Steven Wronko v. Township of Jackson

Earlier this week the Appellate Division rendered an unpublished OPRA decision in the matter of Wronko v. Township of Jackson and Eden, RMC.  An amicus curiae brief was submitted in the matter by the American Civil Liberties Union of New Jersey.

This was a somewhat standard OPRA suit.  Petitioner sought “copies of all attorney invoices for Jackson Township from January 1, 2015 through December 31, 2015” and “copies of all litigation settlement agreements from January 1, 2010 through December 19, 2015 for Holmdel Township.”

The Opinion states that Defendant Jackson Township denied the request stating it was overly broad as it sought all agreements and all invoices rather than specifying specific matters. Citing to Burnett v. County of Gloucester, petitioner argued that he was entitled to such records but the trial court disagreed. The Appellate Court holding stated it “Agreed with [Petitioner] in every respect. Specifically, the court noted that given the timeframe provided, the requests “identified a specific subject matter with sufficient identifying information [that] were not overly broad even where a custodian was required to search and locate records according to a specific topic area.” The Burnett case itself stated that OPRA requestors may seek any and all settlements, releases, or similar documents for a reasonably specified timeframe. Indeed, there is even a requirement on municipalities that they seek and obtain such documentation even form independent third parties such as insurance companies and attorneys that represented the municipality.  Accordingly, the trial court was reversed and the matter remanded to determine the amount of counsel fees Jackson Township would be required to pay.

This is a fairly straight-forward case and Appellate decision reminding municipalities and those that represent municipalities that the “overly broad” argument is not a failsafe for any request for a batch of documents. This is particularly so when a specific time-frame is sought for the materials. The Court found in this instance that “The request [was for] particularized identifiable government records, namely, correspondence with another government entity, rather than information generally…these permissible requests did not require a custodian to exercise discretion, survey employees, or conduct research; rather, the responsive records were self-evident.”

The above language provides a good test for records custodians and government officials/lawyers in determining whether an overly broad exception can apply. It may also be helpful, given the prevalence of requests for “all settlement agreements/releases” to maintain an active log of same so that the request can be easily disposed of upon receipt.  Scrambling to remember all suits and their dispositions (and where the releases and agreements are stored if off-site) can be tricky in the tight timeframe provided by OPRA. For better or worse, these types of requests are increasingly common and courts seem to be increasingly requiring greater research involvement for a successful “overly broad” OPRA exemption. Wronko v. Township of Jackson merely provides another example of this trend.

Are There Limits to Smoke-Free Ordinances?

It’s nearly 2018, and as such smoking and the right to smoke in public no longer receives much sympathy.  Many universities (including public universities) have implemented rules that you cannot smoke within a designated number of feet of the campus buildings (or even on campus at all).  Likewise, many county and local municipalities have instituted similar rules.  In the recent published appellate decision in Sparroween d/b/a Cigar Emporium et. al., v. Township of West Caldwell, et. al., the question was raised whether a municipality may implement more restrictive anti-smoking ordinances than the language found in the State’s New Jersey Smoke-Free Air Act.

Issue

Can municipalities pass ordinances with more restrictive anti-smoking language than that contained in the New Jersey Smoke-Free Air Act? The three arguments made by petitioners to the appellate court are:

(1) The West Caldwell smoking ordinance was not valid because it was superseded by the Smoke-Free Act; or alternatively:

(2) The Smoking Ordinance operates as a land use ordinance and is not applicable to petitioners’ non-conforming pre-existing use; and

(3) The trial court erred in dismissing petitioners’ complaint before allowing discovery.

Facts

Petitioners in this case owned a tobacco retail store/cigar shop in West Caldwell.  Inside the store is a seating area for customers to smoke. A year before opening, petitioners advised of an intent that there would be an open indoor smoking area. The Health Officer submitted a memo to both the Planning Board and petitioner explaining that under the Smoke-Free Act they would need to submit a notice of claim for exemption. When the application was granted, the granting language stated: “The resolution [is] conditioned on [complying with] all federal, state and local laws, rules and regulations.”  Nearly a year later, the West Caldwell Board of Health passed an ordinance restricting pre-purchase sampling of cigars and tobacco products and required operators of tobacco retailers to register with the Board of Health and to obtain a license from the Township’s Health officer.

