The Power of Collaboration Risk Management for Local Officials

THE POWER OF COLLABORATION RISK MANAGEMENT FOR LOCAL OFFICIALS

David N. Grubb The Power of Collaboration Risk Management for Local Officials

This book is a part of an ongoing program to acquaint local officials with Risk Management principles. It is designed to provide a general understanding of the legal principles pertaining to governmental operations. Seek the advice of your local government’s attorney to evaluate any particular case or circumstance.

Printed in the United States of America Allegra Marketing, Print and Mail Marmora - Southern NJ allegramarmora.com

Published by Municipal Excess Liability Joint Insurance Fund & PERMA Risk Management Services Parsippany, New Jersey, 07054 njmel.org permainc.com

The Power of Collaboration Risk Management for Local Officials

Table of Contents

Introduction ...... 1

Employee Accidents. 7 1. Workers’ Compensation...... 9 2. Employee Safety...... 19

Liability Against Public Entities, Officials and Employees. . . . 28 3. The Tort Claims Act (Title 59)...... 29 4. Employment Practices Liability...... 42 5. Americans with Disabilities Act...... 52 6. Land Use Liability...... 64 7. Liability for Child Abuse . 69

Insurance . 77 8. Insurance and Indemnification...... 78 9. Managing a Joint Insurance Fund...... 90 10. Environmental Risk Management ...... 101 11. Cyber Risk Management...... 111

Other Risk Management Topics...... 117 12. Emergency Management...... 119 13. Crisis Management...... 126 14. Community Safety ...... 131 15. Local Officials Ethics Act. 142 16. Open Public Meetings Act ...... 153 17. Open Public Records Act...... 166

Resources. 177 Acknowledgments:

The author wishes to acknowledge the other members of the study committee that created the first municipal joint insurance fund: the late Joe Vozza, a Park Ridge insurance agent who became the Bergen JIF’s and first MEL Executive Director; Westwood Borough Attorney Russ Huntington who remains the Bergen JIF’s Fund Attorney after 35 years; and Park Ridge Councilman Kevin Christal.

The author also acknowledges the help of those responsible for the enabling legislation, including: Senator Gerald Cardinale, who is still in office; Senator Raymond Lesniak; the late Senator John Dorsey who founded the Morris JIF and served as the MEL’s long time Fund Attorney; Insurance Commissioner Hazel Gluck and her successor, Commissioner Ken Merin; and League of Municipalities Executive Director, Bill Dressell.

Special acknowledgment to JIF creators, the late Victor Gardella (South Bergen JIF); Paul Miola (Atlantic, Burlco and Trico JIFs); Joseph Buckelew (Ocean JIF); Mayor Jack Tarditi (Camden JIF); Chuck Casagrande and Al Tasker (Monmouth JIF); the late Commissioner Frank Cocchiola (Suburban Essex JIF); the late Chan Coddington (Suburban Municipal JIF); and Bill Young (PAIC and FIRST JIF). And, to Jim Kickham, my business partner at PERMA from 1990 until he retired in 2017.

The following individuals made significant contributions to this manual:

Ezio Altamura John Geaney, Esq. Marc Pfeiffer Michael Avalone Eric Harrison, Esq. David Pfund, Esq. Chris Botta, Esq. Charles Hartsoe Edward Purcell, Esq. Alexander Carver, Esq. Russell Huntington, Esq. Steve Sacco Charles Casagrande Joseph Hrubash Fred Samrau, Esq. Ed Cooney William Kearns, Esq. Robert Shannon Frank Covelli Cate Kiernan Susan Sharpe, Esq. Chuck Cuccia Peter King, Esq. Paul Shives Richard Erickson James Maley, Esq. Bradley Stokes John Fitzpatrick, Esq. Paul Miola William Young Paul Forlenza Barbara Murphy Sheriff James Gannon Richard Pevner, Esq. About the Author

David N. Grubb

Since 1990, David Grubb has been Managing Director of PERMA Risk Management Services and Executive Director of the Municipal Excess Liability Joint Insurance Fund (MEL). He started his risk management career in 1971 at Lipton Tea before joining A&P Supermarkets, where he was Director of Insurance and Pension Investments.

Elected to the Park Ridge Borough Council in 1977 and as Mayor in 1984, Grubb chaired the committee that established the first New Jersey municipal JIF and was elected the JIF’s inaugural Chairman. In 1986 during Grubb’s term as Mayor, Governor Thomas Kean appointed him as a Deputy Insurance Commissioner to manage the state’s response to the mid-1980s insurance crisis. He also chaired the National Association of Insurance Commissioners (NAIC) Workers’ Compensation and the Environmental Liability Committees.

After the end of the Kean Administration in 1990, Grubb and Jim Kickham acquired PERMA from Joe Vozza and built the MEL program into the largest municipal pool in the country. Grubb re-entered local government in 1994 when he was elected to two terms on the Ridgewood Village Council. He also founded the non-profit New Jersey Safety Institute.

Other Acknowledgments:

The author also acknowledges the team from Princeton Strategic Communications. Thanks to their Crisis Communications leadership team including Managing Partner Norris Clark, Rick Alcantara, Bryan Hickman and David Klucsik, for contributing to the writing of the section on crisis communications. Thanks to Stacey Ehling and Emaleigh Kaithern for their excellent editing and proofing, and thanks to Maxwell Moran for the professional design and layout.

PRINCETONSC.COM MEL Joint Insurance Fund Member Savings

Member JIF Savings JIF Individual JIF Established as of Jan. 1, 2020 Member Savings Joint Insurance fund (millions) Membership (millions)

Bergen 1985 $270.9 38 $7.1

South Bergen 1986 $232.5 23 $10.1

Atlantic 1987 $379.2 41 $9.2

Camden 1987 $200.6 37 $5.4

Mid-Jersey 1987 $172.9 12 $14.4

Morris 1987 $218.5 44 $4.9

Ocean 1987 $316.0 31 $10.2

PMM 1987 $80.7 5 $16.1

Monmouth 1988 $249.3 41 $6.1

Burlco 1991 $109.0 27 $4.0

TRICO 1991 $210.8 38 $5.5

NJ Utility Authorities 1991 $173.2 70 $2.5

NJ Self-Insurers 1992 $66.5 5 $13.3

Suburban Essex 1992 $105.3 12 $8.8

NJ Housing Authorities 1994 $103.0 89 $1.2

Suburban Municipal 1994 $73.6 10 $7.4

PAIC 1997 $120.7 23 $5.3

Central Jersey 1998 $157.8 10 $15.8

First Responders 2009 $27.6 38 $0.7

Totals $3.3 Billion 594 Average $5.5 Mil. INTRODUCTION

Insurance and related employee, liability, and property claims cost New Jersey governments over $1 billion each year. 1 Had it not been for the widespread adoption of risk management in the mid-1980s, that figure would easily have been double. Risk Management goes considerably beyond insurance. For example: • When New Jersey substantially increased safety training requirements, the Municipal Excess Liability Joint Insurance Fund (MEL) established the MEL Safety Institute that currently trains over 50,000 MEL member employees each year. Go to the website NJMEL.org for complete details. • After a devastating fire struck the Edison DPW garage and destroyed the township’s fleet of heavy-duty trucks two days before a major snowstorm, adjusters for the Central Jersey JIF found a fleet of heavy trucks available for lease in another state. The replacement equipment arrived in Edison just hours before the storm. • At the beginning of the COVID-19 pandemic, New Jersey municipalities experienced serious problems selling municipal bonds. The MEL established a Joint Cash Management and Investment (JCMI) pool to purchase debt securities issued by the MEL’s members – a major factor in stabilizing the bond market for local governments across New Jersey. This effort was started and led by several commissioners, especially Jon Rheinhardt (Morris JIF) and Chuck Cuccia (South Bergen JIF). 1 INTRODUCTION 2 safety isamajorconcernforvotersandelectedofficials. pedestrian accidentsrarelycauseclaimsagainstlocalgovernment, example, while of thisnature.For governments mustaddressmanyissues but are not insured. This is knownas“Enterprise Risk Management.” Local organization the disrupt seriously could that issues include to expanded soon Risk management initially focused onexposuresthat are usually insured, but The ideawastobettercoordinatethesethreefunctionsreducecosts. combined insurance, claims management and safetyintoasingledepartment. The conceptofriskmanagement datestothemid-1950swhenlarge corporations NJSBA pool. boards of education also created local JIFs rather than joining the statewide groups thatformedsimilar local municipal pools aroundthestate. crisis, theBergen CountyMunicipal JIF became the model fornumerousother especially concerned about environmental liability. were because ofanincreaseinlawsuitsagainstpublic entities.Insurers Later that year, the liability insurance market for governmental entities crashed first municipalJIFeffective New Year’s Day, 1985. form individual funds. The Pascack Valley Mayors Association established the school districts. The League ofMunicipalities encouraged local groups to Boards Association created a large statewide pool that currently insures 375 At this point, municipalities and schoolstookdifferent approaches. The School (NJLM) successfullylobbiedforthislegislation. and theNewJerseyStateLeague of Municipalities Association (NJSBA) first must legislature adopt an enabling statute. By late 1983, both the New JerseySchool Boards the that informed was it Insurance, of Department the a self-insurance pool. When the Pascack Valley Mayors Association contacted 1980s. In1981,tentownsinnorthernBergen Countystudiedtheidea of creating Local governments didnotcommonly adopt riskmanagement until themid- 10% insurespropertydamageincludingfire,flood,andvehicles. Title 59 casualty insurance budgetforlocal governments. Liability claims including Today, workers’ compensation represents approximately 50% of the property/ environmental damages. court decisions alsomadepublicentities liable for civil rightsissuesand The legislature respondedbyenacting and invitedthelegislaturetodefinewhenapublicentityshouldbeliable. Finally in 1970theNewJerseySupremeCourt overturned sovereign immunity four yearslater, thecourtslimited sovereign immunity to issuesofdiscretion. In 1925,NewJerseypublic entities became liable for autoaccidents. compensation policiesbecausetheywerenotlarge enough toself-insure. statute which effectively required most governmental units tobuyworkers’ immunity. because insurance governments could not be sued for negligence under the doctrine of sovereign fire purchased only entities governmental 1911, to Prior History ofRiskManagement forNewJerseyLocalGovernment , civilrightsandenvironmental areanother40%,andtheremaining 7 This changed with the adoption of the Workers’ Compensation Title 59, the Tort Claims Act. 11 Duringthis insurance 8 12 Thirty- Some Other 10

2 9

INTRODUCTION 3

16 This proposition resulted in resulted proposition This 13 These professionals are responsible for responsible professionals are These 17

14 As of early 2020, total savings for MEL members As total savings for MEL of early 2020, 15 and the risk management consultant. 18 to reduce potential liabilities. It should be comprised of the Mayor or to reduce potential liabilities. attorney, the local unit’s director, manager or executive authority chair, senior managers union employees. Litigation Risk Committee: Every local place and put plans into status of lawsuits the to monitor a committee government should also have Safety Committee: This committee coordinates the risk control program. and consultant the risk management and include It should be collaborative units and non- bargaining collective from management, representatives Risk managers are selected in accordance with the public contracts law contracts with the public in accordance Risk managers are selected In most JIFs, to play” regulations. “pay the fees are about half including insurance companies. of the commissions paid by commercial local governments are too small to have an in-house risk management to have an governments are too small local consultant, management risk and depend on an appointed department agent. insurance local a often JIF By-laws. in detailed are which functions, management risk numerous complete periodic risk management training. complete periodic risk management Risk Management Consultant: Unlike other states, most New Jersey governing body taking an active part in the program. The status of the risk The status an active part in the program. governing body taking body’s governing on the topic monthly a be should program management its priorities can communicate workshop agenda, so that management of the governing body should also based on its observations. Members Senior Management Involvement: The program must start with the • • • • policies are combined into a single master program with JIFs, which reduces over which insurers arguing of different the possibility work and eliminates one is responsible for a claim. consuming process of purchasing numerous insurance policies, including policies, consuming process of purchasing numerous insurance auto professional liability, police liability, general compensation, workers’ All of these insurers. property and position bonds from different liability, Coverage is improved coverage. revolution Another advantage of the risk management went through the time- governments Before the advent of the JIFs, local To achieve long term results, a risk management program must be structured program must a risk management results, long term achieve To so that it is consistent. $1.5 billion from reduced non-claim costs. $1.5 billion from Program Government Risk Management Organizing a Local 19 affiliated JIFs expanded into programs in the country. one of largest the self-insurance from improved safety and including $1.8 billion at $3.3 billion, were estimated pooling of 1987. Over the next two years, seven other JIFs including the original the JIFs including seven other two years, next Over the of 1987. MEL. pool joined the Bergen now the MEL, the from insurance available priced excess reasonably With self-insurers. The idea was based on a concept commonly used by large large used by commonly a concept based on was The idea self-insurers. companies. insurance with captive corporations JIF by the Morris Liability (MEL) Municipal Excess of the the establishment beginning the JIF at County Municipal Atlantic the JIF and County Municipal When excess coverage became unavailable to cover large claims, the Bergen Bergen the claims, large cover to unavailable became coverage excess When and JIFs of numerous up JIF” made “Super of a the creation JIF proposed INTRODUCTION 4 The E-JIFprovidesthemostextensive pollution liability coverage available the NewJerseyMunicipalEnvironmental Risk Management Fund(E-JIF). To solvethe problem of lack of environmental coverage, 13 JIFsestablished in compliancewiththepubliccontractslaw. before entering intoacontract withanothergovernmental entity that isitself law, to remain inthe local JIF that insures itsneighbors.Underthepublic contracts required toseekmultiple insurance bidseverythreeyears.Mosttownsprefer Since JIFs aregovernmental entities, towns that are JIF members are not what has occurred. Bergen model could save New Jerseytaxpayers between $50 and $100 million per year, which is exactly 12 11 10 9 8 7 casualty companies. 6 insurance agents. 5 MEL averagefrequencyisabout1.8losttimeaccidentsper100fullemployees. full time employees, consistent with both state and national averages for municipal government. Today, the 4 affiliated withtheMEL.Mostofremainingmunicipalitiesarelar Municipal Excess Liability Joint InsuranceFund(MEL)in1987. Another 30%belongtoJIFsthatarenot 3 University. 2 1 costs. critical in the dramatic reduction of the accident rate and savings of non-claim cost final the is claims, members’of monthly collaboration is in thegovernanceoftheirJIFs 85% Because claims. liability of types expensive more the However, workers’ compensation remains the largest costdriver, followed by new exposuressuchasland use liability and technology riskmanagement. Local Government risk management is becoming more complicated with Conclusion exposed totheimportanceofsafetyandclaimscontrol. the governance of their local JIFs each month. As a result, they are continually in participate officials Fund’slocal the 300 decide Over to monthly business. or officials elected employees toserveasaFundCommissioner. The Commissionersmeet its of one appoints member Each Commissioners. their is thattheyarecontrolledby An importantfactorinthesuccessofJIFs Commissioner Control to allmembersandmadeavailablenon-members. The E-JIF wrote and producedaone-hourtraining video that was distributed stormwater management training, it lacked the fundstodevelopprogram. complete to employees and officials local required state the E-JIF,when of the benefits saving cost the of example An costs. legal limiting and program millions of dollars by conducting a comprehensive environmental risk control to local governments anywhere in the country. It also saves taxpayers tens of The averagenon-claim cost forMELis 15% compared to31%forcommercial memberJIFs property Non-claimcostsinclude administration, general legal, safety, claims adjusting expense andfeesto In1991,theaverage employee accident frequencyforMEL5.73 losttimeaccidents per100 memberswas 65%ofNewJerseymunicipalities that created and localauthorities the are membersofthe19localJIFs The termriskmanagement coined in1955by was Wayne Snider,of Insuranceat Professor Temple This includesthestate,counties,authorities,schoolsandmunicipalities. Bedrock Foundationsv. Brewster(1959) Florio v. JerseyCity(1925) Freeholders ofSussexv. Strader (1840)

InaNew York TimesDepartment article of Insurancepredicted dated February 23,1986,theNJ that the Ayers v. Jackson Township Willis v. N.J.DepartmentofConservation(1970) 19 agovernmental entity doesnotneedtoseekcompetitive quotations 106N.J.557(1987)

ge self-insurers. INTRODUCTION 5 NJSA 40A:11-5 (b) exempts from bidding contracts between governmental entities. This section The MEL periodically conducts an accreditation program for risk management consultants. risk management consultants. program for conducts an accreditation periodically The MEL and DPW. police such as heads of high-risk departments the include may Risk Committee Litigation The There are six additional local unit JIFs in NJ that have no affiliation with the MEL. with have no affiliation in NJ that local unit JIFs additional There are six a discount for receive authorities and towns and the state, year throughout each training offers The MEL The model for the MEL was the United Insurance Company of Grand Cayman, a captive insurance insurance captive a Cayman, of Grand Company Insurance the United was MEL for the The model Management, Municipal Professional Ocean, Mercer, Camden, were MEL the joined early JIFs that Other thereof or any other state or subdivision thereof.” A Joint Insurance Fund is a local unit of government. Joint Insurance Fund is a local unit A or subdivision thereof.” thereof or any other state specifically provides that, ”Any contract the amountof which exceeds the bid threshold may be negotiated be and shall therefore for bids and bidding advertising public body without governing by the and awarded awarded by resolution of the governing body if: (2) it is to be made or entered into with the authority United or agency States officer, body, board, any or municipality or county Jersey, New of State the America, of topics such as employment practices, ethics, land use liability, cyber risk management and protecting and management cyber risk land use liability, ethics, as employment practices, topics such abuse. children from 17 18 19 Bergen, South Bergen and Monmouth. and Monmouth. Bergen South Bergen, 15 16 includes and year each changes training The training. the who completes member body governing each 13 captives. to its owner insurance provides excess that still company 14 MEL Members Accident Frequency Lost Time Accidents per 100 Full-time Employees

5.73 1991

3.29 2000

2.55 2010

1.82 2019

6 PART 1

EMPLOYEE ACCIDENTS

The Safety Committee plans and implements the risk control program. It should be collaborative and include the risk management consultant and representatives from management, collective bargaining units and non-union employees.

Chapter 1: Workers’ Compensation

Chapter 2: Employee Safety

Model Safety Policy

The (employer name) will provide a safe and healthy work environment and shall comply with all applicable safety and health regulations. The (employer entity) is equally concerned about the safety of the public. Consistent with this policy, employees will receive periodic safety training and will be provided with appropriate safety equipment. Employees are responsible for observing safety rules and using available safety devices including personal protective equipment (PPE). Failure to do so constitutes grounds for disciplinary action. Any unsafe condition, practice, procedure or act must be immediately reported to the supervisor or department head. Any on-the-job accident or accident involving (employer entity) facilities, equipment or motor vehicles must also be immediately reported. The (employer name) has established a Safety Committee that meets on a regular basis to recommend solutions to safety problems. Employees are encouraged to discuss safety concerns with their Safety Committee representative.

8 CHAPTER 1

WORKERS’ COMPENSATION

This chapter provides an overview of key issues relating to Workers’ Compensation Law N.J.S.A. 34:15-1 et. seq. Most of the material referenced is from John Geaney’s, New Jersey Workers’ Compensation Manual, 2019 edition. Half the cost of local property/casualty claims in local government is attributed to workers’ compensation. Fortunately, effective safety programs can dramatically lower accident rates. Since 1991, JIF members have reduced their accident rates by an average of over 65%.

Background Until the beginning of the 20th century, employees injured on the job were forced to sue their employers for negligence under common-law. These lawsuits were routinely delayed for years, and ultimately, most were unsuccessful due to the numerous defenses available to an employer. This left families destitute and dependent on charity. In 1911 New Jersey became the first state to adopt a permanent Workers’ Compensation law where benefits are provided for traumatic injuries and occupational disease. The New Jersey Supreme Court defined an “accident” as an “unlooked for mishap or untoward event that is not expected or designed.” 20 “Occupational disease” involves injuries caused by “repetitive activity or exposures over time.” CHAPTER 1 10 “intentional wrong,” opening the door totort litigation. that creates the substantial certainty of anaccident, this willbeconsideredan decisions have held that if the employer deliberately violates a safety standard unless theemployerintentionally causedtheaccident. However, recentcourt normally theemployee’scompensation is “sole” recourseagainsttheemployer employer wasnegligent or contributed to thecauseofaccident. out ofwork(causationconcept). The petitioner does notneedtoprovethatthe that theinjuryoccurredduringcourseofwork(time concept) andarose Workers’ compensation coverage isno-fault. The petitioner mustestablish employment first, they may be covered when the route deviates from their routedeviates the normal commute. when becovered may they first, employment workplaces. If theyleavefromhomeand donotgototheirregular placeof are covered while traveling on business to places other than their regular Employees arenotcovered whilecommuting to theirregularworkplace but triggered byapersonaldispute thathadnoconnectiontotheemployee’s duties. example, thereisnocoverage foranemployeewhoisinjuredinattackthatwas employer’s premises does not automatically mean that it is compensable. For otherwise, it is the entrance. However, just because an injury occurred on the premises includes theparkinglotifitisownedorcontrolled by theemployer, employer’s premises and endswhenthe employee leaves. The employer’s a generalprinciple, coverage beginswhenanemployeeAs arrives atthe When duringtheworkday isanemployeecovered? service arenotcoveredforworkers’ compensation. Under statelaw, prisonersandindividuals performing court-ordered community or parade.” “Participating in any authorized public drill, showing, exhibition, fund raising means, also It squad.” rescue or company, aid fire first the by used or owned maintenance or repairworkuponthepremises,apparatus,other equipment alteration, installation, as of duty”means, such line construction authorized any the in “participating “in workers, rescue and firefighters volunteer For aid orrescuesquadworkers,andreserveauxiliarypoliceofficers. first firefighters, volunteer members, Education of Board officials, appointed and elected are included Specifically coverage. Workers’Compensation for There is a special provision that makes some governmental volunteers eligible Act. the under covered not are normally and employees Volunteersnot are independent contractorshavein-forceworkers’ compensationpolicies. to purchaseinsurance. is responsibleforworkers’ compensationclaimsifthesubcontractorfails The Act alsoprovidesthatanycontractor placing work withasubcontractor employer has along-term economic dependency on theindependent contractor. over theindependent contractor asifthecontractor was anemployee, or ifthe employer’s compensation policy if the employer exercises effective control The courtshavealsofoundthat independent contractors are covered by an doubt, thecourtwillgrantcoverage. job that is regular, periodic or reoccurring to becovered. “regular” employee butnot“casual” employees. An employeemusthavea As a general principle, workers’ compensation covers anyone hired as a Who isconsideredanemployeeundertheWorkers’ Compensation Act? cases areveryrare.

24 Therefore, it isgoodpractice tomake sure all 27

22 Fortunately, these 23 Ifthere is any 21 Workers’ 26

28 25

CHAPTER 1 11

35 29 34 36 and Lyme disease. and Lyme 33 Claims under this portion of the Workers’ Workers’ Claims under this portion of the However, employees who are away from employees who are However, 32 30 For example, if an employee is out of the office on business, 31 This means that without the exposure, the disease would not have developed to This means that without the exposure, the disease would not have developed incapacity to work. the extent that it caused the employee’s disease must also be: “(1) (2) the work exposure exceeds the occupation, to a particular characteristic due in a material (3) and such as smoking, risk factors personal workers’ by the caused exposure degree to causes which are disease.” the of development the to contributed substantially employment the wear and tear of daily living. heart in 1995 that to be compensable, The New Jersey Supreme Court ruled Claims for heart attacks are more difficult to establish under a 1979 amendment 1979 a under establish to difficult more are attacks heart for Claims or stroke was heart attack must now show that the The petitioner Act. to the of the in excess or strain work effort by on-the-job degree to a material caused work to the disease was material. issues and hearing various muscular/skeletal include statute Compensation for claims accept Courts also Compensation Workers’ New Jersey The loss. Stress Disorder (PTSD) Post-Traumatic activity or exposures over a period of time. The petitioner must show must that the The petitioner or exposures activity a period of time. over of a particular that are characteristic disease is due to causes and conditions of contribution the and that of employment, process or place occupation, trade, Occupational Disease Claims Occupational by repetitive caused or illnesses injuries involve claims disease Occupational their normal worksite on business may be covered for “minor deviations” from from deviations” on business may be covered for “minor normal worksite their their routes. in a restaurant parking lot while going there is coverage if the employee slips These cases are very fact sensitive. to lunch. business. but not lunchroom covered while in the employer’s Employees are normally to eat. when going off-premises and the employee’s auto insurance policies. Further, an employee is also an employee Further, policies. insurance auto and the employee’s vehicle while operating a privately-owned compensation covered by workers’ is being on the employer’s trigger The coverage business. on the employer’s while on the employer’s business. There is no coverage under workers’ under workers’ There is no coverage business. while on the employer’s an auto accident business when is on personal employee if the compensation vehicle. employer-owned an driving is employee the if even occurs employer’s is covered by both the situation the employee in this However, without proper authorization while “off-duty.” while “off-duty.” without proper authorization The are injured in car accidents. when employees There is often confusion compensation is only covered by workers’ that an employee courts have ruled jurisdiction while “off-duty,” even if not specifically called out. Coverage also also Coverage out. called specifically not if even “off-duty,” while jurisdiction their regular jurisdiction. outside of an emergency they “come upon” applies if However, first responders are not covered in other situations if they respond a “call out” volunteer first responders are covered when traveling from home directly responding or when vehicles up emergency to pick station to the for workers’ are eligible responders All career and volunteer to the scene. their that happens in in an emergency injured are if they compensation While there are special provisions relating to first responders, they are not “on- not are they responders, first to relating provisions special are there While is When there compensation. of workers’ for purposes a day 24 hours duty” CHAPTER 1 12 the firefighter has at least seven years’ experience on the job. The presumption Under legislation adopted in 2019,cancer is alsopresumedtobejob-related if andstrokes emphysema contractedbyfirefighters. attacks heart fighter fire receive at least somecompensation. In 2003,thisconcept wasextended to and police on-duty all almost means condition is unrelated to anon-the-job exposure. As apractical matter, this presumption can berebutted bythepreponderance of theevidence that the firefighter or officer police on-duty is presumedtobecompensableunderaspecial provision inthestatute. The an by suffered stroke or attack heart A Special Coverage Issues presumption whenexposedtocommunicablediseases. A-1741 providesthat: Under the same legislation, public safety workers are also eligible for the preponderance oftheevidencethatcancerisunrelatedtofirefighting. reaches age75. with heartattacks,thepresumptioncanberebuttedby As firefighter the when expires and firefighters volunteer and career both covers • • extensive nor serious. is coveredunder somecircumstances if thehorsing aroundwasneither did notinstigate ortakepart inthehorseplay. Horseplay: Department. compensation for workers’ beeligible if injured at a baseball game unless the game was a fundraiser for the not would firefighter volunteer beyond improvement in employee health or morale. Forexample, a employer the to benefit a produce and employment, of incident regular be a must activity social or recreational the that provides specifically Act limited the typeofrecreational eventsthatqualifyforcompensation. The Recreational orEvents: Sports Response Team oremployeddirectedbyahealthcarefacility.” an incident, either asavolunteer, memberofaCommunityEmergency incident and directly involved and in contact with the public during such other nurse, basicoradvancedmedical technician responding toacatastrophic any or squad, rescue or aid first a of technician medical advanced facility, correctional or a basic or Emergency a Management, of or Office Community Emergency Response Team approved by the New Jersey police department, force, company or district, including the State Police, a or fire volunteer or partially-paid, paid, a of officer or employee, “A Public safety workerincludes,butisnotlimited to, amember, that theexposureisnotlinkedtooccurrenceofdisease. this presumptionmayberebuttedbythepreponderanceofevidence disability, chronic or corollary illness or death … iscompensable … but disease or related illness …. there shall be a presumption that any injury, that the publicsafety worker hascontracted a serious communicable receiving the care or treatment, shall be compensable … If it is ascertained all time during whichthe public safety workerisunable to workwhile worker, including testing, diagnosis, surveillance or other services …. and including airborne exposure, then all care or treatment of the public safety exposed toanypathogen or biological toxins …related to …epidemics, “If inthecourseofapublic safety worker’s employment, the worker is The Act specifically provides coverage for employees who employees for coverage provides specifically Act The 39 41 A 1979amendment to the Act 37 40 Eventheinstigating party substantially

38 CHAPTER 1 13

Temporary Temporary This limitation This 43 As a practical matter, matter, a practical As The JIF reimburses the 42 48 49

Employees “off” from work receive Employees “off” 44 The rating for an indemnity award has The rating for Workers’ Compensation law allows the allows law Compensation Workers’ Elected and appointed officials receive at 47 This benefit is not subject to federal and state 46 Employees also receive compensation for permanent compensation Employees also receive by the employee’s intoxication. employee’s by the 45 Under the Act, an employee cannot collect if the accident accident if the collect cannot employee an Act, the Under solely solely The Act requires that claimants report hernias within 48-hours 48-hours within hernias report claimants that Act requires The work-related task safely with or without possible restrictions. no bearing on the actual ability of an employee to return to work. no on the actual ability of an bearing employee to return of a percentage a substantial is awarded In many cases, an employee capacity of passing a functional fully capable part and is still body certain a perform of a person to ability physical the determines which evaluation, Indemnity Awards: in some cases, a or, of a body part as a percentage computed disabilities, whole body. of the percentage member an amount equal to what the injured employee would otherwise employee the injured to what equal an amount member in these disability temporary compensation in workers’ have received cases. In lieu of temporary disability benefits, many local government employees government local many benefits, disability temporary of lieu In from work salaries for up to one year when they are “off” their full receive because of a job related injury or disability. least the minimum rates unless they actually receive salaries at a higher receive actually rates unless they least the minimum firefighters,rate. first aid,Volunteer rescue squad volunteers, ambulance for rate maximum the receive police or auxiliary reserve special drivers, benefits. There are special provisions concerning the weekly rates awarded to concerning provisions are special There volunteers. governmental about the ability of an injured employee to perform a particular job, the to perform a particular employee of an injured about the ability evaluation. capacity employer will arrange for a functional MMI, reaches when the employee terminate still Payments Disability even if the employee fails the examination. Under the law, temporary disability benefits stop when the doctor certifies doctor the when stop benefits disability temporary law, the Under improvement” medical “maximum that the employee has reached At this point, cannot return to work. (MMI), still even if the employee doubt any is If there award. Indemnity for an is evaluated employee the for the waiting period. income or social security taxes. compensation in the amount of 70% of the employee’s earnings up to the of 70% of the employee’s in the amount compensation Workers’ the by annually established is which wage, weekly state-average before is a seven-day waiting period There Bureau. Compensation becoming eligible, but once this is satisfied the injured employee is paid organization organization to provide medical treatment. This is prevent abuse. a critical control to Disability Payments: Temporary Necessary Medical Care: Necessary Medical care managed a with contract to insurer) employer’s the (or employer after the occurrence, excluding weekends or holidays. or weekends excluding occurrence, the after to inguinal hernias. only applies the courts almost always find at least one other cause so that this provision provision this that so cause other one least at find always almost courts the enforced. is rarely Hernias: Intoxication: caused was • • • • • Benefits Available to Injured Workers Workers Available to Injured Benefits CHAPTER 1 14 Assisting theClaimsProcess Special ClaimsIssues • • • • • • • • • the injured workerand expresssupport. their supervisor. Itismanagement’s responsibility toperiodically contact happen isfor aninjuredemployeetosit athomewithouthearing from Maintain contact withtheinjured employee. back toworkassoonreasonable. should alsodiscussclaims procedures, including how torelease employees review thejobdescriptions and requirements of critical positions. They should interview the managed care coordinator and the claims adjuster to significantly reduceto the costorganization of providing medicalcare treatment. managed Management a with contract to insurer, employer’s the skilled physician. the most Use the attorneyandemployee. amount thatwaspaidinworker’scompensation. The remaindergoesto employer’s insurer, usually receives two-thirds of the award up to the the or employer, the successful, is suit the If file. can employer the that, party.the Under lawsuit. the file to year one has employee the Act, After employee and theemployer may collect damages fromthisthird“at fault” Subrogation: Injury Fundreimbursement. responsibility of theclaims adjusters tomakeapplication forSecond where benefits disability the injuredworkerisunabletoreturngainfulemployment. Itisthe permanent and total for claims in participates employers tohireemployees who werepreviouslyinjured. The fundonly injured inanearlieraccident.was establishedThe fundwas toencourage Injury Fundmaypayaportionofanindemnity award ifthe employee Second InjuryFund: an importanttooltoresolvedifficultcases. causal relation,ordependency. Evenwiththeserestrictions,Section 20is will onlybegrantedbythecourtifthereisanissueofjurisdiction, liability, judge is notcompelled to approvethe settlement. Section 20 settlements there is fraudormisrepresentation. However, evenifbothparties agree, the claim is notclearcut.Section20settlements cannot bereopenedunless Section 20Settlements: the initialclaim. payment lastcompensation the where thepetitioner increased incapacity can show is causallyrelatedto of years two within benefits additional Reopening Claims: becomes involvedwhenadecisionisappealed. compensation courts donothavejuries. The regularcourtsystemonly Labor administersthe Act andemploysjudgesto hear cases. Workers’ Workers’ CompensationCourts: workers’ compensation. Medicare for injuries and illnesses related to compensable claims from type ofaward.SocialSecurityalsorecoversanypaymentsitmakesunder the on depending reduced workers’ is the benefit or compensation benefit Disability: Coordination of Workers’ CompensationwithSocial Security circumstances, toprevent“doublingup.” the workers’ compensationorthepensionisreduced,dependingon Coordination of Workers’with StatePensions: Compensation Until age 62,theamount of thesocial security disability Ifanother party caused the accident, both the injured Underthe Act, aninjuredworkerisentitled to seek Depending on the circumstances, the Second A Section20settlement is oftenusedwherea New Jersey permitstheemployer, New or The NewJerseyDepartment of The worstthing that can Either CHAPTER 1 15 Some Management Management 50 51

For the same reason, police departments are often held liable held often are departments reason, police same For the The court ruled that the petitioner was covered because he The court ruled that the petitioner A police officer was injured at home while cleaning his service for injuries to other people from service revolvers that are accidentally when an officer is at home. discharged had a duty to keep the service revolver clean and serviceable, and “was serviceable, and clean had a duty to keep the service revolver unquestionably fulfilling the duties of office.” Comment: revolver. There was no provision in the department’s policies that specified specified that policies department’s the in provision no was There revolver. where or when officers were to maintain their revolvers. Decision: Facts: of reoccurrence. It may be in everyone’s best long-term interest to assist interest best long-term be in everyone’s It may of reoccurrence. pension in some of these cases. a state disability the employee in obtaining Include your attorney in the claims control discussion. control attorney in the claims Include your severe, injuries or especially multiple, who have experienced employees risk substantial jobs without regular in their to continue may not be able duties even after reaching MMI and may need time to build up to their full time to build up and may need after reaching MMI duties even to get the employee may be required rehabilitation Additional responsibilities. disability period. during the employee’s shape after inactivity back into to identify what aspects of the job the employee is capable of doing before doing of is capable employee the job of the aspects what to identify plan a transitional circumstances, the upon Depending reach MMI. they may include both specialized fullassuming immediately of capable not are employees injured Some job. rehabilitation and transitional duty on the Return the employee to work as quickly as possible. as quickly as work to employee the Return organization care managed the and physician treating the with work should • • Selected Case Law Bloomfield (1960) Kossack v. affecting employees with protected status, you should consult with your with you should consult status, protected with employees affecting actions prior to implementation. employment attorney to vet those proposed similar to the primary defense to all employment practices claims: the employer the claims: practices employment all to defense primary the to similar engagement the employee’s move notwithstanding the same would have made decisions potentially personnel As with all contemplated in protected activity. At the same time, the immunize an employee from adverse filingemployment action for other legitimate of a workers’is claim retaliation compensation workers’ a to defense primary The reasons. compensation claim does not Suspicion is not sufficient compensation workers’ the with collaboratively toWork action. employment support a terminationthe against action of fraud, but do not take to pursue any evidence adjuster or any other adverse strong they may be. how matter based on suspicions, no prematurely employee compensation claim is not a protected activity and is potentially subject to subject potentially and is activity a protected is not claim compensation judicial from a different of fraud is vastly Suspicion prosecution. criminal of fraud. determination or even compelling evidence of workers’ compensation benefits, problemssuspicion this allows and or exaggeration suspects dishonesty employer occasionally arise when the The assertion of a fraudulent workers’ of the employee. treatment to affect Workers’ Compensation Fraud Compensation Workers’ compensation workers’ be informed of any suspicions of The adjuster should fraud so that an investigator can be themselves against for availing may not be retaliated employees understand that assigned. While most public officials CHAPTER 1 16 Perry v. StatePolice(1998) Capano v. Bound Brook ReliefFire Co. (2001) Peterson v. Alpine (2001) Crank v. Palermo(1999) Mabee v. Borden(1998) away fromthecar. work. The morningafter a winterstorm,sheslippedwhileshoveling snow Facts: while putting aloginto afireplace atthefirehouse. Facts: evenifthe services, the officer’s for utility didnotexercisedirect control. town the paid and work officer’s served by the employment. Comment: the town. workers’ compensation because the officer was hired by the utility through Decision: which argued thatBellshouldpaytheclaim. Bell Atlantic worksite. He filed for workers’ compensation from the town, Facts: from suingtheauthority. the workers’ compensation sole recourse rule barred the commissioner workers’ compensationunder thespecial provisions ofthelaw. Therefore, Decision: of theauthorityemployeddriver. Therefore, she argued that she couldsuetheauthority for thenegligence but argued thatshewasnotanemployee because she wasnotpaid. an authority-ownedvehicleasapassenger. Shewas on authoritybusiness Facts: fact sensitive. court alsoruledthat the legislature intended such exceptions berareand the bypassswitchandcreated the“virtual certainty” of aninjury. The workers’ compensation sole recourse rule because the employer installed Decision: employer. wrong, andtherefore, the employee was notbarredfromsuingthe sued theemployer, arguing thattheemployer’s actions were anintentional a guard. injured employeewhoreceivedworkers’An compensation also installed a bypassswitchsothat the machine could be operated without Facts: unless theemployeeisactually“on-duty.” because theemployee was injured while usinganemployer-owned vehicle Comment: using herownvehicleinsteadofastatevehicle. to anemergency andheractivities wouldhavebeenthesameifshewas was simplytraveling to hernormal place of work,wasnotresponding Decision: “off-duty”An a at traffic directing injuredwhile was police officer An authority commissioner was injured in an auto accident while in and machine labeling a with difficulty having was employer The to report to car state a use to required was officer police state A A 93-year-old lifelong member of a volunteer fire department fell department fire volunteer a of member lifelong A93-year-old The courtorderedboth thetownandBell Atlantic to splitthe The courtruledthat she wasanemployee for purposesof The court decided that the employee’s suitwasnotbarred by the The petitioner was denied workers’ compensation because she There is no coverage under workers’ compensation just In situations like this, the courts look at whose interests are Insituationslike this, thecourtslookatwhose

54 55

52 56 Clearly, Bell Atlantic benefited from the from benefited Atlantic Bell Clearly,

CHAPTER 1 17 62

The court’s opinion invited the legislature to correct the the to correct the legislature opinion invited The court’s While workers’ compensation coverage does not usually does not coverage compensation workers’ While The court ruled that he was entitled to compensation even compensation to was entitled he that ruled court The The court found that the petitioner’s actions were neither The court found that the petitioner’s The court denied his workers’ compensation claim because claim compensation his workers’ denied court The The court ruled that the firefighter was entitled to medical The employee injured his back in an employment-related auto injured his back in an employment-related The employee The town told an employee that it was critical to come to work The town told an employee that it was critical A career A firefighter who was a heavy smoker applied for workers’ The petitioner engaged in horseplay with another sanitation worker, worker, sanitation another with horseplay in engaged petitioner The A municipal water department operator stopped along his route to stopped operator water department municipal A functioning. Facts: six years, After pain. relieve to opioid an was prescribed and accident that the arguing paying for the opioid, refused to continue the employer and was not helping improve the patient’s prescription was palliative conditions. Decision: workplace, the “going and coming” begin until the employee reaches the dangerous in travel to is required employee the if apply does not limitation Facts: a vehicle in injured was employee The snowstorm. heavy during a accident during the commute. only show that his employment exposure contributed in a material degree in a material exposure contributed his employment only show that to the development of his emphysema.” Decision: The court wrote, establish causation. though he was not able to clearly the that prove to firefighter the for necessary not is it that reemphasize “We he need firefighting was the most significantcause of his disease. Rather, Facts: emphysema. compensation when diagnosed with the petitioner was entitled to workers’ compensation even though he was compensation to workers’ was entitled petitioner the that resulted in the altercation. the instigator of the sequence of events who became offended and struck the petitioner. struck the petitioner. and who became offended Decision: Therefore, overreacted. employee other the that nor serious and extensive Facts: Decision: going to the post officeon personal business was deemed as more than a minor deviation. Facts: office. mail and was injured at the post pick up his personal Comment: the date, To decision. this in resulted that language statutory broad overly this issue. has not taken up legislature otherwise otherwise would have been paid by Medicare. The firefighter he was long though even income, for lost disability temporary awarded was also retired. Decision: that compensation workers’ under replacement a hip for coverage Martin v. Newark Public Schools (2019) Martin v. Minter v. Mattson (2018) v. Minter Lindquist v. Jersey City (2003) Lindquist v. Wasik v. Bergenfield (2003) Bergenfield v. Wasik Jump v. Vendor (2003) Vendor Jump v.

Decision: The court ruled that an employer does not need to pay for pain relievers indefinitely and there may be a point that the pain or disability experienced by the worker is insufficient to warrant the expense of active treatment. Hager v. M&K Construction (2020) 63 Facts: A construction worker suffered a serious back injury in 2001 and went through years of treatment. In 2016, a pain specialist recommended medical marijuana. The insurer argued that this was not appropriate treatment because marijuana is an illegal substance under federal law. Decision: The court ruled that the employer is required to pay for medical marijuana when prescribed in a workers’ compensation case. Since the employer is not required to process, manufacture or distribute marijuana, there is no conflict between the Federal Controlled Substances Act and New Jersey’s Medical Marijuana Law.

20 Dudley v. Victor Lynn Lines (1960) 21 Geaney, John, New Jersey Workers’ Compensation Manual, 2019, p.2 22 Laidlow v. Hariton Machine Company (2002) 23 Cierpik v. Manasquan (1949) and Martin v. Pollard (1991) 24 DaSilva v. JDDM Enterprises (2018) 25 Stevens v. Allamuchy Township (1944) 26 N.J.S.A. 34:15-43 27 N.J.S.A. 59:7A-1 28 Joseph v. Monmouth County (2015) 29 Chisholm v. Ocean County (1989) 30 Ward v. Davidowitz (1983) 31 Nemchick v. Thatcher (1985) 32 N.J.S.A. 34:15-31 33 Brunell v. Wildwood Crest Police Department (2003) 34 Raimondi v. Morris County Park Police (2013) 35

CHAPTER 1 Fiore v. Consolidated Freightways (1995) 36 Dietrich v. Toms River BOE (1996) 37 Lindquist v. Jersey City (2003) 38 A-1741 Thomas P. Canzanella Twenty First Century First Responders Protection Act 39 Dowson v. Lodi (1986) 40 N.J.S.A. 34:15-7.1 41 Wasik v. Bergenfield (2003) 42 N.J.S.A 34:15-7 43 N.J.S.A. 35:15-12(c)(23) 44 Potter v. Jersey City (2012) 45 Geaney, John, New Jersey Workers’ Compensation Manual, 2019, p.175 46 A 2002 amendment to N.J.S.A. 34:15-75 provides that emergency workers are not subject to the minimum seven-day waiting period. 47 N.J.S.A. 34:15-43 48 N.J.S.A. 11A:6-8 and 18A:30-2.1 49 In 2010, the state eliminated a similar program for its workers who now only receive workers’ compensation. However, in 2017 the legislature reinstated this program for corrections officers who are assaulted by inmates. 50 According to a report authored by the American College of Occupational and Environmental Medicine, unnecessary, prolonged work absence can cause significant harm to a worker’s well-being. Workers who are on extended disability often lose social relationships with co-workers, as well as the self-respect and self- esteem that comes from earning a living. For many workers, their job is part of their identity, and being kept away by illness or injury is a very stressful experience. By allowing a more accelerated return to work and more significant support during recovery, transitional duty programs can help employees reduce the stress and disruption that injuries or illness cause in their daily lives, leading to better recovery. 51 63 N.J. Super. 332 (Law Div. 1960) 52 296 N.J. Super. 158 (App. Div. 1996) aff’d, 153 N.J. 249 (1998) 53 316 N.J. Super. 218 (App. Div. 1998) 54 A-5050-98T3 55 A-5205-99T1 56 Domanoski v. Fanwood (1989) 57 356 N.J. Super. 87 (App. Div. 2002), certify. Denied, 175 N.J. 550 (2003) 58 351 N.J. Super.44 (App. Div. 202) aff’d 59 A-794-02T3 (App. Div. 2003) 60 175 N.J.244 (2003) 61 A-1916-15T4A (App. Div. 2018) 62 A-0338-18T4 (App. Div. 2019) 18 63 A-0102-18T3 (App. Div. 2020) CHAPTER 2

EMPLOYEE SAFETY PROGRAMS

Local government is responsible for many of the more hazardous functions in our communities. It is sobering to realize that the typical police officer, firefighter or DPW worker has a higher chance of being injured on the job than an underground mining or construction worker. Management establishes priorities and sets an example. Through consistent & effective safety programs they can dramatically reduce accident rates. Since 1991, JIF members have reduced their accident rates by an average of over 65%. Modern employee safety programs date back to the 1920s when workers’ compensation insurance became widespread. In 1931, while Superintendent of Engineering for Traveler’s Insurance Company, Herbert Heinrich (1886 – 1962) wrote his groundbreaking thesis that the frequency of accidents was directly related to the frequency of unsafe acts and unsafe conditions. He concluded that over time, the accident rate will drop proportionally if management addresses these issues. 64 President Nixon signed the Occupational Safety and Health Act (OSHA) in 1970 to assure safe and healthy working conditions. Since then, the employee accident rate has dropped 53%. 65 OSHA codified safety standards that had been adopted by various national organizations over the preceding decades into law, hired inspectors and used its authority to fine violators. CHAPTER 2 20 Management Strategies That ImpactSafetyRecords: training programs. also hasinspectorsandconducts federal standards insomeareas.PEOSH governmental sector. and Workforce Development responsibility for onthejobsafetyin Safety and Health Act (PEOSHA) in 1985, giving the Department of Labor Governor Keansignedthe New JerseyPublicEmployees Occupational • • • • • • reports inthemonthlyriskmanagementreportto governingbody. and auditforcompliance. The SafetyCommittee should include those Your JIF or insurer should periodically inspect local government facilities Workforce Development enforces compliance with PEOSHA regulations. Monitor PEOSHA compliance. real causes. from management should gotothesceneand“drill-down” toidentifythe participation is themissing element in accident investigations. Someone involvement, not merely reading the reports. Too often,management Participate in accident investigations. safety proceduresrequiredforthatday’s activitiestoeveryemployee. that eachoperation is properlyplannedand to communicate the critical that donot.Managersandsupervisorshavetheresponsibility to ensure each morningaveragelessthanhalfthefrequencyofaccidents as those where supervisors and crew leaders discuss safety with their associates Discuss safetywithemployeesatthestartofeachshift. NJMEL.org forcomplete details on the member training program offered. their safety training average almost 50% fewerreportable accidents. Go to refresher training. Require all personnel tocomplete a safetyorientationandperiodic right tostopanoperationifsomethingdoesnotseemright. unsafe, and that everyone must look out for each other. This includes the workforce thateveryonehastherighttoquestionsomethingappears be solely“top-down”andmustincludethegrassroots.Communicate to the management support oftheSafetyCommittee is essential, but safetycannot Empower employeeinvolvementinthesafetyprogram. support tothesafetyprogram. of aware are officials the safety performance, they are far more likely to provide the necessary senior When agenda. workshop monthly body’s accident rate. The risk management program should be on the governing when topmanagement closely followsthesafetyrecordexperience and what theymonitor. Employers experience dramatically fewer accidents Monitor safetyperformance. 66 NewJerseyPEOSHstandardsare more stringent than Organizations where all personnel are up to date on date to up are personnel all where Organizations Managerscommunicate their prioritiesby Jersey Department of Laborand The New “Participate” means active Organizations Strong CHAPTER 2 21 1.8 2.3 2.6 2.8 3.1 4.0 4.3 4.3 2.3 0.3 LT Cases LT Burns 7% Other 8% Struck By10% Other 24% Lifting 48% Slips & Fall 18% Industry Rates per 100 Employees Rates Industry Heart Attack Heart 43% 32% Trauma Asphyxiation 10% Fire Department Fatalities JIF Members Wholesale, Trade Retail Manufacturing Mining Construction Transportation State Government Local Government All Employers Industry & Finance Insurance Utility & DPW Employee Accidents Accident Facts Accident Assaults 12% Other 31% Vehicle Repair 9% Vehicle & Sewer 7% Water Other 6% EMS 4% Administration 3% Other 4% & 16% Police Police Department Accidents Trash Collection 38% Collection Trash Streets 24% Buildings Grounds Slips & Falls 15% Lifting 25% 17% Vehicle Motor Fire 9% Public Works 46% Public Works Police 34% Public Works Employee Accidents Employee Public Works Municipal Accidents by Department Municipal CHAPTER 2 22 have themostexperience with howataskisperformedandcanhelpidentify on Safety Committees have lower injury and illness rates. Research has shown that organizations with a higher percentage of its workforce employees. representatives from management, collective bargaining units and non-union should becollaborative and include the risk management consultant and The SafetyCommittee plans andimplements the riskcontrolprogram.It What is a LocalGovernmentSafetyCommittee? large vehicle fleets with an average of two vehicles for every three employees. selection and safety. These are important for localgovernmentsthatoften have cover avariety of issues,including proper vehicle use, maintenance, driver programs safety Fleet situations. difficult to exposed are who responders first training programsforlifting and slips&falls,including a special program for safety specific are There system. management MEL’slearning the online in employees should complete the basic new employee orientation, available are bodymechanics, such aslifting,slips&fallsandmotorvehicles. All The most common accident types for all local governmental employees Common Exposures courses are: of bothclassroomandonline trainingprograms. The mostfrequentlyused A major responsibility of theSafety Committee is tomonitor attendance Training get outofcontrolandusedetailedagendastomakemeetingsmoreeffective. among all members. Establish basic ground rules to ensure meetings do not someone else to doso. The Chair should also focus onencouraging participation Committee Chair mustfacilitate the meeting without dominatingitorallowing more likelytomakeameaningfulimpactonworkplacesafety. An effective Safety Committees with strongandvisibleuppermanagement support are organizations oftencreatesubcommitteesbydepartment. this knowledge “from the neck up.” Tointo encourage broader participation, large taps Committee Safety effective An overlook. may others that hazards Lock Out/Tag Out Flagger/Work Zone Snow Plow Commercial Driver’s License Fire Extinguisher Hearing Conservation HazCom Violence Prevention Defensive Driving Bloodborne Pathogens Classroom Courses Driving inEmergencies Fire Safety Safe PatientLifting Cyber Security HazCom Blood BornePathogens Anti-Harassment Camp Counselors Online Courses Avoid BackPain Land UseLiability 70 Front-line workers CHAPTER 2 23 71 WIN – What is Important Now? WIN – Remember: Complacency Kills! Wear your belt. Wear your vest. Wear your speed. Watch • • • • • a premium discount to communities that have accredited police agencies. a premium discount to communities that have accredited police agencies. When the procedures are in place, a team of experienced command officers verifies that the standards offers have MEL programs, and the accreditation provide NJSACOP, the including been implemented. organizations, Several Accreditation begins with the agency’s adoption of a clear statement of statement clear of a adoption agency’s the with begins Accreditation and of its policies by the evaluation followed objectives professional The agency through the NJSACOP. procedures. Model policies are available program is current and documented. whether its training must also evaluate Police Accreditation is another strategy to reduce law enforcement accidents. accidents. strategy to reduce law enforcement is another Accreditation Police of this program is to reduce annual line-of-duty police fatalities under 100. under 100. fatalities police line-of-duty of this program is to reduce annual This effort involves extensive training on the five tenants of law enforcement safety: MEL conducts risk management seminars around the state for almost 1000 for almost state the around seminars management risk conducts MEL police command officers every two years. The MEL is also working closely (NJSACOP) to of Police Chiefs of Association Jersey State New the with The objective in New Jersey. 100” program “Below the national implement A third of the safety professionals retained by the MEL are retired police police are retired by the MEL third of the safety professionals retained A command officers who have a uniqueThe peers. their to relate to ability the have and agencies police issues within understanding of the specific safety number of police officers killed in the line-of-duty peaked at 278 in 1974. By 1974. in 278 at peaked line-of-duty the in killed officers police of number 2019, the figure had been reduced to 106, with 55 feloniously killed while 51 died in accidents. the Crush Zone,” at NJMEL.org. Police Great strides have been made to improve the safety of police officers. The while in the community and in the garage or DPW yard, trenching and confined and trenching yard, DPW or garage the in and community the in while and an orderly garage maintains that each DPW is also critical It space entry. yard. View the MEL produced award-winning video, “Don’t Get Caught in With With over 100 Public training periodic receive must personnel DPW all year, each nationwide Works employees killed concerning work zones and the in Manual for Uniform ControlTraffic Devices. work zone both accidents, “crush” to exposure include accidents fatal to lead Issues that accidents roads, athletic fields and landscaping during the spring and summer, collecting summer, and spring the during landscaping and fields athletic roads, Some are also responsible winter. during the and snow removal the fall in leaves utilities. operate water and electric and, in many towns, for garbage collection Many communities have a tradition that newly DPW to understand the department. with the DPW of their orientation elected officials spend part of maintenance the including seasonal, highly and varied are responsibilities training to fill this gap. Some of this training is online, however, classroom the of because important especially is demonstration onsite and instruction lapses. of safety serious consequences Work on roads and around heavy equipment is especially dangerous, and dangerous, is especially equipment heavy around roads and on Work while police officers and firefighters receive extensive training from county Works of Public for Department no county academies there are academies, works public provides extensive Institute Safety The MEL (DPW) employees. Public Works Public CHAPTER 2 24 In 2006,theMEL workedwiththeNJSACOP toproduceacomprehensive occupations inlocalgovernment. changes, beingaschoolcrossingguardhasbecomeoneofthemostdangerous are in ahurrywhenthey drop off orpick up their children. Because of these designed to handle. This congestion is often compounded bymotorists who were they than traffic more with clogged are zones school result, today.a As Half of our children walked to school forty years ago, compared to only 15% School CrossingGuards eesd h “aedr ibn eot ta otie 1 atos ht fire that actions 11 outlines that departments should taketoreducecancer-related Report” risks. Ribbon “Lavender the (NVFC) released FireCouncil the National Volunteer and (VCOS) Section Officers In 2018, the International Association of Fire Chiefs’ Volunteer & Combination also havea62%higherrisk ofhavingesophagealcancer. Firefighters tohave it. from dying of risk aslikely increased 129% a have and mesothelioma twice are they Specifically, cancer. kidney and intestinal have significantly higher risks of respiratory (lung and mesothelioma), gastro- likely tobediagnosedwith,and14%morediefrom, cancer. Cancer: section attheendofthismanual. should offer ongoingheartscreening. A modelprogramisintheresource In addition to acomprehensive safety training program, everydepartment of HarvardUniversityconcludedthat, death. InarecentNewEngland JournalofMedicine study, Dr. StefanosKates at least 600,000 Americans each year. In half of the cases, the first symptom is Heart attacks are the number one cause of death in the United States, striking firefighters overage55,andone-sixthinvolved65. due to thefact that they tend to be older. Ofthe heart attacks, 43% involved were duetosuddencardiacdeath. The higherincidence among volunteersis 39%of volunteers that involving those of 50% and firefighters concluded career involving The report fatalities fatalities. firefighter “on-duty” of cause Health issued an (NIOSH) alert that sudden cardiac death is the most common Heart Attacks: Fire Departments program. developing crossing guardtraining, and the MEL isaprime sponsor oftheir streamed at NJMEL.org. RutgersUniversity has since taken responsibility for safety program, including walking routes to school. All of these videos can be the Walk,” discusseshowcommunitiescancreate a comprehensive pedestrian Smart isStreet Safe”and“SchoolZone,Danger Zone”. Another video,“Walk safety training program for crossingguards, including the videos, “Street blood pressureandcholesterolaswellweightgain.” shapethan better in others, but as they grow older they may acquire risk factors, such ashigh careers their begin may Firefighters else. someone can leadtoaheartattack heart attack in in thesamewayshovelingsnow the general population, but thesuddenexertion of their work cantrigger a to compared disease heart of risk higher a have not do “Firefighters Compared to the general U.S. population, firefighters are 9% more 9% are firefighters population, U.S. general the to Compared In2007,theNational Institute for Occupational Safety and 72 Firefighters CHAPTER 2 25 reports. examinations. Firefighters should never use tobacco. personal and incident the in exposures chemical or fire all document Fully Decontaminate and regularly clean the apparatus seats, SCBA and interior and SCBA seats, apparatus the clean regularly and Decontaminate where personnel after incidents or wipes, especially with soap and water were exposed to products of combustion. Firefighters should be strongly encouraged to get annual physical Shower within the hour or ASAP. hour or Shower within the living quarters. in the apparatus floor and not in PPE should be stored areas like the neck, face, arms and hands. Remember to always keep wipes to always keep arms and hands. Remember face, the neck, areas like in all apparatus. immediately clothes Wash soon as possible after an event. Change clothes as trash bag until washing is available. or store them in a in an exterior compartment of the apparatus, or store in a large storage tote or store in a large apparatus, of the compartment in an exterior vehicles. in personally owned as much soot as possible from exposed use wipes to remove Immediately available for calls. available and life dangerous to immediately are that atmospheres leaving After gross decontamination begin on air and immediately (IDLH), stay health the bag bag and place Place PPE in a sealed soap and water. of PPE using overhaul. All entry-certifiedpersonnel should be provided with a second hood hood and a spare contaminated to wash their time always have they that so Wear full personal protective equipment (PPE), including self-contained self-contained including (PPE), equipment protective personal full Wear and salvage incident, the entire during (SCBA), apparatus breathing • • • • • • • • • • • boards must have a notice that explains employee rights under PEOSHA. public entities, and in some cases, adopts more stringent standards. PEOSH and in some cases, adopts more stringent standards. PEOSH public entities, has the power to inspect facilities and issue fines where it determines that its PEOSH are random, inspections many While violated. been standards have bulletin All employee complaints. to employee notice also responds without All employers have a general duty to maintain a safe and healthy work a safe and healthy All employers have a general duty to maintain The New Safety and Jersey Public Employer Occupational environment. for Standards OSHA Federal (PEOSH) enforces Administration Health employee vehicles on business must be included in the vehicle safety program, safety vehicle the in included be business must on vehicles employee training. license checks and periodic including driver’s PEOSHA Compliance video, “Smart Moves to Avoid Falling Down,” addresses this issue. Falling Down,” Avoid video, “Smart Moves to accidents in vehicle also injured are employees and managerial Administrative or employer either who operate personnel All appointments. to traveling while its online learning management system that meets this requirement. its online learning management system Almost half of office-related accidents involve slips and falls. MEL’s The Approximately one percent of for other rate of the this is only a quarter While all year. each job accident the office employeessuffer occupations, it is still a disablingserious enough requires that that PEOSHA every office on in program has a training MEL The safety training. worker must be provided Office CHAPTER 2 26 hazards. workin indoor airquality, bloodbornepathogens,andthepropercontrolofchemical incidents, and emergency at worksites excavations and workonelevated surfaces. Othermajor regulations concern control traffic temporary procedures to“LockOut”machinery and vehicleswhilebeingrepaired, requirements, entry space confined to attention special pay must governments (b) adoptwrittensafetypolicies,and(c)provideadequate training. Local The mostcommoncitations are failure to (a)maintain the requiredrecords, tnad. ES epaie ta tann ms b poie o all for PEOSHinspectors. on provided be must available be must documentation and vehicles, and training equipment significant that emphasizes PEOSH standards. A trainingplanshouldstartwithmeeting the minimum regulatory supervisors andeachother. must encourage employees to shareinsightsandconcerns withtheir information can be communicated up and down the organization. Leaders can beimmediately applied. The secondconceptis“teambuilding,” where is especiallyeffectivework, sinceadultslearnbestwhentheinformation learning,” or shortandtargeted daily safety messagesabout that day’s Two training concepts are critical for effective training. First,“chunk faced byworkers. governmental factory. Even the best-written policies cannot anticipate all of the situations Local exposures. specific employees do notworkinacontrolled and static environment such asa worker’s each on focus that Training: policies thatcanbedownloadedatNJMEL.org. Specifically: training programs, and copies made available. The MEL maintains model foundation of asafety culture. These policies must beincluded inemployee Written Safety Plans: board ineachdepartmentforthreemonths,until April 30th. log to be completed by February 1st and posted on the employee bulletin to maintain a log of work-related injuries and illnesses, with the summary hospitalizations, amputations or loss of an eye within 24-hours. Employers are required work-related report also must Employers occurrence. 1644 orthe24-hourfaxline (609)292-3749 withineight-hoursofthe report fatalities to the state by contacting the 24-hour hotline (800) 624- Reporting Requirements: • • • • • • • • • • Confined SpaceEntryPermitSystem Reporting andRecordingofOccupationalInjuries Control ofHazardousEnergy (LockOut/ Tag Out) Quality Indoor Air Respiratory Protection Personal ProtectiveEquipment(PPE)andJobHazard Assessments Plan Emergency Action Fire Prevention Hazard CommunicationandNewJerseyRighttoKnow Exposure Control(BloodbornePathogens) These written policies must form the basis oftraining programs A strong set of written policies and procedures is the PEOSHA requiresthat public employers Conclusion The most critical thing any official can do is to place the risk management program on the discussion agenda each month and request a management report on the program’s status. The management team and workforce will adjust their priorities based on what the governing body decides to monitor. CHAPTER 2

64 Heinrich HW, Industrial Accident Prevention, A Scientific Approach, 1931 65 National Safety Council Injury Facts, https://injuryfacts.nsc.org/ 66 N.J.S.A.34:6A-25 et seq. 67 Many JIFs compute member accident frequencies each month so that members can benchmark their performance. This report should be periodically distributed to the member’s governing body. 68 The employee orientation available on the MEL web site emphasizes this message. 69 In 2018, the MEL conducted over 1,100 training classes attended by over 24,000 member employees. Another 29,000 employees completed online training programs written and produced by the MEL’s safety consultant. All of this training is available to members without additional charge through the MEL Safety Institute at NJMEL.org. 70 New Solutions (Vol. 18, No. 4) 71 Federal Bureau of Investigation, Law Enforcement Officers Killed andAssaulted 2018 72 Cancer in the fire service: what we should know + what we should do,VFIS, October 10, 2019 27 PART 2

LIABILITY AGAINST PUBLIC ENTITIES OFFICIALS AND EMPLOYEES

Every local government should also have a Litigation Risk Committee to monitor the status of lawsuits and put plans into place to reduce potential liabilities. It should be comprised of the Mayor or authority chair, manager or executive director, the local unit’s attorney, senior managers and the risk management consultant.

Chapter 3: Tort Claims Act (Title 59)

Chapter 4: Employment Practices Liability

Chapter 5: Americans with Disabilities Act

Chapter 6: Land Use Liability

Chapter 7: Liability for Child Abuse CHAPTER 3

TORT CLAIMS ACT (TITLE 59)

Much of the material in this chapter was contributed by the late John S. Fitzpatrick, who drafted portions of Title 59 while he was New Jersey Deputy Attorney General (1969-1976). He later served as a senior member of the MEL’s defense panel. The decisions made by local government impact everything that happens in a community. Almost any accident could result in a lawsuit against local government in the absence of some reasonable limitation. While private entities have the ability to limit the scope of their activities, government does not. 73 Government was protected by sovereign immunity 74 until 1959 when the New Jersey Supreme Court ruled that governmental employees could be sued for failure to perform ministerial duties but not for discretionary activities. 75 The court struggled to determine what discretionary activities should have immunity over the next 11 years, ultimately inviting the legislature to adopt a Tort Claims Act. 76 The resulting Title 59 is based on the California Tort Statute and incorporates the concept of “modified governmental immunity.” Adopted in 1972, NJSA Title 59 provides governmental entities and employees with immunity to civil suit unless a separate law establishes liability.

