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Legal Q & A



Matthew Weng
Matthew Weng
League Staff Attorney

Public Records Requests, Ethics Law and Free Speech

Q Is  there any way to limit the amount of Open Public Records Act requests we get? Some days we are inundated with them, some people make several requests a day, and some people request the same thing over and over again. Is there any way to address this?

A Unfortunately not. The Open Public Records Act requires municipalities to comply with every valid request, even if it is duplicative or time consuming.

The statute does allow smaller public bodies to limit when members of the public are permitted to examine, copy, or inspect records. A municipality having a population of 5,000 or fewer may limit examination, copying and inspect of records to not less than six regular business hours over not less than three business days per week (i.e., two hours a day, three days a week). If the entity's regularly scheduled business hours are less than this, then they can limit it to business hours

Q My municipality is interested in preparing an ethics ordinance to govern our officers and elected officials. What advice can you offer us?

A A municipality actually cannot pass an ethics ordinance.

When it comes to ethics, a town has two choices: follow the Local Government Ethics Law, or create a Local Ethics Board. See N.J.S.A. 40A:9-22.4:
The Local Finance Board in the Division of Local Government Services in the Department of Community Affairs shall have jurisdiction to govern and guide the conduct of local government officers or employees regarding violations of the provisions of this act who are not otherwise regulated by a county or municipal code of ethics promulgated by a county or municipal ethics board in accordance with the provisions of this act.

If they choose to follow the Local Government Ethics Law, no ordinance is needed. They are bound by the code of ethics set out in the statute, found at N.J.S.A. 40A:9-22.5, and any ordinance would be superfluous. In fact, any ordinance that changes what the Local Government Ethics Law stated would likely be found to be preempted by the state statute.

If a town chooses to create the Local Ethics Board, then ONLY the Local Ethics Board may create a local ethics code. See N.J.S.A. 40A:9-22.21:
Within 90 days after the establishment of a municipal ethics board, that ethics board shall promulgate by resolution a municipal code of ethics for all local government officers and employees serving the municipality.

There is no provision in the Local Government Ethics Law that allows a municipality to pass an ethics ordinance.

 

Q A local organization that is involved with civil rights has contacted us and asked about putting their events on the electronic message board in the municipal building as well as the bulletin board on Main Street. Are we required to do this? Are there any concerns with allowing them to use the boards?

A I do not believe there is any requirement that a municipality permit a non-municipal organization to use a municipal message board if that board is devoted solely to municipal use.

However, allowing organizations to put announcements on the scrolling board would almost certainly be considered speech. I do not think this means that you would have to allow any message. You certainly could not discriminate on the basis on content.

However, there are other reasons that, so long as they are content neutral, may survive intermediate scrutiny. For example, if an organization wanted to “filibuster” the message board by playing their ad 24/7, you would have a legitimate reason to deny them.

On the other hand, if a local civil rights organization was permitted to run an ad, and the local Neo-Nazi party wanted to run a message of similar length, you might have a hard time denying them within constitutional grounds.

This often occurs in other contexts, like selling ad space or allowing residents to erect holiday displays in a public park. The advice we normally give is that it is easier to say no to everyone than to have to say yes to everyone

 

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

 

First published in New Jersey Municipalities, Volume 89, Number 5, May 2012

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