In March 2016 the Health Officer entered the store and issued summonses for violations of the smoking ordinance.

Procedural History

After being issued the summons petitioner filed an order to show cause and a temporary injunction pertaining to the smoking ordinance. Petitioners also filed a verified complaint for declaratory judgment in lieu of prerogative writs and an order declaring the smoking ordinance void and illegal.

Holding

The issue of preemption and the Smoke-Free Act had never before been ruled on by a New Jersey Appellate Court, making this a case of “first impression.”  The New Jersey Smoke Free Act essentially “prohibits smoking of tobacco in an indoor public space or workplace,” although contains exceptions such as for “tobacco retail establishments,” “cigar bars,” “cigar lounges,” and the like.  In terms of preemption, the Act itself states that it supersedes less onerous local ordinances. This matter is distinguishable as it relates to an ordinance that is more restrictive that the Act. Notably, the New Jersey Smoke-Free Act states an exception to preemption when “smoking is prohibited by municipal ordinance under authority of N.J.S.A. 40:48-1 or 40:48-2.  The Appellate Court held that this exception clearly inures to West Caldwell’s ordinance being valid and enforceable.

The Court also held that the Smoking Ordinance does not constitute a “land use” ordinance as municipal health boards are granted the authority to both “enact and amend health ordinances” for the purpose of preserving public health, safety, and welfare of a municipality or its inhabitants.

Finally, the Court noted that the smoking ordinance is entitled to a presumption of validity, like any other ordinance.  Grabowskiy v. Township of Montclair, 221 N.J, 536, 551 (2015). Accordingly, the Petitioner’s appeal was denied and the trial court’s decision affirmed.

The Takeaway 

Municipal Health Boards (and likely other government actors) may pass ordinances that are more restrictive than the language contained in the New Jersey Smoke-Free Air Act.

 

The Use of Recording Devices in Court

Directive 08-14: Use of Cameras, Electronic Devices, and Recording Devices in Court

For many years, guidance regarding the use of cameras, electronic devices, and recording devices has been found in New Jersey Code of Judicial Conduct, Canon 3A(9), which provides that: “Only media representatives with bona fide press credentials or with identification issued by a bona fide media outlet are permitted to provide live broadcasts and/or to electronically record or photograph court proceedings.”

Today, however, the use of electronic devices is so commonplace that students are allowed to bring “smart” phones into school, legislatures are continuing to crack down on talking or texting while driving, and almost every citizen carries a recording and camera device that just so happens to also make phone calls. Meanwhile, traditional journalism is being challenged by the rise of bloggers and other “new” forms of journalism. In this environment, Directive 08-14 (Supreme Court Guidelines on Electronic Devices in the Courtroom) was born. This Directive went into effect February 2, 2015 and has been applied to virtually every Court in New Jersey (although the Directive does not appear to include administrative and quasi-judicial proceedings).

In sum, the Supreme Court Guidelines state that due to the pervasiveness of electronic devices and the rise of non-traditional reporting, that the issue of the use of electronic devices in courts must be revisited. The Directive addresses use of cameras inside courtrooms, in common areas of courthouses, and on courthouse grounds.

Firstly, the new guidelines no longer require the showing of press credentials, but rather set as a prerequisite for any such use that individuals execute: “An Agreement for the Use of Electronic Devices.” The Directive further states that: “With a valid Agreement, an individual may use an electronic device inside a courtroom to take notes and receive information and communications without further approval being required.”

It should be noted that there is a distinction between use of electronic devices for communications or note-taking versus utilizing such devices to record or create images. In order to photograph, electronically, record, broadcast, and/or transmit a court proceeding, an individual must first have a valid Agreement and then must “in writing request permission from the court to do so.”