29 CHAPTER 3 30 Immunities • • • Another 30% are civil rights cases filed under various federal and state and federal various under filed cases rights civil are 30% Another out ofcommonaccidentsandarefiledunder Approximately 60% of liability claims against government entities arise important exception. government enforcedits laws moreeffectively. However, thereisan the theory thatthese accidents would nothaveoccurred ifthe local continually be suedforaccidents happening in their town basedon Without these immunities, public entities and their employees would employees, includingspecialimmunitiesfor: Section 3 ofTitle 59 are discussedinlaterchapters. along withemployment practices, land useandethics. All ofthesetopics laws rights civil of understanding basic a have should officials local All contractor’s rightswereviolated. would not protect the council from a suit alleging that the minority contractor after several other roundsofbidding. Legislative immunity (2) thebidswererejected, and (3)thecontract was thenawardedtoalocal a minority contractor was the low bidder to construct a new firehouse, but rights whenitexercisesitslegislativepowers.Forexample,suppose(1) Legislative immunity will notprotect the town ifthe council violates civil is authority zoning discretionary andeligibleforlegislativeimmunity. because suit civil a from protected still is rezoning. town the The for but occurred have not would accident an the that alleged caused traffic increased the itwas increase of pedestrian accidents, and (3) oneofthe injured (2) pedestrians housing, after anarea high-density in for increased rezoned traffic that (1) suppose example, For and BoardsofEducation.Specifically: in theStatelegislature, county freeholders,municipal governing bodies governmental discretion. Discretion begins withlegislative powers vested public entities and employees enjoybroadimmunity for theexerciseof Discretionary Immunity: “Super Fund”laws(Chapter10). The remaining 10% involve environmental issues brought under various civil rightsandemploymentpracticeslaws(Chapter4,5,6,1617). • • • willful misconduct.” employment or constituted a crime, actual fraud, actual malice or if it is established that his conduct was outside of the scope of his “Nothing inthe actshallexonerate a public employee from liability Failure toinspect,ornegligentinspectionofproperty. failure todoso. Issuance, denial,suspensionorrevocationofpermits or orders,the Good faithenforcementorfailuretoenforceanylaw. nature.” inaction, or administrative action or inaction of a legislative or judicial “A publicentity isnotliable for legislative or judicial action or 77 79 extends discretionary immunity to officials and officials to immunity discretionary extends 81 Under Section 2 of Title 59 Title 59 (Chapter3). , all New Jersey 78 80 CHAPTER 3 31 , 86 Title 59 Title in 1972, the 1972, in Title 59 Title 82 83 which means that they honestly which means 89 When drafting 85 Even if the conduct fails to meet this standard, fails to meet Even if the conduct 88 . In one notorious case, a gay couple who lived next who lived couple gay a case, notorious one In . Towns should require all coaches, referees and other and referees coaches, all require should Towns 84 Title 59 Title Conduct will be considered to be “ in good faith” if it is if good faith” in “ be to considered be will Conduct 87 or enforcement of any law. Nothing in this section exonerates a public exonerates Nothing in this section of any law. or enforcement or false imprisonment.” employee from liability for false arrest “A public employee is not liable if he acts in good faith in the execution in good faith if he acts is not liable employee public “A public recreational facilities; provided, however, that nothing in this this in nothing that however, provided, facilities; recreational public for failure to entity from liability a public section shall exonerate condition...” protect against a dangerous “A public entity is not liable for failure to provide supervision of is not liable for failure public entity “A public employees can still benefit from the good faith immunity iftrial, at good faith” can show “subjective they believed they acted in accordance with the law. knowledge, either actual or sufficient that to the demand conduct inquiry, is wrong.” reasonable. objectively enforces laws. a be law eligible enforcement for officialimmunity, mustTo act “in good without of conduct which means “honesty of purpose and integrity faith,” Notice that this immunity is not limited to police and protects all to police limited is not Notice that this immunity municipal including law enforcement, involved in employees government clerks, construction code officials, fire inspectors and anyone else who regulation without legislative approval. As a result, New Jersey has been As a result, New approval. without legislative regulation is immunity Police reforms. police adopting in leader as a acknowledged Specifically: also more limited than in other states. In recent years, there has been increased public scrutiny of police “use of public scrutiny of police In recent years, there has been increased force” and police interaction with minority citizens. Unlike other states, authority to establish standards by Attorney General has the the New Jersey immunities. One such immunity is that there is no requirement that a that requirement no is there that is immunity such One immunities. victims crime prevents This department. police a maintains municipality been would not have occurred had the police the crime that from alleging and funded. better staffed Law Enforcement Immunity: Law Enforcement Attorney General’s task force recognized that written law enforcement carefully overwhelmed by lawsuits without public entities could be Rutgers University. Rutgers officials to submit certificates verifying course completion and maintain these records. employee or even a volunteer can be sued for negligent supervision when it supervision for negligent be sued can even a volunteer or employee to volunteer immunity provides a special the law is provided. Importantly, athletic coaches, managers or officials for non-profit sports teams if they by provided usually course, orientation safety one-time a completed have While there is no obligation to provide supervision, a municipality, a municipality, to provide supervision, is no obligation there While liable, the town was also responsible because this was a discrimination was a discrimination this because responsible was also town the liable, million. the couple $2.84 The jury awarded case. Immunity: Recreational entity’s entity’s immunity can be nullifiedby Federal and State civil rightslaws supersede that one dinner from returning while firefighters by harassed was firehouse a to night. The court ruled that while normally just the firefighters would be Therefore, it is possible that the public entity is immune under under immune is entity public the that possible is it Therefore, but individual officials or employees are not immune. Even thepublic CHAPTER 3 32 public propertyinthecasesof: Under property. To prevail,aplaintiff mustestablishallofthefollowing: The most frequently litigated area of Accidents onPublicProperty • • • • long as there is no bad faith. If the officer knew that the speeding motorist but speeding red light and has an accident. The officer someone has immunity in this situation as witnesses officer stop. traffic the make to a later,not blocks runs decides motorist Two the an say let’s Hypothetically, permanent recordof theaction. of theimmunity. This shouldbedone byresolution so that there is a started and before any change orders were implemented to take advantage the governing body orother appropriate authority before construction The governmental entity must establishthatthedesignwasapproved by standards subsequentlychange. Once design immunity is triggered, it remains in force even if safety designed usingstandards that arenotconsistentwithmodernpractice. older road design contributed to a vehicle accident, as most streets were it, thegovernmentwouldbesuedeverytimesomeone alleged that an public project, butisespecially important in relation to roads. Without authorized officially approvedit.government bodyhas Thisimmunityappliestoany an after property public of design defective a from resulting Design Immunity: tomean “Actions orinactionsthatnoprudentpersonwouldapprove.” unreasonable palpably defined have courts The unreasonable. The action orinaction of thepublicentity or employee was palpably condition thatcausedtheaccident. The publicentityhadactualorconstructivenoticeofthedangerous The publicpropertywasinadangerouscondition. intended purpose. The claimant was usingpublic property withreasonablecare for its because ofthedangertobothpublicandofficer. as burglarcurtailing high speedpursuits alarms.Policeagencies arenow especially important toavoidhigh-speedsforrelatively routine callssuch solongas to an emergency they arenotdrivinginarecklessfashion. responding when immunity have officers Many policeliability cases areautoaccidents. Under departments. make the process easier. ManyJIFsgive a premium discount to accredited training. Several accreditation programs also provide model policies to accreditation process to improve their policies, procedures, and related In recentyears,manypoliceagencieshavesuccessfullycompleted an civil rightsor usingexcessiveforce. someone’s violating is officer fellow a if intervene to duty affirmative someone’s civilrightsoruseexcessiveforce. violate cannot and cause” “probable have must Officers imprisonment. The immunity does not apply to liability for false arrest or false the officer’s failuretostopafellowofficerwasbadfaith. that decide easily officer, could “off-duty”police jury an however, a was Title 59 , publicentities are protected from civil suits foraccidents on The Act providesabroadimmunityfor injuries 93 Title 59 90

91 concerns accidents on public Evenwiththisimmunity, itis Officers also have an have also Officers Title 59 92 , police CHAPTER 3 33

100 94 Local governments should enact an enact should governments Local Local government may be held liable government Local 95 immunities almost eliminate lawsuits lawsuits eliminate almost immunities 98 Under common law, homeowners have no homeowners law, Under common Unlike homeowners, commercial properties can properties homeowners, commercial Unlike also recognizes that governments have limited Title 59 Title

Government enjoys common law snow and ice enjoys common Government As a general principle, there is immunity for accidents for accidents immunity is there principle, general As a Most communities have miles of sidewalks and curbs, and of sidewalks miles have Most communities 99 Title 59 Title

does not require counties and municipalities to establish establish to and municipalities does not require counties 96 except where the government entity, such as a Housing such as a Housing entity, government where the except 97 Title 59 Title If the governing body enacts a sidewalk repair program over time, the If the governing body enacts town to have immunity during implementation. meant for the legislature Municipalities may also minimize their exposure by establishing a Shade Commission. Tree For the government to be held liable, the injured party must show that the For the government to be held liable, or should have been known and was serious enough was known defect Local unreasonable.” was “palpably a repair to make the failure that immunity. resources” “scarce of the advantage take may also government immunity property. owns rental Authority, situations. limited in defects curb and by sidewalk caused for accidents be held liable for accidents on the sidewalks in front of their establishments. establishments. on the sidewalks in front of their for accidents be held liable properties. Rental units are considered commercial Local Government: or clear snow, the immunities still protect them from liability in the event in the liability from them protect still immunities the snow, or clear of an accident. Properties: Commercial Residential Homeowners: in front of their snow or clear sidewalks to maintain responsibility legal sidewalks repair to homeowners requires ordinance an Even if property. public entity was palpably unreasonable.” was palpably public entity “A public entity is not liable for the exercise of discretion when, in the face in the when, of discretion exercise for the is not liable entity public “A of competing demands, it determines whether or not to of the determination the that concludes court a resources...unless existing utilize or apply • • • caused by natural conditions, caused by natural conditions, but not for accidents caused by man-made hazards. Specifically: courts that what would amount to a roving pothole patrol. Property: Unimproved Cases involving potholes are also rare. In the winter, motorists must expect motorists winter, In the are also rare. Cases involving potholes protections as potholes to develop. Potholes fall under the same immunity lower the Court admonished New Jersey Supreme The on sidewalks. defects injured person is struck by a government vehicle. The decision to establish to decision The vehicle. government a by struck is person injured for crosswalk is eligible design of the and the discretionary, is a crosswalk but is Once established, a crosswalk must be maintained design immunity. a sidewalk. eligible for the same immunities as Streets and Crosswalks: Streets where the in situations except accidents for pedestrian entities public against and it is not possible to repair every defect. Under legislative immunity, a immunity, legislative to repair every defect. Under and it is not possible limited has a but improvements these install to no obligation has community maintenance. obligation to provide orderly infrastructure repair and replacement program to take advantage of to take advantage program and replacement repair orderly infrastructure this immunity. Sidewalks and Curbs: The legislature recognized that government does not to be done. needs that do everything have the resources to Scarce Resources: Scarce that: provides and resources CHAPTER 3 34 have been thrown out under unimproved property immunity, the judge ruled large branchcamedownfromatree,killingthewoman. While thecaseshould during awindstormwithgustsupto50MPH. through town-ownedwoods A unimproved on being naturally created. Inonecase,acouplewaswalkingalongpath hazard hazards the despite immunity ignore the grant to not will excuse judges Sometimes an property. as immunity this use not Do Other Provisions that thetownshouldhavepostedawarningorclosedpath. to anynaturalconditionoflake,stream,bay, riverorbeach.” by aconditionofanyunimprovedpublicproperty, including butnotlimited “Neither a publicentity nor a public employee is liable for aninjury caused expanded. statute of limitations to file claims for sexual assault has been significantly lawsuit a or days, within twoyearsoftheincident. 90 within claim of notice a file to failed attorney the institute a lawsuitunder Statute ofLimitations: responsible toreplacethedamaged property. quickly clean-up the sewage. After that, the adjusters will sort out who is make arrangements with anemergency contractor who canbecalled to should knowhowyourtownrespondstosewerback-ups. Mosttowns such asthe blockage previously occurring with somefrequency. You the blockage isinthemain line andthe town hadnotice of the problem, residence. The town may have responsibility under somecircumstances if responsibility if theblockage is inthelateral between the street and the that sewageisbackingupintoaresident’sbasement. The townhasno Sewage Backups: insurance, themaximumyoucanrecoverfromtown isyourdeductible. is totaled by atowntruckduringsnowstorm.Ifyour cariscoveredby other insurance. Forexample, you parkyournewcaronthestreetandit against local government by theamount the claimant can collect from Collateral Source Rule: $3,600. both permanent“loss”ofabodyfunctionandmonetary lossesofover Verbal Threshold: in goodfaith. so long as the public entity and its officials, employees or volunteers acted immunities also applywhentheGovernordeclaresastateofemergency, is alegislative function andisentitled so legislative immunity. State ofEmergencies: or wanton.” first responders can be held responsible for conduct that is deemed “willful failed to arrivefastenoughordidanineffective job. In rareoccasions, fire claiming that the damage was more severe because the fire department such services.” while corps ambulance and departments fire Fire Department and Ambulance Corps: 105 102 104 Without this provision,thetownwouldbesuedafter every No elected official wants to receive a call at 3:00 a.m. 3:00 at call a receive to wants official elected No To prevailunder The declaration of anemergency or the failure to do There are strict time limits to file claims and then This provision reduces the amount of anyaward Title 59 107 . Casesarebarredevery year because Underlegislation enacted in 2019,the Title 59 There is a special immunity for , theplaintiff mustdemonstrate “rendering ingoodfaithany 103 101 Special 106 CHAPTER 3 35 punitive damages damages punitive 108 cases, Designate an ADA Coordinator ADA Designate an Update the Employee Practices Update the Employee Title 59 Title Periodically review all ordinances and Periodically 109 110 Review coverage issues with the Risk Management Plan a multi-year program to allocate scarce resources resources scarce to allocate program Plan a multi-year While barred in most most in barred While comprehensive child abuse prevention programImplement a Institute a system of regular inspections of all public property Institute a system of regular inspections Adopt procedures for citizens to report hazards, log all reports all log hazards, report to citizens for procedures Adopt Arrange to have all Planning and Zoning Board members Monitor the status of all outstanding lawsuits. Monitor the status (See Chapter 8). (See Chapter 7). Insurance Coverage: with vendors Consultant and review the insurance provisions of contracts Land Use: trained to minimize land use liability (See Chapter 6). Child Abuse: Americans with Disabilities Act (ADA): Act Disabilities with Americans of any complaints II and investigate Title with to oversee compliance inaccessibility (See Chapter 5). Risk Control Program every two years, including the Employment Risk Control Program every two Practices Manual, the Employee Handbook 4). managers and supervisors (See Chapter and training for officials, for the repair and replacement of critical infrastructure such as sidewalks, infrastructure of critical for the repair and replacement curbs and road resurfacing. Risk Control: Employment Practices software that tracks reports of hazards and the records can be important when defending claims. These these defects. actions taken to correct Capital Planning: Reporting: governments have installed local Many action. and record corrective review all proposed ordinances to consider risk management issues. review all proposed ordinances to consider Inspections: and monitor the results. Litigation: Ordinances and Resolutions: and case law, with the latest resolutions to ensure they are consistent Other Department Heads depending upon the size of the local unit. Heads depending upon the size of Other Department Mayor or Authority Chair Mayor or Director Manager or Executive Attorney Local Unit’s Consultant (RMC) Risk Management • • • • • • • • • • • • • • • participate. should include: responsibilities The Committee’s The Litigation Risk Committee must work collaboratively with the Safety work collaboratively must Risk Committee The Litigation Chair to the Safety Committee and should consider inviting Committee Litigation Risk Committee Risk Litigation to control Risk Committee have a Litigation government should Every local consist of: committee should The legal exposures. lawsuits. Under New Jersey law, punitive damages cannot be covered by by be covered cannot damages punitive law, Jersey New Under lawsuits. situations. in rare except insurance Punitive Damages: Punitive liability and environmental molestation sexual rights, in civil are permitted CHAPTER 3 36 Freytag v. MorrisCounty(1981) Suarez v. Dosky(1980) Selected CaseLaw: • • • • • h ue f ulc aiiis y te ognztos n idvdas (See individuals and organizations Resources). other by facilities public of and fireworks use and the parades as such events special for procedures safety Special EventsandUseofPublicFacilities: and isnot eligiblefor theimmunity. These casesare veryfactsensitive. make thepath improvedproperty. However, adamisnotnaturalstructure is thatrocksare anaturalmaterial,and rockborderalongapathdoes not the areaaround thedamwasotherwiseunimproved property. The distinction found thestateliablefornot adequatelyprotectingthespillwayeventhough a boaterwentoverthedam spillwaydeepinawoodedparkarea. The court Comment: unimproved characterofthe area. Even thoughtherockshad beenmoved,thatdidnotchangethegeneral Decision: down thepath. A tobogganerhitoneoftherocksandwasinjured. and also knew that, at some point, someone moved rocks tocreate a border park. The county knew that people were usingthe path as a toboggan run Facts: driver diedseveralhourslaterinthewoodedareajust off oftheroadway. the driverofavanthat was wreckedonaguardrail. The undiscovered negligent in performing ministerial duties because they failed to look for were officers police that held it when decision similar a reached court the immunity was limited to theactual enforcement of laws.Ina2010case, Comment: protectthe dutyto children. had aministerial the situation to responding officer does notapplytonegligence in theperformance of ministerial duties. The enforcing ornotthelawandthatenforcement immunity Decision: argued thatpolicepowersimmunityshieldedtheofficer’s decision. of the children with the motorist was killed by a passing car. The agency could handlethesituation. Unfortunately, whilewalkingontheramp,one exit ramptoagasstationandleftthescene,believing that themotorist next the up walk to motorist the told officer The phones. cell before was This booth. phone a to lift a for officer investigating the asked interstate Facts: amendment rightsandtheOpenPublicMeetings Act (SeeChapter15). Freedom ofSpeech: Chapter 14). Ethics: safety issues(SeeChapter13). Community Safety: including reportingrequirements(SeeChapter10). Environmental Liability: The countyallowedpeopletotoboggandownapathin The driver of a car involved in a minor one-vehicle accident on an Oversee compliance with the Local Officials Ethics Act (See Act Ethics Officials Local the with compliance Oversee The court ruled that unimproved property immunity applied. The Appellate Division ruled that this wasnotaquestion of In this early decision, the courts clarified that law enforcement Contrast this decision toa1989case,

Coordinate with the Safety Committee on community 111 nttt poeue t poet h pbi’ first public’s the protect to procedures Institute Monitorcompliance with EPA regulations, 113 Reviewtheinsuranceand Troth v. State, 114 where 112

CHAPTER 3 37 For 119 the courts will 121 a case involving the a case involving 116 120

115 Johnson v. Southampton, Johnson v. 118

117 While design immunity attaches in perpetuity, attaches While design immunity Without this immunity, public entities would be sued in almost public entities this immunity, Without This decision only applies to vegetation in the immediate area in the immediate to vegetation applies only decision This The New Jersey Supreme Court held that discretionary immunity immunity that discretionary The New Jersey Supreme Court held The New Jersey Supreme Court ruled that design immunity did The New Jersey Supreme Court ruled that design immunity The court ruled that the allocation of scarce resources of scarce resources the allocation ruled that The court A child A died in a fire ata high rise apartment building that lacked A motorist lost control of his vehicle at a dangerous curve that at of his vehicle motorist lost control A An intersection accident occurred when a motorist failed to stop to stop failed a motorist when occurred accident intersection An Products Safety Commission. sometimes bypass the immunity if the legislature has enacted new safety new safety has enacted legislature the if immunity bypass the sometimes playgrounds that New Jersey mandated 1999 in For example, standards. by the Consumer with the standards promulgated be upgraded to comply even been considered at the time of construction, and, therefore, there was there and, therefore, of construction, time the at been considered even no discretionary act to immunize. Comment: detectors became mandatory. detectors became mandatory. Decision: had not of smoke detectors question because the not apply in this case Facts: for was eligible it that argued Authority Housing The detectors. smoke the plans had been approved before smoke because design immunity this reason, police should carry temporary warning signs in the trunks of warning should carry temporary this reason, police their patrol cars. every vehicle accident under that allegation that a sign or lowered speed a sign that under that allegation accident every vehicle however, erected, Once a sign is mishap. the would have prevented limit it must be maintained. Further, the Act specifically provides that public warnings. emergency place to for failure liable held be can entities applies to the placement of permanent traffic signals and signs,establishment of speed limits. and the Comment: limit was entirely too high and that there had been numerous accidents at accidents too high and that there had been numerous was entirely limit was on notice but failed to act.Therefore, the town years. this curve over the Decision: Facts: speed the to show that was also able plaintiff The a warning sign. lacked wrote: “The limited ability to make observations on either side of the road the of side either on observations make to ability limited “The wrote: due care simply served as a warning that and vegetation caused by trees must be maintained.” Comment: stop sign. In around the and found immunity onto the road, the court of vegetation encroachment Decision: palpably signs obscured was stop leaving because did not apply immunity unreasonable. because foliage covered the stop sign. The town argued that it was eligible it was eligible that argued The town sign. the stop covered foliage because foliage of the all trim resources to the lacked it because for immunity around town. Facts: Thompson v. Newark Housing Authority (1987) Housing Newark Thompson v. Klatch v. Lindedahl (1985) Lindedahl Klatch v. Shuttleworth v. Conti (1984) Conti v. Shuttleworth CHAPTER 3 38 Morely v. Palmer (1989) Fagen v. Vineland (1994) Levin v. SalemCounty(1993) Bombace v. Newark(1991) indeed intoxicated, he decided totakenofurtheractionandreturnedhis middle of a major road. While the officer determined that the person was Facts: Federal lawsupersedes thestateimmunities under guidelines. pursuit on officers the train properly to fails it if court federal follow the Attorney Generalguidelines. However, thetown canbesuedin third partyisinjured asaresultofpolice pursuit,evenifthechase didnot Decision: guidelines. crashed intoanothermotorist. The chase didnotfollow Attorney General Facts: sands andriptides. negligence, that liability does not extend to natural hazards such as shifting be posted.Further, whileamunicipality can beheldliable for alifeguard’s When a townactstoprovide protection, appropriate warning signsshould post signsat beaches, lakes and other places where people may swim. generally, theydonothaveanobligation to stationlifeguardsorotherwise Comment: purpose. Bridgesarenotintendedtobedivingplatforms. party must establish that the property was being used forits intended Decision: but didnotplaceanywarningsandmadenoeffort tostopthepractice. For years,the county had knownthat people often dove fromthisbridge improved property and not eligible for the unimproved property immunity. struck hisheadonasandbarandsuffered abrokenneck. The bridgewas Facts: decision isalsofrequentlycitedwhenthecourtsdefine“badfaith.” caused accidentsonthetheorythatinspectionswerenegligent. This defects building other whenever or fire every in sued be would inspectors Comment: had notactedinbadfaith. inspector wereprotected under lawenforcement immunity because they Decision: inoperative. building inspector mishandled a complaint that the smoke detectors were owned apartment. The family sued the city on the theory that the being usedbecauseofthelackcentralheatinginprivately- was Facts: entitled toimmunity. met the criteria requiring custody wasdiscretionary and, therefore, is Decision: officer hadtakenthepersonintocustody. family sued, claiming that the accident would not have happened if the a quarterofmileawayandwaskilledbypassingtruck. The person’s regular patrol. Three hourslater, theintoxicated person crossedtheroad A youngmandoveoff ofacounty-ownedbridgeintoriver, that heater portable a by caused fire tragic a in died children Four An officer responded to a call that an intoxicated person was in the A suspect stole a vehicle and was chased by police until the suspect Normally, The courtruledthat the countywasnotliable because theinjured The New JerseySupreme Court ruled that the city and the The court ruled that the determination of whether the person Without this decision, construction code officials and fire and officials code construction decision, this Without While publicentities haveadutytostationlifeguardsatpools,

Title 59 122

125

123 124 section5-2gives thepolice immunity if a Title 59 . CHAPTER 3 39 128

127

129 126

The Attorney 1972 Force Task General’s specifically warned While it goes against instinct, sometimes it is better to end a end to better is it sometimes instinct, against goes it While A A federal court held that the officer was responsible the for The court ruled that when the town establishes a “Shade Tree Tree “Shade town establishes a when the that ruled court The The court ruled that the fellow officers were not eligible for The New Jersey Supreme Court ruled that the town was entitled . At 4 a.m. the plaintiff was a passenger in a car stopped by police At 4 a.m. the plaintiff The Plaintiff was injured when her bicycle struck an uneven an struck bicycle when her was injured Plaintiff The The plaintiff, who was 16 at the time, injured his knee playing the time, injured his knee playing who was 16 at The plaintiff, The police stopped a husband and wife as they staggered home one they staggered home and wife as stopped a husband The police immunity and were liable because they have an affirmative duty to protect to duty affirmative an have they because liable were and immunity rights. civil a citizen’s though the plaintiff did not resist. Fellow officers did not intervene. The report ultimately proved to be a hoax. Decision: Facts: had been reported hijacked that of a vehicle the description it met because even at gunpoint. One of the officers roughed-up and the plaintiff, injured Commission,” both the town and the commission become immune from commission become Commission,” both the town and the trees. lawsuits alleging a failure to maintain sidewalk caused by the roots of a “shade tree.” She sued both the town and the She sued both tree.” “shade of a roots caused by the sidewalk Commission. Tree the Shade Decision: Title 59 Title Facts: the courts about adopting novel causes of action. This case is an example is an case This of action. causes novel adopting courts about the has reviewed Court Jersey Supreme New the occasions, on several of how, in immunities stop ignoring the clear cases to remind the lower courts to to immunity because a municipal parking lot was not a ballfield and was not being used for its intended purpose. Comment: The police knew the plaintiff and his friends often played football in the football and his friends often played the plaintiff knew The police parking lot but ignored the situation. Decision: Facts: The edge station. to the train adjacent in the town parking lot football gravel. adjacent the than lower inches a half and was one payment of the would have been no liability except for the fact that they had retained her. her. except for the fact that they had retained liability would have been no safety. they had responsibility for her Once they intervened, woman’s injuries under the “state-created danger” theory. This is an is This theory. danger” “state-created the under injuries woman’s key factor in this decision A of federal law superseding state law. example home, husband her sent custody, into woman the took police the is that There intoxicated. she was extremely knowing that her then released and when she passed out in the cold and suffered serious brain damage before serious brain damage cold and suffered passed out in the when she she was found. Decision: unattended unattended children at home but detained his wife she started her, released After they briefly.stand. barely she could that intoxicated She was so home a block from her it. She was only make but didn’t to walk home Facts: were there because husband to proceed the They allowed a bar. from night Comment: is injured. officer, or the in the public, someone before chase Jones v. Hartford (2003) Jones v. Petrocelli v. Sayreville Shade Tree Commission (1997) Tree Shade Sayreville v. Petrocelli Garrison v. Middletown (1998) Middletown Garrison v. Kneipp v. Tedder (1996) Tedder v. Kneipp CHAPTER 3 40 Lodato v. Evesham(2008) dangerous conditions andsignificant discretionary decisions. governments create and maintain documentation of theirefforts toaddress support toundertake programs andprojects. However, it is critical that local substantially reduce litigation exposure andprovide public entities with the Committee. The immunities granted by strongly recommend thateachgovernmental entity appoint a Litigation Risk or insurer.attorney andtheprofessionals retained by yourJIF We also Title 59 Conclusion Stair v. NJ Transit (2016) Morello v. Department(2015) MonmouthCountySherriff’s have an orderly plan to fix sidewalks. Instead it passed an ordinance that ordinance an passed it Instead sidewalks. fix to plan orderly an have The townknewthatthesidewalkwasinseriouscondition but didnot Facts: because theyareconsidered commerciallandlords. Housing Authorities do notenjoycommon law snowandice immunity municipal parking lots because they are eligible for workers’ compensation. ice immunity doesnotapplytoemployees injured by slipsandfallsin onto asidewalk. snow Comment: more litigationifthisimmunitywasabrogated.” of noothergovernmental function thatwouldexposepublicentitiesto removal activities leave behind‘dangerousconditions.’ We canconceive and iceimmunity.snow The courtwrotethat,“Bytheirverynature,snow- Decision: condition. the plaintiff contendedthatithadfailedtokeeptheplatform inasafe While NJ Transit had cleared snowontheplatform the previousday, Facts: there wasprobablecause. that faith” good “in believed officer the that exist, not did cause probable alleging false arrestbyestablishing that probablecauseexisted,orif claim a against defend still can officer the innocent, be to proves plaintiff Decision: the properlicensetocarry. The plaintiff thensuedforfalsearrest. the charges weredroppedwhenitturnedoutthat,infact,theplaintiff had confiscated the weapon but failed to ask if the plaintiff had a permit. Later because he was involved in gang activity and feared retaliation. The officer had aloadedhandguntuckedinhiswaistbandandthathecarriedthegun marijuana. When asked ifhe had anymore drugs, the plaintiff saidhe discovered the plaintiff sitting inacarsmokingwhatappeared to be Facts: the sidewalk,buttownremainsliableifitisnotrepaired. immunity. The town can go tocourt to require the homeowner torepair for sidewalk repair does not supersede the homeowner’s common law the municipality. Passinganordinance making homeowners responsible and the entity that owns the road isresponsible for the sidewalk; in thiscase Comment: transfer itsliabilitytohomeownersbysimplypassinganordinance. Decision: required homeownerstofixsidewalksattheirexpense. iscomplicated, and youneedtheadvice of yourlocal government’s The plaintiff slippedonblack ice while walkingatatrain station. officer Sherriff’s a warrant, support child a executing While A senior citizen tripped on a broken sidewalk in a residential zone. The court ruled that NJ Transit was eligible for common law The NewJerseySupremeCourtunanimouslyruledthatwhena The courtfoundthatthemunicipality was liable andcouldnot Municipalities are eligible for immunity even iftheyplow Inresidential areas, homeownershavecommon law immunity,

132

130 133

However, amunicipality’sand broad snow Title 59 canbeaneffective tool to 134

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CHAPTER 3 41 Thompson . “While a private entrepreneur may entrepreneur private a “While 134 N.J. Super 537, 342 A. 2d 513 (1975) 134 N.J. Super 537, 342 297 N.J. Super. 544 (App. Div. 1997) 544 (App. Div. 297 N.J. Super. Sopko v. Logan Township (2007) Township Logan Sopko v. 55 N.J. 534 (1970): The State maintained a bear cage at and

249 N.J. Super. 440 (App. Div. 1991) aff’d, 131 N.J. 124 (1993) 440 (App. Div. 249 N.J. Super. 619 A.2d 575 (1993) 619 139 N.J. Super 569 (App. Div.) certify. Den. 71 N.J. 337 (1976) certify. 139 N.J. Super 569 (App. Div.) 139 N.J. Super. 569 (app. Div.), certif. den. 71 N.J. 337 (1976): An (1976): 337 N.J. 71 den. certif. Div.), (app. 569 Super. N.J. 139 “Neither the State nor any political subdivision of the State under any “Neither the State nor any political (1959) (1840) 217 N.J. Super. 158, 175 (1986) 217 N.J. Super. 245 N.J. Super. 153 (App. Div. 1991): 108 N.J. 525 (1987). 285 F. Supp. 2d 174 (D. Conn. 2003) 285 F. 399 N.J. Super. 329 (App. Div. 208), aff’d 208), in part 198 N.J. 557 (2009) in part, rev’d 329 (App. Div. 399 N.J. Super. 196 N.J. 569 (2008) provides that: provides 420 N.J. Super. 22 (2010) 420 N.J. Super. 193 N.J. Super 540 (App. Div.) reversed 100 N.J. 485 (1985) Div.) 193 N.J. Super 540 (App. 241 N.J. Super.1 (App. Div. 1990), aff’d rev’d in part, 125 N.J. 361 (1991) in part and (App. Div. 241 N.J. Super.1 “Neither a public entity nor a public employee is liable for failure to provide police provide to for failure liable is employee public nor a entity public a “Neither 388 N.J. Super 501 (App. Div. 2006) 388 N.J. Super 501 (App. Div. 584 A.2d 825 (1991) 584 , 193 N.J. Super. 271 (Law Div. 1983) Div. 271 (Law 193 N.J. Super. Morrision v. Lumberton (1999) Morrision v. N.J.S.A. 59:4-4 “Failure to provide emergency warning signals. Subject to section 59:4-2 of the act, 59:4-2 of the to section warning signals. Subject emergency to provide 59:4-4 “Failure N.J.S.A. Nappi v. Secaucus (2015) Nappi v. 108 N.J. 525 (1987) Authority Passaic Housing Rodgers v. N.J.S.A. 59:9-2c Accident and Indemnity Hartford City of Newark v. N.J.S.A. 59:9-2d N.J.S.A. 59:9-2e N.J.S.A. 2A:53A-13 Edison, Southland Corp. v. Polzo v. Essex County Polzo v. The time to file notice of claim on behalf of a minor does not begin until the minor’s 18th birthday. The The time to file 18th notice birthday. of claim on behalf of a minor does not begin until the minor’s Ojinnaka v. Newark Ojinnaka v. Bligen v. Jersey City Housing Authority Housing Jersey City Bligen v. N.J.S.A. App. A:9-52 157 N.J. Super. 518 (App. Div.), certify. Den. 77 N.J. 485 (1978) certify. 518 (App. Div.), 157 N.J. Super. Willis v. N.J. N.J. Department of Conservation v. Willis Lopez Lopez v. City of Elizabeth 388 N.J. Super 501 (App. Div. 2006) 388 N.J. Super 501 (App. Div. A-88-13 073978 Unpublished decision 241 N.J. Super.1 (App. Div. 1990), aff’d in part and rev’d in part, 125 N.J. 361 (1991) (App. Div. 241 N.J. Super.1 133 N.J. 35 (1993) 1996) (3rd Cir. 1199 95 F.3d 154 N.J. 282 (1998) 1997) 544 (App. Div. 297 N.J. Super. 2003) Supp. 2d 174 (D. Conn. 285 F. 1989) 144 (App. Div. 232 N.J. Super.

N.J.S.A. 59:4-8 Also see 100 N.J. 485 (1985) reversed 193 N.J. super 540 (App. Div.) 1981) 234 (App. Div. 177 N.J. Super. 1988) 420 (App. Div. N.J. 258 (1989), rev’d 222 N.J. Super. 117 1984) 469 (App. Div. 193 N.J. Super. The Committee may also include other members of the governing body. The Committee Bligen v. Jersey City Housing Authority Jersey City Housing Bligen v. Commission Tree Sayreville Shade Petrocelli v. N.J.S.A. 59:2-3d Elizabeth Lopez v. Evesham Lodato v. Kolitch v. Lindedahl Kolitch v. Marley v. Palmyra Marley v. City of Hartford, Jones v. N.J.S.A. 59:3-14 Secaucus (2004) Carter v. and DeVries N.J.S.A. 59:2-3 b. N.J.S.A. 59:2-3 N.J.S.A. 59:3-3 N.J.S.A. 59:3-6 N.J.S.A. 59:3-7 Freeholders of Sussex v. Strader v. of Sussex Freeholders Brewster v. Foundations Bedrock 171 N.J. Super. 1 (App. Div. 1979) certify. Den. 82 N.J. 300 (1980) 1979) certify. 1 (App. Div. 171 N.J. Super. Leang v. Jersey City BOE v. Leang Rodgers v. Passaic Housing Authority Passaic Housing Rodgers v. Bombace v. Newark v. Bombace The immunity also does not apply to workers’ compensation cases where an employee is injured on the job. compensation cases where The immunity also does not apply to workers’

N.J.S.A. 59:3-3 and N.J.S.A. 59:5-2 N.J.S.A. 59:3-3 and N.J.S.A. N.J.S.A. 59:3-3 N.J.S.A. 59:2-7 2A:53A-7 N.J.S.A. N.J.S.A. 59:5-4

4 130 131 132 133 134 124 126 127 128 129 endangered endangered the safe movement of traffic andwhich would not due care.” a person exercising behave been anticipated by, reasonably apparent to, and would not 120 121 122 123 117 118 119 signals, emergency to provide caused by its failure for injury proximately shall be liable entity a Public which condition necessary to warn of a dangerous were if such devices signs, markings or other devices 112 113 114 115 116 deadline to file suit is two years later when the individual turns 20 years of age. deadline to file suit is two years later when the individual 108 109 110 111 comply with, any order, rule or regulation promulgated pursuant to the provisions of this act, or performing pursuant to the provisions promulgated rule or regulation comply with, any order, to persons or damage or death for any injury liable shall be therewith, connection in any authorized service of any such activity.” as result to property 105 106 107 102 103 104 nor circumstances, the agents, officers, employees, of servantsrepresentatives the or State or any political to or attempting with, complying out, carrying faith good in volunteers, all including thereof, subdivision 97 98 99 100 101 immunity is triggered, it remains in force. This immunity is subject to limited exceptions. See is subject to limited This immunity is triggered, it remains in force. immunity Authority Newark Housing v. 94 95 96 91 92 93 was unit The apartment. the heat to used piping uninsulated on was burned grandmother her visiting infant design The court ruled that once the safety standards changed. and subsequently, built in the early 1950s, 86 87 88 89 90 82 83 8 service.” sufficient police protection to provide for failure service is provided, if police protection or, service protection 85 Tort Claim Act (TCA) or be liable in the same fashion as any private entity. in the same fashion Act (TCA) or be liable Claim Tort 77 78 79 80 81 74 75 76 The NJ bears. cubes to one of the when she tried to feed sugar lost her arm 3-year-old A High Point Park. either adopt a must that the legislature was “out dated” and immunity ruled that sovereign Supreme Court 73 has which government area the his activity, ambit of the chosen within for negligence be held liable readily the duty not have should government therefore and limit without good is almost public to act for the power done.” might be that to do everything CHAPTER 4

EMPLOYMENT PRACTICES LIABILITY

In recent years, there has been a dramatic increase in lawsuits alleging workplace discrimination and harassment. Employees are no longer willing to accept employment-related bad behavior and look to the courts for relief. There is a distinct difference in the nature of employment cases between the public and private sectors because many public sector cases include allegations of political discrimination. Under federal law, the adage “to the victors belong the spoils” only applies to a few confidential managerial positions, including the Manager or Executive Director. 135 The reality is that any major personnel action without well-documented performance issues, with all the “i’s dotted and t’s crossed,” will probably result in litigation. 136 Many local governments need to improve their performance appraisal programs significantly. Too often, an employee was rated “outstanding” year after year until receiving the first unsatisfactory appraisal just before termination. Without building the file and following the appropriate procedures, you will lose every time. Law Against Discrimination (LAD) 137 The New Jersey Law Against Discrimination (LAD) was the first such statute in the country in 1945. It has since been amended numerous times to add protections based on age, sex, disability and sexual orientation. For the first 45 years, relief in LAD cases was mostly injunctive, meaning that a court order required the defendant to stop a discriminatory practice. In 1990 the Legislature amended the Act to include “all remedies available in common law tort actions,” including monetary damages. CHAPTER 4 43 Theresa Lehmann, 141 . 139 138 140 Lehmann v. Toys R Us Toys Lehmann v. power imbalances, marginalized communities including women of color, immigrants, domestic workers, LGBTQ+ people and others are uniquely vulnerable to sexual harassment.” eight percent of women reported being sexually harassed in a public a in harassed sexually being reported of women percent eight harassment Sexual residence. their work and 31% at at 38 percent space, sexual orientation, gender, race, religion, people regardless of affects it is fueled by because or expression.” . . . “However, gender identity “A recent survey found that 81% of women and 43% of men have survey found that 81% of women and 43% recent “A This lifetime. their during harassment form of sexual some experienced harassment and sexual assault. Sixty- includes verbal, physical and cyber If your town is not civil service, an outside agency should also conduct a should also conduct outside agency service, an If your town is not civil written test. Have an outside agency interview qualified candidatesobjective analysis. and provide an Adopt a Police Promotional Ordinance. Adopt a Police Promotional Ordinance. • • • complaining that she should not be forced to change jobs because of her jobs because to change that she should not be forced complaining She then resigned and sued. bad behavior. supervisor’s incidents, unwanted sexual advances and inappropriate comments by her unwanted sexual advances and inappropriate incidents, told to handle it herself rather than report it but was She complained superior. bad but the higher, fed up and went became She ultimately level. to the next approach, that rejected but transfer a She was offered continued. behavior The New Jersey Supreme Court also made it easier to win harassment lawsuits harassment win to easier it made also Court Supreme New Jersey The in its 1993 landmark decision in touching numerous to was subject department, purchasing a in supervisor a On the Job Harassment The New Jersey issue concerns workplace harassment. Another common Division of Civil Rights reported: It is also critical that elected officials insulate themselves from charges of either either of charges from themselves insulate officials elected that critical also is It your community should: prevent these lawsuits, To favoritism or retaliation. every patrol officer aspires to become Chief, and often resort to litigation when litigation to resort often and Chief, become to aspires officer patrol every succession management is why a formal That is promoted. candidate another plan is so important. public sector, disparate treatment is more common. disparate treatment public sector, disputes. from promotional see far more lawsuits arising we Today, Almost departments. from police come two-thirds of these cases Approximately the courts to break into local government. Fortunately, we don’t see as many we don’t into local government. Fortunately, the courts to break of these lawsuits today because people have become more cognizant of these the is rare in or gender discrimination racial While overt requirements. laws’ between the jury award and the attorney fees. the jury award and between equal involved government local lawsuits against employment Most early to use were forced minorities and other women In particular, opportunities. approximately 70% of the total cost of employment-practice actions. In one actions. of employment-practice cost total the 70% of approximately awarded and was $75,000 of offer settlement a rejected plaintiff the case, application a fee submitted counsel plaintiff’s The jury. by the only $20,000 proportionality showing no $450,000, received eventually and of $671,000 The Act also allows “fee-shifting,” where the defendant must pay the plaintiff’s plaintiff’s the pay must the defendant where “fee-shifting,” allows also Act The As now represent costs legal a result, any award. there is bills if legal CHAPTER 4 44 intimidating, hostile oroffensive workingenvironment.” The old-fashioned person would consider a situation “sufficiently severe or pervasive to create an orientation. Suchharassmentisactionable if it creates what areasonable class. The principle also applies to race, national origin, disability and sexual harassment intheworkplacebasedonanemployee belonging toaprotected The effective anti-harassmentprogram. The keywordhereiseffective. sexual harassmentcommitted byitssupervisoryemployees unlessithasan The NewJerseySupremeCourtruledthatanemployer isresponsiblefor Among otherthings,the Act providesthat: activity thatharmsorpotentially harmsthegeneralpublic. employee is fired or demoted in retaliation for focusing the spotlight on official 1985 toprevent the so-called “Serpico” situation, where agovernmental “whistleblower act.”CEPAJersey Legislature in adopted bytheNew was violations oftheConscientiousEmployeeProtection Act (CEPA), or In recent years, we have also seen a dramatic expansion of cases alleging Conscientious EmployeeProtectionAct(CEPA) and usuallydonotcoverlostwages. Practices Liability policies alsohavesubstantialdeductibles and co-payments, had been,bylaw, theinsurercouldnotpaypunitive damages. Employment of almost$3 million. Unfortunately, the town wasnot insured. Even if it in fees. The town paid its attorneys approximately $1 million for a total $500,000 in punitive damages, plus interest. Her attorney received $700,000 In included asevidenceofa“continuingtort.” period allowed under the statute of limitations, then prior activity can also be program. Further,harassment duringthe thecourtruledthatiftherewas environment is hostile,andtheemployerlackedaneffective anti-harassment harassment isactionable if areasonable woman wouldbelieve thattheworking The NewJerseySupremeCourtfound,however, thatevenlow-levelsexual these earlierincidentshadprejudicedthejury’s award. year statute of limitations under the LAD, arguing that allowing testimony on incidents that occurredinthe1980s,beforecommencement of thetwo- allowed the plaintiff’s attorney to present evidence of anumber of alleged The township appealed on numerousgrounds,inparticular, that the judge fed up,suedandajurydecidedthecaseinherfavor. became officer The Department. the into women allowing opposed question the Police Department resisted change. The Chief for mostofthe period in She complained several times, but the town’s actions were ineffective because Lehmann in as touching, or advances sexual no as defined harassment,” “low-level as hired by the town, whothen suffered over15yearsofwhatthe court described in In 2002,the office or locker room “give and take” has become a serious litigation problem. Mancini v.Mancini Teaneck. Mancini employee reasonably believes: because the employee discloses an activity, policy or practice that the “An employer shall nottake any retaliatory action against anemployee Lehmann (2) Isfraudulent orcriminal.” (1) Isinviolation oflaw, or , but rather a continuing pattern of sexually-based jokes and slights. , the officer received $125,000 in compensatory damages and damages incompensatory $125,000 received officer the , Lehmann decisionisnotlimited to sexual harassmentandextendstoall decision was clarified by the New Jersey Supreme Court 143 This case concerned the first female police officer police female first the concerned case This

144 142 CHAPTER 4 45

These laws, These 147

145

an employer must put in place:

146 Lehmann decision specific training programs for managers and supervisors, Police Chiefs and and Chiefs Police supervisors, and managers for programs training specific guide are available The program and instructor’s non-managerial personnel. Learning Management System. and through the MEL at NJMEL.org included in the MEL Manual. included in the MEL personnel training should be provided along Mandatory management develops Every two-years, the MEL other employees. with training for all Model Employment Policies and Procedures Manual that is updated every Model Employment two-years, available at NJMEL.org. These are also procedures. Both formal and informal employee complaint Written policies and procedures that prohibit discrimination and discrimination prohibit that and procedures policies Written a developing has responded by The MEL harassment in the workplace. • • • Under the FMLA leave, has taken FMLA leave or has communicated an intention to take to intention an has communicated or leave FMLA taken has leave, FMLA leave. FMLA Risk Committee Litigation under the FMLA if it can prove that it would not have retained an employee retained have would not it prove that can if it FMLA under the exercised whenever caution should be Extreme leave. the FMLA of independent on who is employee an affect adversely could that action personnel a taking employment position. The Act does not protect employees against termination against employees Act does not protect The position. employment employee An with rights under FMLA. for a reason other than interference to the for a reason unrelated leave of protected the end during or at discharged An employer can avoid liability right to reinstatement. leave has no automatic rights. These issues are complicated, and employers should seek the advice of advice the seek should employers and complicated, issues are These rights. their employment attorneys. previous a to restoration to right limited a with employees provides FMLA The unable to work because of a disability or requiring protection in the wake of wake the in protection or requiring disability of a work because to unable benefits. additional to entitled potentially are violence domestic of these exercise employee’s based on an retaliation FMLA, prohibit including position to which the employee would have been entitled had the employee not employee had the entitled been would have employee which the to position taken the leave.” illness, serious a with relative a for caring employees laws, state various Under vacation, paid sick or family leave benefits. Upon exhaustion of FMLA leave, FMLA of exhaustion Upon benefits. leave family or sick paid vacation, position to either be restored to their previous entitled employees are generally to No employee is entitled some limitations. subject position, or an equivalent “any right, benefit, or positionof employment other thanany right, benefit or The Family Medical Leave Act (FMLA) provides employees the right to 12 the employees Act (FMLA) provides Leave The Family Medical family or health-related during any 12-month period for weeks of unpaid leave matters. During this period, employees are permitted to utilize accrued paid shifting” provisions have made these cases especially attractive to attorneys. have made these cases especially shifting” provisions Act (FMLA) Family Medical Leave The problem increasingly encountered by local government is that both both is that government local by encountered increasingly problem The and LAD are now CEPA used in the governmental sector as leverage to fight or is terminated If an employee action. job legitimate any otherwise almost “fee- The LAD lawsuit. or of a CEPA be almost certain you can disciplined, provision, employers must display a notice about CEPA in English and Spanish Spanish and in English CEPA about a notice display must employers provision, to law the of notice provide and employees all to assessable board a bulletin on annually. each employee As with LAD, “fee-shifting” applies, but the statute of limitations under CEPA CEPA under of limitations statute the but applies, “fee-shifting” LAD, with As another Under frame. time two-year of LAD’s that to opposed as is one-year CHAPTER 4 46 an automatic safe harbor. The court wrote in its decision, “We do not hold that The Gaines v. Bellino(2002) Moorestown v. Armstrong (1965) Selected CaseLaw: the presenceofsuchmechanismsdemonstratesabsencenegligence.” the absenceofsuchmechanisms automatically constitutes negligence, nor that • • instances ofharassmentduringtheirannualpersonnelevaluation. is trusted.” For example, it is good practice to ask employees about any A systemtomonitorcompliance “to makesurethecomplaintstructure the corrections officerdidnotdosoherself. in management, they then had an obligation to take it higher even though The court ruled that because the officer had reported the incident to people emphasized that the lack of managerial training was especially significant. Decision: opportunities. unreasonably failed to take advantage of anypreventative or corrective v. Boca Raton missing. Further, under the U.S. Supreme Court decision in not automatically liable just becauseoneoftheprogram’s elements was in provided training to managerial employees but argued thatthedecision if shereported inappropriate activity. The county admitted that it had not the county’s strictanti-harassment policy andthatshewouldbeprotected During depositions, the corrections officer admitted that she was aware of then suspendedandretired. the situation because ofanothercaseinvolving this supervisor, whowas over thefollowingyears.Finally, seniormanagement became awareof concerned about possible retaliation. There were several other incidents other supervisors whosuggested that she report the incident, butshewas her willbyshiftsupervisor. Shementionedtheincident toseveral Facts: police officersorforviolatingCEPA. action because the town can still be suedfordisparate treatment between Comment: standard becausetheycarryweaponsandhavearrestpowers. Decision: offenses. The townappealed. was tooseverecompared to penalties to other employees for similar determined that he was guilty of the infractions but found that the penalty to kill the Chief and take his ownlife. The Civil Service Commission of incidents, including an altercation with hiswife,wherehethreatened Facts: for electedofficialseachyeartosupportthispractice. consistent practice through action over words. The MEL conducts seminars An unequivocal commitment fromseniormanagement that demonstrates Lehmann Lehmann v. Toys RUs A female corrections officer at a county jail was kissed against waskissed jail acounty at officer corrections female A a series after unbecoming” “conduct for fired was officer Apolice requirement of aneffective remedial program isnotmeant to be Jersey SupremeCourtheldthecountyliableand The New to ahigher be held can officers police that held courts The You mustbeverycareful when instituting a major personnel , 150 anemployeralsohas a defenseiftheemployee

149 specifically provided that an employer was anemployer that provided specifically 148 Faragher CHAPTER 4 47

151 154 152 153

So-called “locker room talk” is now actionable. Management is now actionable. room talk” “locker So-called Even the judge was shocked enough to reduce the compensatory shocked enough to reduce the compensatory Even the judge was When anyone in management is aware of a situation, they do do they situation, a of aware is management in anyone When The court granted a summary judgment dismissing the case The New Jersey Supreme Court disagreed with the Appellate the with disagreed Court Supreme Jersey New The The court ruled that the town was The court ruled that the town because harassment liable A A Jewish officer sued under LAD because of a series of minor A police officer alleged gender discrimination and sexual A DPW worker complained when fellow employees started to to started employees when fellow worker complained DPW A Decision: because the town consistently implemented its anti-harassment program. the supervisor’s remarks were inappropriate but found no discriminatory remarks were inappropriate the supervisor’s anti- additional ordered and supervisor the disciplined He intent. harassment training. harassment after her supervisor and several employees made caustic made employees several and supervisor her after harassment remarks when she could not continue work during a difficult pregnancy. for consistently enforcing a reputation who had The town administrator, and found that the complaints investigated policies, harassment the town’s Facts: Comment: act must and tolerated be not will conduct such that clear it make must policy. consistently to enforce its anti-harassment “undervalues these stereotypic references and demeaning comments” and and demeaning references “undervalues these stereotypic an to create viewed, in the aggregate, “those isolated incidents could be environment.” objectively humiliating and painful Decision: that the comments in question were only “ribbing” ruling Division’s statement, court’s the appellate chops” and wrote that and “breaking in the “give and take.” court judge Division agreed with the lower The Appellate The appealed. judge threw out the case, and chops and were only “breaking in question comments the and ruled that the officer The issue then went to the New Jersey Supreme Court. teasing.” Facts: participated officer the cases, some In years. the over jokes and comments Comment: and the punitive award to $100,000. award to $100,000 After this ruling, the jury awarded the plaintiff $250,000 for compensatory $250,000 jury awarded the plaintiff After this ruling, the damages and $400,000 for punitive damages and fined the town another $10,000. Decision: under considered a form of retaliation could be from fellow employees to halt the harassment. steps to take appropriate failed if management CEPA shoot pigeons nesting in the garage. Management did not think the issue the not think did Management garage. in the nesting shoot pigeons the teasing started fellow employees and serious consideration, warranted about this complained The worker as “Pigeon Man.” worker complaining sued under CEPA. and ultimately harassment Facts: Comment: the problem. sitting on of the luxury not have Groslinger v. Wyckoff (2009) Wyckoff v. Groslinger Cutler v. Dorn (2008) v. Cutler Lakes v. Brigantine (2007) Brigantine v. Lakes CHAPTER 4 48 Winters v. NorthHudsonRegional(2012) Hahn v. Edison (2013) Vaticano v. Edison(2013) vocal critic of workplacepractices, was terminated following Civil Facts: activity. on the facts, if the lawsuit was filed under other statutes that protect union Comment: harms thegeneralpublic. The courtwrote: potentially or harms that activity official on whistle the blow not did he Decision: minor complaintsasexamplesofretaliation. objected to theplacement of camerasinpolicecarsandcitednumerous theMayor that was promoted his campaign supporters within the Police Department. Healso complaints specific officer’s the of One violation. the police department union representative and, therefore, wasaCEPA Taskin retaliation Forcetothepatroldivisionwas for hisadvocacyas Facts: a well-documentedbasisfortheMayor’s chosencandidate. summary judgment.” rest uponmere allegations, general denialsorvaguestatements tosurvive that the town was not liable and wrote that that the plaintiff, “…may not Decision: and notpolitics. The Mayor countered that his decision was based on relative qualifications the Mayorpromotedalessseniorindividual to headthepolicedepartment. politics, including aclashbetweenthematcampaign event. Subsequently, which demonstrated that the Mayor was aware of the Deputy’s Chief’s because hesupportedtheMayor’s opponent.Hecitedseveral exchanges Facts: the courtwrote: Specifically, offense. CEPAalleged under same action the instituting for Action inwhichheassertedretaliation as adefense,hewasstoppedfrom Decision: claim. HethensuedunderCEPA. were in retaliation for his whistleblowing, but Civil Service rejected this for violations of sick time rules. The Captain contended that the charges Service Commissionproceedingsinvolvingseparate disciplinary matters aggrieved employee.” a threat of public harm, not merely private harm or harm only tothe “A statutory limiting principle is that the offensive activity must pose matter oftheequitableapplicationestoppelprinciples.” preclusive effect on related employment-discrimination litigation as a and employer must live with theoutcome, including its potential to bring the charge or the level of discipline sought, both the employee claim that employer retaliation atleastpartially motivated the decision employee disciplineestablished bylawand theemployee raises a “When anemployeeandemployerengagethesystemofpublic An officer alleged that his transfer from the County Narcotics the from his transfer that alleged officer An The Deputy Police Chief alleged that he was not promoted to Chief A long-time Fire Department Captain, who wasafrequentand The court ruled that the town was not liable under CEPA because Upholding summary judgement the Third Circuit Court decided The courtruledthatoncetheemployee lost theCivil Service The employee might still have had a cause of action, depending 158 157

156 The townshipwonthiscasebecause itpresented 155

CHAPTER 4 49

160 159 161 This case demonstrates the importance of maintaining proper maintaining of importance the demonstrates case This CEPA is not a lifetime exemption from discipline. is not a lifetime exemption from CEPA Many cases have been lost because of simple procedural procedural of simple because lost been have Many cases The court ruled that the construction official must be rehired The court upheld the town’s actions because the Police The court upheld the town’s The trial judge ruled that the statute of limitations still applied still limitations of the statute judge ruled that The trial After numerous attempts to help him, a long-time officer of A custodian alleged that his three-day suspension for failure to failure suspension for his three-day that alleged custodian A A construction official was laid-off when the town voted to hire the hire to voted town the when laid-off was official construction A Comment: documentation for personnel actions. Department was able to document the reasonableness of its efforts to help of its efforts reasonableness the to document was able Department was officer the that obvious was it until period extended an over officer the not going to recover. Further, the court recognized that the other issues problem. were a smokescreen to hide the real retaliation for his having reported various legal violations. retaliation for his having reported various Decision: Lebanese ancestry was involuntarily retired for chronic. He fought retired Lebanese ancestry was involuntarily he was forced to retire because he reported contending that the action, under that he was protected superiors. He also claimed by infractions in ancestry by his were motivated actions town’s the and that ADA the Facts: because the custodian failed to show any linkage between the suspension to show any linkage because the custodian failed several years earlier. and the whistleblowing that occurred Comment: introduce alleged acts of retaliation from over a year before the complaint the before year a over from retaliation of acts alleged introduce filing. Decision: report an accident was retaliation for whistleblowing over the years on for whistleblowing was retaliation report an accident one under just filed was lawsuit The building. the in asbestos as such issues to attempted plaintiff the suspension. However, of the date year from the for any excuse to overturn the action. for any excuse to Facts: the town’s construction office where he was active as a builder. a builder. office where he was active as construction the town’s Comment: expect them to look loses their position, you can When someone errors. Decision: invalid because a the position was The vote to eliminate with back pay. to retain by voting Act Ethics the violated inadvertently member council alleged that the council member was an active builder in the neighboring the in builder active was an member the council that alleged code construction town’s that by was inspected his work that town and for both towns. to be responsible who was now going official neighboring neighboring town to perform this function. The official alleged that one Government Local and law common the violated members council of the Ethics Law by voting on the consolidation. The construction official Facts: J. S. v. Englewood Cliffs (2015) J. S. v. Kownacki v. Saddle Brook Board of Education (2014) Board of Education Saddle Brook Kownacki v. Buonanno v. Elmwood Park (2014) Park Elmwood v. Buonanno CHAPTER 4 50 Smith v. Millville(2016) Harassment inNJ,February 2020 140 someone forpoor performance attheendofprobation period,ithastobedoneconsistently. poor equally with officers non-minority past, performance reviews were the allowed to continue. The in cost: $350,000. While it is that perfectly legal to terminate determined subsequently was It performance. 139 138 137 until afterthe45-daycut-off. revolver the of use inappropriate the concerning charges file to failed and performance poor the document threatened to use hisrevolver “off-duty.” Unfortunately, he had to be reinstated because the town failed to 136 based onpoliticsoragejustbecausetheylacktenure. clerk lacked tenure. This wasverypoorlegal advice. A public entity cannot discriminate against someone political supporter. The municipal attorney advised the Council that they could proceed because the existing 135 unequivocal commitmentthatisbackedupbyconsistent practice. the complaintstructureistrusted.”Seniormanagement must demonstratean employer must alsohave a system to monitor compliance “and to ensurethat paper. on program anti-harassment an have merely to sufficient not is It Each related litigation. what anemployer must put inplace to have any real defense inemployment- for guidelines specific established have court The judgments. summary grant very dangerous because of “fee-shifting” and the reluctance of many judges to The line between liability and non-liability is not always clear. These cases are Conclusion Sauder v. ColtsNeck(2017) Rachel Wainer Apter, Directorofthe NJ DivisionofCivil Rights, Preventing andEliminating Sexual forpoor period theprobation of end the at terminated was officer minority A case: Unreported Unreportedcase. inappropriately he after fired was performance poor of history a with officer case: Apolice Unreported 37-year-old a with clerk 59-year-old town’s the replace to decided Mayor new A case: Unreported N.J.S.A. 10:5-1etseq. having an affair with a volunteer and commencing a divorce against his Facts: to volunteersCEPA hasnosuchprovision. workers’ compensation extends that provision specific a is there because Comment: are notemployees. Decision: also receiveaLengthofService Awardand uniformallowances. (LOSAP) workers’ by covered are firefighters volunteer they that and compensation CEPA only covers employees, the volunteer pointed out that under the law, Department’s actions violated CEPA. When the Department argued that terminated him in a 14 to 8 vote. The volunteer sued, contending that the member. The Department brought the volunteer up oncharges and another Department’sby the funds of embezzlement involving claim a in insurance company that the Department had made certain false statements Facts: or divorced. limited to beingsingleormarried andextendstopeoplewhoareseparated potentially liable becauseLAD’sprotection based onmarital status isnot Decision: the LAD provision that prohibits discrimination because of marital status. wife, another employee of the squad. After he was fired, he sued based on A 20-year member of a Volunteer Fire Department reported to an to reported VolunteerDepartment a Fire of member 20-year A The DirectorofOperationsatarescuesquadreportedthathewas The court ruled that for purposes of CEPA, volunteer firefighters The NewJerseySupremeCourtruledthatthesquadwas Public safety volunteers are covered for workers’ compensation 164 162 163

CHAPTER 4 51 decision again. decision again. Gaines 43:21-27 through 43:21-56 43:21-27 through , the New Jersey Supreme Court reaffirmed its N.J.S.A. “If no tangible employment action has been taken against the plaintiff, the defendant may may defendant the plaintiff, against the has been taken action employment “If no tangible Aguas v. New New Jersey Aguas v. 34:11B-1 et seq., et seq., 34:11B-1 29 U.S.C. § 2612 et seq. 29 U.S.C. § 2614 (a)(3)(B) 26 U.S.C. § N.J.S.A. N.J.S.A. 34:19-1 et seq. N.J.S.A. 34:19-1 451 N.J. Super.581 (App. Div. 2017) (App. Div. 451 N.J. Super.581 US District Court 09-cv-01751 (2013) US District Court 09-cv-01751 All of the materials you need to put together an effective program are available at NJMEL.org. an effective All of the materials you need to put together A-5548-11T4 A-5548-11T4 (2014) A-5548-11T4 (2015) A-19-14 (2016) A-1367-11T2 A-1367-11T2 (2013) A-0742-12T3 (2014) A-5861-07T25861-07T2 A-5861-07T25861-07T2 (2009) A-45/46/47-10 (2012) These cases are very fact decision sensitive. with an Contrast unreported Viticano the settlement where ATL-L-220-05 (2007) ATL-L-220-05 196 N.J. 419 (2008) 801 A.2d 322, 202 N.J. (2002) 801 524 U.S. 775 (1998) in Recently (1965) 560 89 NJ Super. 349 NJ Super.527, 794 A.2d 185 (2002) A.2d 794 349 NJ Super.527, 132 N.J. 587 (1993) N.J. 132 complained and jokes sexually-oriented constant to subject was worker DPW female A case: Unreported 164 160 161 162 163 the Mayor in a Commissioner Form of municipal government was found liable after he directed that all after he directed government was found liable Form of municipal the Mayor in a Commissioner were so blatant actions The Mayor’s be terminated. supported his opponent employees who had actively that he had to take the 5th amendment at a deposition. 158 159 154 155 156 157 promptly sexual harassing behavior; and second, that the plaintiff employee unreasonably failed to take to failed unreasonably employee plaintiff the that second, and harassing behavior; sexual promptly harm.” avoid or to otherwise employer by the provided opportunities or corrective preventive of advantage 152 153 150 151 wrote, court The assert the two-pronged defense: first that theemployer exercisesreasonable care to prevent and correct 145 146 147 148 149 statement was simply wrong. Under current law, the employer can be held liable for harassment if the for harassment be held liable employer can the law, Under current wrong. was simply statement program. anti-harassment an effective employer lacks 143 144 141 142 supervisor’s The to “suck it up.” the job and is part of take” “give and told that She was supervisor. to her CHAPTER 5

THE AMERICANS WITH DISABILITIES ACT (ADA)

