CHRISTOPHER J. CONNORS NIA H. GILL ROBERT M. GORDON THOMAS H. KEAN, JR. JOSEPH M. KYRILLOS, JR. JOSEPH PENNACCHIO STEPHEN M. SWEENEY LORETTA WEINBERG
JON M. BRAMNICK ANTHONY M. BUCCO JOHN J. BURZICHELLI THOMAS P. GIBLIN LOUIS D. GREENWALD NANCY F. MUNOZ VINCENT PRIETO
New Jersey State Legislature
OFFICE OF LEGISLATIVE SERVICES
STATE HOUSE ANNEX PO BOX 068
TRENTON NJ 08625-0068
LOCAL GOVERNMENT SECTION
MARVIN W. JIGGETTS
Director Of Central Staff
ROBERT H. LEVIN
PERI A. HOROWITZ
July 28, 2017
Honorable Anthony R. Bucco
75 Bloomfield Ave., Suite 302, 3rd Floor Denville, NJ 07834
Dear Senator Bucco:
I write in response to a request made on your behalf, by your aide, Amy Overman, for information on whether a municipal consolidation study commission, or the members thereof, could be vulnerable to a lawsuit if information provided by the commission is inaccurate.1 A municipal consolidation study commission (“consolidation commission”) appears only to be an instrumentality of the municipalities it serves, and does not appear to be a body that can sue and be sued. It is also difficult to imagine a scenario in which the members of a consolidation commission, or the associated municipalities, could be held liable for providing inaccurate information, so long as the mistakes were made in good faith.
The statutes that govern municipal consolidation study commissions, consisting of the "Uniform Shared Services and Consolidation Act," sections 1 through 35 of P.L.2007, c.63 (N.J.S.A.40A:65-1 through C.40A:65-35) and the "Municipal Consolidation Act," P.L.1977,
c.435 (N.J.S.A.40:43-66.35 et al.), do not appear to identify these entities as the types of legal bodies that can sue and be sued themselves, separately from the municipalities they serve. See Adams v. City of Camden, 461 F. Supp. 2d 263, 266 (D.N.J. 2006) (“...police departments cannot be sued in conjunction with municipalities, because the police department is merely an administrative arm of the local municipality, and is not a separate judicial entity.”). Similar to municipal police departments, New Jersey’s statutes do not identify consolidation commissions
1 Please note that this is not a legal opinion of Legislative Counsel and therefore is not a legal opinion of the Office of Legislative Services.
as entities that can sue and be sued. As such, if liability emerged as a result of an action of a consolidation commission, the municipalities they serve, depending on the facts involved, might be subject to that liability, but not the commission itself.
It also appears unlikely that liability, emerging from an action of a consolidation commission would fall on the State. The consolidation commissions are formed either by actions of the respective governing bodies of the participating municipalities, or by referendum of the people of the municipalities. Consolidation commissions are also managed primarily thorough local decisions. Although the State serves a role of assistance in the functioning of the commissions through, for example, the appointment of one of the members of the commission pursuant to N.J.S.A.40:43-66.47, study commissions appear to be primarily municipal entities.
Under subsection c. of N.J.S.A.40A:10-6, a municipality has the power to “. . . insure against liability for its negligence and that of its officers, employees and servants, whether or not compensated or part-time, who are authorized to perform any act or services. . . .” We are not aware whether or not Roxbury Township and Mount Arlington Borough offer such insurance. However, it is difficult to imagine a circumstance in which the members of a consolidation commission, or the associated municipalities, could be held liable for providing inaccurate information. The “New Jersey Tort Claims Act,” N.J.S.A.59:1-1 et seq. provides the following:
A public entity is not liable for any injury caused by adopting or failing to adopt a law or by failing to enforce any law.
Under N.J.S.A.59:3-5, virtually the same language is used to immunize public employees from liability for actions surrounding the adoption and enforcement of laws.2 As such, it is difficult to hold public entities and the employees thereof liable for such actions. Furthermore, the final recommendations of a consolidation commission do not actually have the effect of an enacted law. Pursuant to N.J.S.A.40:43-66.59, before these recommendations may become law, they must first be approved through a referendum of the voters of the municipalities involved. As a result, the recommendations of a consolidation commission could be characterized as merely advisory, and it may be difficult to establish that these recommendations proximately caused any harm that results from them.3
2 The definition of “employee” under the “Tort Claims Act,” includes an “officer, employee, or servant, whether or not compensated or part-time, who is authorized to perform any act or service….” This appears to capture members of a consolidation commission.
3 Establishing causation is generally necessary for establishing liability. The further removed an act, however negligent, from a resulting injury, the less likely it is that a causal link exists that is legally sufficient to establish
liability. See Restat 2d of Torts, § 431 (“In order to be a legal cause of another's harm, it is not enough that the harm would not have occurred had the actor not been negligent . . . The negligence must also be a substantial factor in bringing about the plaintiff's harm.”)
In addition to N.J.S.A.59:2-4 and 59:3-5, other provisions of the “Tort Claims Act” also appear to substantially immunize the advisory opinions of a consolidation commission and its members. For example subsection d. of N.J.S.A.59:2-3 states the following:
A public entity is not liable for the exercise of discretion when, in the face of competing demands, it determines whether and how to utilize or apply existing resources, including those allocated for equipment, facilities and personnel unless a court concludes that the determination of the public entity was palpably unreasonable.
N.J.S.A.59:3-2 uses virtually the same language to immunize public employees from liability for discretionary decisions. The relevant cases interpreting these sections of law generally involve decisions that have more of a direct impact than recommendations issued by a consolidation commission. For example, Panepinto v. Edmart, Inc., 129 N.J. Super. 319 (App. Div. 1974), involved a city engineer and planning board inspected and approved development plans which, plaintiffs argued, resulted in sewer backups that damaged homes. Even, as in that case, where the causal link between the decision and the injury is more direct than in the case of a consolidation commission, the court found that, because the engineer and planning board carried out their duties in good faith, albeit negligently, the court found no liability for damage to homes resulting from sewer backups. The court discussed its reasoning as follows:
. . . decisions thus made in conceded good faith by the public officials involved the performance and exercise of discretionary quasi-judicial functions and duties, and so afford no basis for imposing liability in damages either on the engineer or his employer, the city, even if they or either of them acted negligently in the performance of those functions.
[Id. at 325.]
Thus, even if a legally-sufficient causal link can be established between the recommendations of a consolidation commission, and any resulting harm, the municipalities and public officials involved in those decisions benefit from a significant level of immunity from liability. This immunity appears to shield the decisions makers from liability, unless the decision causing the liability was “palpably unreasonable.” This standard appears to capture decisions that involve willful misconduct or bad faith, as opposed to honest mistakes.
I hope this information is responsive to your inquiry, but if you have any follow-up questions, please do not hesitate to contact me 609-847-3875.
Chris Jewett Senior Counsel