UPDATE (5/2/2017): On 5/1/17, A4243 was received in the Senate and referred to the Senate State Government, Wagering, Tourism & Historic Preservation Committee.
UPDATE (3/24/2017): A4243 was passed by the Assembly on 3/23/17. There is no sister bill in the Senate. (See 5/1/17 update.) NJFOG feels this is good legislation, but supports an additional amendment to the bill to bar public entities from entering into confidential settlements altogether, not just for whistleblower claims. The settlements are disclosable under OPRA, after all. A confidentiality clause does not belong in them. See our statement below for more detail.
Bill A4243 is on the agenda for the New Jersey Assembly session on Thursday, March 23, 2017 at 1:00 PM.
A4243 – Bars public entities and public employees from entering into confidential settlements of “whistleblower” claims; provides that such settlements constitute public records. (synopsis from the NJ Legislature’s website)
NJFOG Statement Supporting an Amendment to Bill A4243
(revised on 3/23/2017, 1:58 PM for bill as amended on 3/20/2017)
NJFOG supports an additional amendment to bill A4243 to bar public entities from entering into confidential settlements altogether, not just for whistleblower claims, subject to the exemption for matters of national security as contained in the bill presently.
In general, all settlement agreements involving public agencies are public in nature and are disclosable under the Open Public Records Act (OPRA) whether the settlement relates to whistleblower/retaliation, harassment, police misconduct, access to public records, or something else. The inclusion of a confidentiality clause is common practice, but should not be given the public nature of the settlements. The effect of including the confidentiality clause is to prevent the party receiving the settlement from telling the public or media about it, and thus the public or media is required to learn about the settlements through other channels, such as searching court records or databases. Some public agencies are less than forthright about disclosing the existence of or details of their settlements, which can make discovery more difficult.
Since the public has a right to know how tax dollars are being used, there should be no secrecy regarding the existence of public agencies’ settlements, the amount of those settlements, or the circumstances giving rise to them if we want to ensure that the actions or misconduct that resulted in the settlement does not happen again.
Disclosure of the misconduct appears to be an objective of bill A4243. This is good legislation, but it can be made better by amending it to bar public agencies from entering into confidential settlements altogether, except for matters of national security. All such settlements constitute public records, as the current version of the bill states.