Eric Harrison, a senior member of the MEL Defense Panel, wrote this chapter. The Americans with Disabilities Act (ADA), signed by President Bush in 1990, is often credited as the world’s first civil rights law for people with disabilities. The Act is a bipartisan effort intended “to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for individuals with disabilities.” 165 President Bush introduced the ADA with soaring rhetoric that matched the Act’s lofty ambitions: “With today’s signing of the landmark Americans for Disabilities Act, every man, woman, and child with a disability can now pass through once-closed doors into a bright new era of equality, independence, and freedom.” 166 The ADA bans discrimination on the basis of disability in the areas of employment, public accommodation, public services, transportation and telecommunications. • Title I addresses employment. • Title II addresses public services, programs, and activities provided by State and local governments. • Title III addresses public accommodations such as restaurants, theaters offices and places of business. CHAPTER 5 53 Changing the schedule of an employee with cancer to accommodate with cancer Changing the schedule of an employee radiation or chemotherapy treatments. Allowing an employee with diabetes regularly scheduled breaks during Allowing an employee with diabetes their blood sugar and insulin the workday to eat properly and monitor levels. training materials, or policies and providing qualified readers or interpreters. examinations, equipment, adjusting or modifying Acquiring or modifying or readers qualified providing and policies or materials, training the job during language interpreter with a sign Providing a deaf applicant interview. Making existing facilities accessible to persons with disabilities. accessible to persons with Making existing facilities to a vacant modifying work schedules or reassignment Job restructuring, position. Has a physical or mental impairment that substantially limits one or more one or limits that substantially impairment or mental Has a physical activities. major life of an impairment. Has a record an impairment. as having such Is regarded • • • • • • • • • must be able to accomplish that position’s essential functions with “reasonable essential functions must be able to accomplish that position’s rate the new position’s to is entitled transferred employee A accommodation.” not that of their previous position. of pay, costly or easier to provide. is employer an position, current their in continue no longer can employee If an individual the open, is position If another new position. a create to required not with the individual and identify the appropriate action. Failure to have an have to Failure action. appropriate the identify and individual the with If more than one be grounds for liability. can by itself dialogue” “interactive is less may choose the one that would work, the employer accommodation unless an individual with a disability has asked for one. An employer may An employer has asked for one. unless an individual with a disability if the employer accommodation” ask an employee if they need a “reasonable problem. or conduct performance a is causing condition medical a that believes talk should employer the is requested, accommodation” “reasonable a Once an employer is not required to lower its quality or production standards or standards production or quality its lower to required not is employer an glasses or hearing aids. provide personal use items such as accommodation” a “reasonable provide to have does not generally An employer “undue hardship,” definedor asexpense when considered “an example, in For operation.” light its of structure of and nature action the factors and resources, such financial as requiringan employer’s size, significant difficulty An employer does not have to provide an accommodation if it imposes an imposes it if accommodation an provide to have does not An employer enjoy equal employment opportunities. Accommodations vary depending upon depending vary Accommodations opportunities. employment equal enjoy require and no two people or employee, applicant needs of the individual the may include: Reasonable accommodations the same accommodation(s). An employer is required to make a “reasonable accommodation” if it would if it would accommodation” to make a “reasonable An employer is required adjustments are accommodations Reasonable hardship.” “undue an impose not to disabilities with people enable to employer an by provided modifications or The ADA prohibits employers, employment agencies and labor unions from unions labor and agencies employment employers, prohibits ADA The discriminating against qualified individuals withperson who: disabilities, defined as a Title I Title CHAPTER 5 54 Other ProvisionsofTitleI: their consentorknowledge. protect patients’ sensitivehealth information from beingdisclosedwithout and Accountability Act of1996.HIPAA established national standardsto employee health information under the federal Health Insurance Portability The DepartmentofHealthandHumanServices(HHS)furtherprotects Health InsurancePortabilityand Accountability Act (HIPAA) • • • applicants about thenatureorseverityofadisability but canaskabouttheir Medical Examinations and Inquiries: authorization, underlimitedcircumstances. Forexample: use ordisclose protected health information, without anindividual’s Permitted Uses andDisclosures: (PHI),” bythefollowingentities: individuals’ healthinformation,as “protected health information known Privacy Rule: ADA’s confidentialityrequirements. accommodation” request isconsideredmedical information subjecttothe diagnosis or treatment course. For example, an employee’s “reasonable it isgenerated by ahealthcare professional orcontainsanymedical whether of regardless confidential be can Information exceptions. limited with confidential, employee or applicant an about learn they information Confidentiality: employees. drug usersandalcoholics to the same performance standards asother ADA’s restrictionsonmedical examinations. Employers mayholdillegal acts onthebasisofsuchuse. Tests forillegal drugs arenotsubjecttothe in theillegal use ofdrugsarenotcoveredbythe ADA whenanemployer Alcohol Abuse: and Drug related andconsistentwiththeemployer’s businessneeds. entering employees insimilar jobs. Medical examinations must bejob- on amedical examination, but onlyifthe examination is required for all conditioned be may offer job functions. A job specific perform to ability • • • identifiable health information to perform functions such asclaims such processing, dataanalysis,utilization reviewandbilling. functions toperform information health identifiable of acoveredentity’s workforce,usingordisclosing individually Business Associates: health plans. sponsored health plans, and multi-employer health plans are also fixed-indemnity home nursing policies. Employer-sponsored health plans, government and church- excluding Medicare, insurers, care (HMOs), long-term organizations and insurers supplement Medicare and Medicare+Choice, maintenance Medicaid, health insurers, Health Plans: benefit claims, of practicesize. with connection in eligibility, referralrequests,andother similartransactions, regardless information health transmits Healthcare Providers: The HIPAA PrivacyRulecoverstheuseanddisclosureof 167 The basic rule is that employers must keepmedical Entities that paythecostofmedical care, including A person or organization, other than a member a than other organization, or Aperson Employees and applicants currently engaging Every healthcare provider who electronically A covered entity is permitted to Employers may not askjob CHAPTER 5 55 litigation arises from disputes over what arises from disputes over litigation Title II Title While the HIPAA Privacy Rule safeguards PHI, Privacy Rule safeguards the the HIPAA While Functions (such as identification) concerning deceased persons. identification) concerning deceased Functions (such as eye, or tissue donation. Cadaveric organ, conditions. Research, under certain threat to health or safety. prevent or lessen a serious To functions. Essential government compensation. Workers’ When required by law. When required activities. Public health domestic violence. or neglect or of abuse Victims activities. Health oversight proceedings. Judicial and administrative Law enforcement. • • • • • • • • • • • • Detect and safeguard against anticipated threats to the information’s information’s to the threats anticipated against and safeguard Detect security. uses or disclosures. Protect against anticipated impermissible Certify workforce compliance. Ensure the confidentiality, integrity and availability of all e-PHI. Ensure the confidentiality, priority purposes: Treatment, payment and healthcare operations. healthcare and payment Treatment, operations. or healthcare health public for research, dataset Limited health of protected disclosure use and permits also Privacy Rule The information, without an individual’s authorization, for 12 national • • • • • • • criminal penalties. Covered entities should rely on professional ethics and best judgment ethics should rely on professional entities Covered All permissive uses and disclosures. when considering requests for these complaints should be reported to the HHS Office for Civil Rights, which violations may result in civil, monetary or rules. HIPAA enforces HIPAA covered entity creates, receives, maintains or transmits in electronic form. or transmits in electronic maintains receives, creates, covered entity information(e- health protected “electronic is called This information or hand- to orally transmitted The Security Rule does not apply PHI).” all covered entities must: comply, To written PHI. Security Rule: Security Rule protects all individually identifiable health information a Under federal regulations, existing public facilities built or last altered before altered last or built facilities public existing regulations, federal Under after that from those built or altered differently January 26, 1992, are treated regulations: following the to subject are facilities “grandfathered” These date. with disabilities and State courts generally follow Federal ADA principles ADA follow Federal and State courts generally with disabilities when construing LAD. Regulations Federal defense to a claim that local government or its employee failed to provide a to provide failed or its employee government local that to a claim defense “reasonable accommodation.” individuals protects also (LAD) Against Discrimination Law Jersey New The employed. Failure to provide a “reasonable accommodation” is equivalent is accommodation” “reasonable a provide to Failure employed. to an act of discrimination, whether or good faith is no not Put differently, animus towards the disabled. discriminatory the public entity or official has The ADA requires public entities to provide “reasonable accommodations” to accommodations” to provide “reasonable entities requires public ADA The to ensure equal access to the public of all governmental necessary the extent Most programs and services. be should process determination what and reasonable are accommodations Title II CHAPTER 5 56 Existing Facilities Architectural Guidelines: comply with the ADA Standardsfor Accessible Design andthe ADA Architectural Guidelines. Newfacilities and alterations generally must comply with the ADA Standardsfor Accessible Design andthe ADA that are constructed or altered after January 26, 1992, generally must New Constructionand Alterations: or activity sothattheservice,program,oractivity, whenviewedin “(a) General. A publicentity shalloperateeachservice,program, “(a) Designandconstruction. As theUnitedStatesSupremeCourtnotedin (b) Methods-- disabilities. This paragraphdoesnot-- its entirety, isreadily accessible to andusablebyindividuals with (2) Exceptionforstructuralimpracticability. construction wascommencedafterJanuary26,1992. accessible to and usable by individuals with disabilities, ifthe in such manner that the facility or part of the facility is readily or fortheuseofapublicentity shall bedesignedandconstructed (1) Eachfacility or partofafacility constructed by, onbehalfof, the public entity required to make reasonable structural changes.” “Only ifthese measures are ineffective in achieving accessibility is achieving compliancewiththissection.” changes in existing facilities where other methods are effective in disabilities. A publicentityisnotrequiredtomakestructural or activities readily accessible toandusable byindividualswith or anyothermethodsthatresultinmakingitsservices,programs, new facilities, use ofaccessible rolling stock or other conveyances, accessible sites, alteration of existing facilities and construction of aides to beneficiaries, home visits, delivery of services at alternate reassignment of servicestoaccessible buildings, assignmentof of thissection throughsuchmeans as redesign of equipment, (1) General. A public entity may comply with the requirements facilities accessibletoandusablebyindividualswithdisabilities; (1) Necessarily require a public entity to make each of its existing impracticable. be made accessible to the extent that it is not structurally any portion of the facility that can be made accessible shall extent that it is notstructurally impracticable. In that case, impracticable, compliance with thissection is required to the (ii) If full compliance with this section would be structurally of terrainpreventtheincorporation ofaccessibilityfeatures. in thoserarecircumstances when theuniquecharacteristics compliance will beconsideredstructurally impracticable only is structurallyimpracticable to meettherequirements. Full not requiredwhereapublic entity can demonstrate that it (i) Fullcompliance with therequirements of thissection is 171 Under ADA regulations,facilities Tennessee v. Lane , 170 CHAPTER 5 57

historic property in a manner that will not threaten or threaten not will that manner a in property historic destroy the historic significance of the buildingto pursuant provided be access shall of methods alternative or facility, the requirements of § 35.150. (ii) If it is not feasible to provide physical access to an access physical to provide is not feasible If it (ii) other types of disabilities, (e.g., those who use crutches or who or those who use crutches (e.g., of disabilities, other types in accordance impairments) hearing, or mental have sight, section. with this (iii) If providing accessibility in conformance with this this with conformance in accessibility providing If (iii) (e.g., those disabilities with certain to individuals section impracticable, structurally would be use wheelchairs) who with persons to be ensured nonetheless shall accessibility (i) Alterations to historic properties shall comply, to the properties shall comply, to historic Alterations (i) restroom; (1) An accessible entrance; (1) An accessible route to the altered area; (2) unisex single a sex or for each restroom accessible one least At (3) function shall be made so as to ensure that, to the maximum extent that, to the maximum function shall be made so as to ensure restrooms, the and area altered the to of travel path the feasible, area are drinking fountains serving the altered and telephones, with disabilities, to and usable by individuals accessible readily cost and unless the wheelchairs, who use individuals including to the cost of the is disproportionate scope of such alterations overall alteration. (4) Path of travel. An alteration that affects or could affect the the or could affect affects that An alteration (4) Path of travel. primary a contains that facility of a area an to access or of usability only to alterations undertaken solely for purposes other than to than purposes other for solely undertaken alterations to only accessibility requirements of § 35.150. meet the program (3) to provisions applicable the with feasible, extent maximum 35.151(c). § in specified standards design the in properties historic affect the usability of the facility or part of the facility shall, to part of the facility or facility of the the usability affect manner that the in such be altered extent feasible, the maximum to and usable accessible is readily facility of the portion altered was commenced alteration the if disabilities, with by individuals after January 26, 1992. apply of § 35.151(b)(4) shall requirements of travel path The (2) (1) Each facility or part of a facility altered by, on behalf of, or on by, altered a facility or part of (1) Each facility could or affects that manner a in entity public of a use for the (B) In choosing which accessible elements to provide, priority should should priority provide, to elements (B) In choosing which accessible the in access, greatest the provide will that elements those given to be following order: (A) When the cost of alterations necessary to make the path of travel of path the make to necessary alterations of cost the When (A) to the cost of is disproportionate area fully accessible to the altered to the accessible be made shall path of travel the alteration, overall the disproportionate incurring without accessible can be made it that extent costs. (b) Alterations. Disproportionality: CHAPTER 5 58 (ADAAG) and articulate (ADAAG) enforceable scoping andtechnical standardsfornew Design (ADASAD), which incorporate the 2004 ADA Architectural Guidelines I Standards forAccessibleDesign line between thetwo claimcategories canbeblurry. “Program inaccessibility claims” donotrequiresuch advancenotice. it and engage in an “interactive process” with the municipality before suing. reasonable “Particularized accommodate.” accommodation” claims require that the individual requiring assistance ask for reasonably to failure a of claim within a library or using a public computer, would qualify as a “particularized specific accommodation within the building, such as assistance reaching books “program called also access,” inaccessibility claims.” Aof claim by a disabled individual who requires a lack overall an of claim “generalized a as individuals dependentonwheelchairscannotmove within it,wouldqualify A claim that a building has beenconstructed incorrectly, suchthat all accommodate” and“generalizedclaimsofanoverall lackofaccess.” claims against public entities, “particularized claims of a failure to reasonably access of categories broad two recognizes generally law The person.” that of person with a disability in the most integrated setting appropriate to the needs accommodations are, “totheextent reasonable,” required to accommodate “a New Jerseyregulations The ADA andLADalsoapply to programs and services offered to the public. Access toPublicPrograms andServices sues. or complains public the of member a after time first the for invoked if judge if the exception seems valid, it will carry considerably less credibility with a is mucheasier to defend a designorbuilding based onthat application. Even a regulatory exception has been considered before the project’s completion, it a detailed “exception for structuralincompatibility.” When theapplication of impossible in many instances, which is why 28 CFR § 35.151(a)(2) sets forth Strict compliance with all applicable ADA Standardsand is all but ADAAG of aCertificate or regulations compoundstheproblem. apermit deny Occupancy to abuilder or local government whose plansrunafoulof ADA officials construction that requirement with the ADA Standards or the ADAAG. The absence of any express legal However, eventhe most competent professionals have only passingfamiliarity Free Subcode of American Building Officials (CABO) building code, the New Jersey Barrier with the American National Standards Instituteguidelines, (ANSI) theCouncil Most New Jersey code officials, engineers, architects and builders are familiar preempted byothercode,notthemisapplicationof ADA regulations. either through ignorance of theirexistence or amistakenbelief that theyare litigation most frequently arise because of disregard of the regulations, Experience with local government construction teaches that disputes and construction. n 2010the Department of Justice issued revised ADA Standards for Accessible storage, andalarms.” (6) When possible, additional accessible elements such asparking, (5) Accessible drinkingfountains;and telephones; (4) Accessible 172 173 and a host ofother standards applicable to newconstruction. 174 enforcing LAD provide that places of public

175 176 The CHAPTER 5 59

181 177 Title Title 182 Regardless of Regardless 179 178 articulating a system for articulating 183 , Title II Title supplemental training where warranted and training supplemental 180 and investigate any inaccessibility claims. The name, office address and and publish Grievance Procedures under and publish Grievance resolving complaints in a prompt and fair manner. The notice should include the name and contact information of the ADA ADA information of the The notice should include the name and contact website. Toolkit ADA template may be found at the A Coordinator. are also required to adopt governments with 50 or more employees Local Federal regulations define the target audience as applicants, beneficiariesand activities programs, government’s local or state the in interested people other of the requirements ADA basic the states notice An effective or services. or complicated. legalistic lengthy, too being without government or local state the lead in auditing the programs, policies, activities, services and facilities for services and facilities activities, policies, programs, the lead in auditing the compliance. ADA rights. ADA public entity to provide public notice of requires every ADA The by the Department of Justice, by the Department can Coordinator ADA the attorney, advice from your local government’s also take can The Coordinator accurately. and answer questions consistently Designating an ADA Coordinator demonstrates a commitment to compliance commitment a demonstrates Coordinator ADA Designating an of help the With externally. and internally messaging consistent ensures and published Toolkit Best Practices ADA resources such as the publicly available The ADA Coordinator is often the main contact to assist someone who wishes who someone assist to contact main the often is Coordinator ADA The such as a communication, for effective aid or service to request an auxiliary in Braille. sign language interpreter or documents II to interested be provided must Coordinator ADA of the number telephone persons. A public entity with 50 or more employees is required to designate at least at to designate is required employees 50 or more with entity public A compliance. ADA coordinate to employee responsible one designate should Committee Risk Litigation the of employees, number the to comply with efforts entity’s the government someone to coordinate Department of Justice’s “under-enforcement” of the ADA. of the “under-enforcement” Department of Justice’s Risk Committee Litigation defend such litigation is likely to far exceed the demand, defendants frequently defendants demand, the far exceed to is likely litigation such defend Some demand. the in acquiescence than other choice no prudent have as a “shakedown.” decried this practice have understandably commentators the by created vacuum a filling as “testers” of work the applauded have Others A typical suit takes the defendant by surprise with no preceding complaint no preceding by surprise with defendant the takes suit typical A It demands a few modest architectural or request for accommodation. modifications and payment of fees tothe plaintiff’s attorney. As the cost to plaintiffs plaintiffs characterize themselves as “testers” or “private attorneys general,” disabled individuals who situated, of all similarly on behalf ADA enforcing the resources to assert their rights. may not have the it also encourages fraud masquerading as advocacy. as advocacy. fraud masquerading it also encourages sue to with serial litigants have joined attorneys nationwide number of A The violations. ADA for alleged and businesses governments local multiple Law Against Discrimination permit an award of attorney fees to successful successful to fees attorney of award an permit Discrimination Against Law goal laudable the supports legislation “fee-shifting” so-called While plaintiffs. of increasing representation members of of traditionally society, marginalized “Tester” Lawsuits “Tester” the Act and Disabilities with Americans the legislation, rights most civil Like CHAPTER 5 60 Procedure shouldinclude: model procedure included in the ADA Toolkit. Grievance Procedures mustinclude, the Department of Justicehasdeveloped a While neither Heusser v. N.J.(2008) Castro v. Borough ofRidgefield(2007) Selected CaseLaw: formats sothatitisaccessibletoallpeoplewithdisabilities. information should be updated as necessary and must be available in alternative building(s) and on the government’s website. The procedure and contact should bedistributed to allagencyheadsandpostedinpublicspacesof Once astateorlocalgovernmentestablishesan ADA GrievanceProcedure,it • • • • • his originalposition. determined that there wasapotential safety issueand hewasdemoted to asix-month of weeks two first probationary period with the road department. As a result his supervisors the during times several stumbled and operations and lawn care. However, this employee had cerebral palsy Most ofthe functions of the two positions weresimilar, including truck Driver’s License was promoted to a position in the road department. Facts: the subjectofarequestforassistance. that they are sensitive to the needs of the disabled, even when not expressly so employees and officials municipal all of training proper ensure should and facilities that predatethe ADA’s enactment. An ADA Coordinator accommodations” to access itsprogramsandservicesextendstobuildings Comment: building’s age andtheabsenceofaformalrequestforassistance. “reasonable accommodations” to attend the meeting, notwithstanding the Decision: that hisdisabilitywasthebasisofapplication. Castro’s needsbecausehedidnotrequestassistance eventhoughitknew handicap-accessible. The Borough claimed that it had nonotice of Mr. the to stairs not was it because bathroom the the use to floor, unable third Mr. was up Castro him dragged wife his Once floor. third the reach to alternate location for thehearingandoffered noassistancetoMr. Castro before 1992anddidnothaveanelevator. The Boarddidnotproposean long built was which Hall, Borough of floor third the on hearing the held variance to addahandicap ramp tohisfrontyard. The Board of Adjustment Facts: A statementofhowlongcomplaintfileswillberetained. Information onhowtoappealanadversedecision. complainant andthegovernmententity. A descriptionofthetime frames andprocessestobefollowedbythe with disabilitieswhorequiresuchanalternative. people to available be will filing of means alternative that complainants If awritten complaint is required, a statement notifying potential with thegovernmententity. A descriptionofhowandwhereacomplaint under Manuel Castro, a quadriplegic homeowner, applied for a zoning a for applied homeowner, quadriplegic a Castro, Manuel A buildingmaintenance worker fortheParkwaywitha Commercial A federal jury foundthe Borough liable for failing to provide Title II A public entity’s responsibility to provide “reasonable noritsimplementing regulations describe what ADA 186 184 Accordingly, theGrievance Title II 185 may be filed be may CHAPTER 5 61 187 188 Her attorney was awarded substantial legal fees. Her attorney was awarded substantial At trial, the plaintiff was confronted with the lawsuits he with the was confronted plaintiff the At trial, This case is especially important because the New Jersey New Jersey the because important is especially This case The Appellate Division held that the trial court erred in refusing the trial Division held that Appellate The The appellate court ruled that the jury had ample basis to dismiss the jury had ample court ruled that The appellate The New Jersey Supreme Court ruled that the Highway ruled that Supreme Court The New Jersey A A person with paraplegia filed suit against the township alleging A disabled person filed suit against township,the alleging that legitimate desire to use the park beyond testing it for ADA compliance ADA legitimate desire to use the park beyond testing it for testimony regarding the Grievance Coordinator’s ADA combined with the defense. did not use, buttressed the township’s Procedure, which the plaintiff Comment: had filed againstother local governments and businesses in New Jersey a to demonstrate His failure attorney. same and elsewhere through the the plaintiff’s claim based on evidence that, had the plaintiff requested plaintiff the had that, based on evidence claim plaintiff’s the access ready him enabling responded, township would have the assistance, to the park. that it discriminated against him by not providing access to a park. A jury A to a park. against him by not providing access that it discriminated appealed. the plaintiff ruled in favor of the township, and Decision: Facts: Coordinator was fatal to all of her claims except those involving the park, Coordinator was fatal to all of her claims Guidelines. ADA to conform to the where recent repaving of a path failed Comment: the plaintiff in this case was arguably a “tester,” in that she resided in she resided in that a “tester,” was arguably in this case plaintiff the Maple visit to she claimed because had standing still she state, another Her failure resided, several times a year. Shade, where her attorney ADA township’s concerns to the her accessibility to communicate improvements to the park. The disabled person appealed. improvements to the park. Decision: While factors. relevant all without considering relief to grant injunctive claims but those involving her inability to access the park and a bathroom park and a bathroom to access the her inability but those involving claims the and damages, award to declined jury The building. municipal the in the township to make compelling court denied her request for an order Facts: building, downtown municipal proper access to the she was not afforded all a jury rejected Following a trial, sidewalks and curb cuts or the park. department’s functions in his previous position. These discussions are discussions These position. his previous in functions department’s be left to professionals. complicated and should addition, the ADA does not require “unreasonable accommodations” or accommodations” “unreasonable does not require ADA the addition, it does require that management ignores safety concerns; that an employer was further court The employee. the with dialogue an interactive have road the of most performed already employee the that impressed Comment: In should be calculated. how “fee-shifting” Supreme Court discussed Authority was Authority dialogue to enter into an interactive because it failed liable The court were available. accommodations” if “reasonable to determine awarded of $15,000 and damages compensatory the employee awarded $456,000. his attorney An expert witness also testified that the employee could perform most, but but most, perform could employee the that testified also witness expert An functions. road department not all, Decision: The plaintiff challenged the action in court under the ADA, contending that that contending ADA, the under court in action the challenged plaintiff The accommodations. possible to discuss even failed Authority Highway the Lasky v. Moorestown (2012) Moorestown Lasky v. Stoney v. Maple Shade (2012) Stoney v. CHAPTER 5 62 Robles v. Domino’s Pizza(2019) 186 185 184 183 182 181 180 179 178 177 176 175 174 173 https://www.ada.gov/regs2010/2010ADAStandards/2010ADAStandards.pdf. The standardsthemselvesmaybefoundat https://www.ada.gov/regs2010/2010ADAStandards/Guidance2010ADAstandards.htm; 172 171 170 169 168 administered solelybytheemployerthatestablishedandmaintainsplan. 167 (eeoc.gov/eeoc/history/35th/videos/ada_signing_text.html) 166 165 lawsuit, workcloselywithdefensecounsel. and establishacode-compliant ADA GrievanceProcedure.Intheeventofa should beimplemented. They shouldalsopostacode-compliant ADA Notice and conduct an audit to determine where changes in facilities and programs with disabilities. All localgovernmentsshouldappointan ADA coordinator duty tobeproactive in making facilities and programsavailable to people Independent of the risk of lawsuits, New Jersey local governments have a Conclusion 957 A.2d 1172, 957 N.J. 461(2008) 28C.F.R. §35.107(b). 28C.F.R §35.106. 28C.F.R. pt.35,§35.107(a) Guidancefornavigatingthestandardsmaybefoundat: 28CFR§35.151 541U.S.509,124S.Ct.1978(2004) 28CFR§35.150 The regulationsinclude an exception for grouphealthplanswithfewerthan50participants that are 42U.S.Code§ 12101 Ibid. https://www.ada.gov/pcatoolkit/chap2toolkit.pdf https://www.ada.gov/pcatoolkit/chap2toolkit.pdf https://www.ada.gov/pcatoolkit/toolkitmain.html https://pdfs.semanticscholar.org/52b3/ff5455b3494ad82f7694300658c4108d5ec0.pdf https://www.city-journal.org/html/ada-shakedown-racket-12494.html Id. Lasky v. BoroughofHightstown N.J.A.C. 13:13-4.4 N.J.A.C. 5:23-7 N.J.S.A. Remarks ofPresidentGeorge Bush attheSigningof ADA , 80-81. was notabletoorderfoodthroughtheirwebsite.Domino’s extensively Facts: issues, specifically: post aprominent noticeonthewebsitetoassist thepublicwithaccessibility bringing theirwebsite(s)intocompliance. local governments speak withtheir attorneys and IT professionalsabout buildings, are subject to ADA requirements. We strongly recommend that local governments should be aware that their websites, just like their Comment: failure toprovide“reasonableaccommodations.” and productsthat the lack offederal standards isnotadefensefor Decision: standards forwebsiteaccessibility. physical locations andthatthe FederalGovernmenthasnotpromulgated screen readingsoftware.Domino’sargued thatthe ADA appliesto advertises itswebsite,butprogramisnotcompatible with common 10:5-4etseq telephone numberandemailaddress].” this website,pleasecontact[insertnameofwebsiteadministrator with “If youhaveanytroublewithaccessinginformation contained within Guillermo Robles, a blind person, sued Domino’s Pizza because he The Appeals courtruled thatthe ADA alsoappliestoservices Inlight of a growing number of website-accessibility lawsuits, , 426N.J.Super. 68(App.Div. 2012). 189 190 Itwouldalsobeprudentto CHAPTER 5 63 . While no federal regulations for website compatibility currently exist, courts look to the International International the to look courts exist, currently compatibility website for regulations no federal While 426 N.J.Super. 297 (App. Div. 2012). Div. (App. 297 N.J.Super. 426 2012). Div. 530 (App. 425 N.J.Super. 2019) Cir. 904 (9th 898, 913 F.3d 190 may Mechanisms accessibility. website appropriate as providing Guidelines Accessibility Content Web text and document compatibility video, adjustable-size such as closed-captioned include features 187 188 189 CHAPTER 6

LAND USE LIABILITY

Considering the thousands of applications that Land Use Boards receive each year, lawsuits against them seeking monetary damages are rare. Appeals of land use decisions are usually to the Superior Court for injunctive relief, not monetary damages. “Injunctive relief” is a court order that either requires government to, or prohibits it from, taking action. Delays in winning approvals are a normal part of the process and do not usually give rise to liability lawsuits. Land Use Boards enjoy the broad immunities extended to governmental decision-makers. Since land use is a judicial function, they also have essentially the same protections from lawsuits as judges. These immunities do not apply when a Land Use Board violates civil rights. Land use law is based on the fifth amendment of the US Constitution which provides that private property shall not be taken for public use without just compensation. A governmental entity must pay the land owner if private property is condemned for public use. In 1922, the Supreme Court extended this principle to so-called “inverse condemnation,” 191 where a zoning law or governmental regulation significantly diminishes the value of a private property. While government does not actually acquire ownership of the property, the laws or regulations adopted by the governmental entity effectively make the property worthless. CHAPTER 6 65

195 , A mosque was awarded was awarded mosque A 193 Renton v. Playtime Theaters (1986) Theaters Playtime Renton v. 196 194 including cell towers, group homes and adult bookstores. bookstores. and adult group homes towers, cell including 192 A few years later, in later, few years A Even though they willfully ignored the Superior Court order to order Superior Court the ignored willfully they though Even The U.S. Supreme Court overturned this zoning ordinance An experienced developer received a Superior Court order instructing An experienced developer received a Superior The town adopted a zoning ordinance that prohibited adult book their actions. approve the application, “discretionary immunity” protects members of a members protects immunity” “discretionary application, the approve the board Therefore, damages. punitive from board personally planning for held liable members were personally immune, but the town was still personally. The town settled out of court, and a jury found three members personally. personally liable, awarding damages of $5000 against each. Decision: the town to approve a project after considerable delay. The Planning delay. the town to approve a project after considerable application. the rejected and ruling court the ignored willfully Board The developer sued both the town and members of the planning board particular type of speech. Facts: residential areas, as long as there are still places within Be very careful before adopting be located. could these establishments the zone where any zoning or building regulation that has the effect of singling out any the same Court upheld a zoning ordinance that prohibited adult theaters within 1,000 feet of a residential zone. In this case, the Court ruled that around rate higher crime the into consideration can take municipalities these establishments and use the zoning code to establish a buffer from including book stores and theaters, therefore, the ordinance singled out a singled ordinance the therefore, book stores and theaters, including as it is. particular type of speech, objectionable Comment: stores and theaters in its commercial zone. stores and theaters in its commercial Decision: because it allowed a broad range of other uses in its commercial zone, Facts: Anastasio v. W. Orange (1986) W. Anastasio v. Schad v. Mt Ephraim (1981) Schad v. The Committee should arrange for the training of each Land Use Board of each Land training for the should arrange Committee The at NJMEL.org. recorded training program is available professionally A member. Selected Case Studies applications can be very controversial. applications can be Risk Committee Litigation unanimously adopted by Congress in 2000 and provides that no government that provides and 2000 Congress in by adopted unanimously on religious burden substantial a creates that impose land use regulation shall interest, and governmental in furtherance of a compelling exercise, unless These objective. that accomplishing way of restrictive that it is the least There has been extensive litigation in recent years under the Religious Land in recent years under litigation There has been extensive Use and Institutionalized Act Persons (RLUIPA). was act The New Jersey. in case one recent in of $7.5 million damages Monetary damages can be awarded in cases where the applicant’s civil rights civil where the applicant’s awarded in cases damages can be Monetary in these cases, fees legal the applicant’s Damages include violated. have been numbers. large always involve why these cases almost which is property owners, however, government does not have the right to adopt to adopt right the have does not government however, owners, property property. of private use reasonable any prohibit effectively that regulations federal Various and state laws now give civil rights protection to a range of uses, unpopular Under the law, no person has the right to use property in a fashion that threatens threatens that fashion a in property use to right the has person no law, the Under of adjacent the rights impairs that it materially or is so obnoxious safety public CHAPTER 6 66 Whispering Woods v. Middletown(1987) Smith v. Fair Haven(2000) Nunziato v. Edgewater (1988) The Courtwrotethat: meetings. Comment: placed ontherecord. the Board’s meetingsandthatknowledgegained fromthevisitshouldbe go beyond the arguments and allegations advanced during the course of its opinion,theCourtreiteratedat sitemeetingsmust not thatdiscussions engaged in the heated discussion wasanadequate cure in thiscase. In Decision: member wasrecusedfromfurtherdeliberations. Board one application, member further engaged inaheated dialogue with oneoftheparties. This the of specifics to limited was discussion the of engaged indiscussionwithboththeapplicant and objectors. While most Facts: requirements foroffsite improvementsasaresultofthiscase. Comment: land usedecisionsgotothehighestbidder. contributions of thisnatureareanalogousto“pay toplay,” wherefavorable Decision: developer volunteered to contribute $200,000 to offset some of these costs. law zoning a considering while change. While there wasnolegalrequirement to makeacontribution, the town the on have would development Facts: conditional uponapublichearing. Open PublicMeetings Act wasnotviolated as longtheagreement was settlement even after the case was appealed to Superior Court and that the Decision: violated theOpenPublicMeetings Act. matter was pendinginSuperiorCourtandthat the closed-doornegotiation arguing that the Board lacked the authority to settle the case solongasthe subsequent publichearing. The opponentstotheapplication appealed, reached asettlement withthedeveloperin“closed session,”subjecttoa relief when the Planning Board rejected a 215-unit application. The Board Facts: personal insteadofpublicinterest. taken in“badfaith,”becauseofcorruptionorprimarilyfurtherance Comment: developers [will]bringthemintocourt.” on planning boards act with independence and without fear that “We thinkthatthe public interest requires that persons serving Members ofaLandUseBoardvisitedthesiteanapplication and The governing body expressedconcern about the impact that a forinjunctive Court inSuperior action an filed developer The The Courtagreedthat the recusal of theonemember who The Courtruledthatabsentalegalrequirement, voluntary The Court ruled that the Board could continue tonegotiate a omnte ae o rqie t etbih specific establish to required now are Communities Personalimmunitywillnotprotectmembersaccusedofactions It is goodpractice to have the Board attorney at on-site 200 199 197 198 CHAPTER 6 67 204 201

202 203 While all law enforcement is inherently selective, it is illegal selective, While all law enforcement is inherently The Federal Court ruled against the town and was The swayed by The New Jersey Supreme Court ruled that in deciding “inverse in deciding that Court ruled New Jersey Supreme The The Court ruled against the town because it constituted selective town because it constituted The Court ruled against the A religious institution applied for variances to build a school in for variances applied institution religious A A Muslim congregation proposed to build a conforming mosque conforming a build to proposed congregation Muslim A The owner of an otherwise conforming lot in a single-family zone A group of Orthodox Jewish residents attempted to create an create to attempted residents Jewish Orthodox group of A Facts: a residential zone. A Board member lived in a nearby development. She hearing the should ask at questions they neighbors on what her coached and did not recuse herself from the deliberations. insurer paid the mosque’s $5 million legal bills. insurer paid the mosque’s Decision: how quickly the Council moved to change the zone. The town paid $2.5 property for the mosque, and the township’s to purchase another million were other properties where the mosque could locate, although these were other properties where the mosque that argued The mosque more expensive. properties were substantially its consultant found that traffic would not be a problem and that the area uses. already had educational and other similar a conditional use variance if located in a residential zone. Things became Things zone. residential a in located if variance use conditional a attended. citizens 500 than less no where hearings the of one in ugly quite and there winding roads, had area in question the that town argued The Facts: two months, Within hotel. of a former site on the center educational and the Council adopted a revised zoning code that required a church to seek that “inverse condemnation” occurred in this case. The property owner property The in this case. occurred condemnation” “inverse that ultimately sold the two lots to the town. eliminates all economically productive use of the land. After answering land. use of the productive economically all eliminates unduly interferes if the regulation this question, the courts must determine of the property owner, expectations investment-backed with legitimate on this analysis, the Court found depending on various factors. Based was “inverse condemnation.” Decision: effectively cases, courts must ask if the regulation condemnation” was prevented from starting construction by the the property could only be used for ruled that The DEP plain regulations. DEP because of flood this that sued, arguing owner The lot. parking or a parkland space, open Facts: and church directional signs. and church directional Comment: discrimination. based on criteria that amount to to make that selection Decision: violations other numerous ignored had officials that wrote and enforcement house numbers, lost animals, sales, signs for yard including the past, in string high and out of sight between utility poles. The utility company company The utility poles. between utility and out of sight string high the town a bitter controversy but after to allow the “Eruv’s,” had agreed prohibits that 1954 town ordinance a by enforcing plan to stop the decided places. and other public utility poles, fences and the like on placing signs enclosed enclosed “Eruv” zone that would allow with built were originally Eruv’s Sabbath. the homes on their outside them to push or carry objects by running plastic today can be established wooden poles, but ropes and Facts: Muslim Community Association v. Ann Arbor (2013) Arbor Ann Association v. Muslim Community Al Falah Center v. Bridgewater (2013) Bridgewater v. Al Falah Center Mansoldo v. State of New Jersey (2006) Mansoldo v. Tenafly Eruv Association v. Tenafly (2002) Tenafly v. Association Eruv Tenafly CHAPTER 6 68 207 206 205 204 203 202 201 200 199 198 197 196 195 194 193 192 191 There areseveralotherprecautionstoreducetherisk ofLandUseLiability: Conclusion Hartz v. SpringLake(2018) A-48-16 078711 (2018) Unpublished settlement Unpublishedsettlement 947F. Supp.2d752(E.D.Mich. 2013) 3:11-cv-02397-MAS-LHG (2013) 187N.J.50(2006) U.S.Courtof Appeals, Third Circuit, 01-3301(2002) 225N.J.Super. 124(1988) 220N.J.Super. 161(1987) 209N.J.Super. 499(1986) Rentonv. Playtime Theatres, 475U.S.41(1986) Inotherwords,NotinMyBackyard(NIMBY). 335 N.J.Super. 111 (2000) Muslim Community Association v AnnArbor Community Association Muslim 452 U.S.61(1981) 42 U.S.C.2000cc,etseq. Pennsylvania CoalCo.v. Mahon • • Comment: was notentitledtopersonalimmunitybecausesheactedinbadfaith. Decision: hearing. Comments like that make it very difficult to defend the Board in court. anything that iscontrary to thewishes ofthepublic” during acontentious elsewhere. Forexample, a Boardmember said, “We arenotgoing todo Avoid sayinganythingthat canbeconstruedasbiasedbothatmeetingsand Do notmeetwithapplicants,oropponentstoanapplication, alone. for payingtheapplicant’s legalbillswhenevertherewasaproceduralerror. to operatePlanningandZoningBoardsifamunicipality was responsible Comment: Rights Act.” Civil demonstrate that she was deprived of a substantive right protected by the the right to be heard before the Planning Board. Shetherefore cannot end, the however, In the (Plaintiff) hasnotestablished that the Borough denied her procedures… statutory precise the to adhere not did Officer Decision: the towntorecoverthiscostunderNewJerseyCivilRights Act. incurred considerablelegalbillsbecauseoftheproceduralerrorsandsued so thattheapplicationwascodecompliant. The Plaintiff argued thatshe during the lengthy proceedings but ultimately required design modifications did not conform to the zoning code. The town made several procedural Facts: errors • • nearby daycarecenter. subsequently cametolightthattheMayorhadaninterest inanother developer toscale-backtheapplication and stillvotedagainstit.It building thatincludedadaycarecenter. The Mayorforcedthe A developer submitted a conforming application to build a commercial calls costthetaxpayershundredsofthousandsdollars. is illegal to influence decisions for political or personal gain. Those phone against acontroversialapplicationduringclosere-electioncampaign.It The MayoraskedallmembersofthePlanningBoardfromhispartytovote The Plaintiff complained that a houseunderrenovation next door Jersey SupremeCourtruledthatwhilethe“Zoning The New The boardmemberwhohelpedresidentsdrafttheirobjections Other examples where immunity did not apply because of bad faith: This was a critical decision because it would be very difficult very be would it because decision critical a was This , 260U.S.393(1922) 207 206 , 947F. Supp.2d752(E.D.Mich.2013) 205 CHAPTER 7

LIABILITY FOR CHILD ABUSE

Recent changes in the law have increased the potential liability for both governmental entities and public officials personally regarding child abuse. This issue has rocked many venerable institutions, including churches, sports programs, youth organizations and medical facilities. All local public officials must address this problem as well. Under 2019 legislation, they can be held personally responsible if they fail to act. Who exactly is considered an abused or neglected child? The short answer is anyone under the age of 18 who is caused harm by a parent, guardian or other person having custody or control of that minor. 208 More specifically, the four common types of abuse are: • Neglect: The failure to meet a child’s basic needs, physically, medically or emotionally. • Physical Abuse: The intentional use of physical force that results in injury. • Emotional Abuse: Acts that harm a child’s self-worth or emotional well- being. • Sexual Abuse: Engaging in sexual acts with a child, including pornography. CHAPTER 7 70 Statistics onChildAbuse: Signs ofChildAbuse a courtorder, ifnecessary, topreventimminent dangertoachild. including the authority to removethem from their parents orcaregivers without children, protect to authority broad police gives law Jersey New identifiers. first the as acting often situations, reported resolving in assist agencies Police abused children. operating recreational programs forchildren may also come into contact with Housing issues. detect to municipalities first and the Authorities often are and Education professionals at the local level have the most contact with children situations. and can take remedial action, including the removal of children from dangerous Family Division Courtsineachcounty seat. These courts have broad powers The Statetakesresponsibility forenforcingthelawthroughNewJersey Role ofGovernment • • • • • • • • • • • • Abuse reports involving 80,000 children are filed each year with child with year each protective servicesinNewJersey. filed are children 80,000 involving reports Abuse after aweekend orvacation. appear they if especially significant, be can injuries these of timing The the shapeofobjectused. reflect might that grouping or pattern a in particularly child, a on healing Unexplained or unusual fractures, burns,bruisesorwelts in any stage of youth detentioncentersandspecialpurposeschools. correctional centers todealwithperpetrators. Individual counties operate and youth The DepartmentofCorrectionsoperatesadultprisons with theCourtsandlawenforcement. to safeguardchildren into asinglecoordinated program thatworksclosely Child Protection and Permanency, combines all State operations intended The Department ofChildren andFamilies, especially the Divisionof the UnitedStatesalone. creating a cycle of abusethat costs astaggering $585 billion each year in Some 30% of these abused children will later abuse their own children, for theremaining45%. 55% ofthe perpetrators in child abuse cases are females. Males account birthday. 37% of all children are reported to child protective services by their 18th 50,000 childrenreceivepreventionandpost-responseservices. Psychological mistreatmentaccountsfor7%ofcases. 18% ofvictimsarephysicallyabused,includingsexualabuse. 75% ofcasesinvolveneglect. 209 CHAPTER 7 71 212 210 211 213 Acting in ways much too adult or too infant for their age. too adult or too infant for their Acting in ways much Inability to stay awake in class. Inability to stay awake change for gym or participate in P.E. Unwillingness to withdrawn and immersed in fantasy. Preferring to remain Poor peer relationships. Poor peer for or stealing food. Begging Fear of parents or going home. home. or going of parents Fear children cry. when other Apprehension or withdrawal. behaviors like aggression Extreme Wariness of adult contact. of adult contact. Wariness • • • • • • • • • • While most abuse occurs within the family, molesters can also gain access most abuse occurs within the family, While to children through employment or volunteer work with an organization that for opportunity more provide settings These children. with works primarily credibility. trust and build to ability the and victims with potential alone time generally begin their acts of abuse on younger siblings. As in other forms of forms other As in siblings. on younger abuse of acts their begin generally that abusers admitting 47% of child with common are patterns cyclic abuse, they were sexually abused as children. children that they don’t know, and 68% look no further than their own families no further than their and 68% look know, they don’t that children for victims. 40% of abusers first begin molesting children before they reach teenagers These 20. of age the before majority vast the and 15 of age the in ethnicity, religion, education, and marital status. So, and marital there is no stereotype, religion, education, in ethnicity, lengths to blend in. especially since abusers go to great very rare. Only 10% of abusers molest Acts of sexual abuse by strangers are many pedophiles never act on their attractions. many pedophiles never act on their Though seven out of eight easy to spot. Child sexual abusers are not always match the general population sexual molesters are male, their demographics Of these molestations, 88% are attributed to individuals with pedophilia, with to individuals 88% are attributed Of these molestations, important is It children. in interest strong or for preference sexual the as defined as molestation, child with actual of pedophilia not to confuse the attraction of relationship and setting and 90% of juvenile sexual abuse victims actually abuse victims sexual and 90% of juvenile and setting of relationship the problem is massive. One in four girls and The scope of know their abuser. abuse by age 18. one in six boys have experienced sexual a lack of supervision. demanding advance, in planned and out thought is abuse Adult-to-Child access, privacy and control. These three factors demand a very specific type Legally, the abuser must be at least four-years older to trigger the stature. The older to trigger the stature. four-years the abuser must be at least Legally, abuse is driven peer-to-peer Association reports that Psychological American age this within bullying drive that the same factors by power and dominance, there is when is often a precursor to sexual abuse, especially group. Bullying Child Sexual Abuse Child Sexual abuse, where one or form of sexual most common is by far the Peer-to-Peer another. touches inappropriately abuses or sexually or adolescent child more of trust, difficulty with healthy relationships, a core feeling of worthlessness with regulating trouble may even be long-term There and low self-esteem. lead to destructive behaviors. emotions that can Child abuse can have long-term effects on victims, commonly including a lack including a lack on victims, commonly effects long-term Child abuse can have Other indicators include: Other indicators A child’s behavior can also indicate potential abuse: potential indicate also can behavior child’s A CHAPTER 7 72 hn t oe t a itm rfl, vr cid s n agr butspecific indanger, is include: child every profile, victim characteristics that abusers lookfor that put some children at higher risk a to comes it When dedication tochildren. Child abusers are often known and respected in their communities for their to reportanonymously. immune to anycriminal or civil liability that mayresult. is You hearing canalsochoose abuse child a in testifies or abuse suspected reports faith, good in and couldexposeyoutoa lawsuit fordamages. Fortunately, anypersonwho, or 1(877)652-2873,toreport childabuse.Failuretoreportisamisdemeanor The DepartmentofChildren andFamiliesmaintainsahotline,1(877)NJ ABUSE to abuseshallreportthisimmediately.” that provides specifically law “Any personhaving reasonable cause to believe that a child is being subjected Jersey New states, other Unlike volunteers. and employees officials, governmental all includes requirement This abuse. child suspected report to required legally are you official, governmental a As Taking ActiontoPreventAbuse not bedisbelievedjustbecausetheywaitedalongtime toseekhelp. that childrenoftendelayreportingsexualabuse. Research shows They should abuse, including: and process grooming the during signs tell-tale show to begin often Victims trust. manipulative relationship, which often starts by showing favoritism to build victims. Sexual abuseisrarely violent. The molester’s goal is tobuild a their “grooming” as identified be can that patterns behavioral have Molesters • • • • • • • • • Cuts, scratchesorotherself-inflictedinjuries. depression, evenresortingtoself-harm. Many children feel at fault after the abuse and begin to suffer guilt and Sexual behaviorsorstrongsexuallanguagethatistooadultfortheirage. contact. abuser resortstothreats that often playoff ofachild’s guilt over thesexual Inevitably, favoritism isnotenoughtokeepthevictim silentandthe after abusecomestolightbecausetheabuserseemed“toogoodbetrue.” child’s a lifeinsomecapacity, likebabysitting.Manyparentsareshocked regular program or schedule,contacting parents to becomeinvolved in The molestermightbegintospendtimewiththevictim outside ofthe keeping secrets. to fosterexclusivityandbuildarelationship while startingthepractice of Molesters oftenrefertotheirintended victims by petnamesandusegifts Children fromlowsocioeconomicbackgroundsorruralareas. Children between7and13yearsold,themostvulnerableages. parents orsingleparents. Passive, lonelyortroubledchildren, 214 especially those wholivewithstep- CHAPTER 7 73 by: An effective program to protect children must start with start must children protect to program An effective 215 Employees should be required to notify the appropriate Human Resources Employees should be required to notify the appropriate Human Resources representative within 72-hours if there is an arrest or conviction. hiring should be permitted. ensure to done be should directories Law Megan’s of re-check An annual no current employees have been added to the list. the applicant has lived. with before the dealt results must be or questionable Any negative is hired or begins to work with minors, and no provisional individual Personal and professional reference checks. Personal and professional reference directory for New Law Jersey and any other state in which The Megan’s Fingerprint identification. there is the chance of violence against yourself or the child. of violence against yourself or the there is the chance Ensuring that the child knows that they did nothing wrong, that this is not they did nothing wrong, that knows that the child Ensuring that you take it seriously. their fault and that if soon as possible as agencies or professionals appropriate the Contacting Understanding that denial is a common reaction. Be reassuring. Displaying reassuring. Displaying Be is a common reaction. that denial Understanding the child with conversation will shut-down the shock or disgust disbelief, quickly. Avoiding interrogation and leading questions. Let the child explain in in explain child the Let questions. leading and interrogation Avoiding their Anything own else words. could confuse and fluster a child, making to continue. it difficult • • • • • • • • • • for at least 65 years. Background checks for all prospective employees and for at least 65 years. Background volunteers should include: abuse. A model policy and procedure can be found at NJMEL.org. be found at NJMEL.org. model policy and procedure can A abuse. Checks: Background kept be should checks these of documentation Written check. background a Litigation Risk Committee Litigation with child and procedures to deal must have policies entities All governmental Your governmental entity probably has arrangements for your defense and has arrangements probably entity governmental Your indemnification. However, you should talk how to understand exactly these procedures work. See authority attorney with your municipal, board or coverage and indemnification. Chapter 8 for a discussion of insurance sexual abuse to age fifty-five, or later under some circumstances. This change This circumstances. some under later or fifty-five, age to abuse sexual means that officials who fail to implement reasonableoffice. years or decades after they leave controlspersonally, can be sued programs and custodial correction facilities, liable if the child is harmed while if the child is harmed liable facilities, correction programs and custodial under their supervision. in the case of child of limitations statute the has extended The legislature The term “In Loco Parentis” is a legal doctrine that grants an individual grants an individual that doctrine Parentis” is a legal term “In Loco The or organization responsibility to act in a individuals or child’s organizations, best including schools, interest. daycare centers, recreational This makes Personal Liability Personal When dealing with a child who might be abused, show calm reassurance and and reassurance calm show abused, be might who child a with dealing When support unconditional CHAPTER 7 74 oute cahs ut lo opee h Rtes AEY lnc Course Clinic SAFETY Rutgers the complete also must coaches Volunteer provides acompletepackageofspecialtrainingprogramsfor: records of all training should be maintained for at least 65 years. The MEL Training: others. UnderthePreventionofDomestic Violence Act: victimized in households where domestic violence occurs against spouses and subjected to domestic violence. This isimportant because children are often Police alsohavebroadauthority to protect people age18andoverwhoare Prevention ofDomesticViolenceAct Other Policies andProcedures that providespartialcivilimmunityunder“TheLittleLeagueLaw.” • • • • • • • • • • • • • • from leaving or contactingfriendsthe police. control overtheir partners,includingmaking threatstopreventa victim not justabout physical assault. Abusers oftenpsychological tactics to gain of ChildrenandFamiliesfor furtherinvestigation. Domesticviolenceis If a child is present, the officer must report the situation to the Department domestic violence. is probablecausetobelieve that aweaponhasbeen involvedinanactof caused by domestic violence, when a warrant is in effect or whenthere The Act isinvokedinsituations wherethevictim exhibits signs ofinjury refuses tomakeacomplaint. cause” that domestic violence hasoccurred. This holds even if the victim “probable find they when arrest an make must officer enforcement Alaw Procedures forthemonitoringofbathroomfacilities. Anti-Hazing andbullyingpoliciesthatcovercyberbullying. consent fromparentsorguardians. being sharedonsocialmedia oranyother platform withoutexpressed Guidelines that restrictimagestakenofchildren aspartofanactivity from alone andinprivate. Strong policies forbiddingstaff andvolunteersfrommeeting with achild must also agencies adopt specificproceduresforthetransportationofminors. Police authorization. written without vehicles own Policies thatprohibitstaff orvolunteersfromtransportingchildrenintheir guardian orotherauthorizedadult. A policy that forbids the release of children to anyone other than the parent, Medical treatmentauthorizationforms. disruption. of an emergency, whether a medical, behavioral, natural disaster or other A written protocol for notifying the parentsorguardian of aminorincase All otherEmployeesand Volunteers. Police CommandOfficers. Managers andSupervisors. Everyone must be trained, beginning with elected officials, and officials, elected with beginning trained, be must Everyone 216 CHAPTER 7 75 . 217 220 Title 59 Title 218 specifically mandatesarrest where the officer finds that 219 Under recently enacted legislation, the statute of limitations the statute legislation, enacted Under recently The Court ruled that the athlete waited too long to bring the The Court ruled that the athlete The Court ruled that while the officer was required to act The Court ruled that both the county and the employee could employee the and county the both that ruled Court The An 18-year-old member of the Rutgers’ Woman’s Volleyball Team Team Volleyball Woman’s member An of 18-year-old the Rutgers’ A A police officer responded to a boarding house where one tenant A 24-year-old female detention center employee started a sexual started a sexual center employee female detention 24-year-old A Comment: for an adult sexual abuse victim is now seven-years. Decision: was two years 18 or older for someone of limitations statute The lawsuit. at that time. quit the program and sent an e-mail complaining of an “uncomfortable” complaining quit the program and sent an e-mail environment within the program but she sued. followed up and two years later, Athletic Director never not The coercion. specifically mentioning the sexual Facts: that and coach the by relationship a into was coerced she that alleged she years later, Two indifference. with deliberate acted university the upon finding any of the statutory triggers, the initial determination is still for police immunity. discretionary and, therefore, qualified by the other tenant. She sued, alleging that her injuries were caused by the were caused injuries her that She sued, alleging tenant. other by the Act. assailant under the failure to arrest the officer’s Decision: or a weapon was used. However, the officer did not realize that there was there that realize not did officer the However, used. was weapon a or groping to be an and did not consider mere order a previous restraining the woman was raped later that day, He did not make an arrest, and injury. Facts: of Domestic Prevention The her. had groped tenant another that claimed Act Violence warrant or order restraining a is there injury, signs of exhibits victim the appropriate safeguards. appropriate safeguards. Decision: County Board of the legislation, under recent Further, be held liable. to implement for failure be held personally liable Freeholders can now lawsuit was filed to recover medicalthe bills.from immunity has itself county the liable, held be can molester the while The county that argued under vicarious liability Facts: He center. detention county a at inmate 17-year-old a with relationship with another treatment who entered young man was a very troubled A from the county facility. released he turned 18 and was Agency after violence have been committed. If there is no visible sign of injury, but the but of injury, sign visible is no If there committed. been have violence factors other consider must officer the occurred injury an that states victim probable cause. in determining If these conditions are not met, an officer may still make an arrest or sign of domestic acts to believe cause is probable if there complaint a criminal • Schmotzer v. Rutgers (2017) v. Schmotzer S. P. v. Newark (2012) v. S. P. Selected Case Law: Selected County (2007) Mercer J. H. v. CHAPTER 7 76 L.E. v. PlainfieldBOE(2018) 222 221 220 219 218 217 216 215 214 213 212 211 210 209 208 G.A.H v. K.G.G(2019) Deeger, Alice, What canbedoneaboutpedophilia? The Atlantic, 2013 455N.J. Super. 294 (2019) A-3638-16T1 U.S.DistrictCourt, Civil Action 15-6904(2017) N.J.S.A.2C:25-17 etseq. (2012) A-5591-10T3 396N.J.Super. 1,930 A.2d 1223(2007) N.J.S.A.2C:25-17etseq. Smith,Melinda,Robinson,Lawrence &Segal,Child Abuse andNeglect,Santa Monica,2019 Abel, Gene&Harlow, The StopChildMolestation Book,revised2002 Etikk,Praksis, The Ethics ofPedophilia,Oslo Smith,Melinda,Robinson,Lawrence &Segal,Child Abuse andNeglect,Santa Monica,2019 U.S.DeptofHealthandHumanServices,ChildMaltreatment,2017 N.J.S.A. 9:6-8.13 N.J.S.A. 9:6-1 assaulted. The lawyersfortheBoardargued that while, under Facts: creates adutytoreport. If this was a public entity, however, knowledge or reasonable suspicion co-worker oremployee.” Thus, theyleft this issueopenforalater case. engaged in a sexual relationship with a minor has alegal duty to report that co-worker oremployerwithknowledgethataemployee is Comment: the smallscreenofacellphone. difficult to know someone’s age based on appearance alone, especially on a sexualrelationshipwithminor. The Courtpointedoutthatitisoften a reasonable basis fortheco-workertobelieve that his colleague was in Decision: for negligenthiring,trainingandsupervision. situation to hissupervisorsandthat the employer was vicariously liable girl sued, alleging that the molester’s co-worker should have reported the the notified then police. The molester pleaded guilty and was jailed. Fouryears later, the who mother, her informed teen the months, five After although the relationship itself did not happen during working hours. phone. Healsodrovetheyoungwomaninambulance onoccasion, her age,andshowedtheco-workerpornographicphotosofonhiscell with a15-year-old girl.Hetoldaco-workerabouttherelationship, butnot Facts: entry intoschoolbuildings. passes, maintaining supervision ofstudents in class and preventing free- student-on-student assault, including the enforcement of asystemhall of Education have adutytoimplement reasonable measures toprevent Decision: for failuretoprovideadequatepoliceprotection. perpetrator of acrime can besued,thepublic entity itself has animmunity A 44-year-old privately-employed EMT had a sexual relationship A girl was pushedintothe boy’s bathroom where she was sexually The Court held in favor of the plaintiff, ruling that Boards The New JerseySupreme Court ruled that the facts did not create The Courtalsoruledthat“We neednotdecidewhethera

222 221 Title 59 , the PART 3

INSURANCE

Chapter 8: Insurance and Indemnification

Chapter 9: Managing a JIF

Chapter 10: Environmental Risk Management

Chapter 11: Technology Risk Management CHAPTER 8

INSURANCE AND INDEMNIFICATION

The discussion in this chapter is general in nature and is not a binding insurance policy and should not be used as an insurance policy. Local governments, their officials and employees enjoy broad immunities to protect them from liabilities. There are limits to these immunities. This chapter discusses the role of insurance and other forms of indemnification when the immunities do not apply. Insurance coverage issues can be complex and very fact sensitive. It is important that local governments retain a knowledgeable Risk Manager for advice. Holes in coverage can also occur if the terms and conditions of individual policies are not coordinated. Therefore Joint Insurance Funds (JIFs) generally require members to join for all lines of insurance to minimize these gaps. Local elected officials enjoy all of the immunities and protections afforded to governmental employees and are considered employees even if they are not paid. The only practical difference between an elected official and any other governmental employee is that officials first elected after July 1, 2007, are no longer eligible to join the regular pension plan but may join the defined contribution plan. Some volunteers are also covered by the property and casualty insurance policies, specifically, volunteer firefighters, first-aid workers and reserve or auxiliary police officers. 223 CHAPTER 8 79 subject 226 and However, However, 227 225 Governmental entities in New in entities Governmental which results in considerable cost which results in considerable 228 229 and Public Contracts Law. Contracts and Public The policies usually cover volunteers for cover volunteers usually The policies 224 Some local governments include in their in include governments Some local The individual was acting in good faith. The individual was acting in good faith. The individual was acting in the discharge of a duty imposed or authorized or imposed duty a of discharge the in acting was individual The by law. The individual was acting in a matter in which the local government has government the local in which in a matter was acting individual The an interest. commonly administered by local governments. The most common of common most The governments. local by administered commonly these non-profits Associations. are Recreation Coverage is not automatic application and reporting procedures. and is subject to special Non-Profit Volunteers: insurance programs non-profitorganizations that perform functions any organization that is “controlled” by any the organization local government Law Affairs to the Fiscal own their adopt that other “authorities” housing and utility, independent own policies. have their budgets usually Governmental Volunteers: Governmental • • • • • savings. from an approved insurance company or qualifying with the New Jersey the with or qualifying company insurance approved an from self-insurer. a as of Insurance Department Jersey are not required to seek approval to self-insure and have the additional Fund, a Joint Insurance of joining option and certain volunteers (See Chapter 1). The Workers’ Compensation Act also Compensation Workers’ The and certain volunteers (See Chapter 1). financial their for provide to ability their demonstrate to employers all requires policy insurance an purchasing by either employees injured to responsibilities Workers’ Compensation Insurance Compensation Workers’ property-casualty of cost the of half represents Compensation Workers’ for on- coverage The law mandates government. local insurance for the typical basis” for all employees illness on a “no-fault and occupational the-job injuries election opponents who sue each other for defamation will not be protected be not will defamation for other each who sue opponents election are not “on-duty” while campaigning. by their local government because they respond “off-duty” without proper authorization. without proper respond “off-duty” It of a duty. because it is not in the discharge in not covered Electioneering For the same reason, to campaign while “on-duty.” for an employee is illegal of normal duty hours, and their outside upon an emergency come if they to be “on-duty” considered are not specifically called out.if they in other situations not covered First responders are jurisdiction. regular They are also Career and volunteer first responders areoutside that happens in their jurisdiction consideredwhen they respond to an emergency to be “on-duty” even volunteer is “on-duty,” meaning that all of the following are met: meaning that all of volunteer is “on-duty,” When is an official, employee or volunteer “on-duty?” When is an official, insurance policies and As a local government’s a general principle, indemnification procedures only apply if the official, employee or covered

circumstances. Check with your local government’s Risk Manager to determine to determine Manager Risk local government’s with your Check circumstances. for volunteers. the coverage Non-emergency volunteers may also be covered for most of the local local of the most for covered be also may volunteers Non-emergency the on depending compensation, workers’ except insurance government’s Almost all workers’ compensation policies have statutory limits, which means that they cover the employer’s obligations under the Act without a limit. The policy’s purpose is to protect the employee, even if the employer becomes insolvent or is otherwise no longer able to meet its statutory obligations. A governmental entity is still responsible to pay all claims due under the Act if it decides not to purchase coverage.

Liability Insurance Liability claims represent 40% of the cost of property-casualty insurance for local government. This coverage typically consists of eight primary insurance policies, many provided by the same insurer. Note that the insurers at the excess level are usually different. Liability Coverage Insurer General Liability Primary Casualty Insurer Automobile Liability Primary Casualty Insurer Police Professional Liability Often the Primary Casualty Insurer Public Officials Specialty Insurer Employment Practices Liability Specialty Insurer (See Chapter 11) Environmental Liability Specialty Insurer (See Chapter 12) Cyber Liability Specialty Insurer Aircraft Liability • In many programs, including the MEL, the Primary Casualty Insurer covers both Workers’ Compensation and Liability. • All of these policies have an “other insurance” exclusion to avoid duplication. Under this clause, an insurer will not cover what is normally

CHAPTER 8 insured under another coverage, even if the local government decided not to purchase the other policy. • These policies do not cover liabilities assumed under contracts unless there is a special provision to include these specific liabilities. It is good practice to ask your Risk Manager to review all significant contracts. • The policies usually do not cover lawsuits for injunctive relief; in other words, a lawsuit that demands that the governmental entity does something or stops doing something. Generally, insurance policies only cover claims for monetary damages and are not meant to be a substitute for the general legal budget. • While General Liability policies cover defamation under limited circumstances, they exclude lawsuits between officials, employees and volunteers. For example, suppose two elected Council Members get into a shouting match at a meeting and sue each other for defamation; in that case, they cannot look to the policies for defense and indemnification. • The insured has a duty to cooperate in defending the claim. Deliberate failure to do so can nullify coverage. • Liability policies do not cover punitive and similar damages.