Courts have been directed to make decisions regarding such requests within 24 hours or “as soon as practicable based on several factors.” A signed Agreement is valid for one (1) year. In addition, the court may at any time prohibit or restrict the use of electronic devices (even for notes) if such use interferes with: “The administration of justice, poses a threat to safety or security, or compromises the integrity of the proceedings.” The form of request for recording must be signed and in writing. The Court may consider, but is not bound by the wishes of the parties. This should be kept in mind for instances where you represent a client who seeks to object to recordings or photographs of court proceedings by third parties.

Regarding the use of electronic devices for “courthouse grounds”, “environs,” and “ceremonies,” such recordings are permitted provided individuals seek: “appropriate approval from facility security authorities and/or the owner of such facility before doing so, including, but not limited to, the county sheriff’s department.”

The Directive does provide for limited exceptions to these general rules. Such exceptions include photographs, electronic records, broadcasts and/or transmissions of victims of crime under 18 years of age, jurors (except discharged jurors), witnesses under 14 years of age, conferences between client and attorney, between co-counsel, and side bar conferences between counsel and the court (although still photographs and silent video of such conferences are permitted).

Photography, electronic recordings, broadcasting, and/or transmitting are also prohibited at any proceeding closed by court order, statute or rule of Court. Finally, an Agreement for the use of electronic devices and/or a Request for Permission shall not be required in the case of adoptive parents and other family members present at final hearings in uncontested adoption cases, provided that the judge presiding over that hearing grants those individuals permission to photograph, electronically record, broadcast and/or transmit the hearing.

This new Directive relaxes court rules regarding electronic devices. On a practical level this Directive will make it easier for members of the bar to utilize electric devices while in court. This Directive will also make it easier for non-traditional journalists to photograph or record court proceedings. For those elected, appointed, or employed by local governments, it is important to note that this directive does not apply to your meetings.  However, you may wish to have a quick discussion (or have your municipal attorney) reach out to the municipal judge in your township to discuss compliance with this relatively new directive.

 

What Deference Does a Planning Board Owe a Neighboring Municipality?

The Appellate Court recently decided (in an unpublished opinion) the question of what level of deference, if any, a planning board must give neighboring municipalities. In 514 Millburn Avenue, LLC v. Planning Board of the Township of Millburn and Restaurant Concept Consultants, LLC and Investors Holding Fund, LLC, 514 Millburn Avenue appealed from an Order dismissing their complaint in lieu of prerogative writs against the Township of Millburn Planning Board.

The Facts of the Case 

Defendant Restaurant Concept Consultants, LLC had previously applied to the Board for conditional approval, including certain waivers and variances to convert a fast food establishment into a restaurant/bar. This request was opposed by petitioner and certain members of the public, including residents from Springfield, a municipality adjacent to the proposed development. 514 Millburn Avenue own and operate their own restaurant close to the proposed redevelopment and the project did straddle the boundary line between the two government entities. Petitioners argued that Restaurant Concept Consultants, LLC was therefore required to have obtained separate approval from Springfield Township.

Millburn approved the application and declined to hear the application relating to Springfield ordinances.  It was noted, however, that the Planning Board “considered the proposed development’s impact on the neighborhoods in adjacent Springfield.”  The trial court dismissed petitioner’s action in lieu of prerogative writ.

Appellate Arguments

The Petitioner made the following arguments in their appeal:

  1. The Trial Court should have required zoning approval by Springfield pursuant to N.J.S.A. 40:55D-22(b), especially as 60% of the parking for the project was located within Springfield;
  2. The Planning Board failed to consider that Springfield’s zoning limitation effect and govern a “significant portion of the development site.”
  3. Alternatively, the trial court should have directed the Defendant applicant to proceed with appropriate zoning applications before Springfield.

