Asbury Park Press Editorial:  All the benefits, no responsibility

Posted by Damika Webb on August 29th 2011

A unanimous state Supreme Court correctly ruled last week that the New Jersey State League of Municipalities is a public agency subject to the state’s public records law.

Of course it is. Any attempt for the NJLM to claim otherwise is disingenuous at best, delusional at worst and outrageous no matter how you look at it. The League was created in 1915 by the Legislature, and a memorandum opinion from the Office of the Attorney General in 1955 declared it “a public agency or organization,” making its employees (currently, 17) members of the public pension system.

New Jersey taxpayers fund this lobbying organization, a lobby that advocates only tangentially for the taxpayers, but rather for the state’s 566 boroughs, cities, towns, townships and villages.

Its members include more than 13,000 elected and appointed officials. Sixteen percent of its funding comes from taxpayer funds in the form of membership fees from each municipality.

If the ideal of American civics is, in Lincoln’s words, “government of the people, by the people and for the people,’’ then the NJLM is, instead, “government by government and for government.”

The unanimous opinion, written by Associate Justice Barry Albin, said the Open Public Records Act’s definition of a public agency includes “instrumentality … created by a … combination of political subdivisions. The League is controlled by elected or appointed officials from the very municipalities it represents,” the decision says. “The League’s constitution provides that, generally, ‘each member municipality shall act and be represented by its mayor or other chief executive authority, or his nominee.’ Thus, it is clear that the League is an ‘instrumentality’ of a ‘combination of political subdivisions.’ ” The court reversed earlier Superior Court and appellate court rulings in a case filed by the Fair Share Housing Center, which was thwarted by the League when it made an OPRA request for documents produced in conjunction with the League’s opposition to proposed state rules governing towns’ and cities’ affordable housing obligations.

As if the public should be kept in the dark.

The League’s reaction to the decision? In a written statement following the decision, the League said, “… although we are naturally disappointed with the result, the League always has been and will continue to be a transparent organization and will comply fully with the opinion.” Unpack that statement for a minute:

If the New Jersey League of Municipalities is truly the “transparent” organization it claims to be, why did the Fair Share Housing Center have to sue to get the records it wanted?

And why is the League “disappointed” in the court decision, if it is already open and above board in conducting its business?

As Fair Share Housing Center attorney Kevin Walsh said, “The court rejected the League’s contention that every one of New Jersey’s mayors can join together to do business, lobby the Legislature and spend taxpayer funds out of the public eye. We look forward to the League opening its records and its books so we can see how taxpayer money is spent.”

Precisely.

And while, in theory, the idea of New Jersey’s towns and cities joining together in a nonprofit organization to pursue agendas which will benefit them, what we have, in practice, is a taxpayer-funded organization that acted as if it were not beholden to those citizens and could pursue its agenda in the shadows. It’s a problem endemic to so-called “quasi-public” groups, which turn out to be not so quasi and very much public.

The NJLM can’t claim taxpayer money, have taxpayers fund the staff’s generous pension plans, and then stand and say, “The Open Public Records Act does not apply to us.”

The League, in barest terms, wanted all the benefits of being a public agency, but none of the responsibilities.

The state Supreme Court ruled correctly, especially when it noted, “We have no authority, or reason, to erect artificial judicial hurdles for a citizen to gain access to a government record, particularly in light of OPRA’s mandate that ‘any limitations … shall be construed in favor of the public’s right of access.’ ”

And we’ll just have to learn to live with the League’s disappointment.