Category Archives: Sunshine Week

New Jersey Legislature Permits Electronic Public Meetings During COVID-19 Emergency

Update: Governor Murphy signed this bill into law on March 20, 2020. Many public agencies are already conducting electronic meetings.

The New Jersey Legislature is currently considering numerous bills in response to the current COVID-19 pandemic. One bill is A3850, which passed in the Assembly on March 16, 2020, and will likely also pass in the Senate very soon. A3850 amends a public body’s obligations under the Open Public Meetings Act (OPMA) during a state of emergency. Because this is Sunshine Week and transparency is very important during a crisis, we decided to devote a blog to this pending bill.

Public Bodies May Conduct Electronic Meetings

The amended law would provide that during a state of emergency, public health emergency, or state of local disaster emergency, a public body may perform any of the following by “means of communication or other electronic equipment:”

  1.            conduct a meeting and public business at that meeting,
  2.            cause a meeting to be open to the public,
  3.            vote, or
  4.            receive public comment.

Conducting any of those activities electronically during a statement of emergency will not be considered a violation of OPMA.

The bill does not provide a definition for “means of communication or other electronic equipment.”  Most public agencies will likely utilize video conferencing programs that permit the public to view a public meeting and participate in the public comment section in real time during the meeting. Those agencies will likely also accept public comments by email or phone for those who do not have such technology.

Public Bodies May Give Electronic Notice of Meetings

The bill also allows for electronic notice of public meetings at least 48 hours in advance of a meeting, giving the time, date, location and, to the extent known, the agenda of any regular, special or rescheduled meeting. The notice must also accurately state whether any formal action may or may not be taken at such a meeting. Importantly, to the extent practicable, a public body providing only electronic notice of a meeting pursuant to the new law shall limit public business discussed or effectuated at the meeting to matters necessary for the continuing operation of government and which relate to the applicable emergency declaration.

We will provide an update when this bill is signed into law.

 

To contact us about this blog post or discuss an OPRA denial, email cgriffin@pashmanstein.com or visit the “contact us” tab above.

Accessing Personnel Records

OPRA’s personnel records exemption, N.J.S.A. 47:1A-10, renders most personnel records generally exempt from access under OPRA. The exemption contains three exceptions, however.

Exception 1

The first exception provides that:

“an individual’s name, title, position, salary, payroll record, length of service, date of separation and the reason therefor, and the amount and type of any pension received shall be a government record.”

This provision obviously means that requests for an employee’s individual paystub or an agency’s weekly, monthly, or year-end payroll reports are available. Additionally, an agency must disclose each employee’s date of hire, title, position, salary, and date of separation. All of this information is important to know, as payroll is often one of the biggest expenditure in most agency budgets.

Within the next year, we should see resolution on what the phrase “date of separation and the reason therefor” means because the Supreme Court has granted certification in a case that asks the “name” of a state trooper who was “required to separate from employment” due to racially offensive behavior.  We believe this provision permits the public to learn about employees who engage in misconduct. For more information about that case and the issue the Supreme Court will be deciding, please read our prior blog.

Exception 2

The second exception provides that:

“personnel or pension records of any individual shall be accessible when required to be disclosed by another law, when disclosure is essential to the performance of official duties of a person duly authorized by this State or the United States, or when authorized by an individual in interest.”

This exception has been largely un-litigated and thus the courts have still not defined the scope of this exception. In McGee v. Twp. of E. Amwell, 416 N.J. Super. 602 (App. Div. 2010), the Appellate Division held that emails about an employee were “personnel records” even though they were not filed in a personnel folder and that Exception 2 would permit the employee to request them because she would be an “individual in interest” who could authorize the release. Other courts have ruled similarly—employees can request their own personnel records, which includes emails that discuss their performance.

Exception 3:

The third exception provides that:

data contained in information which disclose conformity with specific experiential, educational or medical qualifications required for government employment or for receipt of a public pension, but not including any detailed medical or psychological information, shall be a government record.

In Kovalcik v. Somerset Cty. Prosecutor’s Office, 206 N.J. 581 (2011), the Supreme Court held that this exception does not authorize disclosure of all records that “evidence an employee’s educational background or even that evidence an employee’s participation in educational pursuits generally.”  Rather, the Court held that the exception makes available only records “that would demonstrate that a government employee lacked a required credential and therefore failed to meet the minimum qualifications for the position.”

In other words, if there is a certain training certificate, license, or degree that must be obtained in order to hold a government position (or to receive a promotion), then the public is entitled to access documents that prove whether or not the employee meets those requirements. Thus, because all police officers in New Jersey are required to take use of force trainings, the public is entitled to obtain documents proving those courses were taken. But, if an officer takes an optional course those records are not subject to OPRA, even if the agency paid for the training. (You can, of course, request a copy of the invoice or other financial documents that prove how much was spent).

 

To contact us about this blog post or discuss an OPRA denial, email cgriffin@pashmanstein.com or visit the “contact us” tab above.

It’s Sunshine Week!

Sunshine Week, which runs from March 15 to March 21, 2020, is an annual nationwide celebration of access to public information. There are many ways that you can get involved–from filing OPRA requests, to writing a letter to the editor, to attending a public meeting. On this blog, we will write several times this week about transparency topics and success we have had recently shedding light on New Jersey government!

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To contact us about this blog post or discuss an OPRA denial, email cgriffin@pashmanstein.com or visit the “contact us” tab above.