The Appellate Decision

The Appellate Division denied Petitioner’s requests for relief and affirmed the trial court judge. The Appellate Court noted that it deferred to the Planning Board’s credibility determinations and further held that the decision was neither arbitrary nor capricious. The Appellate Court further noted that while planning boards should consider the impact of a development application on neighboring municipalities, “the local board need not abdicate its own zoning ordinances and master plan.” The Planning Board of Millburn noted in its decision that it considered such impacts, but has no “obligation to impose Springfield’s zoning ordinances and master plan within its own municipal border.”  However, the Appellate Court did note that it was possible this specific application may ultimately require approval from Springfield.

Accordingly, the holding is that the Planning Board did not err but regarding 514 Millburn Avenue LLC, there may be requirements remaining in Springfield given that portions of the redevelopment will exist within the boundaries of Springfield Township.

Addressing Bad-Faith OPRA Requests

For increasingly underfunded local municipalities and their often-times harried records custodians, addressing all of the requirements of the Open Public Records Act (“OPRA”) may feel like “death by a thousand cuts” even in the best of times.  But one question I have heard often as an attorney for government entities is just what options are available when open public records laws are clearly being misused to harass records custodians or government entities?  And I don’t mean basic serial-filers that ultimately have their heart in the wrong place, but those that are operating in bad faith and barely attempting to even hide it.  It seems that almost every government entity has at least one of these problem child OPRA requestors at any given time, often times more than one. So what can be done, legally, to help in such a situation–one that is clearly wasting taxpayer money in the aggregate to assist a one-sided and bad faith vendetta?

The short answer has long been ‘there’s not much that can be done,’ and that answer has more often than not been supported by the legislature and the judiciary.  Township of Teaneck, et. al. v. Elie C. Jones, BER-C-14-17 (Unpub. trial court 2017) is a case representative of such mores, but one that also provides hints to legal options that may be available when confronting these difficult situations.

Teaneck v. Jones 

In the Jones matter Teaneck Township sought a preliminary injunction against an alleged serial OPRA requestor restraining the citizen from filing additional requests pending further order of the Court. Teaneck Township also sought relief from being required to respond to the OPRA requests already filed by the citizen that remained pending. Defendant OPRA requestor had filed approximately three-hundred and eighty (380!) OPRA requests between November 16, 2016 and January 17, 2017.

The trial court denied Teaneck’s requests in their entirety, which included the imposition of special handling fees to be paid by the Defendant for the increased personnel costs of responding to such voluminous requests. In its decision the Court admitted that “It is easy to understand the Township’s frustration” and noted that the OPRA requests commenced a few days after the Township “rejected defendant’s $10,000 settlement demand in an action brought by defendant against a Teaneck Law enforcement officer.” The decision further referred to the subsequent actions of Defendant as filing “an avalanche of OPRA filings,” and noted that: “virtually all of these OPRA requests are multi-part. The accumulated volume of the requests is the size and heft of a phone book.”

Nevertheless, the Court held that “the legislature intended that only requestors may seek review of OPRA decisions.” The holding further advised the Township that a valid countermeasure when faced with abusive OPRA demands may be to merely deny all such requests and rely upon disruption of agency operations defenses. But this was somewhat naive to the reality of the situation–where a custodian’s making such a determination leaves that municipality open to collateral attacks for sanctions and reimbursement of counsel fees.

The trial court decision noted that such measures can only be taken defensively under OPRA.  In other words, in New Jersey OPRA cases records custodians and their municipalities will continue to occupy the “defendant” rather than “plaintiff” position in lawsuits. Regarding allegations of bullying of government staff the Court stated:

A person who engages in harassing conduct against another may be made to answer for that conduct under the civil law and under the criminal code…such harassment can be remedied under the civil law via a damage award, or by injunctive relief, or through prosecution, or through a combination of these avenues of relief.

Regarding abuse of process claims the Court noted that OPRA requests can never trigger an abuse of process but noted that perhaps the filing of bad faith suits would trigger abuse of process claims. To those that regularly confront abusive OPRA requests/requestors or that may confront such issues, the Jones case perhaps does not provide much in the way of positive affirmation. However, perhaps there are other methods to consider which are not addressed specifically in this opinion.

