Explainer: Little Known, Council on Local Mandates Wields Big Stick

Colleen O'Dea | November 27, 2019 | Explainer
Panel has power to void state laws by ruling they constitute an unfunded mandate on towns, counties and school boards

In the 1980s, local officials in New Jersey had grown tired of Trenton imposing new duties that would make them raise property taxes. So they began pushing to make the state at least pay for the mandates it foisted on them.

A decade later, in 1995, New Jersey voters amended the state constitution to make the state pay for things it required municipal, school and county officials to do. The New Jersey Council on Local Mandates (NJCOLM) was born.

Some 23 years after its creation, the council is little known despite its significant power, allowing it to nullify laws passed by the Legislature and signed by the governor because they constitute an unfunded mandate.

The council has only issued 22 decisions in its history, but some have been significant: Earlier this month, for instance, it made headlines by nullifying two laws that had required counties to automatically send mail-in ballots to more than 400,000 voters when the state did not provide additional funds to do so.

In an article marking the 20-year anniversary of the council that appeared in the New Jersey League of Municipalities’ magazine, NJCOLM member Victor McDonald wrote about why the council has not had to adjudicate many disputes.

“After State Mandate-State Pay went into effect, a sea change took place in the Legislature,” McDonald wrote. “Requests from Senators and Assembly members for bills to force local governments to create new programs triggered notices reminding legislators of the State Mandate-State Pay section of the constitution and warning them that their proposals risked annihilation by the Council if they increased property taxes. Faced with the prospect of raising state taxes; engaging in the tough battle of reallocating existing state revenues; or seeing their precious proposals struck down as property tax increases, many legislators simply abandoned their nascent bills, while others addressed their problem by changing ‘shall’ to ‘may.’ In any case, the free-flowing river of mandates which had existed before 1996 turned into a trickle.”

A long history

The genesis of the council dates back to 1986, when bipartisan legislation was first introduced proposing a state-mandate-state-pay amendment to the constitution. Though much talked about, that bill and its iterations went nowhere for several years, most likely because it did not include a body to settle disagreements. In the early 1990s, when the idea of a bipartisan council was added to the amendment, the measure gained steam. A compromise bill passed both houses of the Legislature unanimously in June 1995 and was placed on the ballot that November.

One of four amendments before voters that year, it passed with the support of almost two-thirds of those who went to the polls. Former Gov. Christie Whitman signed a bill in May 1996 creating the Council on Local Mandates, where a locality could argue it was being forced to take actions without Trenton covering the costs.

NJCOLM is independent of the executive, legislative and judicial branches of government, although its nine members are directly appointed by the governor, by the president of the Senate and the Senate minority leader, by the Assembly speaker and the Assembly minority leader and the chief justice of the state Supreme Court.

Currently, its chair is former Superior Court Assignment Judge John A. Sweeney. The Florence resident also served one term in the Assembly, was chief counsel to former Gov. Jim Florio and served as director of the state Division of Gaming Enforcement. Legislative appointees serve two-year terms while the chief justice’s appointee serves for five years.

Deliberations and decisions follow a judicial model, with local governments and the state each filing pleadings, answers and motions. Outside groups can request to appear in cases as “friends of the court.” Cases can be brought by a county, municipality or school board, or by a county executive or mayor who is directly elected by voters.

Limits on the council’s powers

Some laws are beyond the council’s purview:

  • Those required to comply with federal laws or rules or to meet eligibility standards for federal entitlements;
  • Those imposed on both government and non-government entities in the same or similar manner;
  • Those that repeal, revise or ease an existing requirement or mandate or reapportion the costs of actions among boards of education, counties, and municipalities;
  • Those stemming from a failure to comply with previously enacted laws, rules or regulations;
  • Those that are constitutionally mandated;
  • Those enacted after public hearings at which they are advertised as being an unfunded mandate and that were passed by three-quarters of both houses of the Legislature.

All valid complaints and other documentation, including pleading summaries and hearing dates, are posted on the council’s website and available to the public. The council issues written decisions, and no further action is needed when it decides that a law, rule or regulation is an unfunded mandate. At that point, the rule or law is no longer considered mandatory or valid.

The losing party has no right to appeal a council ruling.

A look at some noteworthy rulings

The council issued its first decision in May 1998, when it dismissed a Clifton Board of Education complaint over charter-school regulations, saying it did not have jurisdiction. The law creating the council gave it authority to examine laws enacted after Jan. 17, 1996 and the law in question took effect just days before, on Jan. 11, 1996.

But in 2000, the council invalidated a different charter-school regulation, one adopted in 1997, that set the amount local school boards had to pay to fund charter schools.

Since then, the council has issued a number of significant rulings favoring local governments.

In 2012, it agreed with school officials that the state’s anti-bullying mandate — requiring them to promptly investigate accusations of bullying, keep track of incidents and operate prevention programs — was unfunded.  The council gave the state 60 days to put money into the Bullying Prevention Fund or have the law invalidated, and a $1 million appropriation was quickly made.

Four years later, the council struck down a 2014 law that had required new police vehicles used for traffic duty to be equipped with dash cameras to record officers’ interactions with motorists. While the cameras were to be funded by a $25 surcharge on those convicted of driving while intoxicated, Deptford argued successfully the surcharge was inadequate to fully pay for the cameras. In its decision, NJCOLM termed the legislative funding “illusory.” As a result, neither dash cams nor body cameras are required of local police, although the attorney general’s office encourages the use of both, according to a spokesman.

The council has flaunted its power to invalidate a law even when it ruled against a local government. In 2017, the NJ Association of Counties challenged the state’s criminal-justice reform law, contending it did not provide full reimbursement for all the additional costs counties had to assume to implement the reform. A divided council said that, because the law was anchored in a constitutional amendment, it lacked the authority to rule it an unfunded mandate.

But in an addendum, it warned the state that future cases could go a different way:

“Notwithstanding the Council’s decision … the Legislature and the Executive Branch should not interpret this decision as carte blanche to impose unfunded mandates upon counties, municipalities, or boards of education by enacting amendments or supplements to the ‘Criminal Justice Reform Act.’ This decision should not be viewed as a bypass around the State Mandate – State Pay provisions of the New Jersey Constitution upon which future mandates may travel unchallenged.”