In addition to paying judgments and settlements, liability insurance policies also pay the cost of defense. The insurer usually has the right to select the attorney who will provide this defense. 80 CHAPTER 8 81 232 The JIF or insurer must JIF or insurer The Most attorneys that represent 231 233 230 For a skateboard facility to be included in your to be included in For a skateboard facility Local governments become involved in a wide range of a wide range in involved become governments Local before coverage is granted. Refer to the applicable Coverage Bulletin at Bulletin Coverage applicable the to Refer granted. is coverage before NJMEL.org. attorney’s professional attorney’s coverage as a part of the insurance organization’s as entity, governmental of the employee full-time is a attorney the if only coverage for application the approve must JIF The firm. law a to opposed Employed Attorney Professional Liability: Attorney Professional Employed to obtain their and are required local government are in private practice insurance. Local governments may secure an own professional liability insurance program and qualify for design immunity, it must be designed for design immunity, program and qualify insurance approve must body governing the and engineer, or architect qualified a by be can requirements Complete begin. can construction before plans the found at NJMEL.org. reporting form. Refer to the applicable Coverage Bulletin at NJMEL.org at NJMEL.org Bulletin Coverage reporting form. Refer to the applicable for full requirements. Skateboard Facilities: provider must execute a hold harmless agreement and attach certificates Auto and Liability General Compensation, Workers’ for insurance of and a standard limits policy minimum has established The MEL Liability. associated with special events is available at NJMEL.org. at NJMEL.org. associated with special events is available Amusement Rides: Displays and Fireworks The event. to the prior provider or ride display with the contract the approve special events, including parades, community picnics and fairs, marathons, picnics community parades, including events, special to planning careful require events These concerts. and festivals craft issues management risk the concerning guide A exposures. legal minimize Special Events: Special before the insured reports the claim. before the insured if you are even matters, for criminal defense costs do not cover Policies acquitted. Where an insurer exercises full control of the claims settlement process, process, settlement of the claims full control an insurer exercises Where claims. to exercise good faith in settling the insurer has a duty costs incurred an insured for defense duty to reimburse An insurer has no When multiple causes of action are stated, the duty to defend continues defend to duty the stated, are of action causes multiple When claim is eliminated. until every covered The duty to defend applies to only those causes of action that would be of action that to only those causes to defend applies The duty the claim was valid. covered if • • • • • • • • • insuring dangerous activities. Seek the advice of your Risk Management advice Seek the insuring dangerous activities. Consultant. Special Liability Reporting and Coverage Requirements Special Liability Reporting and Coverage before precautions require commonly insurers Funds and Insurance Joint case of the specialty insurance coverages. specialty insurance case of the Attorney. After reviewing the responses, the Fund Attorney recommends a recommends Attorney Fund the responses, the reviewing After Attorney. their at Commissioners of the by resolution year each appointed panel, January reorganization meeting. After the panel is selected, individual cases in the or by the insurer Attorney, by the Fund to defense attorneys are assigned In the case of Joint Insurance Funds, the process to select defense attorneys attorneys defense to select process the Funds, Insurance of Joint case the In by each Fund released proposals competitive request for periodic with a begins CHAPTER 8 82 Governmental entities are notrequiredtoseekapprovalself-insureandhave by or qualifying withtheDepartmentofBankingandInsuranceasaself-insurer. insurance purchasing by responsibilities financial their for provide to all vehicle owners, except government entities, to demonstrate their ability good faith. As in the case of workers’ compensation, New Jerseylaw requires in responding while immunities special have firefighters and Police owners. Local government is subject to thesameautoliability laws asothervehicle Automobile Insurance was discussed extensivelyintherecent case of indemnification of subject The circumstances. some under Clerks municipal and officers police of indemnification require that statutes special are There one officialandnotanother undersimilarcircumstances. shown to be arbitrary and capricious. In other words, youcannot indemnify public entity, thegoverningbody’s decisionissubjecttobeingoverturnedif because the opposite party had control of the council. Like all actions of a local indemnification denied was official county or municipal a where cases been provisions for state and school employees require indemnification. There have Note thatlocal public entities are empoweredtoindemnify, whiletheequivalent adopt anindemnificationordinance. to is volunteers and employees officials, protect further to tool important An Indemnification Ordinances privately-owned vehicleontheemployer’s business. covered by workers’ compensation if an accident occurs while operating a employer’s andtheemployee’s autoinsurance policies. An employee is also any passengersareeligible for PersonalInjuryProtectionbyboththe (PIP) employer-owned vehicle. business whenanautoaccident occurs eveniftheemployee is driving an is nocoverageunderworkers’ compensation if theemployee isonpersonal covered by workers’ compensation while on the employer’s business. There As indicated in Chapter 1, thecourtshave ruledthat an employee is only local government’s policyistriggered. policy covers theaccident until the limits are exhausted. At that point, the has an accident while driving a private car on official business, the inspector’s being used on governmental business. For example, if the building inspector policy. Italsoprovidesexcesslimits for all vehicles owned byotherswhile the policy.in listed The policycoversallpermitted drivers,evenifthedriverisnotnamedin specifically not vehicles including borrowed, or leased Auto policies insuring local governments include all vehicles that are owned, the additionaloptionofjoiningaJointInsuranceFund. an intentionalwrong.” based did not constitute actual fraud, actual malice, willful misconduct or entity, theactscommitted by theemployee upon whichthedamagesare or federallawif,intheopinionofgoverningbody ofthelocal public punitive damages resulting from theemployee’s civil violation of State may indemnifyanemployee ofthelocalpublicentityforexemplary or employees consistent withtheprovisionsofthisact. A localpublic entity “Local public entities are hereby‘empowered’ toindemnify local public 234 However, inthissituation, theemployee and Title 59 235 provides: Zirkle v. Fairfield. 236 CHAPTER 8 83 Personal property and personal vehicles owned by others, including Personal property and personal vehicles owned by others, including employees. Electronic data, programs and software. Money and securities. and greenery. Sanitary and storm sewers. and aircraft. Watercraft Valuable papers and records. Valuable Land, beaches and related improvements, including sidewalks, roadways Outdoor property, including light poles, signs and benches. including Outdoor property, Synthetic turf fields. Computer equipment. and docks. features, including boardwalks, piers Waterborne Motor vehicles, including emergency vehicles and attached emergency emergency and attached vehicles emergency including Motor vehicles, equipment. renovation. New construction and buildings under Buildings and contents. Mechanical and electrical equipment. Wear and tear, along with faulty construction. and tear, Wear Pollution, disease and pathogens. Theft by officials, employees or volunteers. Failure of mechanical and electrical equipment. Failure of mechanical and electrical Flood within the flood hazard zone. Fire, including arson. events. weather-related Flood, windstorm, lightning and other Motor vehicle collisions and other damage. • • • • • • • • • • • • • • • • • • • • • • • Types of Property Not Covered of Property Types Types of Property Covered of Property Types Perils Not Covered Most Common Perils local governments should seek the advice of a qualified Risk Manager. The Many in the standard policy. included usually of coverages following is a list special policies. of the exclusions can be covered by insurance for local government. While each property insurance policy has policy insurance property each While government. local for insurance physical is a when there triggered only is generally policy terms, the different loss and covered peril. Coverage issues to property caused by a are technical Property Insurance of property-casualty cost the 10% of approximately losses represent Property Standard homeowner’s or personal umbrella policies often exclude coverage exclude often policies umbrella or personal homeowner’s Standard for officials while performing their officialinsurance agent about policies specifically duties. designed for public officials. It is Talk claim. to immediately report any potential always a good practice to your personal body should consider adopting the broader version of the indemnification. the broader version consider adopting body should Policies Homeowner’s provisions provisions is that one allows governing indemnification prerogative, body’s while the second prohibits for indemnification for punitive damagespersonal for some of limitations statute long of the In light damages. punitive at the liability exposures against officials, employees and volunteers, the governing The The Resource section the between difference The of provisions. optional several with ordinance this manual includes a model indemnification CHAPTER 8 84 Coverage Considerations • • • • • • • • natural catastrophes, including flood, storm surge, wind, hail, lightning hail, wind, surge, storm flood, including catastrophes, natural Natural Catastrophes: (see Chapter 10). policy, butmay becoveredbythelocal government’s pollution insurance Pollution: buildings will nullifythis“errorsandomissions” clause. of specialpropertiessuch as dams,bridges,historic buildings and vacant intentional. Failuretoreportand valuecertain special risksinthecase in valuations will notimpact claim settlements unless theerror was Errorsin Valuations: a modernbuildingunlessit hasbeenvaluedasahistoricstructure. example, if a historic town hall is destroyed, the insurer will replace it with insurer isonlyresponsible to repair or rebuild with modern materials. For valuation must bereported tobeeligible for thiscoverage. Otherwise,the and special contractors to repair or replace these buildings. The higher be insuredforspecial replacement cost thatcontemplates the materials Historic Buildings: for openspaceoranewbuilding. removal wheretheinsuredintendstodemolishstructure tomakeway “actual cash value.” Manyvacant buildings are only insured for debris non-emergency vehicles and vacant buildings, are usually insured for “replacement cost minusactual depreciation.” Someproperties such as Otherwise, the insured will receive “actual cash value,” whichmeans only receive this highersettlement if itisactually repaired or replaced. with “like kindandquality.” Propertyvaluedat“replacement cost” will which meanstheinsurerwill pay torepair or replace the damaged property valuations annually. Propertyisusually valued at “replacement cost,” Valuations: Manager becauseeachinsurerhasdifferent requirements. It isgoodpractice to reportallacquisitions and disposalstotheRisk newly acquired property, there are exceptions, such as vacant buildings. Property: Newly Acquired state lawareasignificantaspectofthiscoverage. electrical equipment and large motors. Safety inspections required by also coverssuch“objects” as heating and airconditioning units, generators, property policytoavoidcoverage gaps. Boiler andmachinery insurance Boiler andMachinery: on officialbusinessatthetimeofaccident. damage to vehicles owned by employees or volunteers, even if being used or leasedbytheinsuredlocalgovernment. The policy does notcover Vehicles: for a responsible itself find considerable portionoftheloss. may coverage NFIP available purchase to National Flood InsuranceProgram(NFIP). A local government that fails a has E, and A Zones much higherdeductible that corresponds tothelimits available from the including zones, hazard high in coverage Flood reimbursed by the Federal Emergency Management Agency (FEMA). sub- coverage significant limits for theseexposures,amounts notcovered by insurance are often have usually policies While earthquake. and The propertypolicy also coversdamage to vehicles owned Damage caused bypollution is notcovered by theproperty Insuredsarerequiredtoupdatetheir property listingsand Structuresonfederalorstate historic registriesmay Inadvertent failure to list a propertyormistakes This specialized insurance is now rolled into the into rolled now is insurance specialized This The largest lossesunderthepropertypolicy are While the policy automatically covers most CHAPTER 8 85 If property is unusable If property is unusable provides tables of bonding levels provides tables While “depletions” over time are not covered, are not covered, over time “depletions” While NJAC 5:30-8 NJAC Sanitary and combined sanitary/storm sewers sewers sanitary/storm and combined Sanitary Most damage caused by contamination is not covered, covered, not is contamination by caused damage Most The policy covers buildings while under construction. while covers buildings policy The Damage caused by faulty work is not covered, but the but the is not covered, work by faulty caused Damage The crime policy also provides the faithful performance provides the faithful performance policy also The crime Individual JIFs have special policies concerning the reporting the concerning policies special JIFs have Individual Fine Arts: Fine and coverage of fine arts. structures. The policy does not pay for excavation costs to identify the costs to identify does not pay for excavation policy The structures. the cause of damage determines unless such investigation cause of damage to be covered in the policy. Underground Piping: Underground piping, including storm are not covered. Other types of underground buildings or radius of covered sewers, may be insured within a 1,000-foot for lost tax revenue caused by the destruction of buildings not otherwise not of buildings destruction by the caused revenue for lost tax sand is not because revenue nor for lost beach by the policy, covered While these losses they are not covered by insurance, covered property. are often reimbursable by FEMA. was income-producing, such as an apartment building owned by a housing building such as an apartment was income-producing, and extra expense only apply to interruption business However, authority. reimburse a municipality This coverage will not losses to covered property. Business Interruption and Extra Expense: Business Interruption expenses extra pay the also will loss, the policy of a covered because period. restoration reasonable a during operations to maintain incurred The policy will also reimburse any lost profits if the damaged property Builder’s Risk: Builder’s risk may require circumstances, coverage for “builder’s” Depending upon the requirements. with your Risk Manager for reporting prior approval. Check the “ensuing loss” coverage may apply depending on the facts. For For facts. on the depending apply may “ensuing loss” coverage the subsequent the for pay will insurance bursts, the pipe old an if example, not the replacement of the pipe itself. water damage but other damage caused when the faulty beam fails. other damage caused Tear: and Wear Corrosion, Faulty Work: will not pay to the policy loss.” For example, cover “ensuing policy may repair to pay may but size, wrong the to cut was that beam support a repair pollutants and pathogens. However, there may be coverage if a “preceding “preceding a if coverage be may there However, pathogens. and pollutants is the attic mold in For example, contamination. caused the loss” covered of an otherwise result the was that by a roof leak unless caused not covered strike. or lightning covered windstorm Contamination: other and pathogens virus, bacteria, fungus, mildew, mold, including • • • • • • • the limits are adequate. misappropriates public funds. public misappropriates for required of the levels advise will auditor The revenue. entity’s based on the to make sure The Risk Manager must be kept informed the various positions. Statutory Bonds: bond required Tax and Utility Collector by Treasurer, Library Treasurer, performing duties of the the Municipal Collector. Treasurer These bonds protect the local or government if the official steals Chief or Financial Officer local government into voluntarily releasing assets. The most common tool is tool most common The assets. releasing voluntarily into government local a fake e-mail that looks to be from a legitimate source for a sound purpose. Crime Policies Crime Policies by as theft as well securities and for monies coverage exclude policies Property exclusions. these covers policy crime The volunteers. and employees officials, dupes the a criminal where Engineering,” is “Social coverage Another key CHAPTER 8 86 every threeyears: To underwrite these positions, the MEL requires the following information Golaine v. Cardinale(1976) Rova FarmsResortv. InvestorsInsurance(1974) Selected CaseLaw: recommendations developedbyyourJIF. indemnification and insurance guidelines. model Also check with your Risk Manager and JIF for Fund Office for other manual this of section Resources vendor non-performance or claims caused by vendor negligence. See the service providers and Vendors frequently insert language that putslocal government at riskintheevent of provisions. insurance and indemnification The Risk Manager is also responsible to review contracts for issues with the the JIFs. of success the in factor significant a been has involvement committees. Their attend the monthly JIF boardmeetings and become involved inthestanding program periodically.strongly encourageRiskManagersto MostJIFs The Risk Management Consultant is responsible to report on the insurance Litigation RiskCommittee letter ofrecommendationfromthememberemployingindividual. The appeal must include the individual’s explanation of the situation and a process toapanel comprised ofthe three senior-most MEL Commissioners. Should the individual not be automatically approved, there is an appeal • • • • Completed StatutoryBondapplication. legal feesincurred whilewinningreinstatement. reinstated, then sued the Mayor and the town forreimbursement of the that theremoval was improperandtheCourtagreed. The memberwas member totheboard. The nowex-member sued theMayor, alleging temporary leave had, in fact, vacated the seat and then appointed a new Facts: limits. became responsible fortheamountthat the juryawardexceeded the policy duty to exercise good faith. By ignoring the insured’s attorneys, the insurer reserves fullcontroloftheclaimssettlement process, theinsurerhas Decision: had topaythedifference. The resortsuedtheinsurer, allegingbadfaith. awarded the injured guest substantially more than expected, and the resort jury hopingthattheawardwouldbelessthanpolicy limits. The jury company to settle the case, but the insurer decided to take the matter to the board intomurkywater. Attorneys fortheresorturged theinsurance Facts: 10% least at has Completed FCRA ConsumerDisclosureand Authorization form. applicant the where ownership. organization any conditions, in financial similar including or insolvencies bankruptcies, pending No Credit scoreof600orabove. A guestataresortwasseverelyinjuredwhenhejumpedoff adiving A Mayordeclared that aPlanning Board member who requested The New JerseySupremeCourtruledthat where aninsurer 237

CHAPTER 8 87 238 239 permits broad discretion in deciding in discretion broad permits Title 59 Title This case highlights why it is important for local government to to government for local important is why it highlights case This This is an important decision that reaffirmed that the Courts Appeal Court Judge Sylvia Pressler’s decision in this case is in this case decision Pressler’s Court Judge Sylvia Appeal The Court ruled that the town was not required to pay the to pay required not was town the that ruled Court The The New Jersey Supreme Court ruled against Werner Industries. Industries. Werner The New Jersey Supreme Court ruled against The Freeholders were within their rights to defend and defend to rights their within were Freeholders The The New Jersey Supreme Court ruled that an insurer has no duty The New Jersey Supreme Court ruled that an insurer . A prosecutor was held liable in a defamation action filed by an A 62-year-old employee was told that his position was eliminated position his that was told employee 62-year-old A Werner Industries purchased a primary liability policy with policy liability a primary Industries purchased Werner indemnify the prosecutor. prosecutor. the indemnify so long as the decision and under what circumstances, whom to indemnify is not arbitrary and capricious. contending that the governing body’s actions were not authorized under 59 Title Decision: Facts: governing The damages. who was awarded punitive assistant prosecutor body paid the prosecutor’s defense costs and the award. A citizen sued, Comment: comply with claim reporting procedures.work closely with its Risk Manager to Decision: incurred by the insured before the to reimburse an insured of defense costs to trigger coverage. insured sufficiently reports the claim employer sued the insurer for reimbursement of approximately $100,000 $100,000 approximately of reimbursement for insurer the sued employer two-year period. in legal expenses incurred during that and encouraged to take early retirement. The position sued The “early retiree” employee. several months later with a younger was filled again for two years without the claim defended directly and the employer conveying sufficient information to its insurer to trigger coverage. The Facts: Comment: are not inclined to re-interpret clear policy either the insured or the insurer. language for the benefit of Decision: of a the plain meaning contravene reasonable expectations If an insured’s is inconsistent policy if the be overcome only can meaning plain the policy, accepted standards. with public expectations and commercially the claim exceeded $500,000, the excess policy should start coverage at $500,000, the excess policy exceeded the claim that expectation reasonable a had Werner because case this $300,000 in policies. gap between the primary and excess there would be no insurer. The insurer. first insurer became insolvent, and the Guarantee Fund only the though even that contended Werner $300,000 in coverage. provided when only started coverage that clear was policy in the second language Facts: from a second policy from one insurer and an excess a $500,000 limit Comment: often cited. reinstatement to a political position. Therefore, the Board member was member Board the Therefore, position. political a to reinstatement not “acting in the discharge of a involved in of individuals expenses the legal does not pay Government duty imposed or authorized by law.” reason. for the same election disputes Decision: Decision: secure to the member by were incurred they because fees member’s Board Loigmann v. Monmouth County (2000) Loigmann v. SL Industries v. American Motorists (1992) American Industries v. SL Werner Industries v. First State (1988) v. Industries Werner CHAPTER 8 88 McCurrie v. Kearney(2002) Ferentz v. Frederick (2019) Election LawEnforcement Commissionv. James(2015) consider adopting an ordinance that establishes indemnification and indemnification establishes that ordinance defense policies. an adopting consider Comment: iltd hi dt t ass i te ees ad teeoe nullified therefore, and, defense policewoman, theresolution wenttoofar. the in assist coverage. While the governingbodywaswithinits right toreinstate the to duty their violated Decision: figure sum,andthetownsuedinsurertopay award. continued to defend the former Mayor. A jury awarded the Chief a seven- previous Mayor. The insurerthendisclaimed coverage tothetownbut exonerating the nowChief,making it all but impossible todefendthe to Chief.Overthewarningofinsurer, theCounciladoptedaresolution her boyfriendwaselected Mayor, theCouncil reinstated and promoted her Facts: a personalexpenseandmaynotbepaidfrompolitical contributions. duties of holding office, defense costs for criminal defense are considered for thereasonablelegalfeesthatdirectlyarisefromcampaignor Decision: campaign fundstobeusedforlegalbillsrelatedholdingoffice. He argued this was permissible because the regulations specifically permit retained alawyerandusedsurplusfromhiscampaign fund topaythebills. was the subject of a criminal investigation for the misuse of his office. He Facts: between thevariouslawsonindemnification. Comment: bills underthebroaderindemnificationlanguagein the legalcosts,butthenruledthat the governing bodycouldstill pay the the Appellate Court that the special statute concerning Clerks did not cover and ordered the payment of the Clerk’s legal bills. The Court agreed with Decision: went totheNewJerseySupremeCourt. broad enoughtocoverthe Clerk’s legal costs inthiscase. The matter then not is that statute indemnification special a have Clerks that grounds the then argued was improper. The Appellate Court agreed with the citizen on citizen the which Clerk’sbills, the legal pay to agreed town The lawsuit. agreement, and theClerkhiredanattorneytodefendtheirinterestin the block to sued citizen A body. governing incoming the with package associated with the outgoing administration, negotiated aseverance Facts: A policewoman sued for damages after she was fired for cause. When A Mayorwithasubstantial political “war chest”learnedthathe There wasachangeinpartycontrol,andtheClerk,whoclosely The Court ruled that the actions of the new Mayor and Council The Court ruled that while surplus contributions may be used The NewJerseySupremeCourtoverturnedthe Appellate Court This decisionisanexcellent discussion oftheinterrelationship As previously indicated, governing bodies shouldseriously 242 240 Title 59 241 . CHAPTER 8 89 267 A.2d7 (1970) 267 142 N.J. Super. 385 (1976) 142 N.J. Super. Chisholm v. Ocean County (1989) Ocean County Chisholm v. N.J.S.A. 59:10-4 Burd v. Sussex Mutual, Sussex Burd v. Golaine v. Cardinale, Golaine v. 34:15-79 N.J.S.A N.J.S.A.40A:10-36 N.J.S.A. 34:15-43 N.J.S.A. seq. 40A:5-1 et. N.J.S.A. N.J.S.A. 40A:11et. seq. 40A:11et. N.J.S.A. 329 N.J. Super. 561 (2000) 329 N.J. Super. 470 (2002) 344 N.J. Super. A-0726-12T4 (2015) A-5628-17T2 Unpublished decision 385 (1976) 142 N.J. Super. (1992) A2d 1266 607 (1978) A2d 1159 384 Indemnity, Travelers v. Mt Hope Inn 495 (1974) A.2d Investors Insurance, 323 Resort v. Rova Farms 1266 (1992) A2d Motorists, 607 American Industries v. SL See the applicable coverage bulletin at NJMEL.org. coverage bulletin applicable See the

240 241 242 235 236 237 238 239 230 231 232 233 234 225 226 227 228 229 223 224 CHAPTER 9

MANAGING A JOINT INSURANCE FUND (JIF)

Since the mid-1980s, the risk management revolution for governmental entities in New Jersey has been led by the 19 JIFs that created the Municipal Excess Liability Joint Insurance Fund (MEL). The MEL organization has reduced its members’ property/casualty costs by at least half and member employee accident rates by over 65% since its inception. MEL non-claim costs have simultaneously been cut to the lowest in the country. The average non-claim cost for MEL member JIFs is 15%, compared to 31% for commercial property/ casualty companies. JIFs are governmental entities that are governed by member appointed commissioners. The commissioners make all decisions and go considerably beyond commercial insurers to provide service to the members. Examples include: • When the MEL was first established, a major Reinsurer offered a lower property insurance rate if the program did not include the shore communities. Joseph Giorgio, Manager of Hanover Township (Morris JIF) and the MEL’s first Chairperson, flatly rejected the idea, stating that all of the JIFs must look out for each other. • During Superstorm Sandy, 125 MEL member towns suffered flood damage. The MEL established a Special Claims Committee that included a retired judge as the arbitrator. Every claim was resolved without litigation. CHAPTER 9 91 Under the regulations, 243 This plan fleshes outthe details and is The regulation controlling JIFs was adopted jointly by jointly was adopted JIFs controlling regulation The This document establishes the basic structure of a JIF. establishes the basic structure of a JIF. This document The enabling statute (See Resources Section), Title Title The enabling statute (See Resources Section), ed in the late 1990s. Hire employees to operate the Fund. • Administrator and Servicing Organization: and Servicing Administrator there are three ways to administer a JIF: adopted each year by the JIF’s governing body. governing body. adopted each year by the JIF’s The bylaws must be ratified by the governing bodies of the member local units and are rarely amended. The Plan of Risk Management: Department of Banking and Insurance. While there are JIFs in almost JIFs in are there While Insurance. and Banking of Department comprehensive regulations. every state, New Jersey has the most Bylaws: The JIF even exempts JIFs from the insurance code. even exempts JIFs from the insurance 15 – 2: NJAC 11: and the New Jersey Affairs of Community the New Jersey Department 40A, is the municipal code, not the insurance code. Legally, JIFs are not not JIFs are Legally, code. insurance the not code, municipal 40A, is the governmental an inter-local but rather companies, insurance considered This statute program of its members. entity responsible for the insurance Title 40A:10-36: Title in stabilizing the bond market for local governments across New Jersey. Jon especially commissioners, led by several and started was This effort JIF). JIF) and Chuck Cuccia (South Bergen Rheinhardt (Morris At the beginning of the COVID-19 pandemic, New Jersey municipalities MEL The bonds. municipal problems selling serious experienced (JCMI) pool to Investment and Management a Joint Cash established a major factor members – by the MEL’s debt securities issued purchase adjusters adjusters for the Central Jersey JIF found a fleet of heavy trucksavailable in Edison arrived equipment replacement The state. in another for lease before the storm. just hours After After a devastating fire struck the Edison DPW garage anddestroyed the snowstorm, major a before days two trucks heavy-duty of fleet township’s • • • • • • • Article 1: Definitions Several mirroring the State regulations. This section is mostly boilerplate, definitions are especially important: This document includes all of the important provisions in the statute and statute the in provisions important of the all includes document This bylaws the model Most JIFs in New Jersey have adopted regulations. develop Bylaws entities. with: JIF Commissioners should be familiar continually exposed to the importance of safety and claims control. to the importance of safety and claims continually exposed closely are They companies. not insurance entities, JIFs are governmental according to all of the rules for governmental operate by the State and regulated Committee meets monthly to decide the Fund’s business. These meetings are These meetings business. decide the Fund’s meets monthly to Committee officials local 250 Over governments. local impacting laws the of all to subject are therefore, and, JIFs local their of governance the in month each participate Under state law, JIF Commissioners must be either local elected officials or employees of member local units. An Executive Committee and officers are The Commissioners. the by January each meeting reorganization the at elected CHAPTER 9 92 alphabetically between themembers. of membersis even. The power toappoint the Special Commissioner is rotated A Special Commissioner is appointed as the tie-breaker whenever thenumber an alternate. while employees must be reappointed each year. Memberscan also appoint each by member’sbody.governing terms appointed two-year for appointed are officials Elected is employee, or official elected an either Commissioner, Commissioners: Article 3:Organization Insurance. orunderwriting riskmanagement the Fund’s standards or other reasons approved by the Commissioner of Banking and tomeet failure as defined is Commissioners 45 dayspriortothe end ofthe membership period. “Cause” A renewalapplication is deemed approvedunlessrejected for causebytheFund member mustreapplyformembershipifitfailstorenewbefore the90-daydeadline. in advance,oritsmembershipisautomaticallyextended again.InafewJIFs,the withdraw at the end of the extended period, it must still give notice 90 days is automatically Ifthemember wants to extended forayear inmostJIFs. budget process.Ifamember failstoprovidetimely notice, itsmembership membership period, which correspondstothe beginning ofthe Fund’s to withdraw must give notice at least 90 daysin advance of the end of its This section also discussesmembership renewals. A member wishing of localunits,suchashousingauthoritiesorutilities. specific a to membership their territory suchasacounty, limit whileotherslimit their membership to certain types JIFs Many bylaws. the in established The prospectivemembermustalsomeetanyterritorial or similarlimitations a two-thirdsvoteoftheExecutiveCommittee’s fullauthorizedmembership. must beapproved by either a majority vote of the Fund Commissioners or application The Agreement. Trust and Indemnification the of execution the A local unit must adopt a resolution that accepts the JIF’s bylaws and Article 2:Membership This definition also limits the term of membership toathree-year that thereismembershipstabilityfromyeartoyear. ofmembership term membership up to this maximum, most have elected three-year terms so the limits maximum. While each JIF can establish its ownminimum period of also definition This avoid thepersonnelissuesrequiredwhenhiringemployees. Almost all municipal JIFs inNewJerseyadopted the latter approach to • • • hire other “Servicing Organizations” to perform those functions that functions those perform to Organizations” “Servicing other hire Retain an outside administrative firm to act as Executive Director and Allow onemembertoprovidetheadministrationas“Lead Agency.” Insurance isintheResourceSection. agreement approved by the New JerseyDepartment of Banking and it isbackedbythefullfaithandcredit of allits members. The model result, itisalmost impossible foraJIFtobecome bankrupt because agree tobejointly and severally liable for JIF’s obligations. As a Trustand Agreement: Indemnity are notassignedtotheExecutiveDirector. A JIFiscontrolled by FundCommissioners.One Underthelaw, eachmembermust authorizes CHAPTER 9 93 244 A The Commissioners have a reorganization reorganization a have Commissioners The “in the interests of the total membership.” total of the the interests “in Responsible for the overall operation of the Fund. Responsible for the overall operation Advises the Commissioners on legal matters and oversees and matters on legal Commissioners Advises the A JIF can delegate all professional functions except the the professional functions except all JIF can delegate A Acts as the Custodian of the Fund’s assets. Note that while Acts as the Custodian of the Fund’s Certifies the budget and financial reports for soundness. Certifies the budget and financial Has the same function for the JIF as with any other local other any with JIF as the for function same Has the section at the end of the report. Auditor: by the accepted be must report audit annual The entity. governmental Commissioners, who must also certify that they have read the comments Treasurer: does not Treasurer the bank accounts, for the is responsible Treasurer the maintain the general ledger in many JIFs as a basic check and balance. the attorneys assigned to defend claims. Most JIFs Fund the the attorneys assigned to defend claims. also permit Attorney to defend some claims. Actuary: Executive Director: Fund Attorney: Join a Joint Insurance Fund. This provision permits the local JIFs to join JIFs to local the permits provision This Fund. Insurance Joint a Join JIF(E-JIF). and the Environmental the MEL monies. Law. in accordance with the Public Contracts Enter into contracts plan. Adopt the risk management Establish the budget and coverage limits, purchase reinsurance and purchase reinsurance coverage limits, the budget and Establish policies of the Fund. and operating all other financial determine of public investment for the rules the with funds in accordance Invest Commissioner must consider all members, not just the member the the the member not just members, all consider must Commissioner represents. Commissioner Operate the Fund the Operate • • • • • • • • • • • Appointments: Independent Auditor to a single outside bylaws: structure for the JIF is defined in the firm or a number of firms. The has a vote. However, they are still required to elect an Executive Committee an Executive they are still required to elect has a vote. However, of Board full the if business even regular its conduct JIF can the so that Commissioners lacks a quorum. If the membership exceeds seven, the Commissioners must also elect an elect must also Commissioners the seven, exceeds If the membership maximum a and officers the including members, seven of Committee Executive to JIFs with more than seven members continue Some of seven alternates. every member of Fund Commissioners so that as a full Board monthly meet meeting at the beginning of each year, where they elect a Chairperson and a where they elect meeting at the beginning of each year, few JIFs have three officers: A Chairperson. who is Vice really the Secretary, Chairperson and Secretary. Vice Chairperson, exceptions is the E-JIF, where the to environmental JIFs. This provision only pertains voting. statute specifically allows proportional Annual Reorganization Meeting: Each Commissioner has one vote. As a general principle, inter-local agencies As principle, inter-local a general has one vote. Each Commissioner member has that each including JIFs, operate on the principle in New Jersey, one vote, even though the members are of different sizes. One of the few Commissioner Responsibilities: Responsibilities: Commissioner CHAPTER 9 94 Major ServiceContracts: generally include: for consideration by thefullBoard. Committee structure varies,but JIFs meet in advance ofthemainmonthly meeting to explore issuesinpreparation usually committees The Committee. Safety a have must each but size, its on appoint advisory committees. The number ofcommittees aJIFhasdepends Committees: most circumstances. in itsbylaws. under Indemnification employees an enact to authorized also is it unit, local and a is JIF a Because officials protect to Ordinance Indemnification an adopt to permitted are units law,local Jersey New Under in plaintiffs serving onthedefensepanels. represent listregularly the on not lawsuits against member local are governments and, therefore, are conflicted that from firms the of Many Discrimination andConscientiousEmployee Protection (LAD) Act (CEPA). code), defense experience inareasofthelawpertaining to JIF defense panels include almost all law firms in the state that have successful Practices Liability. Fund Attorney, or by the insurer in the case of Public Officials andthe panel is selected, individual cases are assigned to defense attorneys by the Employment by the insurer after receiving advice from the local JIF Fund Attorneys. After created is panel the Practices, Employment and Officials Public For meeting. reorganization January their at Commissioners the of resolution by year each the applications, the Fund Attorney recommends a panelthatisappointed to make application to participate in the Fund’s legal panel. After reviewing released by each Fund Attorney togivepotential candidates and opportunity Selection ofDefense Attorneys: ofExecutive thepositions for those Director andFund Attorney, aresubjecttotheRFQprocess. including contracts, All ratification. final for Commissioners of Board full the to goes then recommendation The process, the Commissioners rate each proposal using the evaluation form. an independent Duringthe consultanttohelpevaluate the responses. function. Depending on the circumstances, the Commissioners may retain are initially reviewedbythestandingcommittee responsible forthatparticular An evaluationformisadopted beforeresponses arereceived. The responses New JerseyDepartmentofPurchasing. (RFQs) forall functions usingaformat adapted from thestandard used bythe Qualifications for Request advertise JIFs law,the by established intervals the also retains a Qualified Purchasing Agent (QPA) who oversees the process. At and thebestpractices recommended by theNewJerseyController. The MEL Commissioners followtheproceduresestablished by thePublicContractsLaw Selection of Service Providers andOther Professionals: • • • • Managed Care Organization: Claims Administer: coverage questions. Underwriting Manager: Safety Service: facilities totreatemployeeinjuries. Title 59 The bylawsalsogive the Chairperson the power toestablish and (Tort Claims Act), Workers’ Compensation, Law Against ProvidesriskcontrolservicesforJIFmembers.

Adjusts theclaimsforJIF. PlacestheJIF’s ExcessInsuranceandanswers The processbeginswitha periodic RFQ Contractswithdoctorsandmedical Title 40 (themunicipal The JIF The CHAPTER 9 95 a JIF a The DOBI is responsible DCA focuses on JIF DCA JIFs are required to file any contract that Responsible for long-range planning, budgets, planning, long-range for Responsible Responsible for insurance-related issues, coverage coverage issues, insurance-related for Responsible Responsible for approval of claims presented by the of claims presented for approval Responsible Responsible for the risk control program. for the risk control Responsible With rare exceptions, towns in New Jersey do not have in- towns in New Jersey do not have rare exceptions, With The JIFs also assist members in complying with various laws concerning with complying in assist members JIFs also The developed and updates a comprehensive MEL The practices. employment Risk Control Program that has been adopted by practices employment local units. over half of New Jersey’s (DOL) and the New the with compliance to assist in their JIF works closely with members Jersey Department of and DOH safety. concerning employee by DOL regulations promulgated Health (DOH): any contract that exceeds $10 million. JIFs are also office. financial audit reports with the Controller’s required to file all Development Force Work and Department of Labor New Jersey of Risk Management. Controller: State New Jersey for approval prior seek must and Controller, the with $2 million exceeds operations, including the Fiscal Affairs Act, Public Contracts Law, Local Public Contracts Law, Act, Affairs the Fiscal including operations, Open the and Act Meetings Public Open Act, Ethics Officials Government DOBI to made filings all of copies receives also DCA Act. Records Public Plans and JIF Bylaws of approval the concerning authority joint has and Department of Community Affairs concerning governmental with laws and regulations compliance (DCA): the JIF’s office (for four or five months) to review the financial records, and reinsurance agreements and other meeting minutes, contracts, excess documents. DOBI critical also audits a sample of claims and engages their reserves. on the JIF’s Actuary to render an independent opinion for technical insurance-related regulation. It requires extensive annual regulation. insurance-related for technical filings, including budgets, audit statements, contracts and insurance and excess policies. Every five years, DOBI assigns a team of examiners to Department of Banking and Insurance (DOBI): Safety Committee: Claims Committee: for settlement. claims adjusters Coverage Committee: Coverage applications. and membership determinations Management Committee: Management compliance. regulatory and audits finances, contracts, proposals, for requests • • • • • • • • implementing the country’s most robust regulation system of JIFs. At least system of JIFs. most robust regulation the country’s implementing five State agencies regulate JIFs: This article begins with a series of provisions that clearly establish that establish clearly that of provisions series a with begins article This the including New Jersey public entity, must operate to the standards of a Public Contracts Law and the various statutes Local Law, Affairs Local Fiscal authorizing the investment of public funds. New Jersey has a reputation for are compensated. Refer to your JIFs bylaws on this issue. are compensated. of the Fund Article 4: Operation advisor to act as Risk Manager. This insurance advisor must be appointed This insurance advisor must Risk Manager. advisor to act as to the same “pay-to-play” Law and is subject Contracts pursuant to the Public There other professional appointees. to the local unit’s applicable regulations Managers how Risk on JIFs various the between difference considerable a is Risk Managers: for this and need professional assistance expertise house risk management function. Most JIFs insurance their members retain a licensed that require CHAPTER 9 96 reorganization meeting.Itmustdetail: Theplan forapproval. the State is preparedbythe JIF’s Underwriting Manager and adopted at the January with it file and Plan Management Risk a Management: Plan ofRisk for transparency. Transparency: all meetings. Unless otherwiseprovided,“Robert’s RulesofOrder”govern theconduct of All meetings of the Fund aresubject to the Open Public Meetings Act (OPRA). ballot ifaquorumisnotreached. attend the January reorganization meeting. Another provision permits a paper that larger Fundssometimes experience problems getting enough members to plus 20%ofthenumbermembers in excess of25. The reasonforthisis unless thenumberofmembersexceeds25,inwhichcasequorumis13 Meetings: Article 5:RulesofOrder training, equipmentandapparatus. to providesafetyandlosscontrolservices, providing insuranceandpermitJIFs The lastsection of Article 4 expandstheFund’s authority beyond merely reports, knownas“Fast Tracks,” thatmonitortheFund’s performance. membership at least quarterly. MostFundsaccomplish this with a series of a statement from the Actuary. The regulations also requirereportstothe a year. The year-end reportissupplementedwiththe Auditor’sreport and twice State the with report financial a file to JIFs require also regulations The • • • • • • • • • • • assists membersincomplyingwithDEP regulations. (DEP): Protection E-JIF providesthetechnical engineering assistance andtrainingthat Environmental of Department Jersey New from users bothinside andoutside NewJersey. comprehensive resource that averages 9,000 -15,000 visits per month Website: each year. Report: Annual OPRA requestseachyear. OPRA Requests: the state. proposals, contract awards andbudgetsare published in papersthroughout Newspapers: bulletin boardsofallmembermunicipalitiesandauthorities. Public Meeting Notices: Actuarial methodology. Loss adjustmentprocedures. Methods tocalculatememberassessments. Reinsurance andExcessInsurance. Lines ofcoverage,limitsandamountriskretainedbytheJIF. The quorumforaFundCommissioner’s meeting is amajority All notices are postedat NJMEL.org. The website is alsoa The MEL andthe JIFs substantially exceed the requirements All MEL public meeting notices, requests for competitive The MEL distributes5,000copiesofitsannualreport The MEL andthe JIFs respondtoanaverage of 85 The Commissionersarealsorequiredtoadopt JIFpublic meeting notices are posted on the The CHAPTER 9 97 . computed by the Underwriting Manager. computed by the Underwriting Next, the JIF computes an experience an JIF computes the Next, Each member’s assessment is computed by Each member’s There are manual rates for each line of coverage. The of coverage. line rates for each are manual There The Fund must hold a hearing within 45 days of a of days 45 within hearing a hold must Fund The almost entirely professional services. almost entirely professional Most JIFs also have a provision that caps the maximum amount maximum caps the that have a provision Most JIFs also computed by the Actuary. computed by the Capping: with your JIF’s Talk in any given year. assessment can change a member’s used by your particular JIF. Executive Director about the formula expected experience. Assessment: Member its experience modification factor multiplying its manual premium by liability based on each member’s claims experience. A factor of 1.0 means factor A experience. claims member’s each based on liability more than 1.0 means higher than average, is experience the member’s than has better the member and less than 1.0 means experience normal each year. each year. Experience Modification Factor: modification factor for compensation, workers’ auto liabilityand general first step is to compute each member’s manual premium by multiplying payroll, the number of employees, including exposure data, each member’s The exposure data is updated values, by the manual rate. count and vehicle Manual Premium: Claims: and Reinsurance: Excess Insurance Expenses: • • • • • • • JIFs, members who leave the Fund do not receive dividends until the statute the until dividends receive the Fund do not JIFs, members who leave of membership. period the exposures during has run on all of limitations Effectively, this means the dividends are held in escrow for over 50 years. The JIF must file an application for DOBI’s approval before a dividend can based The State has adopted a dividend formula that caps dividends be paid. to all members who Dividends are payable of unpaid claims. on the amount surplus. In most the generated that year JIF during the in the participated starting in a subsequent year. starting in a subsequent year. Article 8: Return of Surplus is in an overall negative position. Supplemental assessments are chargeable to assessments are chargeable position. Supplemental is in an overall negative Supplemental year. deficit the during JIF the in participated who members all Fund years. surplus from other against netted assessments are usually over a number of years, assessments are spread Otherwise, supplemental Article 7: Supplemental assessments year Fund a if deficit the cover to assessment supplemental a adopt can JIF The Article 7: Assessments know their insurance assessments in time for their temporary budgets, adopted for their temporary budgets, assessments in time know their insurance in January. Major Appropriations: Budget The budget is usually introduced in October and adopted in November after a and adopted in November in October is usually introduced The budget later. one month budgets their adopt and few JIFs introduce A hearing. public to members allows timing This DCA. and DOBI with filed then is budget The of the members within six months of the hearing. If the amendment passes passes amendment If the hearing. of the six months within members of the State. by the approved also be it must that requirement, Budgets Article 6: Bylaw Amendments: Bylaw 75% least at by be approved then must amendment The amendment. proposed CHAPTER 9 98 rate andself-insuremoreofthisriskitself. lower a at Reinsurance and Excess purchase MELcan the size, its of because Liability Joint InsuranceFund(MEL). The advantage of thisapproachisthat, New Jerseymeet these requirements by belonging to theMunicipal Excess The majority providing insurancetomunicipalities of JIFs and authorities in are requiredtosecureExcessorReinsurancecapclaim liabilities. All JIFs Article 9:Excess andReinsurance The MEL hasestablishedamulti-tieredapproachtoclaimsadministration: approve thePAR’s (Payment Authority Requests). at the monthly meetings, while other JIFs establish a claims sub-committee to alloftheCommissionersreviewclaims Risk ManagementPlan.InsomeJIFs, settlements that exceedtheauthoritytheygranttoclaimsadjustersin This Article provides that the Commissioners must approveanyclaims Article 13:ClaimsHandlingProcedure hearing. Then, theapplicationmustbefiledforapprovalbyDOBI. regulations, a dissolution plan must be voted on bythe membership after a be dissolved.Insome cases, claims remain open for decades. Underthe Arrangements must bemade to payall open claims before a JIFcan Article 12:Voluntary DissolutionoftheFund fund other many professionals completetheannualfilingsrequiredbyanyotherlocalofficial. and Administrator Fund’s the of officers all example, For Official’s Ethics Act.Local the to subject is JIF a to connected everyone that One ofthereasonsJIFsaredistinctly different from insurance companies is Article 11:ConflictsofInterest during themeetings. to applicable rules local units of government. The Treasurerfinancial presents a bills list for adoption the of all follow must JIF a section, this Under Article 10:TrustFundAccounts,InvestmentandDisbursements • • • • • • State’s periodicexamination oftheJIFsandMEL. The Department of Insurance audits the claims adjusters as a part of the adjusters andexaminers. MEL Audit Committee periodically retains a consultant to alsoreview the The MEL Auditor reviewsclaims as apartofitsannual reportandthe that potentiallyexceedthe MEL’s retention. The Excess and Reinsurers employ senior adjusters that monitor claims JIF andMEL adjusters. The Executive Directoremploys aclaims examiner to overseethelocal that potentiallyexceedthelocalJIF’s retention. The MEL contractswithaseparateclaimsadjuster toadministerclaims claims withinitsretention. Each local JIF contracts with a claims service provider to administer

CHAPTER 9 99 . 245 American Re agreed that since the MEL took the position that the MEL since that Re agreed American In 1989 and 1990, an officer made 84 drunk-driving arrests after Decision: position MEL’s the accept would Re American occurrence, one all was this behind the JIF and the the Reinsurer stood as well. From the beginning, MEL. MEL’s $900,000. If this was one occurrence, the JIF’s exposure was exposure JIF’s the occurrence, one was this If $900,000. MEL’s occurrences, the JIF’s to $100,000 in total, but if this were multiple limited potential exposure was $8.4 million (84 cases times $100,000 per case). a single occurrence or multiple occurrences. At that time, the local JIF At occurrences. a single occurrence or multiple retained the first $100,000 of the risk; theretained MEL $900,000 excess the of excess risk the reinsured Re American and $100,000, JIF’s the of Facts: falsifying breathalyzer tests. The officer was caught in asting operation, When convictions. the overturned Court Supreme the New Jersey and arose whether this was the question the motorists also sued for damages, rights of recovery from other sources. rights of recovery from other sources. A member may sue the Fund until complying with all provisions of the complying may sue the Fund until member A bylaws. If the JIF payment, it is subrogated to all of the member’s makes a claim Each member must fully cooperate with the JIF in adjusting and defending and adjusting in JIF the with cooperate must fully member Each claims. Members are required to report any injury or other claim to the JIF as soon JIF to the claim or other injury any report to required are Members coverage nullify could provision this with comply to Failure as practical. under some circumstances. The Fund has the right to inspect each member’s facilities and records. right to inspect each member’s The Fund has the • • • • • Selected Case Law: Gookins (1994) Brett State v. official or local governmental employee. Even the technical insurance aspects insurance technical the Even employee. governmental local or official are not difficult with a little experience. This is not as complicated as it appears and really involves sound governmental involves as it appears and really This is not as complicated elected as an those to similar are responsibilities Commissioner’s A process. Article 15: Other Conditions Article 15: Other Parties dissatisfied with the decision may appeal to organization theor arbitrator designated independentby the Fund Any appeal annually. party that is by law may exercise any other remedies provided still dissatisfied party and the Commissioner from the member affected by the complaint. by the complaint. affected from the member the Commissioner party and the hearing before opportunity for a include an may notice The written Commissioners. Whenever a complaint is received in writing, the Executive Director must Director the Executive writing, in is received complaint a Whenever agenda. next meeting’s on the it place and the Commissioners a copy to send a and render consider the complaint to required are then The Commissioners decision. The findings must becommunicated in writing to the complaining Article 14: Complain Handling Procedure Handling 14: Complain Article 100 CHAPTER 9 Shapiro v. Middlesex JIF (1998) 246 245 joint RFQforbanking andinvestmentserviceseverythree years. 244 243 930F. Supp.1028(D.NJ.1996) (1994) A-36-93 The Treasurersin theMEL of thevariousJIFs alsoserveontheInvestment Committee that releasesa Shapirov. MiddlesexJIF, 930F. Supp.1028(D.NJ.1996) is important to investigate the reputation of aReinsurer, assomeExcess Munich Re now America ofPrinceton,backs-upitslong-termclients.It the fortune” of the reinsured. A good Reinsurer, such as American Re, Comment: 40A:10-48 specificallyprovides: Comment: The courtwrote: immunities andprotectionsin was notsubject to anti-trust laws. Further, a JIF isentitled to all of the Decision: Anti-Trust Act. interference with businessrelationsandwasaviolation of theNewJersey cases to the group. The group contended that this constituted tortious Facts: coverage. and Reinsurersshaveprices, butarequicktogocourtcontest Insurers insurance companies. of Subtitle3 established pursuant tothisactshallnotbesubject totheprovisions the transaction of insurance nor doing an insurance business. constitute A fund not do fund the of activities authorized the and State, act is not an insurance company oran insurer under the laws ofthis “A joint insurance fund established pursuant tothe provisions ofthis governmental unit”forpurposesofimmunity.” applicable to otherlocalunits,wedeemJIFbea“special function municipalities, and the fact it must conform to the rules and regulations “By reasonoftherolethat JIF playsonbehalf of itsconstituent A chiropractic group suedaJIFcontendingthatitfailedtorefer The Court ruled that a JIF wasa local governmental entity and This case affirms that a JIF is a governmental entity. governmental N.J.S.A a is JIF a that affirms case This Inatraditional reinsurance relationship,theReinsurer“follows Title 17 oftheRevisedStatutes,”lawsthatregulate 246 Title 59 (seeChapter3). CHAPTER 10

ENVIRONMENTAL RISK MANAGEMENT

Environmental liability 247 was not a significant concern until 1983 when the New Jersey Courts awarded almost $16 million damages in Ayers v. Jackson Township. 248 While the New Jersey Supreme Court did not affirm this decision for another four years, the impact to the insurance market was immediate. This case was a significant factor in the insurance industry’s decision to cancelling public entities in 1985, which led to the development of JIFs to fill the void. The Ayers case involved claims from residents contending that their well-water was contaminated by toxic pollutants leaching into the Cohansey Aquifer from the Jackson Township landfill. After an extensive trial, the jury found that the township had created a “nuisance” and a “dangerous condition” by virtue of its operation of the landfill. The jury also determined that the township’s conduct was “palpably unreasonable” and was the proximate cause of the contamination of plaintiffs’ water supply. The jury awarded $2 million for emotional distress and $5.4 million for deterioration of their quality-of-life during the 20 months when residents were deprived of running water. $8.2 million was placed in a fund to cover the future cost of annual medical monitoring. This case also established the principle that the cost of pollution claims must be shared by all of General Liability insurers that covered Jackson Township during the many years that toxic waste was placed in the landfill. As a result, insurers rushed to exclude pollution claims in all policies going forward. 249 Public entities were now on their own for any new pollution. Environmental Emergency Information

STEP ONE LOCAL HAZMAT RESPONDERS

Telephone: ______

Contact: ______

Address: ______

STEP TWO EJIF ENVIRONMENTAL HOTLINE

1-800-289-6681 NOTE: 24 hours/7day per week, leave message and call will be returned shortly.

NJDEP 24 HOUR TOLL - FREE HOTLINE FOR ENVIRONMENTAL INCIDENTS

1-877-WARNDEP (1-877-927-6337) 102 CHAPTER 10 103 Membership is 251 to pay claims primarily primarily pay claims to that cause bodily injury or 252 250

and legal defense is included subject to the aggregate defense 253 De Minimus Abandoned Waste Sites Waste Abandoned De Minimus Systems Storage Tank Third-Party Liability On-Site Clean-Up Costs (POL) Public Officials Pollution Liability 4. 5. 1. 2. 3. on behalf of the member local governments. This coverage is subject to is subject coverage This governments. local member of the on behalf exclusions costs limit. in an actual or alleged pollution conditions pollution or alleged in an actual for E-JIF pays losses due to liability The of others. to property damage conditions caused by pollution bodily injury and/or property damage operations covered from or arising location a covered from emanating 1. Third-Party Liability 1. that may result of public entities This part of the policy covers the activities anywhere in the country and includes five coverage areas: anywhere in the country and includes Coverage The E-JIF. success of New Jersey’s the to match has been able state No other government to local available coverage program provides the most extensive membership are those that already have a problem. While in most inter-local in most inter-local While have a problem. already are those that membership one E-JIF is the vote, equal an receives member JIFs, each including agencies, proportional representation. of the few entities permitted to adopt 313 municipalities, 72 authorities and seven other entities. 313 municipalities, This prevents entities. as opposed to individual governmental to JIFs limited apply for and authorities that where the only municipalities adverse selection permitted to bond. Fortunately, bonds have not been necessary, and the E-JIF and the necessary, not been bonds have to bond. Fortunately, permitted surplus over the years. has built a large of membership collective a 13 JIFs with includes E-JIF membership Current E-JIF Structure statute, enabling JIFs. Under the other than structure has a different E-JIF The legally is JIF other No claims. large especially bond to authorized is E-JIF the to create a specialized pool to provide Jersey environmental Municipal Environmental Risk coverage. Management Fund (E-JIF) was finally The New 1993. enabling law was signed in October established after the the Spill Fund. risk until 1991 when to insure environmental enough large was not The MEL The Commissioners decided it had grown local governments. to over 200 some circumstance the local government can apply to the Spill Fund to cover cover Fund to Spill the to apply can government local the circumstance some government is the local in most circumstances, costs. However, remediation to a claim making of their as a condition by parties in lawsuits defendant the related to potable water contamination. This program is funded by a tax on by a tax funded is This program water contamination. to potable related a claim, pays Spill Fund the Before industries. and chemical the petroleum pollution. the caused that parties responsible to sue the claimants requires it Under government. sword for local is a double-edged Fund the Spill Therefore, The State responded to this crisis in 1987 by establishing the N.J. Spill Spill N.J. the establishing by 1987 in crisis this to responded State The Fund) (Spill Program Claims Compensation 104 CHAPTER 10 E-JIF hasestablished a comprehensive database of these prior insurers. the insurersthatcovered membersbeforetheE-JIFwascreated. The who arepartiestotheaction. Mostofthecostsarethencharged back to on defense costs byassigning a single attorney to defend all of itsmembers settlement areasonable tonegotiate is able behalf of alarge blockoftowns. The E-JIFhasalsosavedmillions in it landfill, a by served Because the E-JIF often insures many local governments in the region for thehazardouswaste. is complicated by the fact that it is often unclear who wastruly responsible the coststoallPotentially site, itassigns Responsible Parties(PRPs). This pollution. When the FederalEPAJersey DEP orNew remediates a waste was beingtaken, it can beheldliable under theconcept of strict liability for for this waste. Even if a municipality had noknowledge of where its waste Municipalities that hired anindependent waste haulerarestill responsible have contributed substantial amounts of waste to hazardous waste landfills. Through variousdepartments andrefusecollection, local governments 4. DeMinimus Abandoned Waste Sites costs limits. exclusion. Legaldefensecostsareincluded,subjecttoaggregate been coveredbyPOL policies,hadtheynotincluded thepollution exclusion. This coverage section covers claims that would have otherwise pollution absolute an have policies (POL) Liability Officials’ Public All 3. PublicOfficialsPollutionLiability third-party onmemberlocalgovernmentpubliclands. remediation costs triggered by pollution conditions caused by anunrelated toxic material in apublicpark lateatnight. This coverage sectionpays Third-parties oftenpollutepublicpropertyby, forexample,dumping 2. On-SiteClean-UpCosts Third-Party LiabilityLimits: De Minimus Abandoned Waste SitesLimits: Public OfficialsPollutionLiabilityLimits: coverage isnetofthisreimbursement. or otheravailable funding sourcesforreimbursement. The E-JIF Note: On-Site Clean-upLimits: • • • • • • • • • $250,000 sub-limit Transportation coverage $1,000,000 annualaggregate $1,000,000 perclaim $50,000 perlocal government $1,000,000 annualaggregate $1,000,000 perclaim $ 100,000annualaggregate $ 50,000perclaim $250,000 sub-limitCybercoverage The member isrequiredtomake application to theSpillFund

254 CHAPTER 10 105 255 $1,000,000 each incident –Third-Party $1,000,000 each incident Cost action – On-Site Clean-Up $1,000,000 each corrective $1,000,000 aggregate limit $100,000 aggregate defense limit • • • • Storage Tank Systems Coverage Limits: Systems Coverage Tank Storage member local government is subject to a lifetime maximum of grant of maximum lifetime a to subject is government local member applications. members for remediation costs. The member must not have had prior had have not must member The costs. for remediation members proper The grant request must also demonstrate knowledge of the tank. Each property. acquired was found on a newly tank if the due-diligence Underground Storage Tank Remediation Grant Program Tank Storage Underground impaired of $10,000 per maximum a for up to grant a E-JIF may make The storage tanks to reimburse underground for unknown/undisclosed location or unscheduled. Unregulated underground storage tanks may also be storage underground Unregulated or unscheduled. tanks Above-ground storage E-JIF underwriting rules. covered, subject to by the E-JIF, all underwriting requirements established must comply with testing. including compliance the policy period, and then must also be reported to the E-JIF and then must also be reported to the policy period, during the for is no coverage There for coverage. considered to be period policy and/ unknown or are rejected been have tanks that storage underground liabilities in addition to the clean-up caused by a release from a storage from a by a release caused to the clean-up in addition liabilities scheduled site. tank at any during government local member the against made first be must claim The insure underground storage tanks to prove that the costs will be paid in in paid be will costs the that prove to tanks storage underground insure these meets coverage tank systems storage of a leak. E-JIF’s the event damage or property injury bodily covers policy The requirements. 5. Storage Tank Systems Coverage Systems Tank Storage 5. to owners tank require DEP Jersey New the and EPA Federal the Both Local governments commonly have and generators for emergency tanks smaller and Utilities, DPWs and including large fuel tanks for heating fuel. Leaky tanks can result in expensive remediation. fleet operations, environmental professional also inspects facilities and grades the operation on professional also inspects facilities environmental a scale of 1 to 100 based on the risks and severity of the deficiencies found. Storage Tanks Petroleum Unlike the New Jersey DEP, the E-JIF does not issue violations or penalties or violations issue not E-JIF does the DEP, Jersey New the Unlike conducts a compliance resolve issues before a regulator and helps members The a review of programs and record keeping. The audit involves inspection. Environmental Audit Environmental Services facility. each at audit a periodic conducts professional An E-JIF environmental of environmental defense attorneys to provide adjustment services. Members services. adjustment to provide attorneys defense of environmental alerts, a website environmental education, are provided with continuing and access to a professional Environmental resources, containing additional at no cost. Engineering Consultant to answer questions One of the E-JIF’s primary objectives is to contain costs through sound through costs contain to is objectives primary E-JIF’s the of One environmental E-JIF has engaged The practice. control environmental and a panel company claims-servicing an experienced companies, engineering Risk Control 106 CHAPTER 10 environmental incidents,1 (877) WARNDEP or1(877) 927-6337. and other appropriate locations. The NJ DEP also has a 24-hour hotline for with phonenumbersthatshould bepostedinDPW, Utility, FireDepartments crew forlarger incidents. The E-JIF distributesemergency responseposters the local incident commander. The E-JIF hasanon-call emergency response the E-JIF will immediately dispatch an environmental professional to assist during emergencies. Inthe event of aspill or other environmental incident, The E-JIF provides a 24/7 hotline, 1 (800)289-6681,formembers to call 24-Hour EmergencyResponseConsulting Continuing Education • • • • • DEP mandate double-walled tanks, equipment to detect leaks, regular may gounnoticed for years. To reducetherisk,EPA andNewJersey will rustanddevelopleaksovertime. Beingunderground, theseconditions Underground Storage Tanks (USTs): available atNJEJIF.org. The E-JIFpublishestechnical bulletins tokeepmembersupdate, NJEJIF.org. with a series of online videos. The New JerseyDEP’s website links to DEP lacked funds to develop a training, the E-JIF fulfilled the requirement Regulations published byNewJerseyDEP in2004. When theNewJersey One ofthemostpopularpresentations concerns the MunicipalStormwater NJEJIF.org. and manyotherseachyear. These training presentations are available at management, air permitting, pollution prevention planning, resiliency Spill Prevention Control andCountermeasures (SPCC), stormwater The E-JIF offers a series of training classes around the state, including database ofall ASTs, includingdetailsabouttankconstruction. piping orconductbiennial tightness testing. The E-JIFalsokeepsafull system to an above-ground location, add a leak monitoring system on the associated with ASTs. Membersareencouraged tore-engineerthepiping and free training. Another E-JIFprogram monitors underground piping and Countermeasure E-JIF assistsmembers comply withthe EPA’s Spill Prevention, Control protect them from vehicle collisions and other possible accidents. The leaks aremoreeasilyseen. The E-JIFrequires AST ownerstophysically Above-Ground Storage Tanks (ASTs): its members. The E-JIFkeepsafull database of all regulated and unregulated USTs for UST to20years.Itisfarlessexpensive to replace a tank before it leaks. E-JIF establishedapolicy to limit the usefullife expectancy of aregulated unregulated USTs oflessthan2,000gallonsusedforheating oil. The for USTs. UnliketheEPA andNewJerseyDEP, theE-JIFalsomonitors responsible for managing the tanks. The E-JIF provides annual inspections inspections and, most recently, a license requirement for the individual 256 requirements with sample SPCC plantemplates There is ahigh riskthat steel USTs ASTs have the advantage that any CHAPTER 10 107 PFAS are a PFAS New Jersey is planning stronger environmental stronger New Jersey is planning Perhaps no emerging environmental concern has more environmental Perhaps no emerging The Combe Landfill South, located on a115-acre parcel, was in hazardous industrial wastes, sewage sludge, septic tank waste, chemicals recover to 250 parties sued approximately EPA The waste oils. and Among the in 1998. in excess of $150 million costs estimated clean-up defendants were 21 towns insured by the E-JIF. Facts: in 1981. operation from the 1940s until it was ordered closed by the EPA non- to accept was licensed garbage, the facility In addition to municipal energy grid throughout the State. The E-JIF collaborates with members to The E-JIF collaborates grid throughout the State. energy agencies State and by Federal promulgated concerns the regulatory meet to address these issues. Resiliency: a during our communities into resiliency building than impact potential communities, coastal change. Rising sea levels impact period of climate the impacts change and climate infrastructure, impact storms severe used are very low, in the parts per trillion (PPT) range, and water supply and water range, (PPT) parts per trillion in the very low, used are new water treatment equipment. systems may find they need expensive furniture more stain-resistant and firefighting and fire suppression foams. and show up in water for a long time They persist in the environment standards for new is implementing The New Jersey DEP supply systems. numbers The water. drinking in allowed of these chemicals levels the Perfluoroalkyl and Polyfluoroalkyl Substances (PFAS): new substances, such were produced to create that group of chemicals large as non-stick cooking surfaces like Teflon, materials to make carpets and reduce what is known as the “heat island” effect, where less sunlight is reduce what is known as the “heat island” effect, of areas open spaces replace other plants and as green to heat converted black surfaces. areas while reducing the use of impervious surfaces, such as concrete and such as concrete surfaces, reducing the use of impervious areas while asphalt. This increases the infiltration of water intorisk the reduces also It aquifer. local the recharges as water quality water the soil, improving also can infrastructure green Adding areas. low-lying nearby in flooding of design and construction standards, including green infrastructure. The infrastructure. green including standards, construction and design rain pavement, spaces, such as pervious “green” is to design concept commercial roofs into green and cisterns swales, vegetative gardens, Green Infrastructure: Green • • • Selected Case Law: Re: Combe Landfill South (1998) The E-JIF is also looking ahead at challenges that are just now looking ahead at challenges that The E-JIF is also becoming apparent, including: more extreme cases, members have allowed the site to be taken over by the EPA be taken over by the EPA members have allowed the site to more extreme cases, the remediation. spare local taxpayers the burden of to or New Jersey DEP Emerging Issues diligence, such as a Phase 1 or New Jersey DEP Environmental Site Assessment, Site Environmental 1 or New such as a Phase diligence, Jersey DEP with problems environmental heads-up regarding a member a quick it can give to often choose not will the member are uncovered, When concerns the site. In sales price. the in negotiating the information property or use acquire a acquires a property. An environmental professional will conduct a walk-through a walk-through will conduct professional An environmental a property. acquires environmental for outstanding various databases and search of the property due extensive for more substitute as a intended not is it Although problems. Foreclosed Properties Foreclosed a member before service screening environmental a free E-JIF offers The 108 CHAPTER 10 NJDEP v. OccidentalChemicaletal(2005) Re: Toms River LagoonDrive(2003) from thetowns.Muchofmoneycamepriorinsurers. able tofundthe entire settlement costs andwas without anycontribution million. The E-JIF hired one law firm to defend all of its members to save Decision: or eleventowns. This strategysavedatleast$5 millioninlegalbills. Comment: expense sothattherewasnonetcosttotheirmembers insomecases. was responsible for the remaining $45,000. Individual JIFs picked up that policy limit for each of themembers andthedefensecosts.Each town just over $2million. Underthe settlement, the E-JIF paid the $50,000 Decision: contributed tothecontamination. municipal stormwater and discharge from sanitary processing plants municipalities, 32 ofwhich were members of the E-JIF, alleging that and theNJ/NY Harbor. The direct defendants counter-sued numerous high concentrations of dioxin also contaminated other areas ofthe river the movement, tidal of War.VietnamBecause the during Orange Agent Newark andKearny. Ofspecialconcernwasdioxin,usedtomanufacture toxic materials thatpoisonedthesix-mile stretch inNewark,Harrison,East Facts: otherwise politicallysensitiveissues. Comment: over $300Kofthe800Kcost. structure. The E-JIFsold the property after the clean-up and recovered to purchasethepropertyfromelderly homeowner anddemolish the Decision: house. backed uptoawaterway, andthelineranunderslabfoundationof of thehouses. complicated The clean-upwas by thefactthatproperty pipe inaneasement between two homes,extensively contaminating one Facts: a numberofsimilarcases. in utilized successfully been has strategy This members. 21 all of behalf these priorinsurers,theE-JIFresolvedthisverycomplex litigation on before the occurred the contamination of towns became members of theE-JIF. Bycoordinating the claims against all lawsuit, Landfill Combe the insurers that previously insured its members. In cases such asthe Comment: Overtheyears,chemical plants alongthePassaicRiverdischarged A DPW crewruptured a heating oil line while installing astormwater The E-JIFsettledthe caseonbehalfofits32membersfor The E-JIF decided that the best way to resolve the case was The E-JIF settled the lawsuit against its 21members for $3.8 The E-JIF retained three attorneys, who each represented ten This casedemonstrates how the E-JIF creatively resolves The E-JIF used a process known as “archiving” to document CHAPTER 10 109 - (644 A.2d 1111 1994), the courts ruled that the abso A.2d 1111 (644 257 effective April 1, 1987 effective The E-JIF also contracted with its Environmental Engineering Engineering its Environmental with E-JIF also contracted The The E-JIF paid $600,000 to remediate the spill. The E-JIF paid $600,000 In a decision that was subsequently overturned on appeal, the was subsequently overturned In a decision that The E-JIF fought this expensive legal battle to protect both the protect to battle The E-JIF fought this expensive legal The Haddonfield DPW Superintendent called the E-JIF’s A light industrial building was used to manufacture mercury mercury manufacture to used was building industrial light A the environment. vendor to test the integrity of all similar systems owned by members systems owned by similar of all integrity the test vendor to of the E-JIF going This is another example throughout the state. protect losses and prevent to company insurance any beyond considerably Decision: Comment: environmental engineers concerning a suspected leak in the underground underground the in leak suspected a concerning engineers environmental that determined engineer E-JIF’s The tank. above-ground their from pipe detected odors were petroleum that and pressure hold not did lines the the New Jersey DEP. The town then contacted Hazmat and downstream. Facts: the plaintiff’s attorneys. The appellate court overturned this verdict and verdict this overturned court appellate The attorneys. plaintiff’s the be town cannot 3), the Chapter Act (See Claims Tort under the that ruled appealed then plaintiffs The permit. a issuing in for negligence liable held refused to hear the case. to the New Jersey Supreme Court, who trial judge ruled that the town had a duty to confirm that theremediation town the ordered judge The permits. building issuing before was complete fees to in legal and awarded several million monitoring to pay for medical elevated mercury levels. The parents sued the current and prior owners The parents sued the current and mercury levels. elevated along with the town. Decision: DEP determined the site had been converted to the new use without having new use without the to converted had been site the determined DEP the presence of mercury in 2006 revealed results Test been remediated. had some that revealed also children of the Testing building. the vapors in former owner nor the DEP ever followed up on the agreement. In 2001, a In 2001, up on the agreement. ever followed nor the DEP former owner and procedure in a tax sale/foreclosure acquired the property new owner then flipped theproperty to another owner. This newowner then leased the 2006 In Kollege. Kiddie known as center daycare a to property the thermometers thermometers until control and a spill compensation issued The DEP in 1994. bankruptcy the company company’s the neither but site, the of clean-up the requiring directive ceased operations and filed for Facts: In Nunn v. Franklin Mutual Insurance Company In Nunn v. et seq. N.J.S.A. 58:10-23.11 Much of the material for this chapter was provided by Peter King Esq, a member of the E-JIF legal Much of the material for this chapter was provided by Peter King Esq, a member As of January 1, 2019. 106 N.J. 557 (1987) lute pollution exclusion is enforceable in a commercial policy because commercial policyholders are able lute pollution exclusion is enforceable in a commercial policy because commercial policyholders to understand policy language. 250 251 247 panel, and Richard Erickson, the E-JIF Engineering Director. 248 249 Re: Haddonfield (2010) Comment: have been a very bad from what could town and all communities individual precedent. Mignano v. Sullivan (2006) Sullivan v. Mignano 110 CHAPTER 10 The E-JIFwillnotpayordefendunderthethird-partyliabilitycoveragepart: 253 be recycled,reconditionedorreclaimed. structures thereupon,theatmosphere,surfacewater, orgroundwater. Waste materialsincludeto alkalis, chemicals,hazardoussubstances,materialsorwastematerials,on,in,into,uponlandand liquid, gaseousorthermalirritant,contaminantpollutant,includingsmoke,soot,vapors,fumes,acids, 252 257 256 255 limited to: 254 151 A.3d 85(2016) SPCC–40CFRPart112 Storagetankcoverageexclusions:(PartialListing-RefertoPolicyforallExclusions) Deminimusabandonedwastesitecoverageissubjecttoexclusionsandconditionsincludingbutnot Exclusions:(PartialListing–Refertopolicyforacompletelistofexclusions). Pollutionconditionsmeanthedischarge, dispersal,release,escape,migrationorseepageofanysolid, g) Any unregulatedtanksthatexceedthe20-year agelimitasofJanuary1,2014. damages. f) Any fines,exemplaryorpunitivedamages,statutoryotherpenalties,trebledmultiple event. e) Any routinemaintenance,measurementortestingexpensewhichisnotoccasionedbyapollution containment systemsandallmonitoringsystems. cluding thecostofexcavationorbackfilling,pipingandvalves,allleakdetectionsystems d) The costofinstallation, replacementorrepairofanystoragetankotherreceptaclein c) Any claimarisingfromanyaccidentalreleaseatplaceotherthanscheduledsites. statute, regulation,instructionorcourtorderrelatingtothepetroleumtanks. b) Any claimwithrespecttowhichthelocalunitwasawareofnon-complianceanyapplicable ed orappointedofficialofthelocalunit. wrongful actoromissioncommittedbyatthedirectionofanysupervisor, department head,elect a) Any claimarisingfromanyknowinglyunlawful,dishonest,fraudulent,criminal,maliciousor insured. The coveragedoesnotapplyto: and/or compensationforbodilyinjuryorpropertydamageneitherexpectednorintendedbythe arising fromtheoperationofastoragetankatanyscheduledsitethatresultsinneedforclean-up The E-JIFonlycoversthoseeventsemanatingfromanysuddenornon-suddenreleaseofpetroleum result ofpayment. • The memberlocalgovernmentandtheE-JIFmustbeindemnifiedfromfurtherliabilityatsiteasa • The E-JIFmustagreetothenegotiatedsettlement. deemed appropriatebytheE-JIFattorney. • The coveredlocalgovernmentmustagreetoparticipateinanygroupsettlementproceedings • LegalserviceswillbeprovidedsolelybytheapprovedE-JIFattorney. n) Willful, deliberatenon-compliancewithregulation,statute,orotherlaw m) Airports (unlessendorsed) l) Chlorinebasedproducts k) Pollutionconditionsafterlocationhasbeensold,leased,orabandoned j) Automobile (excepttransitsublimit),aircraft,watercraft i) Acid rain h) ContractualLiability, exceptwherecoveragewouldapplyinabsenceofcontract g) Moldorfungi f) EmploymentPracticesLiability e) Workers Compensation,unemploymentcompensationordisabilitybenefits Asbestos d) c) Lead b) Injunctiveornon-monetaryrelief a) Pollutionconditionsthatexistedpriortotheinceptiondateofthispolicy - - CHAPTER 11

