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Legal Q & A



Matthew Weng
Matthew Weng
League Staff Attorney

Defining an Unfunded Mandate and Signature Requirements for Ballot Initiatives

Q I know that some time ago a law was passed making unfunded local mandates impermissible. Can you give me details on this? When is a mandate illegal, and what should I do if I feel as though the state is imposing an unfunded mandate on our municipality?

A In AIn December 1995, the New Jersey state constitution was amended to prohibit unfunded mandates on boards of education, counties and municipalities. A statute was subsequently enacted as well.

An unfunded mandate is described as any law, rule, or regulation that requires expenditures by a school board, county, or municipality and that “does not authorize resources to offset the additional direct expenditures required for the implementation of the law or the rule or regulation.”

The amendment further created the Council on Local Mandates, which hears disputes and makes rulings as to whether a statute, rule, or regulation is an unfunded mandate. If the council determines that any provision of a statute or any part of a rule or regulation constitutes an unfunded state mandate, that provision of the law or that part of the rule or regulation shall cease to be mandatory in its effect and shall expire.

There are six categories of laws, rules, or regulations that while technically unfunded mandates will not be declared null and void. Those are:

a. those which are required to comply with federal laws or rules or to meet eligibility standards for federal entitlements;

b. those which are imposed on both government and non-government entities in the same or substantially similar circumstances;

c. those which repeal, revise or ease an existing requirement or mandate or which reapportion the costs of activities between boards of education, counties, and municipalities;

d. those which stem from failure to comply with previously enacted laws or rules or regulations issued pursuant to a law;

e. those which implement the provisions of the New Jersey Constitution; and

f. laws which are enacted after a public hearing, held after public notice that unfunded mandates will be considered, for which a fiscal analysis is available at the time of the public hearing and which, in addition to complying with all other constitutional requirements with regard to the enactment of laws, are passed by 3/4 affirmative vote of the members of each House of the Legislature.

Local bodies that wish to file a complaint can download and fill out the form available on the Council’s website (www.state.nj.us/localmandates), and can file a complaint via email

 

 

Q A group of citizens has been circulating a petition to place an ordinance on the ballot for the voters to add to our municipal code. I know that there are different signature requirements. What are they, and why are there two?

A What you are referring to is the initiative process. In our previous edition of the Faulkner Act publication, we described it this way:

The Faulkner Act provides two sets of numbers, which will require an initiated ordinance to be submitted by the municipal council:

1. A number of signatures equal to at least 15 percent of the total votes cast in the municipality at the last election at which members of the General Assembly were elected; or

2. A number of signatures equal to at least 10 percent but less than 15 percent of the total votes cast in the municipality at the last election at which members of the General Assembly were elected.

If an initiative petition has the first set of numbers, the ordinance will be put on the ballot in a special election if there is no general or regular municipal election occurring not less than 40 days nor more than 90 days after the final date for withdrawal of the petition. If an initiative petition has the second set of numbers, the ordinance will be submitted to the voters at the next general or regular municipal election occurring not less than 40 days after the final date for withdrawal of the petition. Thus the difference between the two sets of numbers is that the first provides an opportunity for the ordinance to be placed on the ballot in a special election, while the second does not.

 

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

 

First published in New Jersey Municipalities, Volume 90, Number 2, February 2013

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