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Legal Q & A

Matthew Weng
Matthew Weng
League Staff Attorney

Lawsuits and Open Public Records,
Whistleblower Laws
and Non-binding Referenda

Q We have received an Open Public Records Act request from an entity that is currently suing the town. The documents they requested are pertinent to the case. Do we have to comply? Do they have to use the discovery process?

A No, a citizen may use a valid Open Public Records Act request to obtain documents even if they are involved in a lawsuit with the public body. In MAG Entertainment, LLC v. Division of Alcoholic Beverage Control, 375 N.J.Super. 534, (App. Div. 2005), the Appellate Division found that the fact that the Division of Alcoholic Beverage Control was involved in an enforcement action against the plaintiffs, MAG Entertainment, did not relieve the ABC of its responsibility to fulfill a valid OPRA request.

The Court stated that, “Documents that are ‘governmental records’ and subject to public access under OPRA are no less subject to public access because the requesting party is opposing the public entity in possession of material sought in collateral litigation. There is no blanket exception carved out to the requirement of disclosure when the public records sought are germane to pending litigation between the requestor and the public entity.” Id. at 545 (internal citations omitted.)

“Simply put, the right to inspect and copy governmental records under OPRA is without limitation as to the reasons for which the access is undertaken. A party’s right to access public records is not abridged because it may be involved in other litigation with the governmental agency required to respond to the OPRA request.” Id.

Q Ia municipality covered by any “whistleblower” laws? What exactly do they entail?

A Yes, towns, school districts, and other boards, agencies and authorities are required to comply with the “Conscientious Employee Protection Act,” commonly called the “whistleblower” law.

This law prohibits these political subdivisions from retaliating against an employee who discloses to a supervisor or public body, or threatens to disclose, an action that the employee believes is against the law or is fraudulent. These public bodies are also prohibited from taking action if an employee gives information to or testifies before a public body investigating a violation of the law by the employee’s employer. Finally, an employee can refuse to engage in any action that the employer requires them to participate in if the employee thinks it is a violation of the law, or if the employee thinks it will harm the public health, safety, or welfare, or will harm the environment.

If a public body violates this law, the employee affected may obtain both compensatory and punitive damages. It carries a one-year statute of limitations.

Q We are considering an ordinance that may be controversial. Before we vote on it, we would like to take the pulse of the citizens of the town. Is this possible?

A Yes, A governing body of a municipality may place a non-binding referendum on the ballot to find out the general opinion of the voters, provided that no other statute has a mechanism to ascertain voter sentiment (for example, some ordinances must also pass a referendum before they are effective.)

Keep in mind, however, that the referendum must be on a subject within the power of public body. For example, a council could not place as a referendum whether to make English the official language of a town, because towns have no authority to do that.

Citizens in Faulkner Act municipalities have the ability to place ordinances on the ballot themselves, and to repeal any enacted ordinance.

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

First published in New Jersey Municipalities,
Volume 88, Number 4, April 2011

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