TECHNOLOGY RISK MANAGEMENT

Imagine you are a local government official in a community of 10,000 walking into your office in town hall. You start your computer and see a warning that your computer files have been hacked. The screen also tells you to pay a ransom of several hundred thousand dollars in bitcoins to restore your computer. Then, you find out that the virus has infected every computer in the municipal network. You immediately reach out to the Network Manager, who discovers that since the back-ups were on the same network, they are also encrypted. You just learned the hard way that back-ups must be independent of the network. As tension builds, you call law enforcement who tells you they can’t do anything because there is no way to identify the attacker or their location. Then, you remember you have cyber insurance. You call the Risk Manager who is an important part of your Cyber Risk Management Program 258. The Risk Manager calls the insurer, who quickly arranges for a Breach Coach to talk to your Network Manager. That begins a chain of events that results in a national Cyber Security firm working with you to solve the problem and restore normalcy. Unfortunately, because the back-ups were compromised, you will have to pay the ransom to recover your data. You may also learn that despite paying the ransom, the criminals left other forms of malware on your system that could allow them to return later. After several days of downtime, lost productivity and sleepless nights, your network is cleaned of the infection and data restored. 112 CHAPTER 11 hundred thousand dollars, to get the decryption key. Another attack that often computers andnetworksrequirespayment, that typically costs several Ransomware is the most common type of cyber-attack. It encrypts individual every 302e-mailsreceivedbythepublicsector. driven bymalware-loaded phishing attempts, which reachedarateof1per but by2019there were 23,399incidents reported. These statistics are heavily activity. Cyber-attacks against public entities were rareasrecently as 2016, attacking local governmentcomputersystemsisalucrative and low-risk This storyhasbecome all too common because criminals havefoundthat independent setofeyes onyoursystems. You shouldalso seriouslyconsiderretaining a Cyber Auditor toputan The personwithprimaryresponsibility must: depends onanindependent consultant. Director. Otherwise, systems are the responsibility of a senior manager who Larger entities typically employ a full-time Information Technologies (IT) Technology Management or evencitizenswhoareinvolvedinthecomputerindustry. yours must meet your specific needs. Your advisors can be vendors, employees Trusted expertise is critical because there are many back-up solutions,and There aretwothingsyouabsolutelymusthaveinplace: Basic CyberSecurity to managethesystemprotectyournetworksfromcriminalintruders. is thetimetorethinktechnologyinvestments,andhow back-up systems.Now of computers, different software versions,limited network supportandpoor problem a before risks develops. Unfortunately, thetypical local government has several generations their manage successfully to officials local for hard trained staff. At the same time, technology is evolving so quickly that it is possible tooperate without strongCyberRiskManagement controls and well- Technology has become so embedded in local governments that it is nolonger can be reputations permanently damaged. and officials, local of effectiveness the questions public need assistance inlife-threatening situations. Oftenafter a cyber-breach, the dispatching emergency services can have a devastating impact on citizens who disrupt often attacks the ability of local governments to provide essential services. These Any delay in loss. financial beyond far go risks Technology financial compromise to attempting e-mails controls orstealuserandbankingcredentials. fraudulent, but convincing, Identifiable Personally find to Information (PII) tosellonthedarkweb. A thirdscaminvolvessending systems infecting involves undetected goes • • 2. 1. Establish and periodicallytestaCyberSecurity IncidentResponse Plan. for thegoverningbodybefore theyestablishbudgetpriorities. Prepare an Annual Technology Planthat includesacyberriskassessment event yourtechnologyandaccessiscompromised. Tested backupproceduresthatrestoreoperating systems and datainthe A trustedemployee orconsultanttoadviseontechnologymanagement. 259 CHAPTER 11 113 A model communications media policy media communications model A You need a policy that requires strong, unique need a policy You

The plan needs to be designed so that you can reasonably needs to be designed so that you The plan Your staff is a critical line of defense, and all computer users line is a critical staff Your All computers and networks need to have actively maintained All computers and networks need to have actively Servers need to be protected from unauthorized access to secure to access unauthorized from protected be to need Servers Internet and E-mail Use Policies: Internet and E-mail use and e-mail sound internet to help you adopt NJMEL.org at is available and Procedures Manual It is part of the Model Personnel Policies policies. that most towns have adopted. Password Policy: The annually. least at changed are passphrases, that passwords, or better, video training material explains how this can be accomplished. an excellent video on employee Cyber Security that can be downloaded at video on employee an excellent you resources educational other identified also has MEL The NJMEL.org. can use to meet this basic requirement. must understand how to recognize and manage the attacks that they will every two years, but annual at least one hour of training recommend We see. produced MEL The changing. keep threats the since even better is training Training: Training: defensive software, such as anti-malware, anti-virus, anti-spam and anti-spam anti-virus, such as anti-malware, software, defensive soon as updates manufacturer with patched be to needs Software firewalls. as possible after they are released. need it and should be removed immediately when a person leaves your need it and should be removed immediately responsibilities change. or if their organization Software: Security: in an unlocked Servers should not just sit on a table, them from tampering. who those to limited be should applications to Access closet. or basement available to support your technology and respond to security incidents. respond to security incidents. and to support your technology available are that or contractors staff the detail should plan back-up your Therefore, ready to respond when needed. Back-Up Plan: or flood fire, through facilities your of loss failure, mechanical from recover Of course, form of malware. and ransomware or any other calamity, other as the people are only as effective software and facilities the best hardware, Multi-State Information Sharing and Analysis Center (MS-ISAC), Analysis Center a and Information Sharing Multi-State U.S. the by funded governments support group for Security Cyber national Security. Department of Homeland The New Jersey Cyber Communications and Information Cell (NJCCIC), Cell Information and Communications Cyber New Jersey The resource. information security the state’s 2. 1. In this context, health and disease refer to your technology, and cleanliness disease refer to your technology, health and In this context, means prevention. Cyber Hygiene The dictionary defines hygienethrough cleanliness.” health and preventing disease, especially maintaining as “conditions or practices conducive to Technical Competency Technical governments: Sciences (GMIS), an association of local government technology managers. managers. technology government of local association an (GMIS), Sciences association. professional of any the lowest among fee is membership The and local are free to state two services that joining also consider should You Whether you have your own technology staff or hired contractors, consider consider contractors, hired or staff technology own your have you Whether Information Management of Government Jersey Chapter New the joining 114 CHAPTER 11 Financial Controls Case Study#2 Case Study#1 Case Studies executed. are they before authenticity their of verification positive receive transactions direct deposit accounts.Financial control practices must ensurethatthese employees to execute financial transactions that involve wire transfers to their Cyber criminals nowtrytousee-mail, phones andwebsitestoconvince to protect against fraudulent transactions, a.k.a. BusinessE-mail Compromise. controls financial internal instituting involves hygiene cyber of type Another protection or, betteryet,encryption. health or personal information, need especially strong controls, including unique password information identifiable personally as such after, are Personal Information Security: subject tothe deductible,werecovered by theinsurance. recommended credit monitoring for all affected individuals. The costs, the affected individuals. The Breach Coach and cyber council also Result: employees. former to sent were information identifiable personally with documents government lacked a policy for employee departures, and these sensitive employee W-2 Wage and Tax Statements to senior managers. The local Facts: or encryption. protection protection forsensitivedocuments,suchascomplex password weakness. The localgovernmentshouldalsohavedeployeddocument of segregation, password protection and user privileges was a serious Comment: were includedintheinsurancecoverage. Legal counsel sent these notifications. All costs, subject to the deductible, notified. be to needed that individuals the identify and files the review to engaged also was firm forensic A response. legal the handle to retained response wasengagedtohelptriage the incident and cybercounselwas Result: was abletoaccessalloftheseconfidentialandsensitiverecords. could access Human Resource records andsoon. As aresult, the malware Department Police the records, financial access could DPW the result, a all employeeswithnosegregation,encryptionorpasswordprotection. As drives the network.Inthiscase,shareddrivewasopento and spreadacross shared find to designed was strains malware the of One clicked. e-mail that included afakelinkthat deployed twostrainsofmalware when documents in a central server. An employee was duped by a typical phishing Facts: computer useswithsuspiciousattachmentstoseewhofallsintothetrap. Testing: A payrollmanagerwasperformingtheannualtaskofsending A local government used a common network to share and save New Jersey data breach laws require special notifications to notifications special require laws breach data Jersey New The eventcostover$100,000inlegalandforensicscosts.Breach Periodically test the cyber hygiene by sendinge-mails to all While having ashareddriveisnotanissueitself, the lack Files with information that criminals CHAPTER 11 115 Work with the auditor to institute internal controls that internal with the auditor to institute Work Police have experienced more claims than any other municipal other than any more claims have experienced Police Properly vet IT Contractors by requiring credentials and Contractors by requiring credentials Properly vet IT Policies should detail procedures for employee departures so so departures employee for procedures detail should Policies The attacker used this information to transfer $500,000 to a fake a $500,000 to transfer to used this information attacker The Cyber counsel and forensics were engaged to remediate the remediate to engaged were forensics and Cyber counsel The attacker then released ransomware into the networks and then released ransomware into The attacker A cyber attacker was able to obtain a municipality’s banking was able to obtain a municipality’s cyber attacker A An employee received an e-mail from a popular delivery company from an e-mail An employee received A local government contracted with outside technology and technology and with outside contracted local government A Comment: for checks establish a low dollar threshold that requires countersignatures or wire transfers. Set a similar standard with your financialthat requires confirmation for transactions. institutions account. Only a portion of the money was recovered. The insurance The was recovered. money of the Only a portion account. policy covered the remaining lost funds and other associated expenses. Facts: information. Result: system is repaired or replaced. Comment: the in New Jersey, network is breached computer If a police department. patrol result, As a database. criminal from the disconnect must department officers are unable to check license plates and criminal records until the Result: the to subject costs, All was replaced. equipment computer and breach, deductible, were covered by the insurance. the package delivery. The link downloaded malware to the network that to the malware link downloaded The delivery. package the demanded a substantial ransom The attacker encrypted the police system. network. while rummaging through the police Facts: on the link to check season and clicked holiday during the December encryption and unique passwords when remoting into clients’ systems. systems. clients’ into remoting when passwords unique and encryption proper insurance. Also, require the contractor to maintain Comment: such as own security practices, into the contractor’s Look experience. complex and unique passwords, Virtual Private Networks (VPNs) and contractor’s 20 clients. Unfortunately, the contractor failed to ensure failed the contractor Unfortunately, 20 clients. contractor’s and forensics insurer engaged cyber counsel The MEL’s proper back-ups. for its members. established by the IT contractor. IT established by the Result: of the each from in Bitcoin $200,000 and $300,000 between demanded Facts: using a probably breached, was contractor IT The professionals. security was network, the attacker in the contractor’s password. Once compromised connections desktop remote networks via the their clients’ able to breach the policies reviewed periodically. reviewed the policies Comment: and trained, must be Employees records. their update departments that all Case Study #5 Case Study #4 Case Study #3 Case Study 116 CHAPTER 11 complied withthesestandards. the program,memberswillhaveasubstantially lower deductible if theyhave local governments should implement, available at NJMEL.org. To incentivize The MEL haspublishedminimumcyberrisktechnology standardsthatall Conclusion: 259 and Cooney, Government Ed Local Services, MEL’s the Underwriting Manager. 258 2019Verizon Data Breaches Report Much of material the chapter in this is from Marc Pfieffer, Directorformer the of New Division Jersey of PART 4

OTHER RISK MANAGEMENT ISSUES

Chapter 12: Emergency Management

Chapter 13: Community Safety Issues

Chapter 14: Local Officials Ethics Act

Chapter 15: Open Public Meetings Act

Chapter 16: Open Public Records Act

@READYNEWJERSEY NJOEM readynj

118 CHAPTER 12

LOCAL EMERGENCY PREPAREDNESS AND RESPONSE

The current emergency management framework evolved from Cold War-era “civil defense” requirements. With the end of the Cold War, the emphasis shifted towards disaster relief, recovery, mitigation, terrorism, cyber threats and global pandemic events. In 1979, disaster-related responsibilities were consolidated into the newly created Federal Emergency Management Agency (FEMA). 260 State and local governments mirrored the changes at the federal level by adopting an “all-hazards” approach to emergency management. The federal structure continued to adapt to terrorist threats, global pandemics and climate change. In New Jersey, the most important organization for local officials is the Office of Emergency Management (OEM) of the State Police. State OEM responsibilities include emergency planning, first responder training, organizing large-scale exercises and responding to major incidents focusing on four areas: 1. Severe Weather 2. Hazardous Materials Training and Response 3. Radiological Preparedness 4. Local Emergency Operation Plans Development Process 120 CHAPTER 12 municipalities andreviewEmergency OperationPlans. of Office an has Emergency Management to coordinate activities, provide technical support to Jersey New in county Each State. the by levels municipal Many emergency management functions are delegated to the county and claims applications,disbursinggrantsandmonitoringexpenditures. damage information, providing technical assistance to applicants, reviewing advisor totheGovernor. The State OEM alsoplaysalead roleincollecting In the event of a major emergency, the state OEM serves as the principal Manager andCertified FloodPlain Manager. Emergency Certified as such certifications, professional obtain with to encouraged networking permit that Emergency Managers from elsewhere in the nation. EMCsshould alsobe those especially organizations, management EMCs should be encouraged to participate in professional emergency adequate administrativeand financialsupporttofacilitatethisleveloftraining. EMC tocomplete24hours oftrainingannually. Municipalitiesneedtoprovide condition of appointment. State police guidelines go further by requiring every Every EMCmustcomplete as a a homestudycourseandattend aworkshop EMC the of during adisasterdoesnotdiminishtherolesofother communityleaders. role leadership significant The Manager. Municipal or Mayor In practice, theEMCwillissuedeclaration only afterconsultingwiththe authority. such of delegation statutory the with comfortable be should Officer theEMCposition fills person right official If the and hasbeenadequately trained, thegoverningbodyandChief Executive another or Chief, plan. municipal Fire the Chief, in Police specified the by performed be can role resources. However, theEMCshouldnotbe theIncident Commander. This In anymajor emergency, the EMC shouldbe the person coordinating municipal should becodifiedlocallyinthemunicipalEmergency OperatingPlan. This authority, provided by the New JerseyEmergency Management Act of “state a local disasteremergency” wheneveradisasterhasoccurredorisimminent. declare to authority the having as recognized be must EMC The Mandates andBestPractices Ideally, theindividualshould: leaders, particularlythoseinpublicsafetyprofessions. part-time or volunteers responsibilities of thepositionandobtainrespectothercommunity citizen assign others employees. The candidate must beabletoprovideadequatefocusonthe with while official municipal duties, a to full-time task the assign communities Some years. as the Emergency Management Coordinator (EMC) for a term of three Leadership: • • • of theiremploymentwiththelocalunit. Not besubordinatetootherpublicsafetyprofessionalsinaspects safety service. such asbeing an Incident Commander or head of aprincipal public emergency, an during fulfill to responsibilities conflicting have Not these skillscanbeacquiredthroughpropertraining. both municipal and emergency response activities, although many of Be experienced in the planning, development and administration of State law requiresthat every municipality appoint a resident CHAPTER 12 121 State and Federal law requires requires law Federal and State Disasters are generally categorized as Media Representative III Title Operators of Facilities subject to SARA Public Relations Officer (optional) Risk Manager (optional) School Representative Construction Official Finance Officer Health Officer Professional IT Superintendent DPW Municipal Engineer At least one other Elected Official At least one other Police Chief Fire Chief Mayor and/or Municipal Manager Mayor and/or Municipal • • • • • • • • • • • • • • • crimes, usually occur without warning. In these cases, community will have anticipated officials ideally, Plans that, Emergency must rely on established procedure a since specific, incident be should plans These events. of course the that will work on one type of event may not work for another. For example, a hurricane is now relatively predictable because it can be tracked predictable is now relatively a hurricane For example, releases, chemical accidents, Fires, transportation land. reaches before it long cyber- and violence school of incidents major pandemics, global terrorism, called “man-made,” which are caused by the failure of a system or piece of piece or of a system failure by the caused which are “man-made,” called equipment, an accident or an intentional act of man. events. non-predictable or predictable either as classified be also can Disasters government structure. Vulnerabilities: Evaluation of Local also “technological,” or nature, of force a by caused meaning “natural,” either emergency planning process. emergency from utilities, representatives involve should be made to closely efforts Similar authorities and other organizations that are not a formal part of the municipal the municipality and are thus at risk of being isolated from the other functions other the from isolated risk of being thus at are and municipality the and school facilities Schools are Custodians of children government. of local in the involved and must be intimately are commonly designated as shelters, institutions. is a particularly of school representatives Assuring the active participation of structure organizational normal the of outside are officials School important. In addition to reviewing the Municipal Emergency Operations Plan, the LEPC the Plan, Operations Emergency Municipal the reviewing to addition In and review vulnerabilities of community evaluations regular should conduct and healthcare Plans including schools of any high-risk facilities, Emergency By statute, the group is chaired by the EMC, but other members should include: should members other but EMC, the by chaired is group the statute, By The LEPC should include representatives of all agencies involved in emergency involved in emergency of all agencies should include representatives The LEPC in industries large or high-risk any from managers and recovery, and response the community. to review the Municipal Emergency Plan. However, the LEPC should meet at meet at should the LEPC Plan. However, Emergency Municipal the to review LEPC the on not are that officials Elected monthly. ideally, and quarterly least should attend at least one meeting per year to obtain a first-hand exposure to and resources. challenges management emergency Emergency Emergency Planning Committee (LEPC): once annually at least that meets LEPC a functioning to have municipality every 122 CHAPTER 12 Terrorism Risk Issues of communityhazardsandvulnerabilities,orlikelyimpactsthosehazards. The local emergency planning process beginswithacomprehensive analysis these majorvulnerabilities. describe how the community is toprepare for, respondto and recover from will provide thefoundation for the Emergencyevaluation Operations Plan(EOP),which will This community. the for implications the analyze and risks the assess hazards, the identify to together work must LEPC the and services The local Office of Emergency Management staff, local emergency and support Infrastructure Large Fires Public Facilities Technological Transportation Other Flooding systems? to thepowersupply, water, sewerand otherkey What is the risk and likely-impact of disruptions properties, areparticularlyvulnerable? What sites, bothstructures and underdeveloped people? centers and othersiteswithlarge concentrations of facilities, high-rise apartments, transportation What are thevulnerabilities of schools,healthcare affected? If achemical release occurred, whatareas would be store hazardousmaterials,andwhataretherisks? What facilities inandaroundthecommunity use or Do pipelinescreatespecialrisks? What isthelikelihoodofanaircrash? corridors inthecommunityandnearbytowns? What aretherisksposedbymajortransportation winter storm? What isthelikely impact of aseverehurricane or infrastructure? communications, utilities and otherbasic How vulnerable are municipal records, What communityassetsarelocatedinfloodplains? communities? dams might fail, including those in neighboring of periods during flood severe weather, orwhendrainage systems or to likely are areas What and family preparedness? citizen assure to taken been have steps What operations? Have plansbeenmade for continuity of government be thefocusofterroristattention? What communityresourcesorinfrastructure could

CHAPTER 12 123 The State Office of Hazardous Materials Public Health Radiological Protection Resource Management and Care Reception Shelter, What sites are potentially high-risk for pandemic high-risk for sites are potentially What spread? associated with response What issues are of community and resource availability capabilities to support agencies management emergency and systems in their response agencies healthcare to a pandemic? and systems would be affected What governmental issue of government the how would you address continuity? What What are the specific equipment needsthe safety ensure to of first responders and other municipal employees? modify or split to developed be to need plans What volunteer and employee limit to work schedules exposure? community and recommended improvements. proved unrealistic, the problem should be discussed at an LEPC meeting and the problem should be discussed at an LEPC meeting proved unrealistic, be never should EOP municipal The accordingly. modified be should plan the viewed as complete, but rather be continually revised to reflect changes in the the preparedness of emergency services. the preparedness of emergency or event emergency every after for functionality reviewed plan should be The from the plan, or some assumption If responders were forced to depart exercise. plans for any high-risk facilities, such as schools, healthcare facilities, shopping facilities, such as schools, healthcare plans for any high-risk facilities, malls, office complexes or high-rise buildings. In today’s environment, it is the While pandemics. and global to address cyber-crime important especially safety and public enhance will greatly State does not require these plans, they Terrorism Services Fire specific with annex separate a developing consider also should community Each Social Services Social Plans Operations Center Emergency Public Information Emergency Evacuation Public Works Public Assessment and Communications Warning Alert, Damage Medical Services Emergency community’s community’s unique characteristics and hazards, every municipal EOP will have the following annexes: Basic Plan (Executive Summary) by the State Police every four years. The EOP of each municipality consists of of each municipality The EOP by the State Police every four years. annex focusing on a key component with each or “annexes,” chapters multiple of the Emergency Management Plan. While the contents will reflect the Annual Update of the Emergency Operations Plan: Annual Update Emergency Management has standardized the two every be updated must EOP the format By law, Jersey. New EOPs in municipal and organization for years, but an annual review and update is recommended. EOPs are certified Cyber Crime Pandemic 124 CHAPTER 12 government willoperateunderemergency conditions. Executive Officer. The plans need to establish both who will lead and how the a particular need to identify the line of succession to the office of Mayor/Chief The continuity ofgovernment isespecially critical in emergency events,with responsibility fortheirfamilies’ safetyisassured. can onlyfocusontheirdutiesduringanemergency whentheirpersonal emergency responders.Public safety leaders, staff andemergency responders The EOP shouldinclude plans forassuringthe safety of the families of exercises. be trainedinitsoperation, and ideally, willhaveparticipated in EOCactivation with authority to make decisions fortheir Agency. All EOCpersonnel should plays aroleinmanagingthe eventshouldhavearepresentative in theEOC and suppliesrequiredtomanage thedisasterproperly. Everydepartment that technological incidents. The space is designed toprovidethelogistical tools large, area-wideevents, such asthosecaused by severe weather and major agencies gather to coordinate the response. Itisnormally activated only for volunteer and officials elected heads, department EMC, the where is EOC An (EOC). community. That function is performed by the Emergency Operations Center reported duringalarge-scale disasterandcoordinate the responseacross required to establish priorities among the numerous incidents likely to be (EOC): certifications. Center Operations required Emergency the earned Incident have material hazardous who Documentation ofthesecertificationsshouldbereadily available. as individuals such tasks, to assign Command, only should plan The regardless of the size of an emergency or the number or organizations involved. be a coordination mechanism that ensures resources are used effectively, will requiremultiple agencies orinvolve multiple jurisdictions. There must they work to stabilize an incident. Coordination is key because most incidents The approachprovidesameans tocoordinate the efforts ofseparate agencies as understand theconcept. involved in responding to an emergency, become including off-site support personnel, needs to may who official local Any Plans. Operation Emergency hazardous materials incidents and the ICS approach must be incorporated into for ICS of use the requires law Federal fires. including emergencies, during Police hasmandatedthatICSbethestandardcommand and controlsystem other states is a tool called the Incident Command System (ICS). The State approach toincidentmanagement thathasbeenadoptedbyNewJerseyand on theresponseteam’s ability tomanageandcontroltheevent. The basic should befoundthere. Howwell those plans are put into action will depend If thecommunityhasaneffective Emergency Plan,mostoftheanswers how toinformthepublicandnewsmedia,whatprioritiesare. including thoseaskingwhoisincharge, howtorespondcallsforassistance, When theunthinkable happens, local leaders will face a barrage of questions, responders, theriskofasuddenemergency cannotbetotallyeliminated. effort are invested in mitigating risks, developing Emergency Plans andtraining (ICS): System Command Incident Nomatter how muchtime, money and n raiainl ehns is mechanism organizational An

CHAPTER 12 125 The EMC should be 261 Every community’s response capabilities need capabilities response Every community’s Whether approached incrementally or more incrementally Whether approached State regulations require each municipality to conduct conduct to municipality each require regulations State expensive but are the most effective test short of a real emergency. test short the most effective expensive but are activities, such as a large-scale evacuation. a large-scale activities, such as which exercise, “full-scale” is the test extensive most and fourth The draws on all or most annexes and organizations. Such exercises can be assembled in a command center, are asked to respond to various scenarios are asked to respond to center, assembled in a command in a simulated emergency. third A testing option, the “functional exercise,” is conducted in the field and involves various organizations practicing one or more coordinated department or rescue squad, practicing its particular function. In most its particular squad, practicing or rescue department drills throughout the year. services conduct communities, emergency representatives, Agency in which exercise, “tabletop” The next step is the The first and simplest involves an individual organization, such as the fire the as such organization, individual an involves simplest and first The • • • • Much of the material in this chapter is from Chuck Cuccia, long-time MEL Commissioner and CFO of MEL in this chapter is from Chuck Cuccia, long-time Much of the material N.J.S.A. 40A:11-6 260 Maywood. 261 Coordinating planning with neighboring communities may also create Coordinating planning with neighboring communities opportunities for sharing resources. emergency requisitions of supplies and services. New Jersey law permits New Jersey law and services. of supplies requisitions emergency without formal bidding. purchases emergency local and access to the have written guidelines with these procedures and familiar Contracting Officer. municipality’s provide for the mitigation of threats. Inter-governmental aid is available to is available aid Inter-governmental of threats. mitigation for the provide rates. help reduce the impact on local tax for need the should anticipate and procedures ordinances purchasing Local an impact upon the local budget. The local operating budget should reflect compensation for the EMC, provide for training, reflect funding needed to upgrade equipment and systems and Financial Planning: systematically, the municipal budget is a reflection of a community’s values have will it considered, seriously be is to planning If emergency priorities. and situations, Emergency Managers may be required to convey important public Managers may be required to convey important situations, Emergency New technologies measures. to residents so preventive safety information that should be evaluated. a range of options offer public. In the event of severe weather or a major technological incident, whole incident, technological major a or weather severe of event the In public. on may need to be evacuated neighborhoods, or even an entire community, told and contacted be to need risk greatest at people The notice. short very threatening less In minutes. within sometimes go, to where and do to what Town-Wide Alert System: Town-Wide of conveying meaningful information to the method to include an effective The State OEM recommends testing seven annexes per year. These exercises These exercises per year. seven annexes testing OEM recommends The State in complexity. can vary goals goals in mind or should test specific chapters weakness Any responders. and career both volunteer involve and should Plan, of the Municipal Emergency result in plan changes. by the drill should revealed Drills and Exercises: and Drills particular with designed be should drill The annually. exercise or drill one CHAPTER 13

CRISIS COMMUNICATIONS

Norris Clark, of Princeton Strategic Communications Group, authored this chapter. In the last chapter, we discussed that the Emergency Manager must be in a position to coordinate all aspects of local government’s response, including communications. The Crisis Communications Plan must clearly designate the spokesperson and who is responsible for preparing the content. After being elected, every official must become fully versed in this plan and their role within it.

Case Studies: Hurricane Katrina: On August 29, 2005, Hurricane Katrina began a chain of events that would devastate and flood the city, breach protective levees, claim thousands of lives across the Gulf Coast, force over 100,000 people into exile, and severely tax the resources of New Orleans, the state of Louisiana and the federal government. 262 A study of the disaster by Terry W. Cole and Kellie Fellows found that fundamental failures in risk communications contributed to the storm’s consequences: • The government’s unfulfilled promises and lack of attention to the risks associated with a major hurricane damaged its credibility and caused residents to become apathetic about the risks. CHAPTER 13 127 In November 2013, the City of San Rafael, San of City the 2013, November In On October 8, 2017, 100,000 people were displaced, were people 100,000 2017, 8, On October system to properly alert local residents, and emergency services leaders and emergency system to properly alert local residents, action plan to evacuate residents safely.” did not trust the emergency staff staff failed to prepare for the wildfires and had outdated technology, protocols and undertrained staff. alerting emergency disorganized to a lack Plan pointed Disaster Communication Gaps in the county’s issue public to ability trust their of trust. “Alert operators did not incidentsystem, the with training of lack their of because warnings commanders did not trust the WEA capabilities of their notification While the county had a public alert and warning system in place, public alert the county had a While gaps, and included were “uncoordinated for using them procedures to a state review team. overlaps and redundancies,” according emergency the Sonoma County found that review team The state’s that was already becoming surrounded with floodwaters.” that was already becoming nor the City the neither of danger, warnings and expressions Despite No citizens. Orleans New all for Plans Evacuation implemented State information was disseminated to specify how individual citizens or evacuation. Parish officials should execute the Parish and avoided using the term “mandatory.” Parish and avoided American African the with credibility spokespersons lacked The to assist failure as a result of the government’s particularly population, Katrina, “previous With Hurricane Ivan in 2004. with evacuation during communication had warned of levee failure and massive flooding, yet city but to a facilityplan did not take residents out of the evacuation the While 90% of those who had the resources and means evacuated the evacuated means and resources the who had those of 90% While not evacuate. did not or could 70,000 either region, approximately was not it presumed have may orders evacuation who heard Those unclear consequences, negative of perceived because mandatory how to evacuate. lack of knowing from officials or messages up to hours even and uncertain was vague language evacuation The to Parish from varied levels Evacuation landfall. made Katrina before The messages, and those who who those and messages, The the compounded them, conveyed problems by delivering conflicting and confusing messages about the levee system. the city’s have on would the storm impact • • • • • • • • Huffington Post, Fox News and UPI. One conservative Southern California Southern conservative One UPI. and News Fox Post, Huffington their in for turning reward children government the asked, “Will columnist smokers need to cover their windows to hide their Will smoking parents? habits from authorities?” supported the legislation. However, the city was law The overreach. criticized for government media and on social sections comment in columns, ABC News, by media sources, including news coverage national generated San Rafael Smoking Ban: San Rafael toughest smoking bans prohibiting one of the nation’s enacted California, units that share a common wall. Prominent smoking in all residential Association and the March of Dimes, Lung American the groups, including Sonoma County: most in California’s killed destroyed and 25 people 5,000 structures destructive wildfire to that date. A Crisis Communications Plan must also address potential issues that go beyond Crisis Communications Plan must also address potential A responsibilities, for example: Manager’s events that fall under the Emergency 128 CHAPTER 13 are, including: The plan shouldalso determine what the immediate communications needs be theIncidentCommander. Then, identifywhatstaff needstobeinvolved. determining who will be in overall command for each scenario and whowill Communications Planning: possible crisisevents,including: spring intoaction immediately. These plansmustconsiderthewiderangeof case, advanced planningisessentialtoenabletheCommunication Director to either In CEO. or official elected top government’s local the either to report Planning Committee (LEMC). Otherwise,theCommunications Directorwill the involved, is EMC the Communications Director shouldbeapartoftheLocal Emergency Where Management crisis. of type the on depending officials will probably be the same, butthis individual may report to different to respondotherissues. The individual responsible forcommunications the scopeofEmergency Management Coordinator (EMC)andasecond Most local governments need two related plans; one forissuesthat fall under Developing aCrisisCommunications Plan: • • • • • • • • • • • • which shediscussedthePoliceDepartment. She wasappointed to replace her appointment foroperating a social media account under a fake name on after hours just Vermont,replaced Burlington, was of chief police acting Burlington SocialMedia Account Dismissal: place or avoidalocation. What will the public be askedto do?Forexample, evacuate, shelter in What emotions needtobeconsidered? Who willbeaffected andhow? What isthepotentialpublic impactorinterest? an impact. Proximity Crisis: Information, MisconductofManagementorEmployee orMajorLawsuit. Reputational: Human Resources: Legal or Regulatory: Disturbance. Sexual Harassment, Angry Constituent(s); Bomb or Threat or Civil Criminal: Mass InternalComputerIssue. Facilities: Failure orEquipmentMalfunction. Man-Made: Natural: far morewidespreadwithinthedepartmentthanpreviouslyunderstood.” “The disclosureraisesthepossibilitythatproblematic social mediauseis Twitter accounttotrollacritic. The city’s Mayorwasquotedassaying, resigned afteradmitting the formerchief whothatheusedananonymous Hurricane,Blizzard, Tornado, FloodorPandemic. ExplosionorFire,StructureCollapse, Major Contamination or Official Misconduct, Terrorism, Data Breach, Violence, Breach, Data Terrorism, Misconduct, Official Environmental Issue, Chemical Release, Infrastructure oil ei Cii, aa rah f Confidential of Breach Data Crisis, Media Social Unrelated to themunicipality, but closeenoughtohave LaborIssuesorLossofKeyOfficial(s). MajorLawsuitorRegulatoryChange. Begin developing the Communications Plan by InDecember 2019, the CHAPTER 13 129 Ensure the response effort is visible throughout the crisis. Anticipate the Anticipate crisis. the throughout is visible response effort Ensure the needs of journalists, especially timeliness. When possible, and where their expertise is unique or pertinent to the or pertinent is unique When possible, and where their expertise crisis or response, involve independent third parties. actions are required. Do not communicate unverified numbers,or correct Quickly projections. cost or injured people accessed, records such as clarify inaccurate and misleading statements. utilities, hospitals and neighboring communities, if they could be affected. hospitals and neighboring communities, utilities, expectations honest and realistic create speculating, or guessing Without protective and whether can expect risk, what the public of the actual placing blame when little is known about the origins of the crisis. Instead, crisis. the of origins the about known is little when blame placing protecting public health and safety. focusing on mitigating the crisis and schools, with especially stakeholders, key with contact constant in Remain Communicate the scope solution. Once the solution is being implemented, the promoting and significanceor speculation Avoid crisis. the done to resolve being ofwhat’s communicate the problem(s) before Personnel matters are to remain confidentialAct. exceptAct and the Open Public Records Open Public Meetings as required by the or cannot be immediately answered, make a note of the question and tell make answered, or cannot be immediately If the through. follow sure to Be them. back to get you will inquirer the personnel sharing as such policy, a to due answered be cannot question politely inform the inquirer. information or HIPAA, “No comment” is never an acceptable response. If an answer is unknown response. acceptable is never an “No comment” the news? What media, legislators or other stakeholders will be contacted, and in contacted, be will stakeholders or other legislators media, What what order of priority? more than a blip on anything it become Will traction? Does the issue have Who will communicate the response as the spokesperson? communicate the Who will the response be communicated? How will What can and can’t be said? be can’t can and What needed? Is legal counsel What information is needed, and who, beyond the staff, need to receive it? it? to receive need staff, the beyond who, and is needed, information What available? will it be When • • • • • • • • • • • • • • that local government is taking ownership and not “stonewalling” or being that local government is taking rules include: uncooperative. Important crisis communications Do not release information until the person who has overall control of the of the control who has overall person the until information Do not release Quickly craft “holding crisis reviews the situation and authorizes the strategy. to demonstrate to the media responses interim for delivering statement(s)” inquiries should be referred to them with the by connecting be professional and helpful should the other staff authorized spokesperson for comment; provide any information. nor speak to the media will neither spokespeople, but The Communications Director must develop factual, responsive messages responsive factual, develop must Director Communications The to be used by the organization and its representatives. All media and public 130 CHAPTER 13 262 emphasizes sixvitalcommunicationsprinciples: delivering the right message at the right time, can savelives. Their planning and radiation exposures. They know from experience that the right person outbreaks, natural disasters and severe weather, bioterrorism and chemical and Prevention(CDC)dealswithcrisessituationssuchasinfectiousdisease The National Center forEnvironmental Health, CentersforDiseaseControl Conclusion: management andpreservearecordincaseoflitigation. regarding the situation to effectively evaluate crisis communications Document criticalconversations,decisions,detailsandmediaquestions Record Keeping: the designatedspokesperson. to commentandshouldreferallinquiriesfrommedia,neighborsothers authorized not are they that staff Remind consideration. into taken be should the information to staff. Affected staffs’ needs and input on the situation office building, a phone or text message “tree” should be used to communicate the information iseithercritically time-sensitive or regardsthesafetyof response. If the crisis occurs when staff is not in the office, and disseminating information to employeeswhoarenotdirectly involvedwiththeemergency As soonaspractical, the Communications Director should relay situational Employees havefrequentcontact with residentsbecauseoftheirjobduties. Staff Notification:

Southern Communication Journal,October13,2008. • • • Ensure that the quality of thecommunications itself does not become an empathy forpeopleandplacetheirconcernsabovecosts Designate aliaison tostayintouchwiththefamilies of victims.Show is particularlyimportantwhen peoplefeelvulnerable. 6. restore orderandpromotes asenseofcontrol. 5. challenges they’refacingbuildstrustandrapport. be acknowledgedinwords. Addressing whatpeoplearefeeling, and the 4. during crises. 3. what isandisn’t known,andwhatisbeingdonetofillinthegaps. 2. the public’s preferredsource. becomes often information of source first the because crucial is quickly 1. be resolved? well andwhatdidn’t? Were thereanypointsofconfusion?Howcanthey worked What evaluation: post-mortem a conduct crisis, the of end the At issue. Stayonmessage.Nevermakeaccidentalnews. Show Respect: Promote Action: Express Empathy: Be Credible: Be Right: Be First:

Crisesaretime-sensitive. Communicating information Accuracy establishescredibility. Information can include

Honestyandtruthfulnessshouldnotbecompromised Respectful communication promotes cooperation and Giving people meaningful tasks calms anxiety, helps The harmandsuffering causedbycrisesshould CHAPTER 14

COMMUNITY SAFETY

While Risk Management initially focused on issues that impact the insurance budget, it quickly expanded into other exposures that can affect the organization. 263 In 2013, various JIFs and other interested governmental organizations created the non-profit New Jersey Safety Institute to provide information to local officials about these issues. The Institute’s website, NJSafetyInstitute.org, is a comprehensive resource center. While tremendous strides have been made in reducing some types of accidents in the United States, the overall rate of accidental fatalities has increased 40% since 2000 to 49.0 fatalities per 100,000 population. Accidents cost the country over $1 trillion annually, the equivalent of 5.3% of the gross national product or $3,175 for every man, woman and child in the country. At $472 billion, “Home and Community” is the most expensive accident category, followed by “Motor Vehicle” at $433 billion and “Work Accidents” at $165 billion. 264 Municipalities, Counties and Boards of Education are on the front line for many serious safety issues that impact the public. New Jersey has the thirteenth- highest pedestrian accident rate in the country, for example. While there was previously a steady reduction in motor vehicle fatalities, the accident rate is now increasing because of distracted driving, including the use of cell phones. Safety and health issues of an aging population have put a tremendous burden on emergency responders at a time when budgets are tight. Another concern is concussion injuries arising from sports and recreation programs. 132 CHAPTER 14 Each year more than 750,000 Americans are injured during recreational Sports Community SafetyIssues: item onthegoverningbody’s regularworkshopagenda. given constant attention to be successful, and its status should be a recurring problems. these to solution Priorities are determined by what interests leaders. A the safetyprogrammustbe in included be must level every at Officials six timesaslikely tosustainnewinjuries. To reduce theriskofconcussions: school players sustain brain injuries. Football players with brain injuries are Football: 5. Women’s Basketball 4. Men’s Lacrosse 3. IceHockey 2. Woman’s Soccer 1. Football concluded: as oneathlete participating in onepractice or onecompetition. The study risk in various sports based on the number of Athlete Exposures (AE), defined A recent study of concussions in high school quantified the relative concussion accessed throughtheSafetyInstitute’s website. be encouraged to take a course. The CDC online training program course, andsubmitdocumentation forthetown’s records.Parentsshouldalso should be requiredtocomplete at least one ofthesecourses, orasimilar kind of activities sports in involved officials other and referees coaches, All training program that produces a certificate upon successful course completion. concussions and the Center for Disease Control (CDC) has a free online Training: asking aquestionthathasalreadybeenanswered. events in the news. Amnesia also may be evidenced by an athlete repeatedly recall details aboutrecentplaysinthegame or detailsofwell-knowncurrent before or afterthe head trauma. An athlete with amnesia may be unable to traumatic event, and frequently includes loss of recall for events immediately of consciousness. The amnesiagenerally involves lossofmemorythe of aconcussionareconfusionandamnesia,oftenwithoutanyprecedingloss prognosis forcomplete recovery isgood. The hallmark signs andsymptoms “a mild traumatic brain injury.” If a concussion is managed appropriately, the The term“concussion”isoftenusedinmedical literature asasynonymfor presenting anysignsorsymptomsofaconcussionoutgame. suffered aninjury. Therefore, it isessential for acoach to keep aplayer consciousness, whenever an individual loses consciousness, the brain has of BrainInjury: Signs short periodmayleadtoSecondImpactSyndrome. over time may result in cumulative damage, and repeated concussions over a spectators, teammates and coaches to resume playing. Multiple concussions casual observers, andanathlete may experience considerable pressure from Too often,concussionsgountreated because fewsymptomsarevisibleto sports with brain injuries causing more deaths than any other sports injury. Inanygiven season,10%ofallcollege players and20%ofhigh The Rutgers SAFETY Clinic course includes training on sports 266 4.85 4.92 7.69 8.19 10.40 While mostbraininjuriesdonotinvolvelossof 10. Women’s Volleyball 9. Cheerleading 8. Men’s Soccer 7. Women’s Lacrosse 6. Wrestling

3.14 3.26 4.22 4.83 3.57 265 can be CHAPTER 14 133 Retain a professional to inventory existing playgrounds a professional Retain At the beginning review of the the fileyear, and perform Requires public and non-public schools to have automated to have automated Requires public and non-public schools The head is involved in more baseball injuries than any other body injuries in more baseball involved The head is About 5% of soccer players sustain brain injuries, which may occur occur may which injuries, brain sustain players of soccer About 5% a detailed physical examination of each playground. The audit should be of each playground. a detailed physical examination All the responsibility of someone who has received the necessary training. similar audit should A repairs should be made before opening for the season. occur at the end of the season to begin planning for the following year. and details on the protective surface. A separate file should be established A and details on the protective surface. for each playground. Annual Audits: and evaluate compliance. The inventory should be updated whenever there should be updated The inventory compliance. and evaluate are major changes. Specifically identify the different pieces of apparatus, age-appropriateness, and location of manufacture, date manufacturer, their Initial Inventory: cardiac arrest events. This plan must include: who gets the AED, who calls who AED, the gets who include: must plan This events. arrest cardiac assists rescuers getting who AED and 9-1-1, who starts CPR and uses the to the victim. school-sponsored athletic event or practice is taking place. school-sponsored athletic event or practice A coach, trainer, staff member, EMT or first responder trained in or practice. AED must be present during the event CPR/ to sudden Action Plan for responding Schools must develop an Emergency athletic field. available in an unlocked location with an identifying sign. AED must be The a time other any and day school the during accessible be must AED The The AED shall be located within reasonable proximity of the gym or proximity reasonable within AED shall be located The practice and games. the ground. be padded and properly anchored to Goalposts should greater if a small child uses too large a ball. uses too large greater if a small child avoided. players should be discouraged and Collision with other Younger teams should use the appropriate size and weight ball during Heading, or hitting the ball with the head repeatedly is the riskiest activity, activity, is the riskiest repeatedly head with the ball the Heading, or hitting The risk is by younger players. especially and should be discouraged, strengthening the neck and shoulder muscles. the neck and strengthening Emphasize Emphasize “keeping the head out of football,” or not butt-blocking using the head. or head tackle! Never face for recommended exercises including properly, and consistently Train Match players according to size, weight and training in contact drills. contact in training and weight to size, according players Match practice. during routines and blocking tackling Limit • • • • • • • • • • • • • • playground safety standards (Publication 325) adopted by New Jersey, which 325) adopted by New Jersey, playground safety standards (Publication and NJMEL.org. can be found at NJSafetyInstitute.org Playground Safety each year on playgrounds in the United Over 200,000 injuries are reported the (CPSC) developed The Consumer Product Safety Commission States. “Janet’s Law”: “Janet’s athletic events: external defibrillators (AED) for youth part, with nearly half of the injuries involving a child’s head, face, mouth or head, face, a child’s of the injuries involving part, with nearly half and the ball the by hit is being and death of injury cause leading The eyes. second leading cause is collision. Baseball: are injured more often than boys. To reduce the risk of concussions: To than boys. are injured more often Soccer: by the ball. Girls struck on the head falls or being contact, from head-to-head 134 CHAPTER 14 Bicycle helmets are between 85%and 88% effective in preventing brain Bicycle Safety issue. Reachouttoseniorgroups andseektheirviewsonquestionssuchas: and talk tothePolice, Fire, Ambulance and Health Departments about the Addressing the Issue: and reducetheirchancesofrecovering. Physical changes inolder individuals make them more vulnerable to injury Senior Citizens bicycling, in-lineskatingandparticipatinginotherwheeledactivities. New Jerseyrequiresthat children under 17yearsofage wear helmets while occurring indrivewaysandonsidewalks. incidents are most likely to occur within five blocks of home, with almost half year, and900people,including 200 undertheageof15,arekilled. Bicycle including 350,000 underthe age of 15,are injured in bicycle accidents each injured in bikingaccidents than inanyother sport. Infact, 550,000 people, brain injury every four minutes. Morechildren between ages of5to14are injuries. Universaluseofhelmets could preventonedeathperdayand • • • • • • • • specifically trained to identify hazards and initiate repair procedures. If the repaircannotbeperformed on-site,theapparatusshouldbetakenout procedures. repair initiate and hazards identify to trained specifically or morefrequently depending onusage,bymaintenance personnel Weekly Inspection: What other services canthecommunity provide seniors? Where should sidewalksbeimproved? accommodate theneedsofsenioradults? Are there particular intersections that need safety improvements to to assisttheminorderevacuate safely. The elderly need more time to escape from a fire area and may need others groups. other than fire a in die to likely as times four are 85+ ages People Fire: Older adults suffer twice as many fire deaths as the general population. who commitsuicide. and high rates of alcohol involvement have been found among individuals problem, increasing an becoming is elderly the among Suicide Suicide: to crossthestreet. and areespecially vulnerable at intersections because they needmoretime cars seeing or hearing difficulty have often Seniors 18%. for accounting Pedestrians: Seniors have the highest pedestrian fatality rate of any group, capabilities. drive to elect and longer. Some,however, are unable or unwilling to assesstheir driving mobility-minded are today Seniors Vehicles: Motor significantly increased has over thepastdecade. deaths fall-related of rate The hospitalized. for nonfatal injuries fromfallseach year, andmorethan400,000are seniors. Almost twomillion seniors aretreated in emergency departments major causeofdisablinginjuriesthatpermanently restrict themobilityof a also are Falls year. each fall 65+ ages adults of third a than more and Slips and Falls: Falls are the leading cause of injury deaths among seniors, should bedocumented. of serviceuntilitissatisfactory. All inspectionsandcorrectiveactions Beginby compiling your community’s accident rates Inspectionsshouldbeconducted at least weekly, CHAPTER 14 135

273 269 Individuals in need of treatment that Individuals in need of treatment

272 268 Under this approach, law enforcement Under this approach, 271 New Jersey is one of the states hit hardest by hardest hit states is one of the New Jersey 267 62,100 in 2008, 62,100 in have developed coordinated law enforcement and social services and social law enforcement coordinated have developed 270 County Jail, allowing treatment providers to come into the correctional County Jail, allowing treatment under The program continues counseling. and provide intensive facility the Re-Entry (Star) program after the inmate has been released. Recovery Initiative (PAARI). Under this program, individuals can come to come can individuals program, Under this (PAARI). Initiative Recovery to recovery connected to be immediately Department Police the Municipal programs without fear of arrest. of the Wing” “Hope are assigned to the are arrested for another crime stamps, nutritional assistance, health care, utility assistance, child support care, utility assistance, health stamps, nutritional and cash assistance through the companion program, Navigating Hope. and Addiction Assisted Police through the participate agencies police Local as shopping center parking lots. The team is low key and can immediately can and is low key team The lots. parking as shopping center The County Department of facility. to a treatment arrange transportation food as such benefits, of range wide a access people helps Services Social Helping Hand, a pilot program that uses an unmarked van to seek-out van to program that uses an unmarked Helping Hand, a pilot plain in officer sheriff’s a includes team The members. family and addicts clothes along with a mental health clinician and certified Peer Recovery such around the county, places The van usually travels to public Specialist. illness is more likely to encounter a police officer than a psychiatristsubstance abuse counselor.” or and One Outreach Hope James Gannon launched Morris County Sheriff combines with community health agencies to engage individuals suffering suffering individuals engage to agencies health with community combines and recovery services. access to treatment and facilitate from addiction person with serious mental “A because important Police are especially Operation Helping Hand: Helping Operation Addiction Responses and Enforcement Strategies (“NJ CARES”) to combat (“NJ CARES”) to Strategies Enforcement Responses and Addiction opioid addiction on multiple fronts. created immunity from arrest for drug use or possession when a person, in good from arrest for drug use or possession when a person, in good immunity created or another who is experiencing faith, seeks medical assistance for him/herself Attorney General success of these programs prompted The initial an overdose. Gurbir Grewal to establish the Office of the New Jersey Coordinator for counties because help seek do not Many people addiction. opioid combat to strategies Act” “Overdose Prevention arrested. In 2013, the are fearful of being they national average. Yet, the per capita opioid fatality rate in New Jersey is still rate in New Jersey is opioid fatality capita the per Yet, average. national of country-wide figures. 38% higher than that unsuccessful, several law enforcement strategy has proven Because the strict controlled substances being dispensed to fight and Pharmacists use this data to review daily, information required to report this crisis. Pharmacies are New As a result, abuse. potential history and identify prescription patient the than the per capita write 25% fewer opioid prescriptions Jersey providers doubled to 30 per 100,000 in 2018. doubled to 30 per Attorney General’s within the Affairs of Consumer The New Jersey Division Office established a prescription monitoring program that collects data on in 2000 to in 2000 to to 16 2016, equivalent in reported deaths with 1,409 opioid-related this crisis, almost Jersey rate New The 13.3 nationwide. to 100,000 compared per deaths Control (CDC) and the National Highway Traffic Safety Administration (NHTSA). Administration Safety Traffic Highway National the and (CDC) Control Opioid Epidemic Drug-related fatalities increased five-fold in the United States, from 12,700 In addition to the New Jersey Safety Institute, numerous organizations provide provide organizations numerous Institute, Safety Jersey New the to addition In Disease Center for the Alliance, Injury Brain the including material, educational 136 CHAPTER 14 likely to be fatal on rural roads. Children are also disproportionately involved. Pedestrian accidents, for example, are more frequent in urban areas, but more accidents are caused by a combination of physical and human factors. motor vehicle related accidents in the United States each year. Pedestrian Approximately 70,000 pedestrians are injured and morethan4,000killed in Pedestrian Safety Continuing EducationPartnership with RowanUniversity: in municipalcomplexes. Local police agencies have alsoinstalled prescription disposal dropboxes Age asaFactor and otheropioid-relatedarrests. prescription opioidsbeingdispensedandthelocationsofheroin,fentanyl agency. Dataavailable includes thenumberandtypesof through IDAD opioid-related data that had previouslybeenkept separate within each exchange to Safety Public & Law of Department the across from officials (IDAD): Dashboard Awareness Drug Integrated educational videos. Rowan UniversitySchoolofOsteopathic Medicine prepared sixonehour addiction and diversion. As partofitsagreement with NJCARES,the for managingandtreating pain andtheriskssignsofopioidabuse, information on responsible prescribing practices, alternatives to opioids opioid drugseverytwoyears. The curriculum includes evidence-based State’s requirement for one hour of continuing education on prescription veterinarians, psychologists, social workers and athletic trainers, satisfy the initiative that helps healthcare professionals, including physicians, nurses, Jersey OpioidMedical Education Program isacontinuing education • • • of accidentsat intersectionsandinparking lots. increases accordingly, with children experiencing significant numbers Children becomemoremobile byageten,andtheaccident rate motorist untilitistoolate to stop. cars oftencomplicate the situation by hidingachild from thepassing to impulsivelyrunacrossthe streetwithoutstoppingtolook.Parked block dart out.” Because children lack auditory localization, they tend of themostcommontypesaccidents in thisage-groupisthe“mid- not aware typically of traffic unless they are looking directly at a vehicle. which One localization, auditory doesn’t developuntil age nineorten. As a result,youngchildren are as known hearing, through the inability factor isofyoungchildrentolocatea movingobject children begin to explore their neighborhood. A The significantaccident rate increases significantly beginning contributing at age five because parent orcloserelative. running towardsacar, 70%ofthe time the car is being driven by a of accidentisknownas“bye-bye”syndrome,which involvesachild are especially vulnerable to accidents in driveways.Onesuchtype is five of young childrenare tragically killed by reversing vehicles. Children age the under children relatively low, for but the accidents are often fatal. Each week, two accidents of frequency The The IDAD enables The New The CHAPTER 14 137 The process of making your community “pedestrian-friendly” your community process of making The one-way streets. more pedestrian accidents than intersections where there is only one than intersections more pedestrian accidents lane in each direction. “T” at accidents pedestrian more in involved are vehicles turning Left because they have no than standard “X” intersections intersections oncoming traffic to delay their turn at “T” intersections. Two-way streets have significantly more pedestrian accidents than Intersections with two or more lanes in each direction have significantly have direction each in lanes more or two with Intersections seriously injured or killed in a pedestrian accident than young people. people. young than accident pedestrian a in killed or injured seriously cannot they because intersections in vulnerable especially are They in turning and often fail to notice vehicles cross the street quickly lanes. Peripheral vision and to adults of older vulnerability the increasing further age, as people auditory localization skills decrease pedestrian accidents. rate does not drop significantly the mid-20s usually in until the brain has fully matured, is deceptive this However, 25. age drops at rate accident overall The they age. walk less as because people accident rate, rate, as opposed to the overall fatality The pedestrian to be more likely to 84 years of age. Seniors are far peaks for those 75 Drugs Drugs at starting accidents pedestrian in factor a become alcohol and 20s early in their and people partake apt to are more Teens age 16. against cautions that brain the of area the because behaviors risky in accident The pedestrian developed. yet fully is not behaviors these • • • • • • accident reports and marking their location on a map. Visit these locations these Visit map. a on location their marking and reports accident the accidents occurred. to get a better understanding of how reoccurring accident factors: Research has identified the following Evaluation: identify To experience. community’s of your evaluation an with begins start by reviewing pedestrian the community, “hot spots” in accident talking on cell phones take longer to get to the opposite side when crossing talking on cell phones take longer to and are less likely to look for traffic. phones at any time. The use of a cell phone, even hands-free, quadruples hands-free, even phone, cell a use of The time. any at phones also are devices electronic other and phones Cell accident. an of risk the pedestrians that found study Angeles Los A pedestrians. for problem a the road or doing something else for at least three seconds prior to the three least else for at the road or doing something accident. of all motorists are talking on cell that 11% Research has determined districts must be a priority in any pedestrian safety campaign. districts must be a priority in any pedestrian factor in pedestrian contributing Distracted driving is also a frequent the driver was looking away from accidents, In 80% of all accidents. Increased speeds put all pedestrians at risk. If a car going 20 mph hits a hits going 20 mph a car risk. If at pedestrians all put speeds Increased However, will survive. there is a 95% chance the pedestrian pedestrian, 30 mph and is traveling to 45% when a vehicle rate decreases survival the business and residential speeds in Reducing 40 mph. less than 10% at Solving the Problem Speed and Distracted Driving Speed and Distracted 138 CHAPTER 14 minimum. to help zones, alert motorists. at a All schoolcrossing stationsshouldhavethesesigns business congested and direction each in lane travel one with pedestriancrossingsigns,especially crosswalks on roadswithonly effective by itself. A community mustgobeyondpainting lines. Coupling Researchers have also determined that merely painting crosswalks isnot professional requires signals pedestrian and evaluation. traffic of sequencing the when traffic is stopped in both directions. The decision on how to change the intersection. Inanother variation, pedestrians are only allowed to cross of configuration particular the on depending versa, vice or first, released different from thetiming for motorists.Insomecases,pedestrians are can beimproved by changing the sequence for pedestrians so that it is that theeffectivenessResearch alsoshows ofpedestriancrossingsignals result infeweraccidentsmanysituations. go at the same time. Research shows that this timing sequence does not that when the light turns green, both pedestrians and traffic are allowed to safety practices. Mostpedestrian crossing signals, for example, are set so Recent researchquestionstheeffectiveness ofmanycommonpedestrian thatare thesolutions and is complex, appropriate inonesituationmaynotworkanother. engineering Traffic solutions. Engineering: walking inthecommunity? Where do they congregate, and what problems do they experience when organizations.youth and citizens Finally,senior from input public for ask included in thecommunity safety program’s planning and implementation. were designed to handle. This is why school officials and parents must be they than traffic more far with clogged are zones School walk. 14% only school. Today, 46%are driven by parents, 40% ride the school bus and pedestrian safety problem.Fortyyearsago, 50%ofchildren walked to locate Crossing Guard stations. School zones have emerged as a significant Place school locations on themap, trace the walking routes to them and the roadway. are sidewalks needed, such asplaces where pedestrians have worn apathbythe side of that signs telltale for Look hazards. other and shrubbery identify issues, suchas missing or damaged sidewalks, overhanging Locate major walking routes. Itisagoodidea to walktheseroutesand where thespeedlimitwashigherjustbeforethese“slow”zones. less likely to obey lower residential and school zone speed limits on roads Mark speedlimits on themap,notingwheretheychange. Motoristsare • • Terrain isanotherfactor. Intersectionsondownhillgradesareproneto directions, particularlyatcertaintimesoftheyear. Sun glare is acontributing factor at intersections facing certain speeding whilethoseonuphillgradesarepronetosunglare. Armed with this information, study possible engineering CHAPTER 14 139 crosswalk. Work with the appropriate authority to engineer safe bus stops that do safe bus stops that engineer to authority the appropriate with Work not impede traffic. For example, place bus stops after the crosswalkin the see pedestrians motorists passing the bus from the rear can that so crosses the street in front of a stopped bus into the path of a passing car crosses the street in front of a stopped bus into the path of a passing pedestrian nor the motorist the neither often, Too from the rear. coming sees each other until it is too late. considered wherever possible. of pedestrian with high concentrations area bus stops are another Transit who involves a pedestrian accident The classic bus-related accidents. given to pedestrian circulation. Planning and Zoning Boards must be the be Boards must Zoning and Planning circulation. to pedestrian given town’s first line of defense against this practice. All parking lots should parking should be walkways and diagonal pedestrian marked have clearly Many pedestrian accidents occur in parking lots. Because the number the Because lots. parking in occur accidents Many pedestrian of parking spaces often limits try the to squeeze size in as of many parking a spaces as new possible with little building, thought developers Traffic calming can be especially effective if designed into Many intersections. curbs at the extending design stage, for example, the a project at extensions to slow traffic. communities have also retrofitted curb Traffic can also be slowed by visual treatments that appear to narrow the by This can be achieved this a “roadway diet.” call Engineers roadway. that a line or painting material color with a different shoulder the paving of the road. appears to narrow the traveled portion practiced as early as the late 1960s and early 70s in places like Berkeley, like Berkeley, 1960s and early 70s in places as early as the late practiced designed Oregon. Properly and Eugene, Washington Seattle, California, over 40%. speed tables can reduce accidents by have to contend with complicated vehicle turning movements. complicated vehicle turning movements. have to contend with “Traffic calming” involves physical measures to reduce traffic speedimprove safety to and In livability. the United States, “traffic calming” was Research also shows that properly engineered mid-block crosswalks are mid-block engineered properly that also shows Research of senior concentrations are substantial where there especially effective, citizens. The advantage of mid-block crossings is that pedestrians do not vehicles coming from the opposite direction before finishing their crossing their finishing before direction opposite the from coming vehicles as senior time, such pedestrians that need additional and gives slower wait safely until the next light cycle. citizens, a place to Serious consideration should be given to installing a pedestrian island or a pedestrian should be given to installing Serious consideration walkers can safely stop halfway across roads so that refuge for multi-lane check for to opportunity This allows pedestrians the the intersection. front of the stopped vehicle. One possible solution is placing the stop line is placing One possible solution stopped vehicle. front of the issue, an are threats multiple Where crosswalk. the before feet 20 least at Engineer. Traffic of a professional seek the assistance risk of pedestrian accidents unless other safety features are installed. The The are installed. features safety other unless accidents pedestrian risk of common one In threats. multiple to subject are pedestrians that is problem but the car cross, pedestrian lane stops to let a a car in the curb sequence, in from emerging pedestrian stop and hits the lane does not in the next Some studies have concluded that painting crosswalks at intersections intersections at crosswalks painting that concluded have studies Some the increase actually can direction in each lanes travel two or more with 140 CHAPTER 14 273 Gloucester Township. 272 271 270 269 268 267 2019 rics, 266 265 264 263 McMann, Marcy,Continuum The of Hope, Lawyer, New Jersey 2020 February Camden County implemented asimilar program, Operation helping Hand that was in2014by started Davidson, Executor Robert Director, Mental Health Association of Morris and Counties Essex Notably Morris and Bergen National Institute on Abuse, Drug May 2019 https://www.drugabuse.gov/opioid-summaries-by-state/new-jersey-opioid-summary https://injuryfacts.nsc.org/ Kerr, Zachary, et.A.,Concussion Incidence and Trends in20High Sports, School High Pediat School http://www.cdc.gov/concussion/HeadsUp/online_training.html https://injuryfacts.nsc.org/ The broader conceptknown is as “EnterpriseRisk Management.” should also be offered to senior citizens, both as drivers and as pedestrians. training Safety children. for programs educational conducts who Officer Education: permitted. and educational programsaremoreimportant where on-street parking is calming” “Traffic parking. off-street adequate without built were zones overnight parking onmunicipal streets because many olderresidential to beeffective. Unfortunately, somecommunities are unabletoprohibit will beblocked byparkedvehicles. These ordinancesmustbeenforced results inlessdaytime parking, reducing the riskthat a motorist’s vision report zones residential in substantially fewermid-block pedestrianaccidents. A nighttimebanalso parking on-street overnight ban that Towns at NJMEL.org. available is ordinance model traffic. A low-density with streets to trucks Jersey. Eachcommunity should adoptanordinancelimiting vending Ice cream vendingtrucksarealsorequired tohavestoparmsinNew offense tobetterensuremotoristcompliance. stop. Ignoring a stopped school bus must be treated as a very serious traffic strict enforcement is essential because children will assume motorists will effective in reducingthenumberofmotoriststhat fail to stop.However, Stop armsare now nearly universal on schoolbusesandhavebeen highly and and distracted asspeeding impaired driving. such laws, traffic enforcing strictly for addressing pedestriansafety. Your community should haveareputation Enforcement: issues visibility caused bysunglareatdifferent timesoftheyear. consider to critical also is It traffic. slow and visibility Engineer and Police Department todetermine what can be donetoimprove Each crossingstationshouldbeperiodically inspected by theMunicipal motorists andCrossingGuards. also occur at times when inclement weather restricts visibility for both danger of risk higher a due to losses in hearing, eyesight and general mobility. Many accidents at are who citizens senior are Guards Crossing accidents in which the Crossing Guardbecome the victim. ManySchool dangerous occupations in local government. There is ahighfrequency of The positionofSchoolCrossingGuardhasbecome one ofthemost PoliceDepartments oftenhaveaCommunityResource PoliceDepartments must takealeadership role in 275