The main takeaway from Jones is that courts will essentially never allow records custodians or government entities to file seeking preliminary OPRA injunctions. Although Jones is a non-binding trial court opinion, it seems more likely than not that appellate courts and trial courts in most other jurisdictions would follow this logic given the absence of such affirmative relief in the OPRA statute. But if a lawsuit is filed by an OPRA requestor, then all of the other appropriate court rules and sanctions still apply.

Frivolous Litigation and other Bold and Novel Measures to Consider 

Frivolous Litigation R. 1:4-8 addresses frivolous litigation in our court system and states that court papers may not be “presented for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.” R. 1:4-8 states that sanctions may be made against individuals or their attorneys that file frivolous pleadings or undertake frivolous litigation. Although sanctions and legal fees are a one-way street under the OPRA statute, R. 1:4-8 still applies to any court proceeding. Thus when an improper or harassing OPRA lawsuit is filed a discussion with counsel may be appropriate to determine if a R. 1:4-8 letter is warranted–although it should be noted that regardless of the underlying court matter such sanctions are rarely sought and only granted in the most egregious of situations.

Courts have also been known to bar those engaging in harassing litigation. Although this again fails to provide relief at the OPRA request stage, this may present a path forward once suit is initiated. There appears to currently be judicial silence regarding the imposition of frivolous litigation sanctions in the context of OPRA, but this does not represent an inability or unwillingness to impose such sanctions but rather a dearth of such requests being pursued.

Indeed, many government entities would be rightfully cautious to raise such issues even if warranted so as to avoid potential bad press, additional legal costs, and a climate that has recently given rise to sanctions akin to Anti-Slapp suits. Nevertheless, frivolous litigation and barring harassing suits may prove to be an additional tool for confronting bad-faith OPRA requestors given courts apparent unwillingness or inability to bar the filing of future OPRA requests.

It is probably common sense, but I also want to make brief comment regarding those hopefully exceedingly rare times when an OPRA requestor or citizen is not merely a nuisance but is acting in an alarming or harassing manner. The Jones decision reminds us that there are options available for such exigent circumstances. Similar to any other dangerous or potentially dangerous situation, if a requestor steps over the line towards a records custodian, elected official, or other staff/vendors, then a municipality or its employees may pursue appropriate criminal or civil claims to ensure safety. OPRA requestors or citizens of any type will rarely be barred from a public building given Constitutional rights, but public safety may require otherwise.

Conclusion and Final Thoughts 

Additional hope for records custodians and government entities also comes by way of recently passed Assembly Bill A-4532. Voted 73-0 by the Assembly on March 23, 2017, this bill not only expands privacy rights of individuals but also seeks to limit attorneys’ fees when “the court or agency head finds that the decision to deny access was reasonable and made in good faith after due diligence” regardless of the outcome of the lawsuit or GRC complaint.

If enacted this countermeasure may (finally!) accurately reflect the difficult realities of interpreting such a fact-sensitive law (often on the fly). Although the Jones case demonstrates the limited tools available to confront abusive OPRA practice, recent legislation and appellate decisions appear to increasingly be utilizing common sense measures and creating more bright-line rules to address the increasing volume of OPRA and OPRA litigation. Considering the (admittedly limited) tools available to records custodians (as noted herein) and the fact-sensitive nature of confronting abusive OPRA practices, discussions with elected/appointed officials and/or legal counsel will help provide the framework of a plan for addressing those unfortunate real-life situations when OPRA abuse or harassment arises.

 

L.R., individually and on behalf of J.R., a minor v. Camden City Public School District, et. al.

Legal Issue

On October 16, 2017 the Appellate Court published a decision in L.R. v. Camden City Public School District, et. al., pertaining to the Open Public Records Act.  The Court entered a decision addressing four (4) similar appeals concerning the release of special education records from public schools.  The opinion attempts to address transparency requirements under the Open Public Records Act (“OPRA”) with privacy interests as found in the New Jersey Pupil Records Act (“NJPRA,” N.J.S.A. 18A:36- 19, the Federal Family Educational Rights and Privacy Act of 1974 (“FERPA”), 20 U.S.C.A. § 1232g and administrative regulations adopted thereunder.

