v. County of Monmouth, 201 N.J. 5, 2010, the Appellate Division found that the right of public access to documents trumps a confidentiality agreement.
The Court stated that “The parties’ agreement cannot override the public’s right of access under OPRA. “Lawsuits are filed in a public forum. One of our basic Rules of Court requires that court proceedings be conducted openly unless otherwise provided by rule or statute.” Reviewing a history of open government, our Supreme Court has described “open judicial proceedings as the cornerstone of a democratic society.” Privacy interests give way to the public’s right to know the business of the courts, with exceptions not relevant here primarily applicable in the Family Division.
“Even when neither party is a government agency, the public has a right of access to court documents filed in civil lawsuits. Several months after the trial court ruled that Monmouth County may refuse disclosure of its settlement agreement with Melnick, this court held in Verni v. Lanzaro, 404 N.J.Super. 16, 960 A.2d 405 (App.Div.2008), that the public has a right to disclosure of a confidential settlement entered under seal in a civil lawsuit between private parties. It would be an odd departure from the view expressed in Verni and the other cited cases if we were to uphold the secrecy of a settlement in a civil lawsuit involving a government agency."
Q As the Mayor of my town, I would like to perform marriages, but not civil unions. If two individuals want to be joined in a civil union, the municipality will make another official available, such as the deputy mayor or the municipal judge. Since we offer an alternative, is it permissible for me to decline to perform civil union?
A Probably not. The interpretation of the Civil Union statute comes from Attorney General Opinion No. 1-2007. Stuart Rabner, the Attorney General at the time, stated the following:
...although public officials can decline to exercise their authority to solemnize marriages and civil unions entirely, if a public official elects to be available generally for the purpose of solemnizing marriages, that official must also be available generally to solemnize civil unions. Any attempt to distinguish between marriages and civil unions in the exercise of the statutory authority to solemnize would violate the Law Against Discrimination, N.J.S.A. 10:5-1, et seq., (“LAD”). Should the solemnization power be implemented in a discriminatory way by a public official, the Attorney General is authorized to seek judicial relief to ensure compliance with the LAD.
As you can see, the above focuses on the public official and on their individual actions. Despite the fact that the municipality offers an alternative means of obtaining a civil union, I think the AG opinion makes clear that each individual official must either perform all types of civil unions, or perform none.
Q Due to the current economic situations, it has become difficult to replenish developer escrow accounts on a timely basis. Escrow accounts can be deficient in the thousands and then the applicant withdraws or is denied and then never replenishes their account leaving the Township to pay the municipal consultants. What can be done?
A You have a few different options. The town can refuse to proceed with the application if escrows are not up to date, but the MLUL requires action within specified time limits. The town could get to the hearing and adopt a motion to declare the application incomplete for failure to post the necessary escrows. Or, the town could include in the Resolution a requirement that escrows have to be replenished, but that doesn’t do much if the application is denied.
Also, on the application forms that are in use in some municipalities, there is language obligating the applicant to pay. In the past, some have filed collection actions to recover the balance due. They’re handled like any other book account. That’s why it’s important for towns to make applicants sign an agreement (as part of the application itself) to pay all escrow charges.
This column is for informational purposes only, and is not intended as legal advice.
First published in New Jersey
Municipalities, Volume 88, Number 3, March 2011