- CHAPTER 14 141 - - • Finally, the municipality could consider investing in a Traffic Data Recorder which measures vol measures which Data Recorder in a Traffic investing consider could the municipality • Finally, onthe speed all traffic of the average they capture them, and deployed regularly speed. We and ume such consider, should municipality and Department a Police actions what determine help to roadway are The devices signage. and speed modifications limit changes, engineering speedas enforcement, $2,000. about at inexpensive fairly bulbs need replacing and document the request for them to be repaired. There are meters available to available meters are There be them to repaired. for the request document and need replacing bulbs crashes. serious the most did this for only we but well, as light ambient measure or trash any as well as vehicles parked improperly or unregistered abandon, • Survey for the area obstructed view. or a hazard create may that debris • Compare existing state law and/or local municipal code to ensure that the posted speed signs that limit code ensure local to municipal and/or law state existing • Compare a sign, a even that found often is It local or ordinance/regulation. law state by supported legal and are ago. years many Works Public installed was legal no by backing has speed sign, that limit in good condition. are crosswalks, and lines shoulder lines, center including paint, highway • Ensure streetlight if any determine to darkness at checked the area Have check. a streetlight • Complete • Check regulatory and traffic sign condition (speed limit, watch children, etc.) to ensure they are in they ensure to etc.) children, watch (speed limit, condition sign traffic and regulatory • Check condition. proper still are there. exist to supposed are signs that that to ensure ordinances and files • Review available The Gloucester Township New Jersey Police established a Safe Area Review (SAR) program that was was that ReviewArea program (SAR) a Safe established Police Jersey New Township Gloucester The The mind is similar to a computer and can process only so much data at one time. Even if you are not not are you if Even one time. at data much only so process can and a computer to similar is mind The implemented whenever there was a report of a pedestrian safety issue or a pedestrian accident. Some of of Some a pedestrian or accident. a pedestrian issue of safety a report was there whenever implemented included: components the major ample, research shows that a motorist on a cell phone tends to look only straight ahead and stops scanning scanning stops ahead and straight look only to tends a cell phone on a motorist that shows research ample, from incoming to fails see things often driver and the vision, of peripheral in loss the results This the road. literally because motorists dangerous more even is Texting car. pedestrian a another as or such the side, steeringwheel. of the off hands and their road the take their eyes off 275 274 cell a on while Talking driving. receives it the information all of process not can mind your distracted, ex For vehicle. a operate safely to impossible it makes and overload information into thebrain puts phone CHAPTER 15

LOCAL OFFICIALS ETHICS ACT

William Kearns, former Mayor of Willingboro and long-time Fund Attorney for the PMM and BURLCO JIFs, contributed much of this chapter. We would also like to thank the Local Finance Board of the N.J. Department of Community Affairs staff for all of their assistance in researching case studies. Webster’s defines ethics as “The discipline dealing with what is good and bad and with moral duty and obligation.” In government, there is the smell or gut test, meaning that if it feels wrong, it probably is. If you think something may be a conflict and do not have time to secure a legal opinion, it is best to recuse yourself from the matter. Both the Federal and State Governments have enacted criminal laws covering bribery and official misconduct. New Jersey has also enacted the Local Government Ethics Act that goes beyond the criminal statutes to cover conflicts of interest. When it enacted the Local Government Ethics Act, the Legislature declared that: “Governments have the duty both to provide their citizens with standards by which they may determine whether public duties are being faithfully performed and to apprise their officers and employees of the behavior which is expected of them while conducting their public duties.” 276 CHAPTER 15 143 281 A “direct A 283 277 280 282 278 284 279 expected to prejudice his independence of judgment in the exercise of exercise the in judgment of independence his prejudice to expected his official duties.” “No local government officer or employee be reasonably might which or not, compensated whether service shall undertake any or Specifically: “The spouse or dependent child of a local government officer or employee employee or officer government local a of child dependent or spouse “The residing in the same household.” “No local government officer or employee or member of his immediate family shall have an interest which is in substantial or professional activity any business, transaction in a business organization or of his duties in the public interest.” conflict with the proper discharge engage in employees to work at his supervisor’s house. The Mayor was sentenced to was sentenced The Mayor house. at his supervisor’s employees to work years. supervisor was sentenced to five three years and the position to push the DEP to grant an approval for a law client. He was for a law client. an approval to grant to push the DEP position to three years. sentenced authority assigned authority, utility a of foreman was also a who Mayor, A job if he would drop out and was sentenced to five years. to five sentenced and was drop out he would job if Another Mayor, who was also a powerful State Senator, used his official While running for re-election, a Mayor offered his opponent a governmental a governmental his opponent offered a Mayor for re-election, running While • • • cannot also be an employee of the town. Other Employment Other Governmental officers and employees are prohibited from other employment that is in conflict with official positions. For example, an official elected conflict” involves your own personal interests, while the concept of “indirect In variouscases, conflicts” the is courts broader. applied this restrictionthe to personal advantage and future gain.interests of family members, non-economic The Act also prohibits both “direct” and” indirect conflicts.” Note that this basic prohibition pertains to immediate family which is defined as: official’s both the public official and the Prohibitions Act provides that: The The Act covers anyone who is elected, employed or appointed. The Act The Act covers anyone who employed or appointed. is elected, The specifically pertains to “local government officersjurisdiction of the Local Finance Board….” or employees, under the Provisions of the Act Applicability investigate this matter, ruled that the relationship was too cozy, and the Mayor the and cozy, too was relationship the that ruled matter, this investigate result, a As business. outside this of because objectivity sufficient have not did the Mayor resigned. a Mayor who was in the business of selling uniforms stated on numerous stated uniforms selling business of the Mayor who was in a their “had and friend best Department’s Police was the he that occasions himself from union this obvious bias, he did not recuse backs.” Despite to retained town had Judge, who the Court Superior The retired negotiations. Even if not prosecuted, ethical lapses can end an official’s career. In one case, one In career. official’s an end can lapses ethical prosecuted, not if Even While rare, officials have been sent to jail for ethical lapses. For example: example: For lapses. ethical for jail to sent been have officials rare, While 144 CHAPTER 15 following exception: the added and constituents specific for cause a up taking from officials public prohibit to interpreted be could Act the that recognized also Legislature The personal interestwhenadopting thebudget. or indirectly. Therefore, one could argue that every Council Member has a business. Forexample, every Council member pays local taxes, either directly action, every in conflict potential and iftakentoanextreme,this Act wouldmakeitimpossibletoconduct a is there that recognizes provision This Other Exceptions totheAct in unionactivities. involved employees other represent to employees permits specifically law the to anyone,including engineers, architects, auditors andplanners.However, other parties representing from before any ofthe local unit’s boardsoragencies. employees This prohibition also applies and officials prohibits Act The Representing Parties BeforeBoardsandAgencies or incaucusyourprivateaffairs. or information use to officials In other words, youcannot use information that you learn in executive session public for legal only governmental servicesthataregenerallyavailabletomembersofthepublic. is it Act, the Under Using Information LearnedDuringOfficialDuties the localgovernmentofficerindischarge ofhisofficialduties.” believe that the contribution, if accepted, was given with the intent to influence contributions “if the local governmental officer has no knowledge or reason to The restriction against accepting things of value does not apply to political orother meals gifts, the tabandgetareceipt. notaccept may of portion your pay restaurant, or bar a at yourself find you If decisions. their employees entertainment if there is any inference that someone is attempting to influence and officials Public Gifts, MealsandOtherEntertainment Exceptions: thing of value is promised to, given to or accepted by the officer or a therefore.” or officer the by accepted or to member of his immediate family, whether directly or indirectly, given in return to, promised is value of thing inquiry forinformation on behalfof aconstituent if nofee,reward orother an making from prohibited be shall officer government local elected “No profession, occupationorgroup.” reasonably beexpectedtoaccrueanyothermember ofsuchbusiness, withthese profession, occupation or group,toanygreaterextent than anygain could inconflict be deemed provisions ifnogainaccrues to him as amember of anybusiness, shall officer government local “No • • • The law allows volunteer firefighters to serve as local elected officials This provisiondoesnotbarnepotism. councils. Board ofEducationemployees are alsopermitted to serveonmunicipal to volunteers. even thoughtheyaretechnically employees. This exception is limited 291 286 289

290 285 287 288

CHAPTER 15 145 and became the statute of choice statute the and became 293 Be very careful and talk to your local and talk Be very careful 292

Assume that whatever you say may be read to a jury. Assume that whatever you say may be read to a jury. government’s attorney, and not in restaurants or your personal business and not in restaurants attorney, government’s office. Record the meeting to be polite. temptation the Avoid if anything improper is suggested. and immediately break-off the discussion available through OPRA. from developers or others seeking advantages alone with meet Don’t you. It is best to meet in the officelocal orgovernment’s the office of the personal business or campaigns. for known is not commonly that information use governmental Don’t that is not good test is to avoid using any information A personal gain. Don’t use governmental equipment or vehicles for personal business, equipment use governmental Don’t campaigns. including volunteer activities or political work on your property, employees governmental that request Don’t official power is enough to establish criminal extortion. official power is enough to establish actually misused or even attempted to misuse the office. Although the other the Although office. the misuse to attempted even or misused actually party may not have received anything more than their due, the official’s acceptance of money or a benefit in return for the use or attempted use of The law also outlaws indirect payments or other tangle benefits to family, friends or campaigns. employee or official public the that prove to need not does government The The offense of extortion “under the color of official right” does not have to involve force or threat on the part of the public official. The coercive of the public office itself. element is provided by the existence • • • • • • • Other Cautions his consent, induced by wrongful use of actual or threatened force, violence or violence force, or threatened by wrongful use of actual his consent, induced federal a is “bribery” words, other In right.” official of color the under or fear, Act because it is considered extortion. crime under the Hobbs used against corrupt state and local officials local and state corrupt against used governmental corruption. for prosecutors investigating with another, from of property obtaining “the means “extortion” Act, Under the Hobbs Act (Extortion) in 1946, was Act, passed meant to prohibit certain strong-arm This Federal was regularly Act Hobbs the 1970s that the until was not It activities. labor the audience to object to the variance. the to to object audience the ethical issues. with the authority to review attorney government’s the After decision. recusal, officials and employees can represent themselves in one case, For example, entity. your public before in matters or their family within 200 feet because he lived recused himself Board Member who a Zoning from Board Zoning the before appear to was permitted property subject of the Cure for a Conflict of Interest Cure for the cure to a conflictNormally, of interest is to disclose it and not take part in The word “if” in this statement is important. As discussed earlier, a very a very earlier, discussed As is important. statement in this “if” word The it. ignoring to jail for went official elected powerful 146 CHAPTER 15 Hollander v. Watson (1979) Selected CaseLaw: Local FinanceBoardOpinion 92-011 (1992) Evans v. UnitedStates(1992) be influenced togivetheircolleaguespecial consideration. concerning the award, the other members of the governing body may still service isbeing awardedbybidandthe member recused from anything Decision: himself fromestablishingthe specificationsorconsideringtheaward. Local FinanceBoardifhecould submitabidtothetownsolongasherecused Facts: constitute afelony. transaction, and payments to other parties or campaign contributions still Comment: campaign contribution.” Hobbs Act regardlessofwhether thepayment is madeintheformofa power, official suchademand or acceptance does constitute a violation of the her or his of exercise specific for exchange in money accepts or Decision: check tothecampaignof$1,000. use. The Commissioner accepted a cash contribution of $7,000 and a assistance in an effort to rezone a 25-acre tract for high-density residential County Commissioner and offered a campaign contribution in return for Facts: very technical. Seek anattorney’s guidancebeforeproceedinginthesecases,astheyare Fire DistricttoserveasamemberofthatDistrict’s GoverningBody. Conversely, thestatute does notpermit a volunteer Chief inanIndependent Be very careful to recuse yourself whenever a matter impacts both entities. serving on the municipal council because that is also permitted by statute. JIFs. There isnoproblemwiththevolunteerChiefofaFireCompany Joint Insurance Fund becausethat is permitted by the statute that created there isnoproblem with yourepresenting your Agency ontheBoardofa Comment: interest, wrote: of conflicts on expert noted a agency.Pane, subordinate Michael a As of dual capacity where youmustsuperviseyourselfbyservingontheBoard college Board underthedoctrine of incompatibility. You cannot serve ina Decision: county college’s unpaidBoard. Facts: over theother.” duties of the offices clash requiring the officer to prefer one obligation subordinate to orsubject to supervisionorcontrol of theotheror is one when compatible not orinconsistency are offices Therefore, functions. their in isaconflict there when incompatible are “Offices An FBI Agent, posing as a real estate developer, called an elected Aappointed bytheBoardofFreeholdersto Freeholderwas Ain thedry-cleaning business askedthe CouncilMemberwhowas The BoardruledagainsttheCouncil Member. Eventhoughthe The U.S. Supreme Court ruled that “If a public official demands The Court ruled that the Freeholder could not serve on the Under the Hobbs Act, the official does not need to instigate the Aexample, statuteprovidesanexceptioninsomecases.For 294 296 295

CHAPTER 15 147 298 297 299

Undisclosed commission sharing arrangements in insurance sharing arrangements Undisclosed commission These situations are very fact sensitive. Let’s say you work work you say Let’s sensitive. fact very are situations These The Federal Appeals Court upheld the jury verdict and jail The Federal The Board ruled that the vote was legal. The Legislature The Legislature The Board ruled that the vote was legal. The New Jersey Supreme Court decided that this was legal but this was legal that Court decided Jersey Supreme New The The Board ruled that this would violate the Ethics Act. The Act. Ethics the violate would this that ruled Board The A Council Member worked for an auto supply company that had a an auto supply company worked for Council Member A A Planning Board Member with many years of experience was years of experience with many Member Planning Board A The Mayor’s Chief of Staff, who was also a member of the New New of the member a who was also of Staff, Chief Mayor’s The A Council Member, who was also an employee of the Board of an employee who was also Member, Council A The Mayor submitted an application to the Planning Board to to the Planning Board to an application The Mayor submitted Planning Board is an unpaid position. Facts: recently his was tie-breaker The vote. one by reappointment for confirmed elected wife, who argued that her vote was not a conflict because the criminal convictions. sentences against both the Assembly Member and the consultant. sentences against both the Comment: of number a in resulted have and time one at common were contracts paid part of the commissions by the national broker but did little real work. broker but did little national paid part of the commissions by the Member. Assembly the The consultant then shared the fee with Decision: Facts: to “consultant” insurance independent an assisted Assembly, Jersey State was consultant The broker. national large a for contracts insurance obtain Municipal Councils and can participate in all decisions unless there is in all decisions unless Municipal Councils and can participate applies to that individual. something in the budget that specially Education, voted on the revised school budget after it was defeated. Education, voted on the revised school Decision: specifically decided that Board Education of Employees can serve on Facts: Decision: cautioned that the Mayor must be very careful not to exert any up influence give must you that mean not does official elected an Being case. the on your right to develop property. Facts: himself from the deliberations. develop his own property and recused one firm over another, instead of issuing a separate bid. Purchasing System or by deciding to use the State Cooperative Decision: vendors for multiple often includes Purchasing System Cooperative State by selecting favoritism Therefore, the town is still showing a given item. contract through the State Cooperative Purchasing System. The member System. Purchasing Cooperative State the through contract parts auto purchase to municipality for his was permissible it if inquired from his firm. Facts: submit a bid for police cars so long as you recuse yourself. However, it However, yourself. you recuse as so long cars police for bid a submit would be a conflict if you worked for that dealer. This example attorney further entity’s your public with of talking importance the demonstrates participate in a matter. whether to before deciding Comment: to dealer local the for be a problem not It would company. auto for an Shapiro v. Mertz (2004) v. Shapiro United States v. Bradley (1999) United States v. Local Finance Board Opinion 95-001 (1995) Local Finance Board Opinion 95-001 Wyzykowski v. Rizas (1993) Rizas v. Wyzykowski Local Finance Board Opinion 92-015 (1992) Board Opinion Local Finance 148 CHAPTER 15 Horvath v. LocalFinanceBoard(2004) New JerseySuperior Court Appellate DecisionRe: Zisa(2008) Hughes v. Monmouth University(2007) Beacon HillFarmv. Marlboro (2006) of afamilymember. Even thoughunpaid,aCouncilMembermaynotvoteontheappointment the LocalOfficial’s Ethics Act. notrelevant. compensation is of Theissue Decision: the Mayor’s actions wereclearly overtheline. The Mayorthenappealed. that deciding after $200 Mayor the fined which Board, Finance Local the his business would beusingmanyofthe spaces. A though complaint was made to even interest of conflict a not was award the on vote his that the bid.Beforevoting Mayor wasadvisedbythemunicipal attorney Subsequently, the town advertised bidstopave the parking lot and awarded entered intoanagreement to leasesomeofthe spacesforhisbusiness. Facts: club thatopposedthemarina.Ethicsmattersarevery factsensitive. application from amarina because they belonged to aneighboring boat determined that members of thePlanningBoard could notsitinonan Comment: create aconflict. Decision: college libraryexpansioneventhoughtheywerealumni. Facts: matter duringitsentirelifecycle. recuse yourself, youmust not have involvement with any aspect of the your presence may influence the other Board Members. Further, once you must alsoleavetheroomevenifBoardisinPublicSessionbecause Closed Session,youmustleave the room. Undersomecircumstances, you yourself, youmustleave the table, and ifthematter is beingdiscussedin recuse you If unethical. were actions President’s Council The Decision: Council on interestedparties. the amendment, functions, including directing debate, Codecontrolling the meeting and calling Zoning a President recusedhimselfbutcontinued to sit atthedaisandperformhis considering While Facts: Council Membersvotedtoconfirmtheappointment. husband couldremain on theBoardwithouthiswife’s voteifenoughother without herfather’s appointment.Inthe is thatin Comment: that effect. wanted to outlaw nepotism, it could have adopted a specific prohibition to Decision: law tobetheMunicipal Attorney. brother-in- his nominated also He confirmation. Council require not did Facts: Several Zoning BoardMembersvotedtoapproveacontroversial A townpurchasedlandforaparking lot. The Mayorthen A Mayorappointed his daughtertoa Planning Boardpositionthat The Courtruledthattherewasnotenoughofaconnection to The Office of Administrative Law decided that if the Legislature The Courtruledthatthespouse’s votewasclearly a violation of Horvath Contrastthisdecisionwithanothercasewherethe Court The difference between the , hisdaughtercouldnotserveonthePlanning Board 301 300 302 Horvath Shapiro and case,however, the Shapiro 303 decisions CHAPTER 15 149 304 This prohibition does not extend to family members. As members. to family not extend does This prohibition The fact that someone is a “friend” does not necessarily create does not necessarily someone is a “friend” that The fact The Appellate Court ruled that absent any indication of collusion, collusion, of indication any absent that ruled Court Appellate The There is nothing wrong, per se, with the Mayor using the town There is nothing wrong, As an elected official, you may not be an employee of the The Mayor and his wife were convicted of extortion, and of extortion, and his wife were convicted The Mayor The Mayor participated in a decision to award a consulting contract contract consulting a award to decision a in Mayor participated The The town was having a referendum on combining the Planning and Planning the combining on referendum a was having town The A member of the Municipal Council was also employed as the as employed was also Council Municipal the of member A The Mayor and his wife, who also served on the Planning Board, on the Planning Board, who also served and his wife, The Mayor Facts: a very active and remained to the university from which he graduated alumnus and supporter. the referendum,” that crossed the line into campaigning. It is illegal to use It is illegal the referendum,” that crossed the line into campaigning. public resources in campaigns. Decision: uses Mayor the once However, referendum. the explain to newsletter in yes “vote or proposal,” this support to you urge “I as such statements Facts: in the the measure residents to vote for Mayor urged The Zoning Boards. by the town. town newsletter which was paid for attorney with the responsibility for ethical matters. attorney with the responsibility for indicated in the Horvath decision, if the Legislature intended to outlaw intended Legislature if the Horvath decision, the in indicated about you must be very careful nepotism, it would have done so. However, member. your family impacts that in anything or participating voting This is another example of where you should talk to your organization’s municipality or an authority controlled by that municipality. The only exception by that municipality. municipality or an authority controlled considered an employee. is a volunteer first responder who is technically Comment: Facts: Planning Board Secretary. town’s Decision: other favors, it is best to recuse yourself from any matter involving the friend. from any matter involving the friend.other favors, it is best to recuse yourself Hobbs Act. Hobbs Comment: involves extensive gift-giving or if the relationship a problem. However, government did not have to prove a direct connection between the “gifts” have to prove a direct connection government did not and the official acts. benefits”The overmere time fact that is sufficientthere to establish had a been a criminal “stream of violation of the the Planning Board heard the application. the Planning Board Decision: The Court ruled that the four years in federal prison. the Mayor served were exchanged, including some from the sisters to the Mayor’s wife the Mayor’s to sisters the from some including exchanged, were that were quite expensive. When the sisters filed the building inspector and with the Mayor interceded Planning Board, an application to the other officials. Neither the Mayor nor his wife recused themselves when became close to two sisters who owned several bars in town. After the bars in town. several sisters who owned close to two became sisters experienced difficulties with onegifts few years, next the Over wife. Mayor’s the befriended intentionally of their liquor licenses, they attorney qualified the Mayor for the “Safe Harbor” defense. defense. Harbor” the “Safe Mayor for the qualified attorney Facts: Decision: Decision: municipal of the the advice received and requested the Mayor that the fact Local Finance Board Opinion 12-030 (2012) Local Finance Board Opinion 11-146 (2011) Local Finance Board Opinion 11-146 Local Finance Board Opinion 11-073 (2011) Local Finance Board Opinion 11-073 United States v. Donna (2010) v. United States 150 CHAPTER 15 Local FinanceBoardOpinion12-037(2012) Local FinanceBoardOpinion 12-013(2013) Local FinanceBoardOpinion13-009(2013) Local FinanceBoardOpinion12-093(2012) of more than 10% of the profits or stock of a business organization but organization business shall a not include of the control of stock assets in a or non-profit entityprofits or labor union.” the of 10% than more of ownership “the as “interest” defines law university.The the in “interest” Decision: anything other thanofficialgovernment business. Decision: bottom. expense ofthecampaign and hadtheproper“paidfor”statement at the to endorse a candidate for Congress. The letter was reproduced at the Facts: There isaveryfinelinebetweenmakingan“inquiry” and“interceding.” Comment: influence. Thatisa verytrickycall. Council Memberisnotpaidtorepresentanyoneand does notexertundue constituents, including business associates and contributors, solongasthe the Act, however, aCouncil Member mayinquireaboutmatters involving Member alsothreatened to eliminate the Administrator’s position.Under very nastysituationthatbecamepersonal,totheextent thattheCouncil Decision: to stopinterferingbutignoredtherequest. political contributions. HewasaskedbythetownBusiness Administrator behalf of construction companies that had business with him and gave him Facts: onlya represented policies small portionoftheMayor’s thecontractor’s commissions. that fact the by influenced that there wasnofavoritism in the award. The Board’s decision was also contractor did workforthetownbefore Mayor waselected suggests Decision: insurance fromtheMayorafterwaselected. worked forthetownmanyyears. The serviceonlystartedpurchasing Facts: campaigns. or charities or public either for contributions letterhead soliciting official when resources use however, cannot, You contributions. Comment: “quid proquo.” a implicationof no thereis as long so town the for work thatdo firms and Decision: firms thatdidworkforthetown.Henotuseofficialstationery in letters sentat his expense,requested contributions to individuals and Facts: A CouncilMemberofteninquired about thestatusofapprovalson The Mayor’s agencyprovidedinsurancetoalawnservicethat The Mayor usedthe title “Mayor” in solicitations for a charity, and The Council President used one sheet of official town stationery town official of sheet one used President Council The You may not use even the image of official stationery for stationery official of image the even use not may You The Board ruled in favor of the Council Member. This was a The Boardruledinfavor oftheMayor. The factthatthe Itislegal to useyourtitle and solicit donations from individuals havean not does Mayor the because conflict no is There The factsinthiscasecomeclosetoaHobbs Act violation. You can also useyourtitle when soliciting campaign .

CHAPTER 15 151 move into the proposed the into move might 305 This would be legal if the Council Member were not an if the Council This would be legal If this were a conflict, at least half of the people appointed in You cannot use anything funded by the taxpayers in your your in taxpayers the by funded anything use cannot You The New Jersey Supreme Court ruled that the Mayor did not Mayor did the that ruled Court New Jersey Supreme The The testimony was legal. The key caveats are that the Deputy The testimony was legal. This was not legal due to the Council Member’s position as the position Member’s Council the to due legal This was not This appointment was legal. Simply because someone was Simply because was legal. appointment This During the hearing for an application to build a senior citizen home, citizen senior a build to application an for hearing the During The Deputy Mayor testified before the Landmark and Historic A Council Member voted on a matter involving the non-profit A Council Member voted to appoint his Campaign Manager to a to Manager his Campaign appoint to voted Member Council A adjacent to the proposed senior center. The Mayor’s vote was, therefore, a vote was, therefore, The Mayor’s to the proposed senior center. adjacent conflict because of his relationship with the church. Decision: have a conflict merely because his mother the Mayor was also a Board Member of a church However, senior center. Facts: for be a good place this might a storm when he said that Mayor created the his mother to live. Landmark Committee could not be appealed to the Governing Body. appealed to the Governing Body. Landmark Committee could not be of the Committee could not be appealed to the municipal Governing Body. Governing Body. to the municipal could not be appealed of the Committee Decision: of decisions the and application, interest in the Mayor had no personal Facts: in support of an administration of the on behalf Committee Preservation The district. historic the sign in a install to permission seeking applicant decisions the and application the in interest no personal had Mayor Deputy discussions concerning any organization you are connected with. discussions concerning any organization Comment: seek should you why of example another is This non-profit. the of officer in attorney before participating the advice of your local government’s of the public. Decision: President of the League. Police Athletic League (PAL) that oversaw some of the town’s athletic town’s of the some oversaw that (PAL) League Athletic Police President, there was While the Council Member was also the PAL events. to all members teams were open no hint of personal gain, and the athletic Facts: them in any paid or unpaid municipal position. them in any paid or Comment: would be disqualified. municipal government vacant position on the town’s Utility Board. the town’s vacant position on Decision: confirming or appointing from you bar not does campaign your in involved Facts: of paper seems like a small matter, your opponents will have a field day in in day field a have will opponents your matter, small a like seems paper of anyone if fine a to yourself exposing are you and expense, your at press the of use illegal constitutes What Board. Finance Local the to complains interpreted. is very broadly public resources Comment: one sheet While matter. doesn’t of paper or a ream sheet - one campaigns Grabowsky v Montclair (2015) Grabowsky v Montclair Local Finance Board Opinion 11-088 (2015) Local Finance Board Opinion 11-088 Local Finance Board Opinion 13-014 (2015) Local Finance Board Local Finance Board Opinion 14-008 (2014) Board Opinion Local Finance 152 CHAPTER 15 for this“SafeHarbor”defense: attorney, aslongtheattorneyisnotincollusionwithyou. are officials local eligible for a“SafeHarbor” defensewhenacting under theadvice of an circumstances, some under that remember to critical is It Conclusion 306 305 304 303 302 301 300 299 298 297 296 295 294 293 292 291 290 289 288 287 286 285 284 283 282 281 280 279 278 277 276 occurred. mustbe theaction and prospective. The Boardcannotissueanopiniononactionthathasalready representative, authorized specifically individual’s request mustcomefromtheindividual contemplating the futureact, or that The Board. Finance Local the from Opinion confidential Advisory a request In additiontoconsultingyourlocalgovernment’s attorney, youmayalso

A-3219-04T5 (2006) Allen v. Toms RiverRegionalBOE 221 N.J.536(2015) 366 F. App’x 441(3dCir. 2010) 394 N.J.Super. 193(2007) Not Reportedin A.2d (2006) OAL DKT. NO.CFB1506-04(2004) 368 N.J.Super. 46(2004) 173 F.3d 225(3dCir. 1999) 132 N.J.509(1993) 504 U.S.255,265(1992) Local FinanceOpinions92-004&93-019(2005) 167 N.J.Super. 588(1979) Fleissner, James,Prosecuting PublicOfficialsUndertheHobbs Act,1985 Murtagh v. ParkRidge N.J.S.A. 40A:9-22.5j N.J.S.A. 40A:9-22.5i N.J.S.A. 40A:9-22.5h N.J.S.A. 40A:9-22.5g N.J.S.A. 40A:9-22.5f Horvath v. LocalFinanceBoard N.J.S.A. 40A:9-22.5e N.J.S.A. 40A:9-22.5d N.J.S.A. 40A:9-22.3i N.J.S.A. 40A:9-22.5a N.J.S.A. 40A:9-22.5 Unreported decision N.Y. Times, “Ex-LeaderofNewJerseySenateisGuiltyCorruption.”September 16,2006 State v. Lake N.J.S.A. 40A:9-22.2d Re: Zisa • • • • The individualcompliedwiththeadvice,includingallrestrictions. and circumstances. The individual seeking advice made full disclosure of all pertinent facts is notsufficient. with regard to ethical issues. Relying on yourpersonal attorney or a friend The individual who offered the advice possessed authority or responsibility The advicemustbereceivedpriortoyouraction. A-3219-04T5 (2006) A-3219-04T5 (2009)

NotReportedin A.2d (2006) OAL DKT. NO.CFB1506-04(2004) 233N.J.Super. 642(1989) 306 To be eligible CHAPTER 16

OPEN PUBLIC MEETINGS ACT

The first law that opened local meetings in New Jersey was adopted in 1960 and was widely criticized because it only focused on meetings where official action was taken. There was bi-partisan support to further open government to the public during the early 1970s. In his report, “New Jersey’s Right to Know: A report on Open Government (1974),” Attorney General George Kugler argued that decisions are really made in so-called “workshop meetings.” To correct this problem, Assemblyman Byron Beer introduced today’s Open Public Meetings Act (OPMA) 307, which was signed into law by Governor Brendon Byrne in 1975. Governor Byrne wrote, “Public bodies exist for the public’s convenience, not their own.” Basic Provisions: What Constitutes a Public Body? A “Public Body” is an organization created under New Jersey law that performs governmental functions or spends public funds, not including the judicial branch, a jury, a parole board, the State Commission of Investigation, the Apportionment Commission or any regular political party.” 308 Comment: A meeting between newly elected officials who have not yet taken office may be considered as a de facto public body if they discuss their plans for future public action. While these meetings may qualify as a partisan “caucus,” this exception does not apply to non-partisan public bodies, even if voting members belong to a political party. 154 CHAPTER 16 What constitutesameeting? meeting. are strictlylimited toissuesthatqualifyfor“closedsession” All meetings must be advertised, and notices posted, except for meetings that Notice with theintenttodiscussoractuponbusinessof“publicbody.” A “meeting” is any gathering ofthe quorum of any “voting body” held Comments: The followingarenotconsideredtobemeetings: Comments: • • • • • • • • • • • must complywiththenotice requirementsforthenewmeeting. If ameeting is recessedoradjournedtoanotherdate, thePublicBody an emergency meeting. taking action that would save$570,000wasnot adequate rationale for circumstances, such ashealth and safety. Inonecase,aCourtheldthat An emergency meeting should onlybeheldforcompelling act tomisleadthepublic. included all business knownat the time, and the public body didnot is required if the agenda is changed, so long as the original agenda Once the Public Bodygivesnotice with its agenda, no further notice members. require copies of the supportive materials usually provided to the The noticeonlyrequiresalistofitemstobediscussed anddoesnot newspaper failedtopublishthenotice. hours before a meeting, the public entity can still proceed even if the 48 than more newspapers official the to given be must notice While requirements ofaregularmeeting. business, andthese electronic “meetings” must still meet all the notice bodies are now frequently using electronic communications to conduct A meetingdoesnotneedtobein-personrequirenotice.Public coffee” afterameeting and continue the discussionofpublic business. for members ofagoverningbodyorboard togooutfora“cupof take place, suchasaFireDepartment awards dinner. Itisnotlegal Meetings orgatheringswherediscussiononpublicbusinesswillnot there isnodiscussionoractionasaunit. Informal polling of members by the attorney or manager, so long as arenot who subordinates and empowered tovote. official public a between Meetings without anypowertovote. Ad hoc groups consisting of several members of variouspublic bodies Gatherings ofthreeormoresimilarorganizations. 311 The noticemustconformtothestatute.

310 oranemergency 309

CHAPTER 16 155 313 312 appoint a Director of Public Safety instead of a Police Chief. session,” it may not act. must Votes take place in to explain the reasons for the action as this would no requirement public. There is circumvent the purpose of discussing the matter in closed session. where life The “public safety” exception is meant to cover situations or property could be jeopardized if information is released. It should not cover policy discussions, such as whether a municipality does The resolution to enter “closed session” can be verbal but must include The resolution to enter “closed enough detail to justify “closing” the “to by OPMA,” or, exempted discuss any matter “to meeting. say, merely to It is not sufficient privilege.” discuss matters falling within attorney-client to discuss public business in “closed a Public Body is permitted While • • • party bears responsibility.” Comments: may result in the imposition of a specific civil penalty upon the responding the upon penalty civil specific a of imposition the in result may belonging to the or permit a license party or the suspension or loss of or omission for which the responding responding party as a result of an act appointees whose rights could be adversely affected request in writing that affected appointees whose rights could be adversely a public meeting; the matter or matters be discussed at that hearing public a after occurring body public a of Deliberations (9) performance of, promotion, or employed disciplining employee or officer public current or of employee or officer public any specific prospective employees or unless all the individual or appointed by the public body, is required in order for the attorney to exercise his ethical duties as a lawyer; is required in order for the attorney to of termination appointment, (8) Matters involving the employment, of the evaluation of employment, terms and conditions employment, investigations of violations of the law; investigations of violations or matters negotiation or contract litigation (7) Pending or anticipated falling within the attorney-client privilege, to the extent that confidentiality public funds, if public discussion could adversely affect the public interest; discussion could adversely affect public funds, if public (6) Tactics and techniques utilized in or protection, that impair could if disclosure public of the property protecting the safety and public (4) Collective bargaining agreements, including the negotiations with the negotiations agreements, including bargaining (4) Collective units; bargaining of or investment property, of real or acquisition The purchase, lease, (5) (3) Material that if disclosed would constitute an unwarranted invasion of unwarranted an would constitute that if disclosed (3) Material individual privacy; State statute, or rule of court; State statute, of receipt the would impair public the to released if which (2) Matters the US Government; funds from “(1) Matters which are confidentialby express provision of federal law, appropriate notice, the meeting may only be “closed” to discuss certain matters matters certain discuss to “closed” be only may meeting the notice, appropriate statute: under the that are specified Permitted Matters for Closed Sessions Closed for Matters Permitted the reading After session.” in “open must begin Act, all meetings the Under 156 CHAPTER 16 Minutes difficult tomanage anygovernmenteffectively. under some circumstances, personal liability. Discord also makes it more involved ingovernment. The lackof decorumalsoleadstolawsuitsand, The problem is that the lack of civility discourages people from becoming that waskeptinfrontofthe PresidingOfficerforeveryonetosee. lengths plus one foot. Early Sergeants at Arms maintained order with the mace distance between the frontbenchesintheHouseofCommonsistwo sword years, butpolitics has always beenroughandtumble. Forexample, the There isageneralsensethatpolitics have become especially nasty inrecent Decorum Public Participation provision totheRutgersBoardofGovernors. governing bodies. The New JerseySupreme Court declined to extend this This requirement is limited to Boards of Education and municipal Comments: may beofconcerntotheresidentsmunicipality or schooldistrict.” any governmentalorschooldistrictissuethatamember ofthepublicfeels municipal governingbodyorboardofeducation,for publiccommenton or boardofeducation,thelengthportiontobedeterminedby to setasideaportionofeverymeeting of the municipal governing body “…..a municipal governing body and a board of education shall be required Comments: promptly availabletothepublic….” information required tobeshownintheminutesbylaw, whichshallbe considered, the actions taken, thevoteofeach member, andanyother meetings showing the time and place, the members present, the subjects “Each public body shallkeepreasonably comprehensible minutes of all • • • • • from anysessionwherethematterisdiscussed(SeeChapter14). excluded be may member body, that public the of member a by filed If thependingoranticipated litigation against the public body was in 45days. overruled an Appellate Court’s requirement that minutes be available but unreasonable was months five that found Court Supreme Jersey for entities thatmeetinfrequently. Forexample, in 2018,theNew approved atthefollowingmeeting.However, thisbecomes aproblem Generally, the Courts have held that minutes should becompleted and There is nohardandfastruleofwhatconstitutes “promptly available.” what tookplaceandthefinalaction,notaverbatimrecord. “Reasonably comprehensible” means that the minutes must include should beredactedasneededbutmustreleasedifrequested. Minutes must be taken at all times. The minutes of closed sessions included inthischapter’s SelectedCaseLaw. to requirement adversely impacted employees in notice the clarified Court Supreme Jersey New The 316

315 Rice v. UnionCounty BOE 318

, 317 its 314

CHAPTER 16 157 Besler v. BOE v. Besler White v. Norwalk, v. White discussed in Chapter 6, Chapter in discussed 319 decision is that local government cannot decision is that local government cannot White 321 that provided: 320 in a constitutionally permissible purpose.” “A public body may control its proceedings in a content-neutral manner manner in a content-neutral public body may control its proceedings “A by stopping a speaker who is disruptive or who fails to keep to the subject has the or a school board, however, government The agenda. on the matter was done forum public in a of speech restriction its burden of showing that a speaker may not be stopped from speaking because the moderator because speaking a speaker may not be stopped from may the speaker is expressing, it certainly disagrees with the viewpoint or repetitious.” stop him if his speech becomes irrelevant “In dealing with agenda items, While hand…. at subject the to speakers restricts when it amendment the Council does not violate the first impedes the orderly conduct of any council meeting shall, at the discretion council meeting impedes the orderly conduct of any further from barred be Council, the of majority a or officer presiding the of that meeting.” audience before the Council during “Each person who addresses the Council shall not make personal, not make shall Council person who addresses the “Each such Any person who makes remarks…. slanderous or profane impertinent, personal or abusive language, remarks, or who utters loud, threatening, conduct which disturbs or otherwise or engages in any other disorderly Al Falah Center v. Township of Bridgewater of Township v. Center Falah Al In 2010, the New Jersey Supreme Court applied this principle in principle this applied Court Supreme New Jersey the 2010, In Windsor-Plainsboro: West of The key to understanding the conduct regulate can it circumstances, some under but, se, per speech, regulate that impedes the process of government. The Court also held that: The U.S. Court of Appeals upheld an ordinance in 1989 in an ordinance Appeals upheld of Court U.S. The California where government can exercise broad control over speech. Local government Local over speech. broad control can exercise where government The that fall somewhere in between. forms” public meetings are “limited to conduct. that government has business Supreme Court recognizes The United States Supreme Court has created a series of rules based on the a series Court has created States Supreme United The such public forums,” At one extreme are “traditional nature of the forum. is broadly protest to speak and right the corners or parks, where as street bases, such as military forums,” “nonpublic are extreme other At the protected. like this, the public needs to understand that if the meeting starts to focus on to starts meeting the if that understand to needs public this, the like Courts and the by made be could decision the discriminatory, are that things not by the town. animus towards a group or fear, unsubstantiated by factors which are properly properly are factors which by unsubstantiated group or fear, a towards animus cognizable in zoning proceedings may constitute zoning ordinance to sufficientfail under an evidenceequal protection challenge.” forIn a situation a the mosque, and the Township’s insurer paid the mosque’s $5 million legal $5 million mosque’s the paid insurer Township’s the and mosque, the the that fact was the decision Court’s in the Federal factor An important bill. then moved the Council and how quickly ugly, was especially hearing public “Bare that wrote Court The filed. was application the after zone the change to In for property another purchase to $2.5 million to pay ordered was the town 158 CHAPTER 16 awarded damages. The Boardappealed. was cutoff bythePresident.Hesued,andajuryagreed with thespeakerand and argument same the to returned again he recognized, was parent the when about pendinglitigation or otherwiserepeatthemselves. A fewminuteslater, President readastatement that speakersshouldnotattack individuals,talk Board the Finally, personally. coach the criticized and case the about spoke he meetings, consecutive eight For lawsuit. a filed he response, satisfactory basketball team. When theparentdidn’t receive what heconsideredtobea In thiscase,aparentcomplained that acoachusedprofanitywithgirls’ Maintaining Decorum decorum issues,butnotimpossible. with deal to difficult more it makes government local on proof of burden the Board was singling out this particular speaker. The fact that New Jerseyplaces the that conclude could juror reasonable a recognized, be to was speaker this The CourtheldthatbecausetheBoardestablished its decorumrulesjustbefore that itsactionswerereasonable. the burdenofproofwasonBoardtoshow The New JerseySupreme Court ruled that this was a jury question and that • • • • • • • who violates thedecorum rules. You should always call a recess before asking the police to talk to someone and youcan regain control without having totake more formal action. privileged and proceedswithout debate.Coolerheadswill oftenprevail, Call forashort recesswhenthingsaregetting outofhand. This motionis Do notattempt to shoutdownaspeaker, whichonlyescalates the situation. on therecordandcannotbe redacted. You canalsoremindeveryone thatwhatevertheysaywillbepermanently reasonable people can cometodifferent conclusionswiththesamefacts.” expression that may helpcalm adiscussion is,“Thisisasituation where that appear to be judgmental. Try toappear as neutral as possible.One maintain eye contactwiththespeakerandavoidcomments orexpressions Be careful of your body language when youare presiding. It is best to questions afterthemeeting. Chairs, and, depending on the circumstances, you can offer to answer questions that require follow-uptotheManager, Attorney orCommittee the from argument an into dais. You gets arenotobligated to answerorrespondanyquestions.Defer Officer Presiding the if hand of out get Avoid getting into a debate with the public. The meeting will quickly they knowthatthemeetingwillendataspecifictime. vote. Both Council Members and the public become more succinct when certain hour unlessthebylawsaresuspended,whichrequiresatwo-thirds Establish ameetingcurfewsothattheautomatically endsata “open” portionofthemeeting. Establish reasonabletime-limits for speakersbothathearingsandthe order forthingsthatyoursupportersareallowedtogetawaywith. Consistent enforcement is critical. You cannot call your opponentsoutof in theResourcesSection. to sufficient ordinance with somebasicguidelines on decorum. A was modelisavailable it 80s, and 1970s use “Robert’s the RulesofOrder.” Today, In youshouldadoptaresolutionor them. enforce consistently and meeting reorganization the at protocols establish is do must Officer The most critical thing a Mayor, School Board President or other Presiding CHAPTER 16 159 that a that 322 : private citizens also have some First New York Times v. Sullivan v. Times York New 323 Sullivan The restrictions must be “(i) justified as reasonable reasonable as justified “(i) be must restrictions The 324 during the course of performing an arrest, traffic stop or truck inspection. Recording hazardous or dangerous property conditions. not open to public access, so long as the person recording or the recording not open to public access, so long as closed areas. equipment itself does not trespass into officers as such areas, closed of outside activities enforcement law Recording Recording public officials and employees while they are in areas of public of areas in are they while employees and officials public Recording open to the public. buildings and public spaces that are Recording public officials and public employees while they are in areas Recording public officials or employees at traditional public forums, such forums, public traditional at employees or officials public Recording forums, such as at public public as parks and public streets and in limited meeting rooms. “Our Free Society must give breathing room for an uninhabited and robust and uninhabited for an room breathing give must Society “Our Free and caustic vehement, includes when it issues, even discussion of public officials.” public and government in attacks sharp unpleasantly sometimes reputation of that person.” reputation “The act of communicating false statements about a person that injure the about a person false statements of communicating “The act • • • • • speech; (ii) narrowly tailored to serve a significant government interest; and of the channels for communication alternative open ample must leave (iii) information.” Limitations: The right to record and film is subject to reasonable time, place, and manner restrictions. of the to the content without reference restrictions and manner place, time, restrictions. The right to film or record exists when: Amendment rights to record public officials and employeesperforming their and semi-public This includes the right to enter public areas of public duties. employees performing their duties. buildings or property to record government manner and place time, to reasonable and is subject absolute is not This right Right to Record and Film and New Jersey law, Under Federal filing defamation lawsuits, as you will probably lose and may be countersued. countersued. be may and lose probably will you as lawsuits, defamation filing ruled in As the Supreme Court public official who alleges defamation must also prove actual malice in order to order in malice actual prove also must defamation alleges who official public In other words, recover damages. show you must are suing that the person you truth, of the disregard of reckless was guilty was false or statement knew the which is a very tough standard. Political figures must be very careful before is far more difficult for a public official to prevail in a defamation case than a public. member of the general in ruled Court Supreme the 1964, In Despite all of the nasty It lawsuits. defamation about hear you rarely other, each say about politicians things that citizens say about politicians, or that Local officials must also be knowledgeable about what constitutes defamation. defamation. constitutes what about knowledgeable be also must officials Local as: defamation defines Webster’s Defamation 160 CHAPTER 16 The righttofilmorrecordhasbeenfound system ofgovernmentidentification scancards. implement security sign-in,video surveillance, fencing, additional locks anda review institutional security, signage and other safeguards. Where necessary, The Litigation Risk Committee should workwith the Safety Committee to with a“defianttrespass”disorderly persons’ offense. harassment may be removed from government property by police and charged Anyone who engages in threats of physical violence or a significant pattern of physical violence, the employee should immediately contact law enforcement. with the Auditor. Ifthe Auditor engagesinphysicalcontactorthreatsof to refrain from engaging in anyphysical contact or verbal confrontation The first priority is the protection of employees. Personnel must be instructed The policyshouldprovidethat: site reviewofeachfacilitytodeterminesecurityvulnerabilities. in theResourcesSection. The Committee should alsoarrangeforaperiodic record governmental facilities and field activities. A model policy is available Each local government should adoptawritten policy to addresstheright Litigation RiskCommittee recordings withcommentsthatdemeanorcriticizethepublicemployees. language. Many of the videos are posted online. They may also audio dub the the Auditors can be unnerving, and on occasion, they may use foul and abusive Amendment Auditors” oftenrefusetoanswer. The attitude anddemeanor of process the that mustbefollowed. When publicemployeesaskquestions, the“First and records government official accessing about ask may They facility. They will question employees, asking for their name and position. protected areas and enter the public area while recording the operations at the facilities, video the parking lot, check for signstodetermine if they can enter Amendment rights. Forexample, representatives will showupatgovernment record governmental facilities or employees to test their compliance with First First Amendment Audits: • • • • safety andsecurityriskssuchasjails,holdingcellsorbathrooms. legitimate poses that public the to open generally not areas filming While reasonable time,placeandmannerrestrictions.” certain by limited be may and unqualified, and absolute not is right this performing their jobfunctionswithintheseareasopentothe public. However, employees and officials public recording of purpose the for right toenter and access areasofpublic property that are opentothepublic right of access to certain government information. This includes a citizen’s First a have citizens that recognizes Amendment unit) local of (type “The citizens forcommercialresalewithoutapermit. private of photography restricting or prohibiting ordinance an Violating Recording apoliceconversationwithconfidentialinformant. in, orinterfereswith,aninvestigation. When the recorder interferes with the official’s performance of their duties A social movement has emerged whereactivists not toexist: 325 326 CHAPTER 16 161 327 329 328 330 Not every interruption constitutes a criminal disruption. This case was highly unusual because the defendant acted as acted defendant the unusual because was highly This case The New Jersey Appellate Court ruled that merely being merely Court ruled that Appellate The New Jersey A jury awarded the now ex-Mayor punitive damages of damages punitive now ex-Mayor the awarded jury A The Court ruled that “The Board regulations restricting public The Court ruled that “The Board regulations restricting The New Jersey Supreme Court ruled that public entities must entities public that Court ruled Supreme New Jersey The A citizen was A told on numerous occasions to stop interjecting into A candidate for Mayor created a newspaper to attack the incumbent the incumbent a newspaper to attack for Mayor created candidate A An apartment owner was ejected from the Rent Control Board on Board Control Rent the from ejected owner was An apartment When the budget was defeated by the voters, the Board determined Board determined by the voters, the was defeated When the budget Court wrote that the speaker’s “conduct may have been rude and excessive, “conduct Court wrote that the speaker’s but it was not criminal.” Comment: disorderly person. He then sued for malicious prosecution. Decision: The per se. offense, was not a criminal meeting a council at disorderly Facts: The speaker continued and was escorted the regular Council discussion. a being with charged He was later resistance. without room of the out his own lawyer. The consensus is that the case would probably have been is that The consensus his own lawyer. properly represented. thrown out if the defendant had been Decision: Appeals Court upheld the award. $200,000, and the Comment: wrote that the Mayor was using tax dollars for his home in Florida. The dollars for his home in Florida. wrote that the Mayor was using tax the Thinking for defamation. newspaper tycoon would-be Mayor sued the himself. case frivolous, the defendant represented Facts: that contend and “facts” two or one would take he paper, this In Mayor. he falsely in one story, example, these “facts” proved corruption. For kind of reasonable time, place and manner restrictions that preserve a preserve that restrictions manner and place time, of reasonable kind interest in conducting efficient and orderly meetings.” legitimate board’s other speakers. Decision: are the meeting at the end of each per item to three minutes commentary a number of occasions for trying to speak at various times throughout times various at speak to trying for occasions of number a the meeting to the end of comment limiting that He argued the meeting. actually were resolutions when the views his share not could he that meant and Board the heckled often who gadfly true a also was He decided. being Facts: negatively impacts them in “closed session.” This is referred to as a them in “closed session.” impacts negatively must then be employees elect, the matter If all impacted “Rice Notice.” do not have a right employees impacted The session.” discussed in “open session.” to attend the “closed they could request the discussion take place in “open session.” in “open session.” take place request the discussion they could Decision: that Public Body will discuss a matter employees whenever the notice went back into “open” and adopted a resolution with the specific names to names specific the with resolution a adopted and “open” into back went the overturning writ prerogative a requested One teacher terminated. be that notice advanced were not given teachers the that on the grounds action Facts: the Board a “closed session,” After 17 positions. eliminate that it must State v. Charzewski (2002) State v. Newman v. Delahunity (1996) Newman v. Kindt v. Santa Monica (1995) Santa Monica Kindt v. Rice v. Union County BOE (1977) BOE Union County v. Rice Selected Case Law: Case Selected 162 CHAPTER 16 Donato andCalogero v. Moldow(2005) State v. Chepilko(2009) Olasz v. Welsh (2008) Leonard v. Robinson (2007) community bulletin board who refused to remove clearly defamatory Facts: conduct protected bytheFirst Amendment. occasions. The defendant argued that this business activity is expressive taking photographs and then attempting to sell them to the subjects on two that prohibit the saleofmerchandiseon Atlantic City boardwalkby Facts: time, placeandmannerregulation.” interruptions, and disregard for the rules ofdecorum constitute appropriate actions toconstrainthecouncilmember’s “badgering, constant Decision: necessary tomakehispoint. admitted to disruptingthemeeting but contended that hisbehaviorwas the Council President formalicious prosecution. The Council Member County Prosecutor threw out the complaint, and the Council Member sued was arrestedandcharged withacriminal disorderly personoffense. The Facts: themselves offensive tosome ofthehearers.” thepublic ourConstitution expression ofideasmaynotbeprohibitedmerelybecausetheare under that settled firmly is “It conviction.” could possiblysubject a vastpercentage of thepopulace to amisdemeanor vague. unconstitutionally was law Specifically: “Allowing prosecution where state one utters “insulting” language the ruled Court The Decision: was charged underthestate’s anti-profanitystatute. getting screwed. That’s whyyou are in a(expletive deleted) lawsuit.” He license. Duringthat argument, the operator said, “We’re sick and tired of towing company got into an argument with the town Supervisorover a Facts: the defamatorymaterial. Comment: on whatisallowedtoremainthesite. Communications Act evenapplies when thewebmaster exercises judgment Decision: that hehadapersonalgrudgeagainstoneoftheCouncilMembers. removed anythingcritical of himself,andalsoadmitted during adeposition deciding which postingstoremovefromthesite. For example, he quickly immunity. Inthiscase, the webmaster also exercised editorial control by Under Federal law, websiteoperatorsarenotconsidered editors andhave letters fromunidentifiedwriters. board wereanewspaper, aneditorwouldbeliable for printingdefamatory were defamatory even underthetough postings from unidentified writers. There was no question that the postings repeatedly ruled “outoforder,”After aCouncilMemberwas he During the public portion of a Council Meeting, the operator of a The defendant was found guilty of violating municipal ordinances Two membersofthegoverningbodysuedoperatoranonline The U.S. Court of Appeals ruled that “The Council President’s The Courtruledthat the immunity under theFederal This immunity does not apply if the webmaster actually writes 333 334 332 331 Sullivan standard.Ifthebulletin CHAPTER 16 163 Fields v. Fields v. 338 . 337 335 Sullivan v. NY Times NY Sullivan v. 336 Candidates and political figures are fair-game, except in the Boston paid Glik’s attorneys $170,000. Also see attorneys $170,000. Boston paid Glik’s There is a tricky line between purely commercial enterprise enterprise commercial purely between line a tricky is There A U.S. District Court of Appeals unanimously held that the Appeals U.S. District Court of A The New Jersey Supreme Court overruled the Appellate Court Appellate the Court overruled The New Jersey Supreme The Appellate Court threw out the lawsuit because this is the is this because lawsuit the out threw Court Appellate The The New Jersey Appellate Court ruled that the defendant’s defendant’s the that ruled Court Appellate Jersey New The A University teacher received a letter from the University President President University the from letter a received teacher University A At a Council Meeting just before an election, one Council Member Council one election, an before just Meeting Council a At A A bystander was arrested after filming Boston officers making an actions. The purpose of a Rice Notice is limited to giving negatively is limited Notice The purpose of a Rice actions. discussed in be matter the that request to ability the employees impacted “open session.” Decision: body governing a when required only were Notices Rice that held and employment adverse discuss and session” “closed in meet to planned Notices to impacted individuals before they can discuss any personnel before they can individuals Notices to impacted Court also Appellate The session.” or “closed “open” in either matter even days of a meeting, 45 within must be released minutes all that ruled if that required the Board to meet at double its current frequency. Board voted in public session to approve. The Board also waited almost Board voted in public session to approve. a year. times five meets only it because minutes the release to months five to issue Rice are required entities Court ruled that public Appellate The that she would not be nominated for reappointment. The Board published The Board published for reappointment. that she would not be nominated discuss faculty to intended Board the that indicating agenda tentative a Notice. send a Rice but did not meeting, public during the reappointments the full the recommendations, reviewed After a Board subcommittee Facts: barred under Comment: most extreme situations. position to mount a public defense. Decision: This is exactly the type of lawsuit normal “give and take” in an election. about the candidate’s conduct. The candidate sued for defamation. The sued for defamation. candidate The conduct. candidate’s the about much the fact that citing judgment, summary for a motion judge rejected poor a was in candidate the when election the before just of this occurred Facts: Council Member who was running for re- another publicly attacked Board to the State Ethics Member also complained The Council election. Comment: Philadelphia. officers violated the bystander’s constitutional rights. However, the Court the However, rights. constitutional bystander’s the violated officers subject was employees and officials public film to right the that ruled also place and manner limitations. to reasonable time, arrest in a park. The bystander was charged with wiretapping, disturbing wiretapping, with charged bystander was The park. a in arrest in the escape of a prisoner. the peace and aiding Decision: Facts: not entitled to First Amendment protection. protection. Amendment First to not entitled Comment: expression. include protected activities that and business Decision: was and purposes expressive serve predominately not did activity business Kean Federation of Teachers v. Morell (2018) Morell v. Teachers Kean Federation of Rosenblatt v. Camilla (2012) Rosenblatt v. Glik v. Cunniffe (2011) Cunniffe Glik v. 164 CHAPTER 16 309 308 updated byEdwardPurcell.MEL Fund Attorney FredSemraualsocontributedtothischapter. ings Act,” originallyauthoredin1996by Albert Wolfe andthelateMichaelPane. This publicationwas 307 Conclusion N.J.S.A. 10:4-8b N.J.S.A. 10:4-8a Some materialinthischapterisfromtheLeagueofMunicipalitiespublication, “TheOpenPublicMeet • • • • • • The Courtwrotethat: members of three ormore similar publicbodiesat aconventionor similar gathering.” than aneffective majorityof themembersofa publicbody, or(2)attended byoropentoallthe business ofthatbody. Meetingdoesnotmeanor includeanysuchgathering(1)attended byless on thepartofmembers ofthebodypresent, todiscuss oractasaunituponthespecific public equipment, which is attendedby, oropento,allofthe membersofapublicbody, heldwiththeintent, “Meeting meansand includesanygatheringwhethercorporeal orbymeansofcommunication the Constitution,oranypoliticalparty committeeorganized underTitle 19oftheRevisedStatutes.” sion ofInvestigation,the Apportionment Commissionestablishedunder Article IV, SectionIII,of petit jury, anyparole board or anyagencyorbodyactinginaparole capacity, theStateCommis the Legislature, butdoesnotmeanorincludethejudicialbranchofgovernment, anygrandor fits, orotherlegal relations of any person,orcollectivelyauthorizedtospendpublicfundsincluding to performapublicgovernmentalfunction affectingtherights,duties,obligations,privileges,bene or more personsorganized underthelawsofthisState,andcollectivelyempowered asavotingbody “Public bodymeansacommission,authority, board, council,committeeorany other group oftwo in theResourcesSection. all train facility to determine securityvulnerabilities. A modelpolicyisavailable should activities, field and employees at the time of hire,andconduct a periodic site review ofeach facilities governmental record to Each local government needs awritten procedure to addressthe right place, andmannerrestrictions. their duties, butthat right isnotabsolute and issubject to reasonable time, performing employees and officials public record to rights Amendment First some have also citizens law,private Jersey New and Federal Under maintain Officer Presiding the help The to decorum andnotbecomeacombatant. is of defense. meetings line at first role your Attorney’s is Attorney Board or Municipal Your decorum andmeetingprocedures. Each localgovernmentshouldadoptanordinanceorresolutionconcerning Even in New Jersey, a skilled Presiding Officer can still maintain decorum. Some states, such as New Jersey, make it more difficult to cut-off speakers. reasonable redundant ordisruptive. maintain must Bodies Public decorum, andspeakerscanbecut-off iftheystrayfromtheissue,are that recognizes law Federal a morereasonablesolution. out work to Board the to it left but unreasonable was months five waiting within 45 daysofameeting. The NewJerseySupreme Courtheld that The Courtalsooverruledtherequirement that the Boardrelease minutes on apublic body’s prerogative as to how toconduct its meetings. personnel matters, as the Appellate Division intimated, would intrude “Forcing public bodies toissue 10:4-12(b)(8).” beyond the plain language of the right of employees under N.J.S.A. an intrusive, expansive, and confusing notice requirement that extends salutary noticeprocedureoutofitscontextandplacesonpublicbodies The Appellate Division’s holdingonthe providesthat: . providesthat: Rice notices and robustlydiscussall Rice requirement takesthat - - - CHAPTER 16 165 - - - ogram, includ , A-84-16 (2018) , 862 F.3d 353 (3d Cir. 2017). 353 (3d Cir. , 862 F.3d , A-113 , A-113 (2010)

provides that the following may be discussed in “closed session”: may be discussed in “closed session”: provides that the following provides that: provides , 405 N.J. Super. 446 (App. Div. 2009); 446 (App. Div. , 405 N.J. Super. body pertaining to any specific individual admitted to or served by an institution or pr individual admitted to or served by an institution body pertaining to any specific and personal and family circumstances, to the individual’s relative ing but not limited to, information or condition of any individual, progress, treatment, to admission, discharge, any material pertaining the indi case of a minor or an incapacitated individual, in the (or, unless the individual concerned material be disclosed publicly;” in writing that the request shall guardian) vidual’s “(3) material the disclosure of which constitutes an unwarranted invasion of individual privacy an unwarranted invasion of individual privacy of which constitutes “(3) material the disclosure material of any educational, or other personal recommendations, data, reports, such as any records, legal defense, rehabilitation, medical, health, custodial, child protection, training, social service, by a public or institution operated insurance, and similar program housing, relocation, welfare, (4) either (a) the public body could not reasonably have foreseen the need for such meeting at a time have foreseen could not reasonably (4) either (a) the public body or (b) although the public body could reasonably have been provided; when adequate notice could it when adequate notice could have been provided, the need for such meeting at a time have foreseen so.” nevertheless failed to do importance; and importance; such meeting by following the calling of as soon as possible such meeting is provided (3) notice of and also by in section 3. d. above, the public place described notice of the same in posting written delivering a telegram, or by in section 3. d. by telephone, two newspapers described notifying the and of same to such newspapers; written notice ing notwithstanding the failure to provide adequate notice if: adequate notice to provide the failure ing notwithstanding that a importance and of such urgency with matters to deal order in required meeting is (1) such harm to in substantial would be likely to result adequate notice purpose of providing delay for the and the public interest; and to such matters of urgency of and acting with respect is limited to discussion (2) the meeting “Upon the affirmative vote of three-quarters of the members present a public body may hold a meet body may a public members present of the three-quarters vote of the affirmative “Upon 547 F.3d 187 (2008) 547 F.3d 2009) 405 Super 446 (App. Div. 2011) 78, 82-83 (1st. Cir. 655 F.3d 2017) 353 (3d Cir. 862 F.3d 67 F.3d 266 (9th Cir. 1995) 266 (9th Cir. 67 F.3d 1996) 469 (App. Div. 293 N.J. Super. 356 N.J. Super 151 (2005) A.2d 711 374 N.J. Super 475, 865 (2007) Appeals, Sixth Circuit, 05-1728 U.S. Court of The New Jersey Civil Rights Act, N.J.S.A.10:6-2(c) The New Jersey Civil Rights City of Phila Fields v. Chepilko State v. N.J.S.A. 2C:18-3(b) 282 A.2d 386 McGovern v. Rutgers McGovern v. (2013) 3:11-cv-02397-MAS-LHG 1421 (1989) 900 F.2d 376 U.S. 254 (1964) N.J.S.A. 10:4-12 b. 1977 A.2d 386, 282 N.J.S.A. 10: 4 -14 Morell v. Teachers Kean Federation of N.J.S.A. 10:4-12 a. N.J.S.A. 10:4-12 b. N.J.S.A. 10:4:9 a. 10:4:9 N.J.S.A. N.J.S.A. 10:4-9 b. N.J.S.A. A-0713-11T3 (2012) A-0713-11T3 A-84-16 (2018) A-81-08 (2010) 338 333 334 335 336 337 328 329 330 331 332 323 324 325 326 327 318 319 320 321 322 314 315 316 317 313 312 310 311 CHAPTER 17

