Client Alert

On March 20, in response to the COVID-19 pandemic, New Jersey Gov. Phil Murphy signed into law two bills that impact the ongoing operations of municipal government during the health crisis. The new legislation amends the New Jersey Open Public Meetings Act with regard to the notice and holding of public meetings and the New Jersey Open Public Records Act pertaining to the time for responding to requests for government records. Both new laws are effective immediately.

Bill A3850/S2294 — Open Public Meetings Act Amendment

The intent of the Open Public Meetings Act, N.J.S.A. 10:4-6 et seq. (OPMA), is to have governmental meetings conducted in the open. The act requires 48-hour advance notice of all meetings of public bodies and declares that the public has the right to be present and comment at the meetings. “Public bodies” under the OPMA include governing bodies, commissions, planning boards and zoning boards, committees, or any group of two or more persons organized under state law. Bill A3850/S2294 explicitly authorizes a public body to hold a meeting by means of communication or electronic equipment during a state of emergency, public health emergency or state or local disaster emergency, and to electronically provide notice for the meeting, without violating the OPMA. It permits a public body to (1) conduct a meeting and any public business, (2) cause a meeting to be open to the public, (3) vote, and (4) receive public comment by use of teleconferencing or other electronic means, such as internet-streaming sites like Zoom or Go-To-Meeting.

The bill also allows a public body to provide notice of meetings only by electronic means during the emergency period. However, it requires that the exercise of this sole electronic notice option be limited to discussions of matters “necessary for the continuing operation of government and which relate to the applicable emergency declaration.” This language is broad, but, according to guidelines issued by the Division of Local Government Services in the Department of Community Affairs, it is intended to place some restriction on the type of government action to be taken at electronically noticed meetings.

Municipalities must still comply with the 48-hour advance notice requirements of the OPMA and ensure that the public retains the ability to attend and provide comment at the remote meetings. Thus, municipalities should provide instructions to the public regarding how to access a virtual meeting and the procedures for commenting through whatever electronic equipment or medium is utilized.

Regarding land use board hearings, it is important to note that this new law does not modify an applicant’s notice requirements under the Municipal Land Use Law. As of now, the mailing and newspaper publication of notice at least 10 days before a hearing will still be required. Moreover, the Municipal Land Use Law establishes specific procedures for conducting a planning board or zoning board hearing, which are not discussed in the bill. Hence, additional emergency executive or legislative action will likely be needed to address the notice and remote holding of land use board hearings during the public health emergency. The full text of the bill can be viewed at https://legiscan.com/NJ/bill/A3850/2020.

Bill A3849/S2302 — Open Public Records Act Amendment

The Open Public Records Act, N.J.S.A. 47:1A-1 et seq. (OPRA), currently requires a custodian of a government record for a public agency to grant access to the government record or deny a request for access to the government record as soon as possible, but no later than seven business days from receiving the request, provided that the record is available and not in storage or archived. Failure to respond within the seven business days is deemed a denial of the request. A custodian is also required to notify the requestor within seven business days if a government record is in storage or archived as well as when the record may be made available. In addition, in the case of certain records, including budgets, bills, vouchers, contracts and public employee salary and overtime information, immediate access must be granted. Under Bill A3849/S2302, during a state of emergency or public health emergency, a custodian of government records will be required only to make a “reasonable effort,” as the circumstances permit, to respond to a request for records within the seven-business-day period, or soon as possible thereafter. The full text of the bill can be viewed at https://legiscan.com/NJ/text/A3849/2020.

Public bodies, such as municipal governing bodies and boards, are grappling with the challenge of conducting necessary government business during the coronavirus pandemic. These new emergency laws are an attempt to give broader options and latitude to municipalities so they can continue to operate without running afoul of either the OPMA or the OPRA. Questions regarding these topics can be directed to the author at [email protected]