N.J. SC says league is a public agency

Jessica M. Karmasek Aug. 24, 2011, 2:27pm


TRENTON, N.J. (Legal Newsline) -- The New Jersey Supreme Court ruled Tuesday that the state's League of Municipalities is a "public agency" under the Open Public Records Act and must provide access to government records that are not subject to an exception.

In 1915, an act of the New Jersey Legislature authorized the creation of the League of Municipalities.

The league is a nonprofit, unincorporated association, today representing all of New Jersey's 566 municipalities. More than 13,000 elected and appointed municipal officials, including more than 560 mayors, are members of the league.

Its seventeen employees are members of the Public Employees' Retirement System, and 16 percent of its budget is comprised of taxpayer public funds in the form of membership fees from each municipality.

In 2008, the Council on Affordable Housing, or COAH, proposed affordable housing regulations. As part of the rulemaking process, the league in 2008 filed comments with COAH opposing the regulations.

Shortly after, Fair Share Housing Center Inc. wrote to the league's executive director, William Dressel, asking for particular documents pursuant to OPRA.

Dressel declined to provide the documents, saying the league was not covered by OPRA.

In May 2008, Fair Share filed a complaint alleging that the league was in violation of OPRA. The league argued that it is not a "public agency" and as such its records are not government documents.

A trial court dismissed Fair Share's complaint, holding the league was not a "public agency" because it is not an "instrumentality within or created by a political subdivision of the State or combination of subdivisions," such as a county health board or regional planning board.

It also said the league is not a "public agency" because it does not perform a governmental function and it is not authorized to spend public funds. The state's appellate division affirmed.

Justice Barry T. Albin, who authored the Court's 26-page opinion, disagreed.

The state statute's plain language places the league squarely within the term "public agency," he said.

"Through the pooling of financial contributions and personnel, the League -- in a more efficient and cost-effective way -- can do for all municipalities what no one municipality can do for itself. Moreover, the League is controlled by elected or appointed officials from the very municipalities it represents," Albin wrote.

"Thus, it is clear that the League is an 'instrumentality' of a 'combination of political subdivisions.' This simple plain-language approach leads to the conclusion that the League is a 'public agency.'"

State statute, the Court said, also does not set forth a governmental-function test -- that is, does not suggest that the "instrumentality" must perform a traditional governmental task, such as trash collection.

Since the league is considered a "public agency," any document kept on file or received in the course of the official business of an "agency" is considered a government document, the Court said.

"The League is such an 'agency' and therefore the term 'government record' applies to it. To conclude otherwise would require the Court to reach an absurd result," it wrote.

The Court said unless Fair Share and the league can resolve the matter on their own, the trial court must decide whether, under OPRA, the requested documents are subject to disclosure or an exemption.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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