OPEN PUBLIC RECORDS ACT

New Jersey adopted its first Right to Know statute in 1962 and significantly updated the law in 2001. Now known as the Open Public Records Act (OPRA),339 the revised law: • Defines what records are and are not “government records.” • Expands the public’s right of access to “government records.” • Creates an administrative appeals process if access is denied. OPRA provides the following overriding public policies for all document requests: • “Government records” must be readily accessible for inspection, copying or examination by its citizens, with certain exceptions, for the protection of the public interest. • Any limitations on the right of access to “government records” must be interpreted in favor of the public’s right of access. • A “Public Agency” has the responsibility and obligation to protect a citizen’s personal information in its possession when disclosure of that information would violate the citizen’s reasonable expectation of privacy.” CHAPTER 17 167 OPRA OPRA 341 342 344 343 While requestors may file 340 346 345 Any memorandum, correspondence, notes, report or other notes, report correspondence, Any memorandum, communication prepared by, or for, the specific use of a member of provision does not apply to an otherwise publicly This the Legislature. accessible report. Information received by a member of the Legislature from a constituent constituent a from Legislature of the member by a received Information concerning a of the Legislature or information held by a member the constituent is required by law constituent, unless it is information to transmit. • • 9. Emergency or security information or procedures for any buildings or or security 9. Emergency facility that would jeopardize security of the building, facility or persons therein. 7. Any record within attorney-client privilege. 7. hardware, computer regarding information or technical Administrative 8. software and networks that would jeopardize computer security. 6. Trade secrets and proprietary by a “Public obtained from any source, including software obtained commercial or financialAgency” under a licensing agreement which prohibits its disclosure. information 5. Victims’ 5. records, Victims’ except that a victim of a crime may have their own records. access to 3. Medical examiner records, except when used in a criminal action. 3. Medical examiner records, except investigatory criminal specific lists Act The records. investigatory Criminal 4. information that must be disclosed. material. This exception refers to draft documents or documents used in or documents documents refers to draft This exception material. a deliberative process. 2. Legislative records. Specifically: 1. Inter-Agency or intra-Agency advisory, consultative or deliberative or deliberative consultative advisory, or intra-Agency 1. Inter-Agency Requesting records concerning pending litigation. Requesting records The commercial use of “government records.” use of “government The commercial • • Public Records Exempt from OPRA Public Records Exempt There are 24 specific exemptions: in a database, books, in a database, books, included the and photographs. In one case, it maps personal e-mail account. Mayor’s Generally stated, a “government record” is any record that has been made, record” is any record that has a “government stated, Generally maintained, received or kept on file in thecourse of official business. Under OPRA, includes printed records, tape recordings, record” a “government stored sets data and e-mails including records, stored electronically microfilm, Definition of a “Government Record” Definition of a “Government There is no restriction prohibiting: There is no Although Although OPRA specifically references“citizens of thisState,” OPRA does states. of other residents to access not prohibit information, personal contact providing any requests without OPRA records. for victims’ requests prohibits “anonymous” specifically Who May File an OPRA Request? an OPRA May File Who 168 CHAPTER 17 11. Information which, ifdisclosed,wouldgiveanadvantage tocompetitors to thesafetyofpersons,property, electronicdataorsoftware. 10. Securitymeasuresandsurveillance techniques that wouldcreate a risk as follows: identified information specific except records, pension and Personnel 23. State, orJudicialCaseLaw. Executive Orders of the Governor, Rules of Court, Constitution of this 22. Exemptions contained in otherStateorfederalstatutesandregulations, authorized bylaw, court order, ortheStatePublicDefender. 21. Publicdefenderrecordsthatrelate to thehandlingofanycase,unless investigation commenced. that was openforpublic inspection, examination, or copying before the construed to allow any “Public Agency” to prohibit access to a record would bedetrimental to thepublicinterest. This provisionshallnotbe progress byany“Public Agency” if disclosure of suchrecordorrecords 20. Ongoinginvestigations–anyrecordspertaining to aninvestigation in victim orthevictim’s family. Convicts maynotrequestpersonalinformationpertainingtotheconvict’s 19. 18. Biotechnologytradesecrets. 17. Certainrecordsofhighereducationinstitutions. 16. PersonalIdentifiableInformation(PII). veteran’s ownrecords. veteran or theirspousesurviving spouse, whomay have access to the a for exception an is “Public Agency.” There a with filed DD-214, Form 15. Certificate of honorable discharge issued by the United States government, 14. InformationwhichisconfidentialpursuanttoCourtOrder. administrative serviceorganization orRiskManagementOffice. 13. Communications between a “Public Agency” and itsinsurance carrier, employees inconnectionwith: 12. Information generated by, oronbehalf of, public employers or public or bidders. • • • Drivers’ LicenseNumbers • Unlisted Telephone Numbers • CreditCardNumbers • SocialSecurityNumbers negotiatingpositions. • Collectivenegotiations,includingdocumentsrelatingtostrategyor • Any grievancefiledbyoragainstanindividual. • Any sexualharassmentcomplaintfiledwithapublicemployer. an individual ininterest. duly by person authorized when or States United the or a State this by authorized of duties official of performance the to essential is When required tobedisclosed byanotherlaw, whendisclosure the amountandtypeofany pensionreceived. of service,dateseparation and thereasonforsuchseparation, and An individual’s name, title, position, salary, payroll record, length 348 347 Specifically: CHAPTER 17 169 Some 349 “Any and all records related to “Any and all records related subject to OPRA: not A records request cannot be made verbally. Some verbally. records request cannot be made A 351 350 Data contained in information that disclose conformity with specific specific with conformity disclose that information in contained Data experiential, educational or not but pension, of a public receipt or for employment government medical qualifications requiredinformation. or psychological medical detailed any including for • Example of an Overly Broad Request: Broad Example of an Overly does not “records” term The school.” new high of the construction the reasonably identify a specific government record. New Jersey State Firemen’s Association are subject to OPRA. Association New Jersey State Firemen’s for-profit entityfor-profit may be subject to the provisions of OPRA, depending on Courts of government. powers sovereign exercises if it circumstances, the the and of Municipalities League New Jersey State both the that ruled have Employee. The Courts have adopted their own records disclosure policies own records disclosure their adopted The Courts have Employee. and procedures. Private businesses or not-for-profit entities. However, a private or not- Municipal or County Governments. Municipal or County Governments. The Judicial Branch of State Government or any Agency Officer or All Counties, Municipalities, School Districts, Fire Districts, Planning School Districts, Fire Districts, Planning All Counties, Municipalities, and Agencies Boards or and local and Zoning Boards and other County by established Authorities and Agencies local or County Independent all The Legislature and any Office, Board, Bureau or Commission created by created Commission or Bureau Board, Office, any and Legislature The the Legislative Branch. The Executive Branch of State Government and all Independent State Independent and all Government Branch of State The Executive and Universities. Authorities, including all State Colleges Agencies and obligation to safeguard from public access a citizen’s personal information information personal citizen’s a access public from safeguard to obligation the violate would thereof when disclosure entrusted has been it which with expectation of privacy.” reasonable citizen’s 24. Privacy Interest: “a ‘Public Agency’ has a responsibility and an • • • • • • online request form. a broad, overly is or records identifiable specifically name not does request a If may also seek clarification. Custodian A Custodian may deny access. A request for access to a government record must be in writing and hand- must be in writing record to a government request for access A to the or otherwise conveyed electronically transmitted mailed, delivered, appropriate Custodian. “Public Agencies” have created systems that permit a citizen to submit an Submitting OPRA Requests The following Agencies are The following Only “Public Agencies” are subject to OPRA, including: Agencies” are subject to OPRA, Only “Public preclude the designation of deputy Custodians for particular types of records, types of deputy Custodians for particular preclude the designation Police Departments. in large which is common under OPRA? is a “Public Agency” What Body with custody or control of the Agency’s government records. government Agency’s of the custody or control Body with provides OPRA more than one Custodian. designate departments state large does not OPRA However, Custodian in a municipality. that the Clerk is the Custodians of Government Records Custodians of Government OPRA defines the or Governing Director Agency’s” “Custodian action of a “Public designated by formal of a government record” as the official 170 CHAPTER 17 which records,ifany, mightberesponsivetoabroadandunclearrequest. records government identifiable out figure to request. files the the research in to listed Arequired not is Custodian for search to obligated is Custodian A statutory guidelines. specific the follow to However,careful be rates. these exceed duplication for Agency” may charge ahigher fee if it can demonstrate that its actual costs larger.or A“Public page legal-size per $0.07 and smaller, or page letter-size In 2010,the Act wasamended toestablisharevised feescheduleof$0.05per Fees request. deny accessbytheextended deadline date resultsina“deemed denial” of the date. The length of theextension must bereasonable, and failure to grantor statutorily mandated sevenbusinessdaysandprovideananticipated deadline Custodians mustrequestanextensionfromtherequestor inwritingwithinthe deadline for legitimate reasons, suchastherecordbeinginuseorstorage). Custodians mayseekextensionsoftime beyond thesevenbusinessday must usetheirbestefforts tocomplywiththisrequirement. instances, the Custodian must provide access as soonpossible. Agencies requested records are in use, in storage, or require medium conversion. In such and overtime information. Exceptions may include instances inwhichthe agreements and individual employment contracts, andpublicemployee salary to budgets, bills, vouchers, contracts, including collective negotiations OPRA requires that Custodians must ordinarily grant immediate access the dayfollowingCustodian’s receiptoftherequest. available and notinstorageorarchived.Dayoneofthesevenbusinessdaysis business daysafterthe request isreceived, provided that the recordiscurrently seven than later no but possible, as soon as request a fulfill should Custodians Deadlines deny therequestifrequesterobjects. give them the opportunity to accept or reject the extra fee. The Custodian may undertaking any conversion, the Custodian must first inform the requestor and incurred and mayinclude charges incurred by anoutside vendor. Before The charge mustbebasedonthe cost ofthe technology andlaboractually clerical andsupervisoryassistance. to conversion for extensive use oftechnology and labor for programming, ROM). However, aCustodianmay impose a special service charge related CD- or disk floppy the of cost the (e.g. copying of cost actual chargethe only If the agency maintains the record in the medium requested, the Custodian can the record in some other medium that is usefulormeaningful to the requestor. The Custodian must convert the record to the medium requested, or provide medium requested, if the “Public Agency” maintains the record inthat medium. OPRA providesthat a Custodian must provide a copy of the record(s) in the Other Media • type ofrecord,partiestothecorrespondence,datesandsubjectmatter. specific a identifies request This 2009.” 28, February to 2009 1, January and JohnSmithregarding the construction of the new high school from Example ofa Valid Request: “Anyandall e-mails between JaneDoe CHAPTER 17 171 As of 353 352 354 File a complaint with the Government Records Council. File a complaint with the Government Filing a lawsuit in Superior Court: The complaint must be filed within 45 within filed be must complaint The Court: Superior in lawsuit a Filing days of the denial. • • fines Custodians. to One five Custodian different was fined three times within ten years. $1,000 for an initial violation, $2,500 for a second violation, and $5,000 for violation, $2,500 for a second violation, $1,000 for an initial violation. initial an of years ten within occurs that violation third a Willful Knowing and has issued eight Record Council Government 2020, the Knowing and Willful Penalty Knowing willfully and knowingly who Custodian or employee, officer, official, public A under the access denied unreasonably have and is found to OPRA violates is penalty The penalty. to a civil shall be subject of the circumstances totality A requestor represented by counsel who prevails in any proceeding is entitled is proceeding any in who prevails by counsel represented requestor A fee. to a reasonable attorney’s Prevailing Party Attorney’s Fees Attorney’s Prevailing Party choose one, but not both, of the following options: choose one, but not both, of the following Appeals provides access to a government record can that a person who is denied OPRA may deny access to the both of interests the accommodates that requestor the with solution reasonable record but only after on an based determination This is a subjective Agency. the requestor and the first attempting to reach resources to fulfill a request. available a Agency’s Disruption to Agency Operations Disruption to Agency the Custodian Agency operations, disrupt substantially would If a request in the record. When redactions are made, the Custodian must explain the must explain the Custodian are made, When redactions in the record. the request using either redaction for each basis reason and identify the legal form or a separate document. contain non-disclosable information that should be redacted. Suppose a record Suppose that should be redacted. information non-disclosable contain in number; security social as a such redacted, be must that material contains obvious by using a visually accomplished must be that case, the redaction material redacted any of location specific the requestor the shows that method Redacting Records Under OPRA, may that is otherwise publicly accessible a government record an imposition of a special service charge is extremely subjective, and the and subjective, extremely is charge service special a of imposition an can charges service basis. No special on a case-by-case is made determination by ordinance. be established in advance expenditure of time and effort. expenditure employee the lowest level of hourly rate means the cost” direct “Actual capable of fulfilling the request, not including fringe benefits. What warrants when the nature, format, manner of collection or volume of records to be of records volume or of collection manner format, the nature, when equipment ordinary using reproduced be cannot record the is such that copied may charges service Special plan. or map a as such size, business ordinary in or extraordinary involves an with the request when complying also be applied In certain circumstances, an Agency may also collect a special service charge charge service a special collect also may Agency an circumstances, certain In applicable be could This records. of duplicating cost actual the to addition in 172 CHAPTER 17 MAG Entertainmentv. ABC (2005) Selected CaseStudies Avin v. Oradell(2005) Government RecordsCouncilOpinion2005-127(2005) has anextensivediscussionofnumerouscases. Note: exemption. on years three the grounds that the documents fall under the emergency orsecurity last the in permit burglar or alarm fire a for applied who Facts: its website. managing electronic mail. Archives and Records Management (DARM) established guidelines for business openthemselves to numerouslegal issues. The State Division of Comment: was transmitted,and(3)theidentityofsenderor recipient.” e-mail(s) the which during dates of range the or date of specific the subject (2) e-mail, and/or content the “(1) contain: must e-mail for requests Borough tocomply. Inasubsequentcase,theGRCdetermined that OPRA Decision: from January1,2004toMay31,2005.” and/or theconductofgovernment by orfortheBoroughofFairLawn, relate in any manner to his position as a Fair Lawn Borough public official or received by(theMayor)toorfromhispersonale-mail accountthat Facts: objectionable byitself.However: an OPRA request to discover material useful in its defense was not Decision: activity.” of aliquor license exceeding 45 daysforcharges of lewd or immoral records evidencing that the ABC sought,obtainedororderedsuspension premises, wasinvolvedinafatalautoaccident,” and “alldocumentsor to anintoxicated personinwhichsuchperson,afterleavingthelicensed revocation of a liquor license foracharge ofselling alcoholic beverages “All seeking documents or recordsevidencing that request ABC sought,obtained or ordered OPRA aftera an license filed its subsequently MAG revoke accident. to fatal MAG Entertainment against charges filed Facts: selective enforcementdefenseintheOAL litigation.” contained therein, and identify forMAG thecasesrelative to its information collate and compile analyze, files, Agency’sthe through demand requiredtheDivision’s recordsCustodiantomanually search of caseprosecutedbythe Agency inthepast.Suchanopen-ended type or brand a of description generic broad than other identifiers any particularity or specificity the government records sought. MAGprovided neither names nor any with identify to failed request “The The website of the New Jersey Government Records Council (GRC) In2001, the New Jersey Division of Alcoholic Beverage Control The townrejected an OPRA requestforthelistofallhomeowners A citizen requested “All documents, in electronic format, sent from The GRC ruled that the request was valid and ordered the filed MAG that fact mere the that ruled Court Appellate The 359 Officials who use their personal e-mail accounts on official on accounts e-mail personal their use who Officials 360 358 A copyofDARM’s circular isavailable on 356 355 357 CHAPTER 17 173

361 365

366 363 There have been numerous cases along the same line. In along the same been numerous cases There have 362 The Appellate Court ruled that the social security numbers must Court ruled that the social security Appellate The The Appellate Court overruled the town and determined town and the overruled Court Appellate The The New Jersey Supreme Court decided that the plaintiff was plaintiff the that decided Court Supreme New Jersey The The GRC upheld the town’s decision by applying the “balancing “balancing the by applying decision town’s the upheld GRC The In this case, the Court was impressed that the town had responded In this case, the Court was impressed 364 The plaintiff, a former resident of the Township, requested access to Township, a former resident of the The plaintiff, The plaintiff requested copies of 2,559 roles of microfilm containing microfilm of roles 2,559 of copies requested plaintiff The Over the period of a year, the plaintiff made 125 OPRA requests, requests, 125 OPRA made plaintiff the year, of a period Over the “imposes an obligation on public agencies to protect against disclosure against protect to agencies public on obligation an “imposes to reasonable which would run contrary of personal information privacy interests.” Decision: Attorney’s the because exemption to the records were not subject the to Departments Police Use of Force require on the guidelines General’s complete these reports. pertaining to incidents occurring in 2006, 2007 and 2008.” The request was pertaining to incidents occurring in 2006, 2007 and 2008.” denied because the reports were considered criminal investigatory records. Facts: department police its or Township the with file on reports Force of Use “All be redacted at the requesters’ expense before the documents could be expense before the documents could be be redacted at the requesters’ Court and Appellate The New Jersey Supreme Court upheld the released. Act: ruled that the privacy provision in the The information included personal identifiers, such as names, addresses, and marital status. social security numbers, signatures Decision: Facts: database. its national records to add it pages of real estate over eight million in law.” and found that the lawsuit had notto numerous requests in a timely fashion the remaining information. been the catalyst for the town supplying or an enforceable consent decree, when they can demonstrate: (1) a factual the relief ultimatelylitigation and the plaintiff’s causal nexus between achieved: and (2) that the relief ultimately secured by plaintiffs had a basis Decision: The Court ruled that under the catalyst theory, fees. not entitled to attorney’s fees under OPRA, absent a judgement “Requestors are entitled to attorney’s plaintiff then applied for attorney’s fees contending that the lawsuit was the lawsuit that fees contending for attorney’s applied then plaintiff attorney’s that town argued The compliance. town’s for the catalyst the or was no judgment there because in this case not applicable fees are decree. enforceable consent to his critically ill mother. The plaintiff sued, complaining that the town that the town sued, complaining The plaintiff ill mother. to his critically While that were late. respond to some of the requests failed to adequately The information. outstanding all the town delivered the lawsuit proceeded, Facts: of the Some limits. time the within to responded which were of most was attending Administer Business when the town’s requests were made In another case, the GRC upheld the decision to access to building plans to access to building upheld the decision case, the GRC In another for a home. information against the potential severity of the security exposure. exposure. of the security severity potential the against information Discussion: licenses. of dog and cat to deny release GRC upheld the decision 2012 the Decision: for rights public’s the GRC weighs this, the like situation a In test.” O’Shea v. West Milford (2009) West O’Shea v. Burnett v. County of Bergen (2009) Burnett v. Mason v. Hoboken (2008) Hoboken Mason v. 174 CHAPTER 17 Mathews v. Atlantic City(2009) Rodriguez v. KeanUniversity(2014) Burnett v. Gloucester County(2010) Jersey SupremeCourtruledthatmotorvehiclerecorderreadoutswere subject to discovery under OPRA in 2013. OPRA withredactions. Comment: permit theCustodian tosay, “It’s onourwebsite;findit yourself.” internet address and offered toprovideahardcopy. This decision does not Comment: Decision: a hardcopyoftherecordif therequestorcouldnotaccessitonline. link to the internet address wherethe policy resided and offered to provide of providingthesedocuments,theCustodianreferred therequestorwitha current policyondisciplinary actions related to anethicsviolation. Instead Facts: OPRA.” such parties, thereby thwarting the policy of transparency that underlies simply delegate their creation tothird parties or relinquish possession to governmental Agency seekingtoprotectits recordsfromscrutinycould Comment: secure therequestedrecordsfromitsinsurancebroker. and thatthecountyhadanobligation to county weregovernmentrecords Decision: these documentswereinthefilesofcounty’s insurancebroker. accepted from 1/1/2006 to present.” The county responded that many of settlements, releases or similar documents entered into, approvedor Facts: keystrokes toproduce. OPRA becauseitwasforabasice-mail log thatwouldhavetaken a few Jersey SupremeCourtreversedandruledthattherequestwasvalidunder created. The Appellate Court agreedwiththeCity. However, theNew on the grounds that Paff was effectively asking that a new document be week period,butnotforthecontentsofe-mails. The Cityobjected information in e-mails sent bytheClerkandPolice Chief overatwo- Paff,John OPRAcircumstances. state-wide a specific for asked advocate, Comment: OPRA doesnotrequireaCustodiantoproducenewdocuments…” to createalistcompatible to theComplainant’s OPRA request because Decision: no documentexactlycompliedwiththerequest. ultimately received did notcontain that information. The City argued that before and after the demotion. He complained that the document that he Facts: subject toOPRA becausetheywerenotrequiredtobemadebylaw. The plaintiff requesteddocuments concerning the University’s The plaintiff requesteddocumentsrelated to “Anyandall A frequent critic requested a “demotion list,” including base salaries The GRCruledthattheCustodian’s responsewasadequate. The Courtruledthatagreements settling claims involving the The GRCruledthataCustodian“wasundernoobligation The Court wrote that “Were we to conclude otherwise, a Electronic records maybetreated differently dependingonthe Previously, the GRC ruled that arrest reports are subject to Note that the Custodian referred the requester to the specific the to requester the referred Custodian the that Note 370 367 The GRCruledthatarrestwarrantswerealso 371 372 368 However, in2018the New 369 not

CHAPTER 17 175 - The 374 Vehicles as permitted as permitted Vehicles s (GRC) “Citizen Guide to 377 376 373 GRC Complaint 2008-216 (2009) 454 N.J. Super 621, App. Div. 2018 App. Div. 454 N.J. Super 621, GRC Complaint No. 2009-312 (2011) GRC Complaint 2004-199 (2006)

196 N.J. 51, 76 (2008) In 2019, the GRC ruled that the Custodian lawfully denied Custodian lawfully the ruled that In 2019, the GRC The GRC ruled that records of a Political Action Committee Action Committee ruled that records of a Political The GRC The New Jersey Supreme Court ruled that, under the facts The New Jersey Supreme Court agreed with the Township and Township The New with the Court agreed Jersey Supreme 375 The plaintiff requested records relating to the Fire District’s Political District’s Fire the to records relating requested plaintiff The A motorist crashed into a guard rail during a high-speed chase during into a guard rail motorist crashed A The Township declined to release videotape from a security camera camera a security from videotape release to declined Township The Section 2 of P.L.1997, c.188 (C.39:2-3.4). Section 2 of P.L.1997, with respect to the disclosure of driver information by the Division of Motor by - Use by any government agency, including any court or law enforcement agency, in carrying out its including any court or law enforcement agency, - Use by any government agency, functions, - or any private person or entity acting on behalf thereof, - or any private person or entity seeking to enforce payment of court-ordered child support; except made, maintained or received by the public entity in the course of official decision. Appeals Court upheld the GRC’s The business. Decision: were they though even records” under OPRA were not “government The records in question were not stored on a government computer. Facts: computer. that were stored on the District’s Action Committee (PAC) Decision: Common under the to release subject recordings were dashcam presented, Law right of access. officers fired at the suspect and killed him. Among other things, reporters things, other Among him. killed and suspect the at fired officers request copies of the dashcam videos. Facts: and reportedly placed the officers in danger by trying to drive The away. class and subsequent lockdown drill. The GRC decided that the disclosure the that decided GRC The lockdown drill. and subsequent class to persons within the district’s a safety risk create of the drill video would schools. Comment: center. transit public a from footage camera surveillance to access GRC gym who requested video of a school also ruled against a parent and would undermine the purpose of having a security camera system. a security camera of having undermine the purpose and would Decision: under OPRA. precluded disclosure the security exclusions held that attached to the second story of Town Hall adjacent to the police station. station. the police to adjacent Hall Town of story the second to attached to the security access allowing unrestricted that contended Township The camera the by is not captured what is and reveal would videotape camera Facts: N.J.S.A. 47:1A-1.1 N.J.S.A. 47:1A5g Hoboken, Mason v. N.J.S.A. 47:1A-11. N.J.S.A. 47:1A-2.2. Passaic County, Spaulding v. Monmouth County, Darata v. N.J.S.A. 47:1A-1.1. N.J.S.A. 47:1A-3.b. Scheeler v. Atlantic County JIF, Scheeler v. White v. William Patterson Univ., William White v. See www.judiciary.state.nj.us/superior/copies_court_rec.htm Information may only be released if it is necessary to assist in the defense of the requestor. A determi A Information may only be released if it is necessary to assist in the defense of the requestor. Except for:

Much of the material in this chapter is from the New Jersey Record Council’ Much of the material in this chapter is from the 349 350 351 352 353 348 court upon defense shall be made by the nation that the information is necessary to assist in the requestor’s motion by the requestor or his representative. 343 344 345 346 347 339 Act (OPRA).” the Open Public Records 340 341 342 Carter v. Franklin Fire District No. 1 (2018) Fire Franklin v. Carter North Jersey Media v. Lyndhurst (2017) Lyndhurst v. North Jersey Media Gilleran v. Bloomfield (2016) Bloomfield v. Gilleran 176 CHAPTER 17 case in 364 363 362 361 360 359 358 357 356 August).pdf 355 354 377 376 375 374 373 372 371 370 369 368 367 366 365 the conceptin A-1068-16T1 163 A.3d 877,229N.J.541(2017) 227NJ159(2016) GRCComplaint2013-69(2014) 415NJSuper, 506(App.Div. 2010) 410NJSuper, 371(App.Div. 2009) 198N.J.408(2009) Two yearsearlier, an Appellate Courtfirstapplied“catalyst”rationaleforattorney’s feesinanOPRA 196N.J.51,76(2008) GRCComplaint2004-176(2005) www.njarchives.or/links/electronic.htmln DARMcircular03-20-ST 375N.J.Super.534 (App.Div. 2005) https://www.nj.gov/grc/meetings/present/Useful%20OPRA%20Cases%20by%20Subject%20(2019%20 FrankCaruso,ExecutiveDirectoroftheN.J.GovernmentRecordsCouncil Street v. Mt Arlington BOE Howard v. N.J. Transit Paff v. Galloway, Paff v. OceanCounty, Seabrooks v. EssexCounty, Morgano v. EssexCounty, Nase v. Middle Township, Knehr v. Franklin Township Eleavage v. West Milford, Teeters v. DYFS, Mason. 229NJ340(2017)

387NJSuper. 423(App.Div. 2006). The NewJerseySupremeCourtadopted 235NJ1(2018) , GRCComplaint2018–43(2019) GRCComplaint2009-07(2010) GRCNo.2016-273(2018) GRCNo.2007-156(2008) , GRCComplaint2017-103(2019) GRCno.2012-230(2013) , GRCNo.2012-38(2012) Resources

Medical Examinations for Crossing Guards

Guidelines for Firefighter Physical Examinations

Model Title 59 Resolution Approving Plan Design

Model Indemnity Ordinance

Model Tort Claim Notice

MEL Insurance Guidelines for Contracts and the Use of Governmental Facilities

Checklist to Manage Special Events

Model Resolution or Ordinance Concerning Meeting Decorum

Model Policy Concerning the First Amendment Right to Record

Model Joint Insurance Fund Documents

177 Medical Examinations for Crossing Guards Crossing guard candidates should complete the same medical history and physical examination required for pre-placement examinations designed for other municipal full-time positions. The examination should be repeated as follows: • Up to age 39: every five years • From 40 to 49: every two years • 50 +: every year The physical examination, vision and hearing tests should be conducted in a clinical setting by a physician with experience examining job applicants. To perform the functions of the crossing guard position, the applicant must be capable of standing for two hours or more at a time and be able to lift and hold in position a stop sign weighing approximately one pound while holding the opposite hand in an upright, raised position. The examining physician should be provided a job description listing the physical requirements for the position. If abnormalities or deficiencies are identified as a result of the physical examination including vision and hearing tests, the candidate is not qualified for the position. As an option, candidates not meeting the standards can be referred to an appropriate specialist for further examination to determine their physical capacity to perform the duties of the position. If this option is pursued, the specialist must be provided with the results of first examination and the standards that are to be met. Until the specialist report is received, the candidate should not be permitted to serve as a crossing guard. If the specialist report confirms the earlier testing outcomes, the candidate is not qualified to serve as a crossing guard. The following vision and hearing standards are excerpted from the New Jersey Crossing Guard Report, Copyright © 2007 I/O Solutions, Inc.

Vision Standards and Recommended Tests Peripheral Vision Visual field shall be 160 degrees in the horizontal meridian binocularly with or without correction. Any perimeter that can measure the horizontal field of vision can serve as the testing method. The extent of the visual field shall be determined along the horizontal meridian for each eye with a perimeter (confrontation fields are not acceptable.) Values less than 160 degrees are acceptable only if complete compensation occurs with the opposite eye in binocular viewing. Any central absolute scotoma must be completely compensated by the opposite eye. Stereopsis Using either the Titmus test (TST) or the Rand Dot Stereo test (RST) or the Random Dot E test: TST Wirt Circle #8 (50 seconds of disparity) RST or RDE Target #6 (50 seconds of disparity). Subject must identify which object stands out from the page wearing Polaroid eyeglasses.

178 Color Vision In response to one of the following three editions of the Ishihara Pseudoisochromatic Plate Screening test, with the testing conducted one plate at a time, the applicant should achieve the following results: • 38 plate edition: The first 21 plates - 9 errors or less. An individual who misses the first plate has failed. • 24 plate edition: The first 15 plates - 6 errors or less • 16 plate edition: The first 9 plates - 4 errors or less Visual Acuity The applicant must be able to read 20/30 letters with the dominant eye on the Standard Snellen optotype chart. The non-dominant eye must have 20/40 or better with best correction. The applicant is asked to read the smallest line of letters that can be read with one eye covered. This is repeated with the opposite eye covered. An applicant wearing contact lenses must meet the visual acuity standard with their contact lenses in place. A statement from the applicant’s eye care professional must be presented confirming that contact lenses have been worn successfully for a minimum of four months. Hearing Standards and Recommended Tests The candidate must be tested in a sound booth. Both the sound booth and audiometer used for testing should be calibrated using the most recent ANSI standards, and have been calibrated with the past year. Calibration certificates should be on file and available for review. Candidates qualify if they meet standards with or without amplification. The crossing guard hearing standards are as follows: • Hearing thresholds of 40dB or better in each ear at 500, 1K, and 2 KHz. • Pure tone average thresholds at 500, 1K and 2K Hz 35dB or better in each ear. • The hearing threshold at 4K Hz must be 45dB or better in each ear.

Guidelines for Firefighter Physical Examinations Heart attack is the most common cause of on-duty firefighter fatalities. Yet, existing regulations do not require firefighters to pass periodic medical examinations. Every year, firefighters needlessly die “on-duty” because their medical conditions are not identified or properly treated. This is especially a problem with volunteer firefighters who often tend to be older than their counterparts in career departments. Recommendations: • Pre-placement Physical Examinations: This examination should be similar to that conducted for police candidates. • Periodic Reexaminations: Incumbent firefighters should be required to complete a reexamination on an annual basis and this examination should include calculation of each firefighter’s heart attack risk. 179 Background: In 2007, the National Institute for Occupational Safety and Health (NIOSH) issued an alert that sudden cardiac death represents the most common cause of on-duty firefighter fatalities. The report concluded that 39% of fatalities involving career firefighters and 50% of fatalities involving volunteers are due to sudden cardiac death. The higher incidence among volunteers is due to the fact that volunteers tend to be older. 43% of the heart attacks involved firefighters over 55 and one-sixth involved firefighters over age 65. In the United States, heart attacks are the number one cause of death, striking at least 600,000 Americans each year. In half of the cases, the first symptom is death. In a recent New England Journal of Medicine study, Dr. Stefanos Kates of Harvard University concluded that, “Firefighters do not have a higher risk of heart disease compared to the general population, but the sudden exertion of their work can trigger a heart attack in the same way shoveling snow can lead to a heart attack in someone else. Firefighters may begin their careers in better shape than others, but as they grow older they may acquire risk factors, such as high blood pressure and cholesterol as well as weight gain.” Despite growing awareness of the problem, the incidence of firefighter deaths from heart attacks has not changed in the last decade. The key to turning this around is to require every firefighter over 35 to have an annual cardiac risk assessment. Raymond Basri M.D., a diagnostic cardiologist who specializes in firefighter issues, wrote, “Any individual with risk factors above 10% over the next ten years should be made aware of the risk factors that could be improved to lower risk such as smoking or high blood pressure. All high-risk individuals should be asked to see their own doctors. The fire service should not exclude these members from serving, but ask that their own doctors ensure their safety and review their situation. The department’s medical examiner should not accept any clearance for a member with chest discomfort and a high-risk score that does not include a stress test.” Daniel Samo, M.D., an advisor to the National Fire Protection Association (NFPOA) recommends that firefighters who have a cardiac risk score above 10% should be required to pass a stress test at 12 METS to establish that Ischemia (signs of the lack of oxygen to the heart) does not occur at the work level common to firefighting. Because of the nature of their work, fire fighters should also be encouraged to monitor and control their blood pressure, cholesterol and weight, and stop smoking to ensure that their risk of heart attack is within reasonable limits. Because of the high stress associated with all aspects of firefighting, it may not be sufficient to limit high risk individuals from interior firefighting. Experience suggests that “exempt” fire fighters can also experience heart attacks while performing light duties such as directing traffic or operating a pump.

180 Current Examination Requirements: At present, state regulations only require physical examinations for firefighters involved in special assignments such as HazMat teams. However, most towns require candidates to pass a medical before joining the fire department and a physical is also required to become a member of the NJ State Firemen’s Association. This examination does not require that the candidate meet explicit physical standards, although it does require certification from the examiner that the applicant is free from disease and has no physical defects that would hinder the ability to perform the duties of a firefighter. This examination can be performed by any licensed physician. The NJ Public Employee Occupational Safety and Health Administration (PEOSHA) requires that firefighters who are assigned to interior structural firefighting be qualified to use a respirator. Under this regulation, firefighters complete a questionnaire that is reviewed by a physician or other licensed health care professional. If in the judgment of the reviewer the questionnaire responses are satisfactory, no direct physical examination is required. The examiner must specifically identify limitations in the use of the respirator and if a follow-up medical evaluation is required. All firefighters must also be fit tested for their respirator mask. No additional physical examinations are required by state or federal regulation, although some departments impose their own requirements. Therefore, most volunteer firefighters serve for an indefinite period of time with no regulatory requirement for reexamination. While career departments are more likely to require periodic physical examinations, many do not. Efforts to Establish General Standards: Every major national association representing firefighters recommends that fire departments establish a medical evaluation procedure that includes pre- placement, periodic and return to duty medical evaluations for firefighters based on uniform medical and physical fitness standards. These associations also recommend a variety of ongoing health and wellness programs. The following is a summary of their recommendations: • National Fire Protection Association (NFPA) Standards 1500 and 1582 include detailed guidelines and protocols for conducting physical examinations and the development of comprehensive occupational health and wellness programs. • The International Association of Firefighters (IAFF) and the International Association of Fire Chiefs (IAFC) have developed a number of initiatives centered on the development of wellness and fitness programs, and implementation guides. • The National Volunteer Fire Council (NVFC) in collaboration with the US Fire Administration (USFA) has issued a health and wellness guide and detailed directions for a program to promote cardiac health. • The National Fallen Firefighter Foundation (NFFF) has developed a program titled “Everybody Goes Home” which includes an initiative to develop national medical and fitness standards for firefighters.

181 Firefighter Concerns: Firefighters are in general agreement that physical examinations for candidates should be based on uniform standards, and that periodic reexaminations should be conducted. Their concerns are centered on the following issues: • The cost of a comprehensive candidate physical examination and periodic reexaminations must be appropriated. At present, most municipalities only appropriate funds for the candidate physical examination and periodic pulmonary function testing. • Requiring a periodic physical examination might disqualify experienced incumbent firefighters from participation in structural firefighting. • The standards established for a comprehensive candidate physical examination may be so rigorous that the pool of potential candidates may be severely diminished. Despite these concerns, firefighters generally support an effort to strengthen the physical examination procedures for candidates and a periodic reexamination for incumbent firefighters.

Recommendations: Candidate Pre-Placement Physical Examinations: Candidate examinations should be similar to that conducted for police candidates. The candidate examination will also serve as a baseline that can be used to measure any changes in physical conditions that are identified during periodic testing. The cost for pre-placement medical examinations range from approximately $300 to $900 depending on the provider and testing protocol. Pre-placement examinations should include two components: • A physical examination conducted by a licensed physician selected jointly by the fire department and the municipality. The examination should include a medical history, examinations, and any laboratory tests required to detect physical or medical conditions that could adversely affect the ability of the candidate to safely perform essential job tasks. The recommended examination should extend to all physical systems including, skin, ears, eyes nose, and throat, cardiovascular, respiratory, gastrointestinal, genitourinary, endocrine, metabolic, musculoskeletal, and neurological systems. In addition, the examination should include audiometry, visual acuity and peripheral vision testing, pulmonary function testing and an EKG if indicated. A detailed description of the candidate physical and medical standards is included in NFPA 1582: Standard on Comprehensive Occupational Medical Program for Fire Departments, 2007 edition, Chapter 6. In addition to a medical history, the examination should include an occupational history and completion of the Occupational Safety and Health Administration Medical Respirator Evaluation Questionnaire. • A fitness evaluation of the physical capacity of the candidate to perform essential job functions as defined in the candidate firefighter’s job description should be performed by registered physical therapist whose findings should be reviewed and approved by the authorized examining physician. A listing of essential job functions and the relevant standards of performance are included in NFPA 1582, Chapter 5, Essential Job Tasks.

182 Annual Reexamination Physicals: Departments should also require annual reexamination consistent with NFPA Standard 1582, Chapter 7.4-7.7. Specifically, the following components should be required: • A complete medical history including completion of the Occupational Safety and Health Administration Medical Respirator Evaluation Questionnaire. • Physical examination of all major body systems • Blood and urine tests to determine cholesterol, diabetes, chemical exposure • Audiometric and vision examination to determine status in relation to the approved standard • Pulmonary function test to determine status in relation to approved standard • A resting EKG followed by a stress EKG if medically indicated Post exposure testing as clinically indicated by medical history or by symptoms Firefighters should be required to show evidence that all immunizations and infectious disease screenings are up to date. They should also be encouraged to secure PSA, mammography and colon cancer screenings in accordance with schedules generally accepted by medical authorities. These screenings can be secured through their group health benefits plan. If not, they should be included in the examination. Firefighters who do not meet the objective standards included in their job descriptions could be offered an opportunity to correct the deficiencies and be retested, or as an alternative be offered an alternate position with physical standards that they can meet. The information included in this report is not intended to serve as expert medical opinion and is not a substitute for seeking such opinions from a licensed medical provider with experience with the testing and certification processes described in this report. Anyone considering the development of a preplacement and periodic medical examination program is urged to seek such professional assistance. References Designing the Fitness Program. A Guide for Public Safety Organizations. John LeCuyer. Fire Engineering Books & Videos. 2001. Firefighter Fatality Investigation Report F2005-30. NIOSH. March 17, 2006. Health and Wellness Guide for the Volunteer Fire Service. National Volunteer Fire Council and the US Fire Administration. FA-267. January, 2004. NFPA 1500 Standard on Fire Department Occupational Safety and Health Program, National Fire Protection Association, 2007 Edition. NFPA 1582 Standard on Comprehensive Occupational Medical Program for Fire Departments, National Fire Protection Association, 2007 Edition. Preventing Firefighter Fatalities Due to Heart Attacks and other Sudden Cardiovascular Events. US Department of Health and Human Services, Center for Disease Control and Prevention, National Institute for Occupational Safety and Health NIOSH). June, 2007. 183 OSHA Respirator Medical Evaluation Questionnaire. Appendix C to Section 29 CFR 1910.134. Department of Labor, Occupational Safety & Health Administration. Physical Examination Guidelines Form 200. New Jersey State Firemen’s Association. East Orange, NJ. Revised 2004. The Volunteer Void. Fire companies in need of new blood. Andrew Vanacore. The Record. August 28, 2007. The Fire Service Joint Labor Management Wellness-Fitness Initiative. International Association of Firefighters. Second Edition, 1999.

184 Model Resolution Approving Plan WHEREAS, the (governing body type) of the (local government name), has decided to proceed with (describe project or item being purchased); and, WHEREAS, the governing body has reviewed the (plans or specifications) prepared by (name) dated (date) concerning this (project or purchase). NOW THEREFORE BE IT RESOLVED, by the (governing body type) of the (local government name) that pursuant to N.J.S.A. 59:4-6 the (plans or specifications) for the (project name or item purchase) are hereby approved. BE IT FURTHER RESOLVED, that a certified copy of this resolution shall be placed in the permanent (project or purchase) file together with one copy of the (plan or purchase order) referred to above with a notation referencing to this resolution.

Model Resolution Approving Plan Change WHEREAS, the (governing body type) of the (local government name), has decided to change the (specifications or plans) for the (describe project or item being purchased) previously approved by resolution (number and date); and, WHEREAS, the governing body has reviewed modifications of the (plans or specifications) prepared by (specify) concerning this (project or purchase). NOW THEREFORE BE IT RESSOLVED, by the (governing body type) of the (local government name) that pursuant to N.J.S.A. 59:4-6 the changes to the (plans or specifications) for the (project name or item purchase) are hereby approved. BE IT FURTHER RESOLVED, that a certified copy of this resolution shall be placed in the permanent (project or purchase) file together with one copy of the (plan or purchase order) change referred to above with a notation referencing.

Model Resolution for Final Approval of Plan or Design of a Public Improvement WHEREAS, the (governing body type) of the (local government name), has undertaken an improvement on (Lot number), (Block Number), which project is commonly referred to as (describe project); and, WHEREAS, the plan or design for said improvement was previously approved by governing body by resolution (number); and,

WHEREAS, during construction of this improvement various changes to the original plan or design have been made with the knowledge and approval of the governing body. NOW THEREFORE BE IT RESOLVED, that the (governing body type) of the (local government name) hereby formally approves the final “as built” plan or design of the improvement referred to above which final plan and design is reflected on the (identify plan): BE IT FURTHER RESOLVED, that the governing body hereby invokes all applicable immunities including but not limited to N.J.S.A. 59:4-6. BE IT FURTHER RESOLVED, that a certified copy of this resolution shall be placed in the permanent project file together with one copy of the plan with a notation referencing this resolution. 185 Model Indemnification Ordinance An Ordinance authorizing the (local unit name) to Provide Legal Counsel and Indemnification for Officials, Employees and Appointees of the (local unit type) in Certain Actions Brought Against Said Officials, Employees and Appointees. BE IT ORDAINED by the (governing body name) that: Section 1. Except as hereinafter provided, the (local unit name), hereinafter known as the (local unit type) shall, upon the request of any present or former official, employee or appointee of the (local unit type) provide for indemnification and legal defense of any civil action brought against said person or persons arising from an act or omission falling within the scope of their public duties. Section 2. The (local unit type) shall not indemnify any person against the payment of punitive damages, penalties, or fines, but may provide for the legal defense of such claims in accord with the standards set forth herein. The (local unit type) may refuse to provide for the defense and indemnification of any civil action referred to herein if the (governing body name) determines that: a) the act or omission did not occur within the scope of a duty authorized or imposed by law; b) the act or failure to act was the result of actual fraud, willful misconduct or actual malice of the person requesting defense and indemnification; or c) the defense of the action or proceeding by the (local unit type) would create a conflict of interest between the (local unit type) and the person or persons involved. Optional wording for Section 2: Section 2. Pursuant to 59:10-4, the indemnification and defense provided for in this ordinance shall include exemplary or punitive damages resulting from the employee’s civil violation of State or federal law if, in the opinion of the (governing body name) the acts committed upon which the damages are based did not constitute actual fraud, actual malice, willful misconduct or an intentional wrong. Section 3. The terms of this ordinance and the definition of official, employee and appointee are to be construed liberally in order to effectuate the purposes of this ordinance except that these terms shall not mean a) any person who is not a natural person; b) any person while providing goods or services of any kind under any contract with the (local unit type) except an employment contract; c) any person while providing legal or engineering services for compensation unless said person is a full-time employee of the (local unit type); and d) any person who as a condition of his or her appointment or contract is required to indemnify and defend the (local unit type) and/or secure insurance. Section 4. The (local unit type) shall provide for defense of and indemnify any present or former official, employee or appointee of the (local unit type) who becomes a defendant in a civil action if the person or persons involved a) acted or failed to act in a matter in which the (local unit type) has or had an interest; b) acted or failed to act in the discharge of a duty imposed or authorized by law; and c) acted or failed to take action in good faith. For purposes of this ordinance, the duty and authority of the (local unit type) to defend and indemnify shall extend to a cross-claim or 186 counterclaim against said person. Section 5. In any other action or proceeding, including criminal proceedings, the (local unit type) may provide for the defense of a present or former official, employee or appointee, if the (governing body name) concludes that such representation is in the best interest of the (local unit type) and that the person to be defended acted or failed to act in accord with the standards set forth in this ordinance. Section 6. Whenever the (local unit type) provides for the defense of any action set forth herein and as a condition of such defense, the (local unit type) may assume exclusive control over the representation of such persons defended and such person shall cooperate fully with the (local unit type). Section 7. The (local unit type) may provide for the defense pursuant to this ordinance by authorizing its attorney to act in behalf of the person being defended or by employing other counsel for this purpose or by asserting the right of the (local unit type) under any appropriate insurance policy that requires the insurer to provide defense. Section 8. This ordinance shall take effect immediately upon passage and publication as required by law. Drafting Note: Title 59 permits local units to adopt an ordinance defending and indemnifying its officials, employees and appointees in certain lawsuits. However, in drafting the ordinance, care must be taken to avoid including certain non-employees, vendors, and firms providing goods and services that are not typically covered under local unit insurance policies (see section 2). In a few cases, local units have been required by their ordinances to indemnify certain persons even though their insurance policies provided no coverage. Local units that have already adopted indemnification ordinances should review these ordinances with their General Counsel and insurance advisor. If necessary, the ordinance should be amended to minimize the local unit’s exposure

187 Model Notice of Tort Claim CLAIMANT INFORMATION

Name:______Telephone:______

Address:______Date of Birth:______

______SSN: XXX XXX ______

ATTORNEY INFORMATION(if applicable)

Name:______Telephone:______

Address:______Fax:______

______File No.______

Send Notices Claimant to:______Attorney:______

GENERAL INSTRUCTIONS: Pursuant to the provisions of the Title 59, the New Jersey Tort Claims Act (here-in-after “Title 59”), the (name of local unit) (here-in-after the “type of local unit”) has adopted this Notice of Tort Claim (here-in-after “Notice”) form including these written questions and requests for the production of documents as the official form for the filing of claims against the (type of local unit). The written questions are to be answered to the extent of all information available to the Claimant or the claimant’s attorneys under oath. The fully completed Notice and the documents requested shall be returned to:

NOTE CAREFULLY: Notices of Claim must be filed within 90 days after the incident giving rise to the claim. Upon a proper application, the New Jersey Superior Court may, under exceptional and rare circumstances, allow a Notice of Claim to be filed not later than one year after the date of the incident giving rise to the claim. Your claim will not be considered filed as required by Title 59 until this completed Notice of Claim has been received by the (type of local unit) Clerk. It is recommended that you mail the completed Notice Certified Mail Return Receipt Requested or personally hand-deliver the Notice to the Clerk’s office. It is your burden to file this Notice and ensure that it is received within the deadline by the Clerk. Failure to provide the information requested, or such responses as “To Be Provided” or “Under Investigation” or similar non- responsive answers, will result in the Notice being treated as not having been filed in accordance with the Notice requirements ofTitle 59.

188 A. When, after a reasonable and thorough investigation using due diligence, you are unable to answer any question, or any part thereof, specify in full and complete detail the reason the information is not available to you and what has been done to locate the information. In addition, specify what knowledge or belief you have concerning the unanswered portion of the question and set forth the facts upon which the knowledge or belief is based. B. When a question asks that you identify documents, a sufficient answer is to attach legible copies of these documents. C. Where a question does not specifically request a particular fact, but where the facts are necessary in order to make the answer to the question either comprehensible, complete or not misleading, you are requested to include the fact or facts as part of the answer and the question shall be deemed specifically to request the fact or facts. D. If you claim any form of privilege, whether based on statute or otherwise, as a ground for not answering a question or any part thereof, set forth in complete detail each and every fact upon which the privilege is based, including sufficient facts for the court to make a full determination whether the claim of privilege is valid. E. Where a question asks for a date or an amount or any other specific information, it will not be adequate to state that the precise date, amount or other specific information is unknown to you, where you are capable of approximating the information requested. F. Where a question requests that you “identify all writings,” you should state with specificity the date, author, description, addressee (if any), nature, Custodian, and location of the writings referred to by the question, as well as the substance of the writing. G. Where a question asks that you “identify all oral communications,” you should state, with respect to every oral communications, the description of which is required by the question, (I) the date and place thereof, (II) who initiated the communication, (III) whether the communication was in person or by telephone or other form of transmission and specify which, (IV) the name, home address and telephone number, business address and telephone number, employer (present or last known), job title, occupation of each and every person who participated in or heard any part of the communication, and (V) the substance of what was said by each person who participated in the communication. H. Where a question asks that you “identify all persons,” state the name and present or last known business and residence address and telephone numbers, occupation and title, if any, of person whose identity is sought by the question. I. For the purpose of these questions, “Person” shall include a partnership, joint venture, corporation, association, trust or any other kind of entity, as well as a natural person.

189 J. If any document to be produced in response to these questions contains information which must be treated as confidential in nature, identify that document and state the reason for the confidentiality in sufficient detail to allow for a determination on the issue of confidentiality. The (type of local unit) and its attorneys hereby warrant that the confidentiality of any document so identified will be respected and maintained until such time as a court having jurisdiction over the issue may rule on any disputed issue of confidentiality. K. These questions request documents that are relevant to the subject matter of the claims and allegations of the Claimant. To the extent that any document does not relate, in its entirety, to the subject matter of the Claimant’s claims or allegations, the document may be withheld. All other documents which deal directly with the subject matter of the Claimant’s claims or allegations must be produced in response to these requests. L. All responses to questions or objections thereto shall be prefaced by the particular question or subsection thereof. M. An attempt has been made to provide adequate space for the answers. If you need more space to provide a fully responsive answer, attach supplementary pages, identifying the continuation of the answer with the number of the applicable question. N. All documents produced shall be labeled and referenced to a particular document request or question. If the documents are produced in response to more than one question, this fact should be noted as well. O. The questions and document requests shall be deemed continuing, so as to require supplemental answers from time to time up to the date of a trial, in the event that the claim results in litigation.

DEFINITIONS: “Documents” means any written, recorded or graphic representation either produced or reproduced and any copy thereof, including, but not limited to, letters, memoranda, notes, minutes, summaries, forecasts, appraisals, surveys, calculations, inter-office communications, diaries, work sheets, telegrams, cables, telex messages, written agreements, invoices, press releases, books, records, financial statements, tapes, computer print-outs, computer tapes and/ or disks, computer programs, drafts of any of the foregoing, magazines and other publications and any materials underlying, supporting or used in the preparations of any documents, now or formerly in the actual or constructive possession, custody or control of the deponent, and all copies thereof where the copy is not an identical copy of the original, such as where the copy contains written notations. “Claimant” means the person or person on whose behalf this Notice of Claim is being filed. “(name of local unit)” means the (type of local unit) along with any agent, official employee or volunteer of the (type of local unit) against whom a claim is asserted by the Claimant.

190 INFORMATION ON THE CLAIMANT 1. Claimant: a. Name: b. Any other name by which the Claimant has been known: c. Current address:

d. Current telephone number(s): Home: Work: Mobile: Other: e. Address at the time of the incident giving rise to the claim: f. Marital status (at the time of the incident and current) g. Identify each person residing with the claimant and the relation, if any, of the person to the Claimant. h. Set forth all addresses of the Claimant for the last 10 years, the dates of the residence, the persons residing at the addresses at the same time as the Claimant resided at the address and the relation, if any, of the person to the Claimant.

INFORMATION ON THE CLAIM 1. Set forth the exact date, time and place of the incident forming the basis of the claim and the weather conditions prevailing at the time. 2. Set forth in complete detail in narrative form, the Claimant’s version of the events that form the basis of the claim, specifically setting forth the names and addresses of all participants and the nature and extent of the participation of any individuals so identified. 3. Set forth any and all individuals who were witnesses to or who have knowledge of the facts of the incident which gave rise to the claim. Provide the full name and all data as required by the instructions preceding these questions. 4. Identify all public entities or public employees alleged to have caused the injury and specify as to each public entity or employee the act or omission alleged to have caused the injury. 5. If you allege wrongdoing by an employee or official of the (type of local unit), set forth the name and position of the employee or official and the exact nature of the alleged wrongdoing.

191 6. If you claim that the injury was caused by a dangerous condition of property under the control of (name of local unit), specify the nature of the alleged dangerous condition and the manner in which you claim the condition caused the injury. 7. If you allege a dangerous condition of property, set forth the specific basis on which you claim that the (type of local unit) was responsible for the condition and the specific basis on which you claim that the (type of local unit) was given notice of the alleged dangerous condition. General allegations such as “should have known” and “common knowledge” are insufficient. 8. If you or any other party or witness you propose to produce consumed any alcoholic beverages or any drugs or medications within six (6) hours before the incident forming the basis of the Claim, state (a) the person consuming the same and for each person (b) what was consumed (c) the quantity thereof (d) where consumed (e) the names and addresses of all persons present.

PROPERTY DAMAGE CLAIMS If your claim is for property damage only, provide a description of the property damage and attach an estimate of the costs of repair. (If your claim is for property damage only, skip Questions 1 – 17 and go to Question 18 under PERSONAL INJURY CLAIMS.)

PERSONAL INJUIRY CLAIMS 1. With respect to the alleged injury forming the basis of the claim, was any complaint made to the (type of local unit) or to any official or employee of the (type of local unit). 2. If the answer to the question above is in the affirmative, state the time and place of the complaint and the person or persons to whom the complaint was made. 3. Describe in detail the nature, extent and duration of any and all injuries. 4. Describe in detail any injury or condition claimed to be permanent or residual, together with all present complaints. 5. If confined to any hospitals, state name and address of each and the dates of admission and discharge therefrom. Include all hospital admissions prior to and subsequent to the alleged injury forming the basis of the claim and set forth the reason for each admission. 6. If x-rays were taken, state (a) the address of the place where each was taken, (b) the name and address of the person who took them, (c) the date when each was taken, (d) what each disclosed, (e) where and in whose possession they now are. Include all x-rays, whether prior to or subsequent to the alleged injury forming the basis of the claim. 7. If treated by doctors, state (a) the name and present address of each doctor (b) the dates and places where treatments were received (c) the date of last treatment. Annex true copies of all written reports rendered to you or about you by any doctors whom you propose to have testify on your behalf.

192 8. If you have been treated by or have consulted with a psychologist, psychiatrist, social worker, or counselor, set forth the name and address of the psychologist, psychiatrist, social worker, or counselor; the dates of the consultation or treatment, the reasons for the consultation or treatment and the date of discharge from the treatment, and true copies of all written reports rendered to you or about you by any of the psychologists, psychiatrists, social workers, or counselors. 9. If you are still being treated, state (a) the name and address of each professional rendering treatment (b) the nature thereof and (c) where and how often the treatment is received. 10. If you claim that a previous injury, disease or illness has been aggravated, accelerated or exacerbated, state in detail the nature of each and the name and present address of each doctor who rendered treatment for the condition, the period during which treatment was received and the cause of the previous injury, disease or illness which is alleged to have been aggravated, accelerated or exacerbated. 11. If you have any physical impairment affecting your ordinary movements, hearing or sight, state in detail the nature and extent of the impairment and what corrective appliances, support or device you use to overcome or alleviate the impairment. 12. If any treatments, operation or other form of surgery in the future has been recommended, suggested or advised to cure, correct, remedy or alleviate any injury or condition resulting from the incident which forms the basis of the clam, state in detail, (a) the nature and extent of the treatment, operation or surgery (b) the purpose thereof and the results anticipated or expected (c) the name and address of the doctor who recommended or suggested or advised the treatments, operation or surgery (d) the name and address of the doctor who will administer or perform the same (e) the estimated medical expenses and disbursements to be incurred thereby (f) the estimated length of time of treatments, operation or surgery, period of hospitalization and period of convalescence (g) all other losses or expenditures anticipated as a result of the treatments, operation or surgery (h) whether it is your intention to undergo the treatments, operation or surgery and the approximate date. 13. Itemize any and all amounts expended or expenses incurred for hospitals, doctors, nurses, x-rays, medicines, care and appliances and state the name and address of each payee and the amount paid or owed each payee. 14. Itemize any and all future medical or other expenses to be incurred, not otherwise set forth herein. 15. If employed at the time of alleged injury forming the basis of the claim, state (a) the name and address of the employer (b) position held and the nature of the work performed (c) average weekly wages for the year prior to the injury (d) period of time lost from employment, giving dates (e) amount of wages lost, if any. 16. If other loss of income, profit or earnings is claimed, state (a) total amount of the loss (b) give a complete detailed computation of the loss (c) the nature and source of loss of the income, profit and earnings and dates of deprivation, thereof.

193 17. If you are presently employed, state (a) the date that the employment began (b) the name and address of the employer (c) the position held and the nature of the work performed (d) the average weekly wages. Attach copies of pay stubs or other complete payroll record for all wages received during the past year. 18. If you have received any money or thing of value for your injuries or damages from any person, firm or corporation, state the amounts received, the dates, names and addresses of the payors. 19. If any photographs, sketched, charts or maps were made with respect to anything which is the subject matter of the claim, state the date thereof, the names and addresses of the persons making the same and of the persons who have present possession thereof. Attach copies of any photographs, sketches, charts or maps upon which you intend to rely. 20. State the names and addresses of all persons who have knowledge of any relevant facts relating to the case, identify each person whom you intend to call as a witness, and set forth as to each person the nature of the testimony that you expect them to present. 21. If you or any of the parties to this action or any of the witnesses made any statements or admissions, set forth what was said; by whom said; date and place where said; and in whose presence, giving names and addresses of any person having knowledge thereof. 22. With respect to all expert witnesses, including treating physicians who are expected to support the claim of the Claimant, and with respect to any person who has conducted an examination of the Claimant or of the property alleged to be damaged and who may be called upon to testify in any proceeding with respect to the claim, state the witnesses’ name, address and area of expertise, and annex a true copy of all written reports rendered to or about you. If a report is not written, supply a summary of any oral report. 23. Set forth the amount of your claim and the basis on which you calculate the amount claimed. 24. Identify and provide copies of all documents, memoranda, correspondence, reports (including police reports), etc. which discuss, mention or pertain to the subject matter of this claim. DOCUMENT REQUEST: Produce all documents identified in your answers to the above questions.

CERTIFICATION The undersigned, identified as the Claimant for the purpose of the above claim hereby certifies that the information provided is the truth and is the full and complete response to the questions, to the best of the knowledge, information and belief of the undersigned.

Signature:______

Date:______

194 AUTHORIZATION FOR RELEASE OF MEDICAL AND HOSPITAL RECORDS

To:______Date:______

Re:______(Patient’s Name)

Address:______

You are hereby authorized and requested to disclose, make available and furnish to the attorney for the (name of local unit) or to the authorized representatives of the (type of local unit) all information, records, x-rays, reports or copies thereof relating to my examination, consultation, confinement or treatment and to permit him or her to inspect and make copies or abstracts thereof. Approximate date of admission to hospital, first examination, treatment of consultation.

Date:______

A photocopy of this release form, bearing a photocopy of my signature, shall constitute your authorization for the release of the information in accordance with the request made to you.

Signature:______

195 AUTHORIZATION FOR RELEASE OF EMPLOYMENT RECORDS

To:______Date:______

Re:______(Patient’s Name)

Address:______

You are hereby authorized and requested to disclose, make available and furnish to the attorney for the (name of local unit) or to the authorized representatives of the (type of local unit, all information, records, x-rays, reports or copies thereof relating to my examination, consultation, confinement or treatment and permit him or her to inspect and make copies or abstracts thereof. A photocopy of this release form, bearing a photocopy of my signature, shall constitute your authorization for the release of the information in accordance with the request made to you.

Signature:______

196 MEL Insurance Guidelines for Contracts and the Use of Governmental Facilities Note: Each Joint Insurance Fund adopts its own model Risk Management Consultant Agreement. Check with your JIF’s Executive Director for a copy of the model used by your JIF. PROVIDER shall make effective the following minimum insurances and follow all provisions, at its own expense, prior to commencement of the services in this agreement. Such insurance requirements shall apply to PROVIDER and any sub-providers of PROVIDER. Group 1 (Small) Scope: Maintenance, Repair, Small Services, Use of Premises Insurance Coverages 1. Commercial General Liability: $1,000,000 Each Occurrence / $2,000,000 Aggregate a. Liquor Liability, Sexual Abuse / Molestation and Athletic Activities must be included b. Completed Operations must be included 2. Business Automobile Liability: $1,000,000 combined single limit any one accident a. All owned, hired or non-owned automobiles used in connection with this agreement 3. Professional Liability/Errors & Omissions Liability: $1,000,000 each claim / $1,000,000 annual aggregate a. Must not contain cyber, privacy or network-related exclusions 4. Workers’ Compensation: Statutory 5. Employers’ Liability: $1,000,000 6. Crime: $1,000,000 a. Must include Employee Theft and Client Coverage 7. Cyber Liability: $1,000,000 Each Claim / $1,000,000 Aggregate

Group 2 (Medium) Scope: Medium Maintenance/Repair, Small Renovation/Construction, Medium Services Insurance Coverages 1. Commercial General Liability: $5,000,000 Each Occurrence / $5,000,000 Aggregate a. Liquor Liability, Sexual Abuse / Molestation and Athletic Activities must be included b. Completed Operations must be included 2. Business Automobile Liability: $1,000,000 combined single limit any one accident a. All owned, hired or non-owned automobiles used in connection with this agreement 197 3. Professional Liability/Errors & Omissions Liability: $1,000,000 each claim / $1,000,000 annual aggregate a. Must not contain cyber, privacy or network-related exclusions 4. Workers’ Compensation: Statutory 5. Employers’ Liability: $1,000,000 6. Crime: $1,000,000 a. Must include Employee Theft and Client Coverage 7. Cyber Liability: $1,000,000 Each Claim / $1,000,000 Aggregate

Group 3 (Larger) Scope: Renovation, Construction, Significant Service Agreements, MEL Firework/Mechanical Amusement Ride Requirements, MEL Public Entity Shared Services Guidelines Insurance Coverages 1. Commercial General Liability: $5,000,000 Each Occurrence / $5,000,000 Aggregate a. Liquor Liability, Sexual Abuse / Molestation and Athletic Activities must be included b. Completed Operations must be included 2. Business Automobile Liability: $5,000,000 combined single limit any one accident a. All owned, hired or non-owned automobiles used in connection with this agreement 3. Professional Liability/Errors & Omissions Liability: $5,000,000 each claim / $5,000,000 annual aggregate a. Must not contain cyber, privacy or network-related exclusions 4. Workers’ Compensation: Statutory 5. Employers’ Liability: $1,000,000 6. Crime: $1,000,000 a. Must include Employee Theft and Client Coverage 7. Environmental Liability: $5,000,000 Each Act / $5,000,000 Aggregate 8. Cyber Liability: $3,000,000 Each Claim / $3,000,000 Aggregate

Group 4 (Large) Scope: Large Projects, Large Agreements Insurance Coverages 1. Commercial General Liability: $10,000,000 Each Occurrence / $10,000,000 Aggregate a. Liquor Liability, Sexual Abuse / Molestation and Athletic Activities must be included b. Completed Operations must be included 2. Business Automobile Liability: $5,000,000 combined single limit any one accident a. All owned, hired or non-owned automobiles used in connection with this agreement 198 3. Professional Liability/Errors & Omissions Liability: $10,000,000 each claim / $10,000,000 annual aggregate a. Must not contain cyber, privacy or network-related exclusions 4. Workers’ Compensation: Statutory 5. Employers’ Liability: $1,000,000 6. Crime: $5,000,000 a. Must include Employee Theft and Client Coverage 8. Environmental Liability: $10,000,000 Each Act / $10,000,000 Aggregate 9. Cyber Liability: $5,000,000 Each Claim / $5,000,000 Aggregate

Additional Insurance Provisions 1. Any combination of primary and umbrella/excess policies may be used to satisfy the limits. All below provisions shall also apply to the umbrella/ excess policies for such coverages listed below. 2. All coverages shall remain in effect for the life of the agreement and for three (3) years thereafter. As respects any claims-made coverages, any combination of renewal policies and extended reporting periods may be used to satisfy such time period; however, no extended reporting period shall be effected for the work under this agreement until the last work has been completed. 3. Any retroactive dates, or the similar, must be no later than the effective date of this agreement. 4. All insurance shall be procured from insurers permitted to do business in the United States and having an A.M. Best rating of at least “A-: VIII”, or the S&P equivalent. 5. If no such rating, self-insured or the like, MEMBER has the right to request and review the financials of such. 6. All General Liability, Automobile Liability, Professional Liability, Environmental Liability and Cyber Liability coverages shall name MEMBER as an additional insured on a primary and non-contributory basis. 7. MEMBER shall be named as Loss Payee on the Crime coverages. 8. All coverages shall contain Waiver of Subrogation provisions, as allowed by law, in favor of MEMBER. 9. At least thirty (30) days written notice of cancellation or non-renewal (10 days for non-payment) of any of the coverages shall be provided to MEMBER. 10. Full “cross liability” / “severability of interests” / “separation of insureds” provisions shall be provided on all coverages. 11. All insurances must be applicable to and cover the operations/services described in this agreement. 12. Remove reverse Hold Harmless clauses. 13. As respects individuals opting-out of the Workers’ Compensation coverage, such individuals shall not work on the subject (project, services) in this agreement. 199 14. The amounts of the insurances or the carrying of the insurances described shall in no way be interpreted as relieving the PROVIDER of any responsibility or liability under the agreement. Any type of insurance or any increase in limits of liability not described above which the PROVIDER requires for its own protection or on account of statute shall be its own responsibility and at its own expense. PROVIDER shall promptly notify MEMBER and the appropriate insurance company(ies) in writing of any accident(s) or circumstance(s), as well as any claim, lawsuit or process received by the PROVIDER arising in the course of operations under the agreement. The PROVIDER shall forward such documents received to its insurance company(ies), as soon as practicable, or as required by its insurance policy(ies).