Facts and Procedural History

There were four (4) separate cases with similar facts and issues addressed in this published Opinion.  The trial courts had split on the issues, with some courts requiring complete denial and other courts requiring redactions.  The “Innisfree Foundation” was involved as a Plaintiff or as an amicus in each of the four (4) respective trial court matters.  The Appellate Decision defined the “Innisfree Foundation” as a: “Organization that assists families of children with disabilities who reside in New Jersey to advocate for their children’s educational needs.”  The OPRA requests themselves largely consisted of requests for all settlement agreements between schools and parents pertaining to special education services.

Counsel for the Innisfree Foundation stated during oral argument at the Appellate level that the Foundation ultimately plans to make the same request to every public school district in the State of New Jersey. The OPRA requests themselves noted that personally identifiable information related to any individual students could be redacted prior to disclosure.  Cherry Hill and Hillsborough School Districts denied the request entirely (noting GRC decision of Popkin v. Englewood Board of Education, No. 2011-263, 2012).  Notably, Parsippany-Troy Hills sought approximately $96,815 for special OPRA service charges noting that LSEP’s would have to perform the review and redaction of records and that same would be estimated to take one (1) hour per student at a minimum of $67.00 per hour for the LSEP’s.

The Trial Court judge in Morris County upheld the special service charge estimate but also awarded counsel fees to the Plaintiff in connection with the trial court matter as a prevailing party under OPRA.  Two of the Amici to the Appellate case were the ACLU on behalf of the OPRA requestors and the New Jersey School Boards Association on behalf of the school districts.

Finally, it should be noted that similar cases (including many involving Innisfree Foundation) currently remain pending and thus the Appellate Court’s decision noted this could be viewed as a “test case” disposition of such issues as they remain pending in other jurisdictions in New Jersey.

The Holding

The Appellate Decision held that the plaintiffs were entitled to appropriately-redacted copies of the requested records, provided that on remand those plaintiffs either: “(1) establish they have the status of “[b]ona fide researcher[s]” within the intended scope of N.J.A.C. 6A:32- 7.5(e)(16); or (2) obtain from the Law Division a court order authorizing such access pursuant to N.J.A.C. 6A:32-7.5(e)(15).”  The Appellate decision further stated that regardless, school districts must not turn over such redacted records until they first provide “reasonable advance notice” to each impacted child’s parent or guardian allowing them the independent opportunity to object.  This somewhat convoluted Opinion appears to stem from the following passage:

The trial judge in the Cherry Hill case reasoned that documents held by school districts are no longer “student records” once personally identifiable information is removed from those documents through redaction. We respectfully disagree…The record still “relates” to ‘Mary Jones’ (fictitious name) and discusses aspects of her life. The document does not cease becoming a ‘student record,’ or change its fundamental character, even if, say, a redacting employee took an extra-wide marker to mask the child’s name, address, Social Security number, and other demographic information, or replaced the actual names within it with fictitious names. Jane Eyre surely was Charlotte Bronte’s novel even though it bore the pen name of “Currer Bell”

Accordingly, even though the Court finds that such documents should generally be turned over, OPRA itself states that records may not be transmitted if there is another law or regulation inuring against their release.  These somewhat inapposite legal positions therefore crystalize in a holding that requires redaction and release, but only if plaintiff’s can establish they are “bona fide” researchers or “obtain a Law Division Order authorizing such access.”  (note that the Decision does not reach a determination whether Plaintiff in these matters, Innisfree Foundation qualifies as a Bonafide researcher).  Thus it would appear that this holding may prove somewhat burdensome to both Plaintiff/requestors and school districts. The holding also requires parental opportunity to object, even with personal identifiers being redacted, one would presume.  The Court did not award fees noting that remand would have to display if Innisfree was a prevailing party or not.  Finally, although the Appellate Court itself does not provide insight into how requestors may obtain records by way of a “Law Division Order authorizing such access” it would appear to me that such a mechanism may be similar to protective orders obtained, for instance, for criminal records from a prosecutor’s office to be utilized in a subsequent civil litigation.