200 Special Event Safety Checklist

Instructions: Please fill out to make sure you are prepared prior to the start of the event..

Please Note: Local jurisdiction may have more stringent requirements.

Event Date: Event Start Time: Event End Time:

Event Name:

Event Location (Bldg. & Room Number):

Occupancy/ Capacity of Reserved Space:

Anticipated Crowd Size: Weather Forecast for time of event:

Sponsoring Organization:

Responsible Person: Phone Number:

Attach Organizational Chart & Communication Plan

FIRE ALARM SYSTEM (INDOOR EVENT) 1. Is fire alarm panel in NORMAL condition? Yes No N/A 2. Are all fire alarm pull stations accessible and in clear view? Yes No N/A 3. Are evacuation plans posted? Yes No N/A 4. Has event staff been trained on emergency evacuation procedures? Yes No N/A

AUTOMATIC SPRINKLER SYSTEM AND FIRE EXTINGUISHERS (INDOOR EVENT) 5. Are automatic fire sprinkler main supply valves in the OPEN position and secured? Yes No N/A 6. Do gauges at the automatic fire sprinkler control valve read normal pressure(s)? Yes No N/A 7. Are there 18 inches of clearance below all sprinkler heads? Yes No N/A 8. Are all fire extinguishers accessible and unobstructed? Yes No N/A 9. Do all fire extinguishers read normal pressure, and have pin & seal in place? Yes No N/A

MEANS OF EGRESS (INDOOR EVENT) Name & after-hours phone number of Fire Official______10. Are all exit signs illuminated and visible? Yes No N/A 11. Are all exit doors unlocked and working properly? Yes No N/A 12. Are all corridors, exit doorways, exit stairs or exit routes clear of obstructions? Yes No N/A 13. Are aisle ways and doorways free of obstructions i.e., power cords, tables, chairs, etc.? Yes No N/A 14. Is there an occupant load sign posted at the main exit/ entrance? Yes No N/A 15. Will the number of event guests not exceed the posted occupant load sign? Yes No N/A

201

SEATING FOR PLACES OF ASSEMBLY (OVER 50 PEOPLE – INDOOR OR OUTDOOR EVENT) 16. Was seating arrangement reviewed and approved by Fire Inspector? Yes No N/A 17. Are there no more than 14 chairs in any row of seats? Yes No N/A 18. If 250 chairs or more are in use, are they bound together in groups of at least three? Yes No N/A 19. Have bleachers been inspected? Do bleachers over 42” high have side & back rails? Yes No N/A 20. Are exterior seating areas clearly defined and marked? Yes No N/A 21. Is crowd monitoring and security proper for anticipated crowd size and behavior? Yes No N/A

ELECTRICAL SAFETY (INDOOR OR OUTDOOR EVENT) Has Electrical / Fire Inspector (s) approved permit and conducted needed inspections? 22. Yes No N/A Documentation of permit and inspections are on-site

Are electrical generating and distribution equipment properly protected from 23. Yes No N/A movement, contact from vehicles, workers, and visitors? 24. Are electrical wires run in manner to minimize tripping hazards? Yes No N/A 25. Are electrical wires properly secured? Yes No N/A 26. Are extension cords in good condition with no frayed wires? Yes No N/A 27. Are extension cords secured to prevent tripping hazards? Yes No N/A 28. Are extension cords supplying power to no more than one appliance? Yes No N/A 29. Are electrical cords plugged into a ground fault circuit interrupter if used outdoors? Yes No N/A Are all portable generators at least 25 feet from any structure, isolated from the 30. Yes No N/A public, and of sufficient capacity to run without refueling during the event? Are light fixtures below 8 feet high provided with protection from contact (shields, 31. Yes No N/A cages, glass, etc.)? 32. Is lighting sufficient for all areas of event? Yes No N/A

FOOD HYGIENE (Indoor or outdoor event) 33. Has local Department of Health been notified and made appropriate inspections? Yes No N/A Are gloves provided for the safe handling of foods? 34. (Note: No bare hands should touch ready to serve foods) Yes No N/A 35. Are cold foods kept below 40° F and hot foods above 140° F? Yes No N/A 36. Is there a three compartment sink provided for cleaning and sanitizing utensils? Yes No N/A

37. Is there a means to wash hands with soap and water? Yes No N/A 38. Are signs posted reminding food handlers to wash hands after using restrooms? Yes No N/A Is a class K fire extinguisher located in the cooking area adjacent to each group of 39. Yes No N/A cooking appliances? Are exterior cooking appliances at least 10 feet from any combustible wall or roof 40. and at least 20 feet from any building air intake, door or window? Yes No N/A

202

SPECIAL HAZARDS (INDOOR OR OUTDOOR EVENT) 41. Are game / activity areas properly spaced and marked? Yes No N/A 42. Has security been established for handling / transporting cash? Yes No N/A 43. Are all hanging fabrics and decorations labeled flame retardant? Yes No N/A

Was a permit issued and approved for use of smoke generating equipment, open 44. Yes No N/A flame devices or pyrotechnics?

FIRE LANE & PARKING (INDOOR OR OUTDOOR EVENT) 45. Are directional signs in place? Are traffic control cones, barricades, etc. in place? Yes No N/A 46. Are fire lanes clear and unobstructed? Yes No N/A Are areas designated for emergency vehicles staging? Has area been approved by 47. Yes No N/A Police, Fire, and EMS commanders? Is parking area(s) sufficiently illuminated? Are traffic and parking control officers 48. Yes No N/A illuminated?

TENTS & CANOPIES (OUTDOOR EVENT) 49. Do large tents/ canopies have certification papers indicating they are flame retardant? Yes No N/A Are tents/canopies set up at least 10 feet from other tents/canopies and at least 10 feet 50. Yes No N/A from cooking equipment? 51. Are tent stakes and ropes properly marked / protected from inadvertent contact? Yes No N/A Have temporary stages and other raised platforms have been issued the appropriate 52. Yes No N/A building permits and have been inspected prior to use? Documentation is on hand?

WALKWAYS / RAMPS / STAIRS (INDOR OR OUTDOOR EVENT) 53. Have walking surfaces been inspected for slip-trip-fall hazards? Yes No N/A 54. Are walking surfaces provided with sufficient lighting? Yes No N/A 55. Are stair treads and railings in good condition? Yes No N/A

COMPRESSED GAS CYLINDERS (INDOOR OR OUTDOOR EVENT) 56. Are unused compressed gas cylinders secured in an upright position and capped? Yes No N/A 57. Are there no more than two (2) propane gas tanks in a tent/booth? Yes No N/A

OTHER CONSIDERATIONS (INDOOR OR OUTDOOR EVENT) For high risk events (e.g. mechanical bull riding, etc.), has vendor provided liability 58. insurance certificate and or has event insurance been purchased? Consult with Risk Yes No N/A Manager 59. Have event / open / athletic fields been inspected for slip-trip-fall hazards? Yes No N/A 60. Emergency services (first aid station, command post, etc.) are marked / identifiable? Yes No N/A

ADDITIONAL COMMENTS

Signature of Event Coordinator or Designee Name (Printed) Date

203 Model Resolution (or Ordinance) Concerning Meeting Decorum Drafting Note: This model is based on Norwalk, California Ordinance 2.08.020, Rules of Decorum for Meetings. Whereas: The public are encouraged to speak at all open meetings of the (public entity type) in accordance with the provisions of this resolution (ordinance). Whereas: In New Jersey, a citizen’s right to speak is established by the Open Public Meetings Act. 378 Whereas: In the 2010 decision in Besler v West Windsor-Plainsboro Regional BOE, 379 the New Jersey Supreme Court ruled that governing bodies should adopt their decorum rules sufficiently in advance so that the public has reasonable notice and governing bodies must apply these rules in a content neutral fashion without regard to the viewpoint being expressed. 380 Now therefore be it resolved by the (governing body type) of (name of local government) that: A. Decorum. Meetings of the (Public Entity Type) shall be conducted in an orderly manner to ensure that the public has a full opportunity to be heard and that the deliberative process is retained at all times. This also includes meetings of all boards and other bodies of the (public entity type). The presiding officer shall be responsible for maintaining the order and decorum of meetings. B. Rules of Decorum: While any meeting is in session, the following rules of order and decorum shall be observed: 1. Rules of Order: Unless otherwise provided by law, Robert’s Rules of Order shall govern the conduct of all meetings when necessary. The attorney for the body or the attorney’s designee shall act as Parliamentarian. 2. Members: The members of the governing body and members of all boards and other bodies shall preserve order and decorum, and a member shall make best efforts not to interrupt or disrupt the proceedings or disturb any other member while speaking. 3. Matters Discussed in Closed Session: No person shall disclose in open session the matters discussed in closed session without the expressed authorization of the (public entity type) attorney or in accordance with the law. 4. Persons Addressing the Meeting: Each person who addresses the meeting shall do so in an orderly manner. Any person who utters physically threatening, patently offensive or abusive language, 381 or engages in any other conduct which disrupts, disturbs or otherwise impedes the orderly conduct of any meeting shall, at the discretion of the presiding officer or a majority of the members, be asked to refrain from such conduct.

204 5. Audience: No person at a meeting shall engage in disorderly or boisterous conduct, including the utterance of loud, physically threatening or abusive language, or other acts which disturb, disrupt or otherwise impede the orderly conduct of any meeting and the ability of the public to hear or participate. Any person who conducts himself in the aforementioned manner shall, at the discretion of the presiding officer or a majority of the body, be requested to refrain from such conduct. 6. Personal Comments: All statements are part of the public record and cannot be redacted. C. Public Participation: The public is encouraged to address the members or ask questions during the following portions of the meeting: 1. Hearings: The meeting shall be opened for public comment at the appropriate point on the agenda for any hearing with respect to an ordinance or other specific matter required by law. (optional) The maximum that any individual speaker shall be allotted is ___ minutes. 2. Open Public Session: During this period of the agenda, the public is encouraged to comment on any matter of concern. (optional) The maximum that any individual speaker shall be allotted is ___ minutes. D. Addressing the Meeting: No person shall address the meeting without first being recognized by the presiding officer. The following procedures shall be observed by persons addressing the members: 1. Each person shall step to the podium provided for the use of the public and shall state his or her name and address; the organization, if any, which he or she represents; and, if during the open public session of the meeting, the subject he or she wishes to discuss. Children under 18 shall not be required to give their last name or address. 2. During any hearing with respect to an ordinance or other specific matter required by law, speakers shall limit comments to the specific ordinance or matter on the agenda. Speakers may be requested not to be repetitious. 382 3. All remarks shall be addressed to the body as a whole. E. (Optional) Curfew: All meetings shall be adjourned by the presiding officer not later than ______except the meeting may be extended by a vote of two-thirds of the members present. E. Enforcement of Decorum: The rules of decorum set forth above shall be enforced in the following manner: 1. The presiding officer shall request that a person who is breaching the rules of decorum to be orderly. 2. If, after receiving a warning from the presiding officer, a person persists in disturbing the meeting, the presiding officer may order a temporary recess. 3. If the person repeatedly continues to disturb the meeting, the presiding officer may request that person to leave the meeting. 4. If such person does not leave the meeting and continues disruptive conduct, the presiding officer may order any law enforcement officer to remove that person from the chambers. 383 205 5. If a meeting is disturbed or disrupted in such a manner as to make the restoration of order infeasible or improbable, the meeting may be adjourned or continued by the presiding officer or a majority of the members, and any remaining business may be considered at the next meeting. Model Policy Concerning the First Amendment Right to Record The (name of local unit) recognizes that under Federal and New Jersey law, private citizens have some First Amendment rights to record public officials and employees performing their duties. This includes the right to enter open areas of public and semi-public buildings or property to record government officials and employees performing their duties. This right is not absolute and is subject to reasonable time, place, and manner restrictions. The purpose of this policy is to provide officials and employees with guidance in the event of being confronted with an immediate decision regarding a member of the public exerting First Amendment rights. 1. Under the First Amendment, the public has the right to: A. Record public officials or employees at traditional public forums such as parks and public streets and in limited public forums such as at public meeting rooms. B. Record public officials and employees while they are in areas of public buildings and public spaces that are open to the public. C. Record public officials and public employees while they are in areas not open to public access so long as the person recording or the recording equipment itself does not trespass into closed areas. D. Record law enforcement activities outside of closed areas such as officers during the course of performing an arrest, traffic stop or truck inspection. E. Record hazardous or dangerous property conditions. 2. The right to record has been found not to exist: A. While filming areas not generally open to the public that pose legitimate safety and security risks such as jails, holding cells or bathrooms. B. When the recorder interferes with the official’s performance of their duties in or interferes with an investigation. C. Recording a police conversation with a confidential informant. D. Violating an ordinance prohibiting or restricting photography of private citizens for commercial resale without a permit. 3. The Safety Committee will review institutional security, signage, and other safeguards. Where necessary, the Committee will implement security sign-in, video surveillance, fencing, additional locks, and a system of government identification scan cards.

206 4. Best efforts will be made to post the following notice at the entrances of areas where the public is not permitted access: “NOTICE AGAINST TRESPASS: You are entering a restricted Area. Unauthorized Access is strictly prohibited beyond this point. Any person who attempt to or access any area beyond this point without prior written permission from municipal officials, shall be declared a trespasser, and a criminal complaint will be issued against you for violating N.J. Law 2C:28-3b (N.J.S.A. 2C:28-3b) ‘Defiant Trespasser.’ Furthermore, any person having authorization or permission to enter any area beyond this point may be asked to leave at any time. Whenever asked to leave, any such prior authorization/permission of access shall be deemed revoked, and any person(s) refusing to leave shall be declared a trespasser and a criminal complaint will be issued against you for violating N.J. Law 2C:28-3b (N.J.S.A. 2C:28-3b) ‘Defiant Trespasser.’” 5. For areas of public property in that the general public is permitted access, similar signage will be posted at all public entrance and exits advising of the days and times the property is open to the general public and providing notice of the Defiant Trespasser statute. 6. In the event a member of the public attempts to trespass into restricted areas or otherwise interfere with governmental operations, public officials and employees will: A. Stay calm and professional at all times. Be helpful, but do not go beyond what is required by law. B. Politely request the individual to leave the restricted area or to move sufficiently away from the governmental activity and otherwise cease the interference. C. In the event the individual refuses to comply with the request, the official or employee will refrain from engaging in any verbal confrontation or physical contact with the individual and immediately request assistance from law enforcement. 7. Anyone who engages in threats of physical violence or a significant pattern of harassment may be removed from government property by police and charged with a “defiant trespass” offense in violation ofN.J.S.A. 2C:18-3(b). 8. Whenever any person has been ejected from public property, a written “Notice to Person Ejected” will be provided to the person advising that they have been ejected from the property because they violated the defiant trespass statute and that any such re-entry is conditional upon obtaining written permission. 9. The Safety Committee will conduct a tabletop exercise or roleplaying drill for employees to prepare for a trespass or interference incident. I hereby acknowledge that I have read this policy:

Name:______Title:______

Signature:______Date:______207 378 N.J.S.A. 40A 10:4-12-a provides “…a municipal governing body and a board of education shall be required to set aside a portion of every meeting of the municipal governing body or board of education, the length of the portion to be determined by the municipal governing body or board of education, for public comment on any governmental or school district issue that a member of the public feels may be of concern to the residents of the municipality or school district.” 379 A-81-08 380 The Besler court wrote: “A public body may control its proceedings in a content-neutral manor by stopping a speaker who is disruptive or who fails to keep to the subject matter on the agenda. The government or a school board, however, has the burden of showing that its restriction of speech in a public forum was done in a constitutionally permissible purpose.” 381 Robert’s Rules or Order provides that: “In debate a member must confine himself to the question before the assembly, and avoid personalities …. It is not allowable to arraign the motives of a member, but the nature or the consequences of a measure may be condemned in strong terms. It is not the man, but the measure, that is the subject of debate.” 382 In the often cited decision in White v Norwalk, California, a Federal Appeals court wrote: “In dealing with agenda items, the Council does not violate the first amendment when it restricts speakers to the subject at hand”…. While a speaker may not be stopped from speaking because the moderator disagrees with the viewpoint the speaker is expressing, it certainly may stop him if his speech becomes irrelevant or repetitious.” 383 In a 2002 decision (State v Charzewski: 356 N.J. Super 151) a New Jersey Appellate Court ruled that merely being disorderly at a Council meeting was not per se a criminal offense. The court ruled that the speaker’s “conduct may have been rude and excessive, but it was not criminal. Not every interruption constitutes a criminal disruption.”

208 Model Joint Insurance Documents

Resolution to Join

Resolution to Renew Membership

Indemnity and Trust Agreement

Model Risk Manager Contract

Risk Management Consultant Confidentiality Agreement

Enabling Statute (N.J.S.A. 40A:10-36 et. seq.)

209 RESOLUTION TO JOIN (Name of Joint Insurance Fund) Note: Each Joint Insurance Fund adopts its own model resolution to join. Check with your JIF’s Executive Director for a copy of the model used by your JIF. WHEREAS, a number of local units of government in the State of New Jersey have joined together to form the (name of joint insurance fund), hereinafter the “FUND” as permitted by chapter 372 Laws of 1983 (40A:10 36); and, WHEREAS, said FUND was approved to become operational by New Jersey Department of Banking and Insurance and the Department of Community Affairs and has been in operation since that date; and, WHEREAS, the statutes and regulations governing the creation and operation of a Joint Insurance FUND contain elaborate restrictions and safeguards concerning the safe and efficient administration of the public interest entrusted to such a Fund. NOW THEREFORE BE IT RESOLVED that the Governing Body of (name of local unit) does hereby agree to join the FUND subject only to the right to approve the initial assessment when the same is received from the FUND following processing of the application; and, BE IT FURTHER RESOLVED, it is agreed as follows: 1. The (name of local unit) hereby begins its membership in the FUND for a three (3) year period, beginning ______and ending December 31, _____. 2. The (name of local unit) hereby ratifies and reaffirms the Indemnity and Trust Agreement, Bylaws and other organizational and operational documents of the FUND as from time to time amended and altered by the Department of Banking and Insurance in accordance with the Applicable Statutes and administrative regulations as if each and every one of said documents were re-executed contemporaneously herewith. 3. The (name of local unit) agrees to be a participating member of the FUND for the period herein provided for and to comply with all of the rules and regulations and obligations associated with said membership. BE IT FURTHER RESOLVED that the (name of local unit) is applying to the FUND for the following types of coverages: 1. Workers’ Compensation including Employer’s Liability; 2. General Liability including Police Professional Liability and Employee Benefits Liability; 3. Automobile Liability; 4. Blanket Crime; 5. Property including Boiler and Machinery; 6. Public Officials and Employment Practices Liability; 210 7. Volunteer Directors & Officers Liability; 8. Cyber; 9. Non-Owned Aircraft Liability; 10. Environmental Impairment Liability. BE IT FURTHER RESOLVED that the Governing Body hereby adopts and approves of the bylaws of the FUND; and BE IT FURTHER RESOLVED that (title) is authorized to execute the application for membership and the accompanying certification on behalf of the Governing Body; and

BE IT FURTHER RESOLVED that the Governing Body is authorized and directed to execute the Indemnity and Trust Agreement and such other documents signifying membership in the FUND as are required by the FUND’s bylaws and to deliver same to the Executive Director of the FUND with the express reservation that said document shall become effective only upon the applicant’s admission to the FUND.

211 RESOLUTION TO RENEW MEMBERSHIP (Name of Joint Insurance Fund) Note: Each Joint Insurance Fund adopts its own model resolution to renew membership. Check with your JIF’s Executive Director for a copy of the model used by your JIF. WHEREAS, the ______, hereinafter the MEMBER is a member of the (Name of Joint Insurance Fund), hereinafter the FUND; and, WHEREAS, said renewed membership terminates as of December 31, xxxx unless earlier renewed by agreement between the MEMBER and the FUND; and, WHEREAS, the MEMBER desires to renew said membership; NOW THEREFORE, be it resolved as follows: 1. The MEMBER agrees to renew its membership in the FUND and to be subject to the Bylaws, Rules and Regulations, coverages, and operating procedures thereof as presently existing or as modified from time to time by lawful act of the FUND. 2. The (title) and Clerk shall be and hereby are authorized to execute the agreement to renew membership annexed hereto and made a part hereof and to deliver same to the FUND evidencing the MEMBER’s intention to renew its membership.

212 AGREEMENT TO RENEW MEMBERSHIP (Name of Joint Insurance Fund) Note: Each Joint Insurance Fund adopts its own model resolution to renew membership. Check with your JIF’s Executive Director for a copy of the model used by your JIF. WHEREAS, (Name of Joint Insurance Fund) hereinafter the “FUND”, is a duly chartered Joint Insurance Fund as authorized by NJSA 40A:10-36 et seq., and; WHEREAS, (name of member) hereinafter the “MEMBER” is currently a member of said FUND, and; WHEREAS, effective December 31, xxxx, said membership will expire unless earlier renewed, and; WHEREAS, the governing body of the MEMBER has resolved to renew said membership; NOW THEREFORE, it is agreed as follows: 1. The MEMBER hereby renews its membership in the FUND for a three (3) year period, beginning January 1, xxxx and ending January 1, xxxx*. 2. The MEMBER hereby ratifies and reaffirms the Indemnity and Trust Agreement, Bylaws and other organizational and operational documents of the FUND as from time to time amended and altered by the Department of Banking & Insurance in accordance with the Applicable Statutes and administrative regulations as if each and every one of said documents were re-executed contemporaneously herewith. 3. The MEMBER agrees to be a participating member of the FUND for the period herein provided for and to comply with all of the rules and regulations and obligations associated with said membership. 4. In consideration of the continuing membership of the MEMBER in the FUND, the FUND agrees, subject to the continuing approval of the Commissioner of Banking and Insurance to accept the renewal application of the MEMBER. 5. Executed the ______day of ______, ______as the lawful and binding act and deed of the ______, which execution has been duly authorized by public vote of the governing body.

213 INDEMNITY AND TRUST AGREEMENT (Name of Joint Insurance Fund) Note: Each Joint Insurance Fund adopts its own model indemnity and trust agreement. Check with your JIF’s Executive Director for a copy of the model used by your JIF. THIS AGREEMENT, made this day of (date) in the County of (County name), State of New Jersey, By and Between the (name of JIF), hereinafter the “FUND”, and the Governing Body of the (name of local unit), a duly constituted local unit of government hereinafter the “MEMBER”; WITNESSETH: WHEREAS, several local governmental units have collectively formed a Joint Insurance Fund as such an entity is authorized and described in NJSA 40A:10 36 et seq. and the administrative regulations promulgated pursuant thereto; and, WHEREAS, the MEMBER has agreed to become a member of the FUND in accordance with and to the extent provided for in the bylaws of the FUND and in consideration of such obligations and benefits to be shared by the membership of the FUND. NOW THEREFORE, it is agreed as follows: 1. The MEMBER accepts the FUND’S bylaws as approved and adopted and agrees to be bound by and to comply with each and every provision of the said bylaws and the pertinent statutes and Administrative Regulations pertaining to same and as set forth in the Risk Management Plan. 2. The MEMBER agrees to participate in the FUND with respect to the types of insurance listed in the FUND’s Plan of Risk Management. 3. The MEMBER agrees to become a member of the FUND for an initial period of three (3) years, the commencement of which shall coincide with the local unit’s Resolution to Join. 4. The MEMBER certifies that it has never defaulted any claims if self- insured and has not been canceled for non-payment of insurance premiums for a period of at least two years prior to the date hereof. 5. In consideration of membership in the FUND the MEMBER agrees that it shall jointly and severally assume and discharge the liability of each and every member of the FUND, all of whom as a condition of membership in the FUND shall execute a verbatim counterpart of this Agreement and by execution hereof the full faith and credit of the MEMBER is pledged to the punctual payment of any sums which shall become due to the FUND in accordance with the bylaws thereof, this Agreement the Fund’s Risk Management Plan or any applicable Statute.

214 6. If the FUND in the enforcement of any part of this Agreement shall incur necessary expense or become obligated to pay attorney’s fees and/ or Court costs the MEMBER agrees to reimburse the FUND for all such reasonable expenses, fees and costs on demand. 7. The MEMBER and the FUND agree that the FUND shall hold all monies paid by the MEMBER to the FUND as fiduciaries for the benefit of FUND claimants all in accordance with NJAC 11:15 2.1 et seq. 8. The FUND shall establish separate Trust Accounts for each of the following categories of risk and liability: a. Workers’ Compensation including Employer’s Liability; b. General Liability including Police Professional Liability and Employee Benefits Liability; c. Automobile Liability; d. Blanket Crime; e. Property including Boiler and Machinery; f. Public Officials and Employment Practices Liability; g. Volunteer Directors & Officers Liability; h. Cyber; i. Non-Owned Aircraft Liability; j. Environmental Impairment Liability. The FUND shall maintain Trust Accounts aforementioned in accordance with NJSA 40A: 10 36, NJAC 11:15.2 et seq, NJSA 40A: 5 1 and such other statutes as may be applicable. More specifically, each of the aforementioned separate Trust Accounts shall be utilized solely for the payment of claims, allocated claim expense and Excess Insurance or Reinsurance premiums for each such risk or liability or as “surplus” as such term is defined by NJAC 11:15 2.2. 9. Each local unit of government that shall become a member of the FUND shall be obligated to execute this Agreement.

215 RISK MANAGEMENT CONSULTANT AGREEMENT (Name of Joint Insurance Fund) Note: Each Joint Insurance Fund adopts its own model Risk Management Consultant Agreement. Check with your JIF’s Executive Director for a copy of the model used by your JIF. This Agreement, entered into this ______day of ______, ______, between the ______(hereinafter referred to as the “MEMBER”) and ______, a Corporation of the State of New Jersey, and ______, the responsible agent, having its principal office located at ______(hereinafter referred to as the “Consultant”). WHEREAS, the Consultant has offered the services to the MEMBER as the Professional Risk Management Consultant as required in the Bylaws of the (name of Joint Insurance Fund) hereinafter referred to as the FUND; and, WHEREAS, the MEMBER desires to contract for these professional services pursuant to the resolution adopted by the Governing Body of the MEMBER at a meeting held on ______;______NOW THEREFORE, the parties in consideration of the mutual promises and covenants set forth in this Agreement, agree as follows: 1. For and in consideration of the compensation set forth in Paragraph 3 of this Agreement, the Consultant hereby agrees to provide Professional Risk Management services to the Municipality as follows: A) The Consultant shall assist the MEMBER in identifying its insurable exposures and shall recommend professional methods to reduce, assume or transfer the risk of loss. B) The Consultant shall assist the MEMBER in understanding and selecting the various types of coverage available from the FUND. C) The Consultant shall review with the MEMBER any additional types of coverage that the Consultant believes the MEMBER should purchase that are not available from the FUND. The Consultant shall purchase and bind any additional types of coverage authorized by the MEMBER. D) The Consultant shall assist the MEMBER in the preparation of applications, statements of values and other documents requested by the Fund. However, this Agreement does not include any appraisal work by the Consultant. E) The Consultant shall review the MEMBER’s annual assessment as prepared by the Fund, and shall assist the MEMBER in the preparation of its annual insurance budget.

216 F) The Consultant shall review the loss and engineering reports for the MEMBER, and shall assist the Safety Committee in its loss containment objectives within the Municipality. G) The Consultant shall attend and actively participate in the MEMBER’s Safety Committee activities and meetings, and shall present information to the Safety Committee on Safety related topics. H) The Consultant shall attend the MEMBER’s Accident Review Panel meetings and assist the MEMBER in determining the cause of accidents. The Consultant shall suggest any remedial actions necessary to avoid future accidents. I) The Consultant shall assist the MEMBER in determining the necessary training for each employee in each Department based upon the employee’s job description and in accordance with OSHA and other governmental regulations. J) The Consultant shall assist the MEMBER in scheduling employee training, both internal and external, including the tracking of course attendance and completion of course requirements. K) The Consultant shall assist the MEMBER with the timely and accurate reporting of all claims, which shall include the establishment and implementation of claims reporting procedures. L) The Consultant shall assist, when requested by the MEMBER and/ or the Claims TPA, with the investigation of claims filed against the MEMBER. M) The Consultant shall review the MEMBER’s loss data on a regular basis and prepare reports to the MEMBER on recent losses, open claims, and loss trends. N) The Consultant shall review the performance of the MEMBER’s Claims TPA on a quarterly basis including reserving practices, adjuster claim counts, and supervisor file review. O) The Consultant shall assist the MEMBER by reporting to the Fund changes in exposures including the deletion and addition of vehicles, equipment, and properties and the contracting of MEMBER services to third parties. P) The Consultant shall assist the MEMBER and Fund professionals in the annual renewal process including the gathering and verification of exposure data. Q) The Consultant shall order Certificates of Insurance from the FUND. R) The Consultant shall review Certificates of Insurance received by the MEMBER.

217 S) The Consultant shall review proposed contracts between the MEMBER and organizations and contractors to verify that the appropriate indemnification and hold harmless language is contained in the Contract and that the Certificate of Insurance Guidelines are being followed. T) The Consultant shall evaluate and advise the MEMBER on the risk management aspects of public events being staged or sponsored by the MEMBER.

U) The Consultant shall review the annual coverage documents to verify the accuracy of the policies. V) The Consultant shall respond to questions regarding coverage from the MEMBER’s officials. W) The Consultant shall actively attend and participate on the FUND Subcommittees as authorized by the Fund Bylaws. X) The Consultant shall regularly attend the Monthly Executive Committee meetings of the FUND. Y) The Consultant shall execute and file with the MEMBER, as part of this agreement, and the Executive Director’s office a copy of the FUND’s Confidentiality Agreement. Z) The Consultant shall at least twice annually, prepare and present a written report to the Governing Body of the MEMBER outlining the MEMBER’s Insurance and Safety Program. AA) The Consultant shall assist the Municipality with the settlement of claims, with the understanding that the scope of the Consultant’s involvement does not include the work normally performed by a public adjuster. AB) The Consultant shall perform any other services required by the FUND’s Bylaws. 2. The term of this Agreement shall be for a period of one (1) year commencing the first day of January, 20____, or from the effective date of coverage, unless this Agreement is terminated as set forth in Paragraph 5 of this Agreement. 3. The MEMBER authorizes the FUND to pay its Consultant, as compensation for services rendered, an amount equal to a dollar amount of ______($_____) or ______percent (____%) of the MEMBER’s annual assessment as promulgated by the Fund. Said fee shall be paid to the Consultant within thirty (30) days of the payment of the MEMBER’s assessment to the Fund. The Consultant shall receive no other compensation or commission for the placement or servicing of any coverage with the FUND.

218 4. For any type of coverage that is authorized by the MEMBER, to be purchased outside of the coverage offered by the FUND, the Consultant shall receive as full compensation, the normal brokerage commissions paid by the insurance company. The premiums for said policies shall not be added to the FUND’s assessment in computing the fee outlined in Paragraph 3 of this Agreement. 5. Either party may cancel this Agreement at any time by notifying the other party, in writing, of their intention to terminate this Agreement. The termination shall be effective on the ninetieth day after service of the notice. The compensation provided for in Paragraph 3 shall be pro-rated to the date of termination.

ATTEST: ______MEMBER:______

ATTEST: ______CONSULTANT:______

DATE: ______

219 RISK MANAGEMENT CONSULTANT CONFIDENTIALITY AGREEMENT (Name of Joint Insurance Fund) Note: Each Joint Insurance Fund adopts its own model Risk Management Consultant Agreement. Check with your JIF’s Executive Director for a copy of the model used by your JIF. WHEREAS, the (Name of Joint Insurance Fund), hereinafter the FUND, in order to properly discharge its duties and obligations, must consider and discuss certain confidential information regarding specific general liability (property, automobile, trip and fall, and civil rights), Workers’ Compensation, Employment Practices Liability, Public Officials Liability and other types of claims against Member, and certain confidential information regarding any Members’ claims history, loss ratios, litigation strategies, safety history, assessment strategies and renewal information; and WHEREAS, the discussion of claims against Members, the evaluation of the factual and legal issues relating to said claims, and the discussion of settlement, liability, authority and other issues surrounding said claims must remain confidential in order to best respect the privacy of the individuals involved and/or to preserve the tactical and strategic defense of actual and/or pending litigation arising out of said claims; and WHEREAS, the discussion of claims history, loss ratios, litigation strategies, safety history, assessment strategies and renewal information must also remain confidential in order to best protect the interest of the FUND and its Members; and WHEREAS, any discussion relating to said claims may take place at meetings of the Fund Commissioners, meetings of the Executive Committee and meetings of other committee of the FUND or directly with one or more of the representatives of the Member, Assigned Defense Counsel designated by the UND and/or Fund Professionals; and WHEREAS, the undersigned will, from time to time, participate in the consideration, evaluation, and discussion of claims, litigation strategies, assessment strategies, safety history, loss ratios and renewal information in order to provide their assistance and expertise to the FUND and the Member upon whose behalf the RMC is acting. NOW, THEREFORE, I, the undersigned, hereby specifically agree as follows: 1. I will not disclose any matter discussed in any closed session, claims meeting, or other meeting or event in which I participate or which is set forth in any document made available to me or which is discussed with me by any person on behalf of the FUND and/or its members, to any person or entity not authorized to receive that information by the FUND. 2. I acknowledge that, by virtue of my position, I have a fiduciary relationship to the Member for which I perform RMC services and, in addition, I owe a duty to the FUND to best protect its Members’ rights, privileges, and defenses regarding any discussions in which I may be involved, and that I am bound by the following standards: 220 a. Neither I nor any member of my immediate family shall have an interest in a business organization or engage in any business, transaction, or professional activity, which is in substantial conflict with the proper discharge of my responsibilities to the Member on whose behalf I am acting and to the FUND; and b. I shall not use or attempt to use my position to secure unwarranted privileges or advantages for myself or others; and c. I shall not act in my official capacity in any matter where I,a member of my immediate family, or a business organization in which I have an interest, has a direct or indirect financial interest or personal involvement that might reasonably be expected to impair my objectivity or independence or judgment; and d. I shall not undertake any employment or service, whether compensated or not, which might reasonably be expected to prejudice my independence or judgment in the exercise of my responsibilities to the Member which I represent and to the FUND; and e. Neither I or any business organization in which I have an interest shall represent any person or party other than the Member which I represent and the FUND in connection with any claim against any Member and the FUND; and f. I shall not, at any time or in any manner, disclose, convey, transmit, copy or otherwise make available any information and/ or document(s) not generally available to the members of the public which I receive or acquire by reason of my position as an RMC for a Member and the FUND for the purpose of securing financial gain, directly or indirectly, for myself or for any other person; 3. I will use caution and discretion in the storage and/or disposal of any information or documents received, directly or indirectly, by me or by virtue of my relationship to the Member and the FUND. 4. I hereby recognize that, by virtue of my position as an RMC for a Member, I am entitled to participate in any or all discussions of claims related to the Member that I represent. I understand that the decision to permit me to participate in any of the discussions referred to previously in this document is a privilege granted by the FUND. I understand that the FUND and its Committees shall have the right to bar me from the discussion of any claims or other issues in the event that I violate any of the aforementioned standards. I also recognize that, by virtue of my position, I may acquire knowledge relating to other Members other than the Member which I represent and, accordingly, I agree to be bound by this document in relation to any such information I may acquire. 5. In the event of a violation of this agreement by me, I recognize that I may be subject to punishment, sanctions, dismissal, and/or penalties, or a combination of these remedies which may be imposed by the Member on whose behalf I am acting, and I further recognize that the FUND may request that the Member take such action. IN WITNESS WHEREOF, I have hereunto affixed my signature on the date set forth below:

______(Print Name) (Signature) (Date) 221 NJSA 40A:10-36 et. seq. Joint Insurance Funds 40A :10-36 Joint insurance fund; definitions. a. The governing body of any local unit, including any contracting unit as defined in section 2 of P.L.1971, c.198 (C.40A:11-2), may by resolution agree to join together with any other local unit or units to establish a joint insurance fund for the purpose of insuring against liability, property damage, and workers’ compensation as provided in Articles 3 and 4 of chapter 10 of Title 40A of the New Jersey Statutes, insuring against loss or theft of moneys or securities, providing blanket bond coverage of certain county or municipal officers and employees for faithful performance and discharge of their duties as provided under section 1 of P.L.1967, c.283 (C.40A:5-34.1), insuring against bodily injury and property damage claims arising from environmental impairment liability and legal representation therefor to the extent that such coverages, as approved by the Commissioner of Banking and Insurance, are provided by the purchase of insurance and no risk is retained by the fund, providing contributory or non-contributory group health insurance or group term life insurance, or both, to employees or their dependents or both, through self-insurance, the purchase of commercial insurance or reinsurance, or any combination thereof, and insuring against any loss from liability associated with sick leave payment for service connected disability as provided by N.J.S.18A:30-2.1, and may appropriate such moneys as are required therefor. The maximum risk to be retained for group term life insurance by a joint insurance fund on a self-insured basis shall not exceed a face amount of $5,000 per covered employee or dependent or more if approved by the Commissioners of Banking and Insurance and Community Affairs. As used in this subsection: (1) “life insurance” means life insurance as defined pursuant to N.J.S.17B:17-3; (2) “health insurance” means health insurance as defined pursuant to N.J.S.17B:17-4 or service benefits as provided by health service corporations, hospital service corporations or medical service corporations authorized to do business in this State; and (3) “dependent” means dependent as defined pursuant to N.J.S.40A:10-16. b. The governing body of any local unit, including any contracting unit as defined in section 2 of P.L.1971, c.198 (C.40A:11-2), may by resolution agree to join together with any other local unit or units to establish a joint insurance fund for the sole purpose of insuring against bodily injury and property damage claims arising from environmental impairment liability and legal representation therefor to the extent and for coverages approved by the Commissioner of Banking and Insurance.

40A :10-36.1 “Local unit” for purposes of C.40A:10-36 et seq. For the purposes of P.L.1983, c.372 (C.40A:10-36 et seq.), “local unit” shall be deemed to include boards of education which join together with municipalities pursuant to P.L.1992, c.51 (C.40A:10-52 et al.).

222 40A :10-36.2. Establishment of joint insurance revolving fund, use of appropriated moneys The governing body of any local unit that has established a joint insurance fund may by resolution or ordinance, as appropriate, establish a joint insurance revolving fund into which may be deposited any refunds paid to the local unit by the joint insurance fund to be dedicated for the payment of liabilities to the fund in future years. In no event shall amounts deposited in a joint insurance revolving fund exceed the annual amount contributed by the local unit to the joint insurance fund during the prior year. Moneys appropriated from the joint insurance revolving fund shall be used by the local unit to cover losses attributable to claims being paid by the joint insurance fund in future years which exceed contributions paid into the joint insurance fund by the local unit.

40A :10-36.3 Definitions relative to non-profit housing entities and joint insurance funds. a. For the purposes of P.L.2004, c.146 (C.40A:10-36.3) a “non-profit housing entity” means an organization that provides housing meeting the low and moderate income limits established by the United States Department of Housing and Urban Development, if that organization is organized as a not-for-profit entity or as a limited partnership, in a low or moderate income housing project that has as its general partner a not-for- profit entity that has as its primary purpose the construction, rehabilitation or management of housing projects for occupancy by persons of low and moderate income. b. A non-profit housing entity shall be deemed a local unit for the purposes of P.L.1983, c.372 (C.40A:10-36 et seq.) if it chooses to establish or join a joint insurance fund, pursuant to P.L.1983, c.372 (C.40A:10-36 et seq.), that is comprised of either non-profit housing entities or housing authorities or a combination thereof. Such joint insurance funds shall not have as its member local units that are municipalities, counties, boards of education, or fire districts. c. Notwithstanding any provision of law to the contrary, a joint insurance fund established pursuant to P.L.1983, c.372 (C.40A:10-36 et seq.) that includes non-profit housing entities as members shall not join together with other local units, as otherwise provided in section 1 of P.L.1983, c.372 (C.40A:10-36), for the purpose of providing contributory or non- contributory group health insurance or group term life insurance, or both, to employees or their dependents or both. d. Notwithstanding any provision of law to the contrary, a joint insurance fund established pursuant to P.L.1983, c.372 (C.40A:10-36 et seq.) that includes non-profit housing entities as members may participate in joint insurance funds: (1) where the membership is exclusively comprised of other joint insurance funds and whose purpose is to provide excess levels of coverage;

223 (2) where the membership is exclusively comprised of other joint insurance funds and whose purpose is to accept the transfer of residual claims liabilities; or (3) whose purpose is to provide environmental impairment liability insurance. e. A joint insurance fund that has as its members non-profit housing entities shall operate pursuant to the provisions of P.L.1983, c.372 (C.40A:10-36 et seq.).

40A :10-37. Insurance fund commissioners; appointment, terms, compensation Upon the establishment of a joint insurance fund, the officer or body of each local unit having the power to make appointments for the unit shall appoint one member of the governing body or employee of the local unit to represent that local unit as insurance fund commissioner. Each local unit may also appoint an alternate insurance fund commissioner who shall be a member of the governing body or employee of the local unit. Commissioners and alternates who are members of the governing body shall hold office for two years or for the remainder of their terms of office as members of the governing body, whichever shall be less, and until their successors shall have been duly appointed and qualified. Commissioners and alternates who are employees of the local unit shall hold office at the pleasure of the appointing officer or body. In the event that the number of local units represented is an even number, an additional commissioner shall be annually selected by the participating local units on a rotating basis. If the total number of member local units exceeds seven, the commissioners shall annually meet to select not more than seven commissioners to serve as the executive committee of the fund. The commissioners may also select not more than seven commissioners to serve as alternates on the executive committee. The executive committee shall exercise the full power and authority of the commission. Vacancies on the executive committee shall be filled by election of the entire board. The commissioners shall serve without compensation, except that the commissioners may vote to pay themselves a fee for attending commission meetings not to exceed $150 per meeting and the commissioners may vote to pay commissioners who serve on an executive committee a fee for attending executive committee meetings not to exceed $150 per meeting. Any vacancy in the office of insurance fund commissioner or alternate, caused by any reason other than expiration of term as a member of the local unit governing body, shall be filled by the appointing authority in the manner generally prescribed by law. The commission shall annually elect a chairman and a secretary. In the case of a joint insurance fund established for the purposes of providing environmental liability coverage pursuant to subsection b. of section 1 of P.L.1983, c.372 (C.40A:10-36), each member of that joint insurance fund shall have proportional voting based upon the current year’s assessment. 40A :10-38 Powers, authority.

a. The commissioners of a joint insurance fund shall have the powers and authority granted to commissioners of individual local insurance funds under the provisions of subsections a., b., c., and e. of N.J.S.40A:10-10. 224 b. The commissioners may invest and reinvest the funds, including workers’ compensation funds, as authorized under the provisions of subsection b. of N.J.S.40A:10-10. The commissioners may, subject to the cash management plan of the joint insurance fund adopted pursuant to N.J.S.40A:5-14, delegate any of the functions, powers and duties relating to the investment and reinvestment of these funds, including the purchase, sale or exchange of any investments, securities or funds to an investment or asset manager. Any transfer of investment power and duties made pursuant to this subsection shall be detailed in a written contract for services between the joint insurance fund and an investment or asset manager. The contract shall be filed with the Commissioner of Banking and Insurance and the Commissioner of Community Affairs. Compensation under such an arrangement shall not be based upon commissions related to the purchase, sale or exchange of any investments, securities or funds. In addition to the types of securities in which the joint insurance fund may invest pursuant to section 8 of P.L.1977, c.396 (C.40A:5-15.1), a joint insurance fund may invest moneys held in the fund in bonds, notes, and other obligations issued by an agency or corporation of the federal government or a governmental entity established under the laws of this State, provided that the agency, corporation, or governmental entity responsible for the issuance of the bonds, notes, or other obligations is not in default as to the payment of principal or interest upon any of its outstanding obligations, and provided further that the bonds, notes, or other obligations are purchased at fair market value, guaranteed as to interest and principal, and have a credit rating of A3 or higher by Moody’s Investor Services, Inc., A- or higher by Standard & Poor’s Corporation, and A- or higher by Fitch Ratings, except that two of the three ratings is sufficient and further provided that the Commissioner of the Department of Community Affairs, in consultation with the Commissioner of the Department of Banking and Insurance, shall promulgate rules and regulations to limit the duration of the long-term investments and to cap these investments at an appropriate percentage of a joint insurance fund’s overall investment portfolio. If a rating for the bonds, notes, or other obligations has not been obtained from two of the credit rating agencies, the bonds, notes, or other obligations may be purchased if the agency, corporation, or governmental entity responsible for the issuance meets the minimum rating criteria specified by the previous sentence and if the bond offering has the unconditional guarantee of the agency, corporation, or governmental entity responsible for the issuance. c. The commissioners may transfer moneys held in the fund to the Director of the Division of Investment in the Department of the Treasury for investment on behalf of the fund, pursuant to the written directions of the commissioners, signed by an authorized officer of the joint insurance fund, or any investment or asset manager designated by them. The commissioners shall provide a written notice to the director detailing the extent of the authority delegated to the investment or asset manager so designated to act on behalf of the joint insurance fund. Moneys transferred to the director for investment shall be invested subject to section 8 of P.L.1977, c.396 (C.40A:5-15.1), and in accordance with the standards governing the investment of other funds which are managed under the rules and regulations of the State Investment Council. In addition to the types of securities in which the joint insurance fund may invest pursuant to section 8 of P.L.1977, c.396 (C.40A:5-15.1), a joint insurance fund may invest in debt obligations of federal agencies or government corporations with maturities not to exceed 10 years from the date of purchase, excluding 225 mortgage backed or derivative obligations, provided that the investments are purchased through the Division of Investment and are invested consistent with the rules and regulations of the State Investment Council. d. Moneys transferred to the director for investment may not thereafter be withdrawn except: (1) pursuant to the written directions of the commissioners signed by an authorized officer of the joint insurance fund, or any investment or asset manager designated by them; (2) upon withdrawal or expulsion of a member local unit from the fund; (3) termination of the fund; or (4) in specific amounts in payment of specific claims, administrative expenses or member dividends upon affidavit of the director or other chief executive officer of the joint insurance fund. e. The commissioners or the executive board, as the case may be, of any joint insurance fund established pursuant to the provisions of this act shall be subject to and operate in compliance with the provisions of the “Local Fiscal Affairs Law” (N.J.S.40A:5-1 et seq.), the “Local Public Contracts Law,” P.L.1971, c.198 (C.40A:11-1 et seq.) and such other rules and regulations as govern the custody, investment and expenditure of public funds by local units. 40A :10-38.1. through 40A :10-38.12 grants environmental joint insurance funds the power to issues bonds. As of 2020, no joint insurance fund has exercised this authority. 40A :10-38.13. Insurance producers The bylaws of a joint insurance fund may include procedures to recognize and pay commissions or fees to insurance producers appointed by the fund, if any, or producers appointed by the member local units, if any, to advise the member local units on insurance related matters and to provide other related services to member local units as specified in the bylaws. The commissioners of a joint insurance fund shall file with the commissioner a description of any producer arrangement plan by which producers, who shall be licensed pursuant to P.L.1987, c.293 (C.17:22A-1 et seq.), represent member local units in their dealings with the joint insurance fund. The description shall include, but not be limited to, copies of all producer contracts, which shall include a description of the producers’ obligations, responsibilities and compensation; duration of contracts; and an indication whether the contracts are subject to renewal. Whenever a joint insurance fund or member local unit employs a producer to perform risk assessment or risk management, the commissioners of the joint insurance fund shall file with the Commissioner of Insurance a copy of the producer contract for review by the commissioner. 40A :10-38.14 Joint insurance fund to maintain Internet website; contents. The joint insurance fund shall maintain an Internet website. The purpose of the website shall be to provide increased public access to the joint insurance fund’s operations and activities. The following information, if applicable, shall be posted on the joint insurance fund’s website:

226 a. a description of the joint insurance fund’s mission and responsibilities; b. the budget once adopted for the current and immediately prior fiscal years. Commencing with the fiscal year next following the effective date of P.L.2011, c.167 (C.4:24-20.1 et al.), the budgets of at least three consecutive fiscal years shall be available on the website; c. the most recent Comprehensive Annual Financial Report and the annual independent audit or other similar financial information; d. the annual independent audit for the most recent fiscal year and the immediately prior fiscal year. Commencing with the fiscal year next following the effective date of P.L.2011, c.167 (C.4:24-20.1 et al.), the annual audits of at least three consecutive fiscal years shall be available on the website; e. the joint insurance fund’s official policy statements, bylaws, risk management plan and cash investment policy plan that are deemed relevant by the commissioners to the interests of the residents within the jurisdiction of the fund members; f. notice, posted pursuant to the “Senator Byron M. Baer Open Public Meetings Act,” P.L.1975, c.231 (C.10:4-6 et seq.), of a meeting of the insurance fund commissioners, setting forth the time, date, location, and agenda of the meeting; g. the minutes of each meeting of the insurance fund commissioners including all resolutions of the commission and their committees for the current fiscal year. Commencing with the fiscal year next following the effective date of P.L.2011, c.167 (C.4:24-20.1 et al.), the approved minutes of meetings for at least three consecutive fiscal years shall be available on the website; h. the name, mailing address, electronic mail address, if available, and phone number of every person who exercises day-to-day supervision or management over some or all of the operations of the joint insurance fund; and i. a list of attorneys, advisors, consultants, and any other person, firm, business, partnership, corporation, or other organization which received any remuneration of $17,500 or more during the preceding fiscal year for any service whatsoever rendered directly to the joint insurance fund. For the purposes of this section, “rendered directly to the joint insurance fund” shall not include claim payments to service providers for services rendered to third party claimants, individual joint insurance fund members, their employees, or eligible dependents arising out of claims made under the benefit plans provided through the joint insurance fund.

227 40A :10-38.15 Claims experience information provided by joint insurance fund. A joint insurance fund established pursuant to P.L.1983, c.372 (C.40A:10-36 et seq.) and subsection e. of section 1 of P.L.1979, c.230 (C.40A:10-6) for the purposes of providing health benefits or health insurance coverage shall provide at no cost to the requestor, and not more than once in a 24-month period, complete claims experience data to a public employer that participates in the joint insurance fund and makes a written request for its claims experience information, including loss reports and large claims data. The joint insurance fund shall provide the information in an electronic and manual format to the participating public employer who has made a written request for its information, within 60 days of the receipt of the written request made by the public employer. Notwithstanding the above, the joint insurance fund shall issue claims experience data only in a manner that complies with the privacy requirements of the federal Health Insurance Portability and Accountability Act of 1996, Pub.L.104-191, and related regulations. 40A :10-39. Bylaws for joint insurance fund The commissioners shall prepare and, after the approval, by resolution, of the governing body of each participating local governmental unit, shall adopt bylaws for the joint insurance fund. The bylaws shall include, but not be limited to: a. Procedures for the organization and administration of the joint insurance fund, the insurance fund commission and, if appropriate, the executive board of the fund. The procedures may include the designation of one- member local unit to serve as the lead agency to be responsible for the custody and maintenance of the assets of the fund and such other duties as may be assigned by the commissioners of the fund; b. Procedures for the assessment of members for their contributions to the fund and for the collection of contributions in default; c. Procedures for the maintenance and administration of appropriate reserves in accordance with sound actuarial principles; d. Procedures for the purchase of commercial direct insurance or reinsurance, if any; e. Contingency plans for paying losses in the event that the fund is exhausted; f. Procedures governing loss adjustment and legal fees; g. Procedures for the joining of the fund by a non-member local unit; h. Procedures for the withdrawal from the fund by a local unit; i. Procedures for the expulsion of a member local unit;

j. Procedures for the termination and liquidation of the joint insurance fund and the payment of its outstanding obligations;

228 k. Such other procedures and plans as the Commissioner of the Department of Insurance may require by rule and regulation. 40A :10-40.1 Participation in joint cash management and investment program. Notwithstanding the provisions of any other law to the contrary, and in addition to the powers otherwise conferred by law, the commissioners of a joint insurance fund established pursuant to P.L.1983, c.372 (C.40A:10-36 et seq.), and the trustees of a joint insurance fund established pursuant to P.L.1983, c.108 (C.18A:18B-1 et seq.) may amend the plan of risk management of their respective funds to participate in a joint cash management and investment program with other joint insurance funds similarly established pursuant to P.L.1983, c.372 (C.40A:10-36 et seq.), and P.L.1983, c.108 (C.18A:18B-1 et seq.). The joint insurance funds participating in this program shall jointly file a cash management plan for prior approval by the Commissioner of Banking and Insurance and the Commissioner of Community Affairs and shall comply with all provisions of P.L.1983, c.372 (C.40A:10-36 et seq.) and P.L.1983, c.108 (C.18A:18B-1 et seq.), as appropriate. 40A :10-41. Approval of bylaws and plan of risk management No joint insurance fund shall begin providing insurance coverage to its member local units until its bylaws and plan of risk management have been approved as hereinafter provided: a. The commissioners of each joint insurance fund shall concurrently file with the Commissioner of the Department of Insurance for his approval a copy of the fund’s bylaws adopted pursuant to section 4. of this act and a copy of the fund’s plan of risk management prepared pursuant to section 5. of this act. b. Upon receipt of any such bylaws and plan of risk management, the Commissioner of Insurance shall immediately notify the Commissioner of the Department of Community Affairs and shall immediately provide that commissioner with a copy of the bylaws and plan of risk management. The Commissioner of the Department of Community Affairs, or if the commissioner shall so designate, the Director of Local Government Services in the Department of Community Affairs, is empowered to approve or disapprove any such bylaws and plans on the basis of whether or not they conform with rules and regulations governing the custody, investment or expenditure of public moneys. Within 25 working days of the receipt of any such bylaws and plan of risk management, the Commissioner of the Department of Community Affairs shall notify the Commissioner of Insurance of his approval or disapproval. As a condition of approval, the Commissioner of the Department of Community Affairs may require such modification of any bylaws or plan of risk management as he may deem necessary to bring them into conformity with the rules and regulations governing the custody, investment or expenditure of public moneys. No bylaws or plan of risk management disapproved by the Commissioner of the Department of Community Affairs, or his designee, shall take effect. If the Commissioner of the Department of Community Affairs, or his designee, fails to approve or disapprove any bylaws or plan of risk management within 25 working days, the bylaws or plan of risk management shall be deemed approved. 229 c. Within 30 working days of receipt, the Commissioner of Insurance shall either approve or disapprove the bylaws or plan of risk management of any joint insurance fund. If the Commissioner of Insurance shall fail to either approve or disapprove the bylaws or plan of risk management within that 30 working day period, the bylaws or plan shall be deemed approved. If any bylaws or plan shall be disapproved, the Commissioner of Insurance shall set forth in writing the reasons for disapproval. Upon the receipt of the notice of disapproval, the commissioners of the affected joint insurance fund may request a public hearing. The public hearing shall be convened by the Commissioner of Insurance in a timely manner. 40A :10-42. Provision of insurance coverage after approval Upon the approval of its bylaws and plan of risk management pursuant to the provisions of section 6 of this act, a joint insurance fund may provide insurance coverage to its member local units by self-insurance, the purchase of commercial insurance or reinsurance, or any combination thereof. 40A :10-43. Commissioners may amend bylaws, approval by Commissioner of Insurance The commissioners may, from time to time, amend the bylaws and plan of risk management of the fund; provided, however, that no such amendment shall take effect until approved as hereinafter provided. a. The commissioners shall file with the Commissioner of Insurance for his approval a copy of any amendment to the bylaws of the fund, upon approval by resolution of the governing bodies of three fourths of the member local units, or any amendment to the plan of risk management, upon adoption by the commissioners. b. Upon receipt of the amendment, the Commissioner of Insurance shall immediately notify the Commissioner of Community Affairs and shall immediately provide that commissioner with a copy of the amendment. The Commissioner of Community Affairs, or by his designation, the Director of the Division of Local Government Services in the Department of Community Affairs, is empowered to approve or disapprove any amendment on the basis of whether or not it conforms with rules and regulations governing the custody, investment or expenditure of public moneys. Within 25 working days of the receipt of the amendment, the Commissioner of Community Affairs, or his designee, shall notify the Commissioner of Insurance of his approval or disapproval. As a condition of approval, the Commissioner of Community Affairs, or his designee, may require a modification of the amendment in order to bring its provisions into conformity with rules and regulations governing the custody, investment or expenditure of public moneys. No amendment disapproved by the Commissioner of Community Affairs, or his designee, shall take effect. If the Commissioner of Community Affairs, or his designee, fails to approve or disapprove any amendment within 25 working days of receipt, the amendment shall be deemed to be approved.

230 c. Within 30 working days of receipt, the Commissioner of Insurance shall either approve or disapprove any amendment to the bylaws or plan of risk management. If the Commissioner of Insurance shall fail to either approve or disapprove the amendment within that 30 working day period, the amendment shall be deemed approved. d. If any amendment shall be disapproved, the Commissioner of Insurance shall set forth in writing the reasons for disapproval. Upon the receipt of the notice of disapproval, the commissioners of the affected joint insurance fund may request a public hearing. The public hearing shall be convened by the Commissioner of Insurance in a timely manner. e. Within 90 days after the effective date of any amendment to the bylaws, a member local unit which did not approve the amendment may withdraw from the fund provided that it shall remain liable for its share of any claim or expense incurred by the fund during its period of membership. 40A :10-44. Suspension, termination, assumption of control or other action by Commissioner; grounds The Commissioner of Insurance shall have the authority to suspend or terminate the authority of any joint insurance, or to assume control of the insurance fund, or to direct or take any action he may deem necessary, for good cause, to enable a fund to meet its obligations, cover its expected losses or to liquidate, rehabilitate or otherwise modify its affairs. Such action shall be taken by the Commissioner of Insurance in the event of: a. A failure to comply with the rules and regulations promulgated by the Commissioner of Insurance or with any of the provisions of this act; b. A failure to comply with a lawful order of the Commissioner of Insurance; c. A deterioration of the financial condition of the fund to the extent that it causes an adverse effect upon the ability of the joint insurance fund to pay expected losses. 40A :10-45. Filing of agreements or contracts The Commissioner of Insurance may, in his discretion, require the commissioners of any fund to file copies of any agreements or contracts entered into by the commissioners of the fund, or any other pertinent documents as he may deem necessary. 40A :10-46. Annual audit; submission of copies The insurance fund commissioners or the executive board thereof, as the case may be, shall cause an annual audit to be conducted by an independent certified public accountant or a registered municipal accountant in accordance with the rules and regulations promulgated by the Commissioner of Insurance pursuant to section 14 of this act. Copies of every audit shall be submitted to the Commissioner of Insurance and the Commissioner of the Department of Community Affairs within 30 working days of its completion.

231 40A :10-47. Examinations of funds by commissioner of insurance; payment of expenses The Commissioner of Insurance may conduct such examinations of any joint insurance fund as he deems necessary. The expense of any such examination shall be borne by the affected fund. 40A :10-48. Joint insurance fund not insurance company or insurer and activities not transaction of insurance nor doing insurance business; inapplicability of insurance laws

A joint insurance fund established pursuant to the provisions of this act is not an insurance company or an insurer under the laws of this State, and the authorized activities of the fund do not constitute the transaction of insurance nor doing an insurance business. A fund established pursuant to this act shall not be subject to the provisions of Subtitle 3 of Title 17 of the Revised Statutes. 40A :10-49. Rules and regulations Within 180 days after the effective date of this act, the Commissioner of Insurance, after consultation with the Commissioner of the Department of Community Affairs, or if that commissioner shall so designate, the Director of the Division of Local Government Services in the Department of Community Affairs, shall promulgate rules and regulations to effectuate the purposes of this act. Such rules and regulations shall include, but not be limited to, the establishment, operation, modification and dissolution of joint insurance funds established pursuant to the provisions of this act. 40A :10-50. “Local unit” includes county vocational school For the purposes of the provisions of P.L. 1983, c. 372 (C. 40A :10-36 et seq.), “local unit” shall be deemed to include a county vocational school. 40A :10-51. “Local unit” includes county college For the purpose of the provisions of P.L. 1983, c. 372 (C. 40A :10-36 et seq.), “local unit” shall be deemed to include a county college. 40A :10-52 Joint insurance for municipality, school district. The governing body of any municipality and the board of education of any school district, provided that the district is not part of a limited purpose regional school district, an all-purpose regional school district or a consolidated school district, may by ordinance or resolution, as the case may be, adopted by a majority of the full membership of the governing body and by a majority of the full membership of the board, agree to join together for the purpose of insuring pursuant to the provisions of: a. Article 1 of chapter 10 of Title 40A of the New Jersey Statutes (N.J.S.40A:10-1 et seq.); b. Article 3 of chapter 10 of Title 40A of the New Jersey Statutes (N.J.S.40A:10-6 et seq.); c. Article 4 of chapter 10 of Title 40A of the New Jersey Statutes (N.J.S.40A:10-12 et seq.); or d. P.L.1983, c.372 (C.40A:10-36 et seq.).

232 40A :10-53 Joint insurance for municipality, all-purpose regional, consolidated school district. In the case of an all-purpose regional school district or a consolidated school district, the governing body of any municipality and the board of education of the regional or consolidated school district may by resolution adopted by a majority of the full membership of the governing body and a majority of the full membership of the board, agree to join together for the purpose of insuring pursuant to the provisions of: a. Article 1 of chapter 10 of Title 40A of the New Jersey Statutes (N.J.S.40A:10-1 et seq.); b. Article 3 of chapter 10 of Title 40A of the New Jersey Statutes (N.J.S.40A:10-6 et seq.); c. Article 4 of chapter 10 of Title 40A of the New Jersey Statutes (N.J.S.40A:10-12 et seq.); or d. P.L.1983, c.372 (C.40A:10-36 et seq.). 40A :10-54 Joint insurance for municipality, limited purpose regional school district. In the case of a limited purpose regional school district, the governing body of any municipality and the board of education of the regional district may by ordinance or resolution, as the case may be, adopted by a majority of the full membership of the governing body and a majority of the full membership of the board, agree to join together for the purpose of insuring pursuant to the provisions of: a. Article 1 of chapter 10 of Title 40A of the New Jersey Statutes (N.J.S.40A:10-1 et seq.); b. Article 3 of chapter 10 of Title 40A of the New Jersey Statutes (N.J.S.40A:10-6 et seq.); c. Article 4 of chapter 10 of Title 40A of the New Jersey Statutes (N.J.S.40A:10-12 et seq.); or d. P.L.1983, c.372 (C.40A:10-36 et seq.). 40A :10-55 Additional joint insurance for municipality, limited purpose regional school district, other district. In the case of a limited purpose regional school district, in addition to any contract entered into by a municipality pursuant to section 3 of this act, the governing body of any municipality and the board of education of any school district may, in accordance with section 1 of this act, agree to join together for the purpose of insuring pursuant to the provisions of: a. Article 1 of chapter 10 of Title 40A of the New Jersey Statutes (N.J.S.40A:10-1 et seq.); b. Article 3 of chapter 10 of Title 40A of the New Jersey Statutes (N.J.S.40A:10-6 et seq.); c. Article 4 of chapter 10 of Title 40A of the New Jersey Statutes (N.J.S.40A:10-12 et seq.); or d. P.L.1983, c.372 (C.40A:10-36 et seq.). 40A :10-56 Joint insurance for municipality, county vocational school district. In the case of a county vocational school district, the governing body of any municipality and the board of education of the county vocational school district may by ordinance or resolution, as the case may be, adopted by a majority of the full membership of the governing body and a majority of the full membership of the board, agree to join together for the purpose of insuring pursuant to the provisions of: a. Article 1 of chapter 10 of Title 40A of the New Jersey Statutes (N.J.S.40A:10-1 et seq.); b. Article 3 of chapter 10 of Title 40A of the New Jersey Statutes (N.J.S.40A:10-6 et seq.); or c. Article 4 of chapter 10 of Title 40A of the New Jersey Statutes (N.J.S.40A:10-12 et seq.).

233 40A :10-57 Additional joint insurance for municipality, county vocational school district, other district. In the case of a county vocational school district, in addition to any contract entered into by a municipality pursuant to section 5 of this act, the governing body of any municipality and any board of education may, in accordance with section 1 of this act, agree to join together for the purpose of insuring pursuant to the provisions of: a. Article 1 of chapter 10 of Title 40A of the New Jersey Statutes (N.J.S.40A:10-1 et seq.); b. Article 3 of chapter 10 of Title 40A of the New Jersey Statutes (N.J.S.40A:10-6 et seq.); c. Article 4 of chapter 10 of Title 40A of the New Jersey Statutes (N.J.S.40A:10-12 et seq.); or d. P.L.1983, c.372 (C.40A:10-36 et seq.). 40A :10-58. Contracts for insurance Any contract for insurance to be entered into in accordance with this act shall be established pursuant to sections 10 and 11 of P.L.1971, c.198 (C.40A:11-10 and 40A :11-11).

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