Thoughts

With many public school districts noting settlements in board meeting minutes and agendas (although perhaps often discussed in executive sessions), it’s unclear to me how the request for specific settlement documents will provide much greater clarity for requested materials.  In some respects, this decision is in line with prior holdings that public entities must disclose settlements and cannot mark them as confidential.  However, records involving minors generally trigger heightened privacy concerns.  This Decision also appears to show the impact of the recent Supreme Court of New Jersey decision in North Jersey Media Group v. Township of Lyndurst; specifically in its philosophy of requiring fact-sensitive determinations to be rendered for large classes of documents. Such decisions may render the already burdensome role of OPRA custodian (or lawyer advising on such issues) even more difficult and I personally find this philosophical shift somewhat dispiriting given what appeared to be an Appellate level trend towards contracting the oftentimes onerous OPRA requirements and interpretations (as I discussed in the New Jersey Law Journal article I co-authored June 19, 2017, OPRA Law Comes of Age).   For instance, the Appellate Court states in this Decision that:

The review of such requests should be conducted on a case-by-case basis, depending on the specific nature of the request and particular kind(s) of records sought. Because none of the trial courts in the present appeals addressed these common law balancing issues, we do not resolve them here Instead, the balancing of interests should be adjudicated in the first instance in the trial court on remand.

The simple fact is this: if the Appellate Court itself believes it lacks sufficient documentation and information to render a decision (such as here), then remand may be appropriate regarding the four matters currently pending before the Court…but what about all the potentially countless future requests where a government entity and its custodian will have 7 days to interpret this Decision (and others like it) to try and make a proper judgment call–one where a false step–regardless of good intent–may later lead to the imposition of expensive reimbursement of counsel fees for the requestor? I can speak from some experience that being on the front-lines of these decisions is not always easy. Moreover, the following language from the Decision may be somewhat difficult to reconcile (what if OPRA requirements and parents’ opinions differ, as they surely will at times?)

As a key procedural facet of the redaction process, we hold that school districts must afford parents and guardians a reasonable opportunity to comment upon the proposed redactions of records relating to their own child. A parent or guardian may possess background and contextual information that could show how his or her child might be readily identified within the community, despite good faith efforts by school employees to perform effective and thorough redactions of the child’s records. Their voices should be heard in the process…To be sure, it is not our role in this appellate opinion to micro-manage the precise manner in which the redaction process is conducted. In particular, we do not resolve at this time whether the substantial special services charge quoted by the ParsippanyTroy Hills district of nearly six figures is reasonable and justified. Instead, if any right of access is established, an evidentiary hearing must be conducted on remand in the trial court to develop the record further on that issue, and to enable that court14 to make a more informed ruling.

Perhaps itself noting the difficult position the Court itself was in rendering a decision on such competing and specific issues, the Court further stated:

As a parting subject, we encourage the New Jersey Department of Education to consider formulating “best practices” guidance – perhaps expanding or revising the existing regulations – to address the myriad issues of implementation that have been presented by these four cases.

A practical issue that I noted in this Opinion—from a government perspective–is that the school districts appeared to not have a “central repository” of settlement agreements.  With this Opinion now serving as binding law, creation of  such a database for easy-access should be considered moving forward, particularly with other Appellate Decisions stating that OPRA documents must be retained from 3rd party lawyers or insurance carriers even if the records are not directly under a government entity’s control.  Regarding redactions, the Court Opinion notes that initials would likely not be sufficient–meaning wholesale removal of identifiers would be appropriate.

Given the somewhat contradictory nature of these issues–including what I view as certain contradictions within this Decision (as well as contradictory results in the trial courts), this would appear to be a proper case for certiorari to the Supreme Court of New Jersey.  In such a scenario, however, the expectations of government entities should well be tempered given the recent Supreme Court of New Jersey decisions in Lyndhurst and Galloway.  Indeed, towards the end of this Decision the Court noted that:

Lastly, because we readily appreciate that one or more parties may pursue Supreme Court review of our decision, we stay this opinion, sua sponte, for thirty days. If a petition for certification or motion for leave to appeal is filed with the Supreme Court by any party in any of these four cases before that thirty-day period lapses, the automatic stay shall remain in force until such time as the Supreme Court may otherwise direct. We hope that preserving the status quo in such a manner, pending the Court’s anticipated review, will minimize disruption and avoid the harmful consequences of any improvident interim disclosures.

In other words, [most likely] to be continued….

Dumont Board of Education v. Borough of Dumont – NJ Government Reversion of Parcel of Land

Legal Issue

In the recent unpublished Appellate case of Dumont v. Borough of Dumont, A-4309-15T3 (App. Div. Unpub. 2017) an issue arose when a governing body and a local school board disagreed about reversion clauses associated with gifted land.  This case concerned whether and to what extent a “reverter clause” should be enforced.

The Facts

In 1962 the Dumont Board of Education conveyed certain property to Dumont Borough (Boroughs and Boards of Education are separate government entities) to be used for specific purposes.  Specifically, the Borough agreed to utilize the land and property (which included a schoolhouse no longer used by the Board of Ed) for “municipal purposes.” The Borough granted a right of first refusal to the Board of Education.  The somewhat complex contract between the entities also contained a “reverter clause” stating that should the Borough of Dumont fail to utilize the land for municipal purposes in the future, then the land and all improvements should be transferred back to the Board of Education without any further consideration. The Appellate decision further states that the Borough of Dumont utilized this space as a borough hall and to house its police department until 2014, at which time the County Health Department determined that the buildings were no longer habitable owing to mold issues. It should be noted that although the building was closed, trailers were brought to the property to house police department personnel.

Between 2014 and 2016 the Borough and a developer negotiated regarding affordable housing in the municipality and discussions were advanced regarding using some of the subject land for inclusion as a site for such housing. These negotiations culminated in February of 2016, when the Borough adopted a Resolution designating the property as “An area in need of redevelopment pursuant to N.J.S.A. 40A:12A-6,” and in the next month when the Borough further passed a Resolution approving the terms of settlement between the developer and the Borough.

At this time the Dumont Board of Education filed a complaint arguing that such settlement triggered the reversion clause and right of first refusal language contained in the 1962 Agreement between the BOE and the Borough.

The Procedural History

The Trial Court held that neither the reverter clause nor the right of first refusal from the 1962 agreement would be triggered as the Borough would continue to utilize a portion of the land for police office space and as the affordable housing on site would inure to the Borough’s “municipal purpose”–which does appear to be a quite vague term.  These issues were rendered somewhat moot by a later agreement between Borough and developer to move the site of the affordable housing units and for the Borough to merely utilize the space for its police department.

The Holding

The Appellate Court’s unpublished opinion notes that “A case is moot if the disputed issue has been resolved, at least with respect to the parties who instituted the litigation.” The Board did, however, request that the Appellate Court provide an advisory opinion delineating the parties’ future rights and responsibilities under the 1962 Agreement. Not surprisingly, the Court held that it is generally not in the “advisory opinion” business and noted that it cannot “willy-nilly…decide issues unnecessary to the outcome of the case.”

Thoughts

Merely reviewing the Appellate Decision, it’s unclear what the impetus was for the Borough and the developer (not named to the suit) to modify their affordable housing plans. Given the vague term under the 1962 agreement of “municipal purpose” it is likely that the Court would have found the land would not revert merely because of the affordable housing agreement.  That said, the right of first refusal argument may have carried more weight in such an arrangement.  It’s unclear whether the Borough decided to change its plans to render this issue moot or not. Given the age of the Agreement (1962) and its vague terms it would appear to be a difficult contract to enforce at this point in time for the Board of Education.