Robert A. Verry v. Franklin Fire District No. 1 (Somerset) (077495) (Statewide) , 230 N.J. 285 ( 2017 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
Robert A. Verry v. Franklin Fire District No. 1 (A-77-15) (077495)
Argued March 27, 2017 -- Decided August 7, 2017
LaVECCHIA, J., writing for the Court.
In this appeal the Court reviews a judgment requiring the release, pursuant to the Open Public Records Act
(OPRA), N.J.S.A. 47:1A-1 to -13, of the constitution and bylaws of a volunteer fire company that is a member of a
fire district established pursuant to N.J.S.A. 40A:14-70.
On February 28, 2013, plaintiff Robert A. Verry submitted a public records request to Franklin Fire District
No. 1 (District), seeking the constitution and bylaws of the Millstone Valley Fire Department (MVFD), a volunteer
fire company operating within the District. The District denied the request on the basis that it does not maintain
such documents for its member companies. Verry filed a complaint with the Government Records Council (GRC).
The MVFD operated independently as a volunteer fire company until 1973, when it requested membership
in the already-existing District. The District informed members of the MVFD that, in order to join the District, the
volunteer company would be required to transfer title in all fire-fighting equipment to the District. Annually, the
MVFD would submit a budget to the commissioners. Notwithstanding the MVFD’s acceptance into the District
through a resolution of the Township Council, the MVFD, as a member fire company operating within the District,
annually enters into a contract with the District to provide firefighting services. Through that contract, the MVFD
receives public funds to cover the housing and maintenance of firefighting equipment owned by the District, training
for the MVFD’s members, and the purchase of new equipment.
The GRC unanimously adopted the conclusion that the MVFD “serves a governmental function under the
supervision and control of [the District]” and therefore “it is a public agency for purposes of OPRA.” In an interim
order, the GRC required the District to obtain the requested documents from the MVFD and to turn them over to
Verry. The District moved for reconsideration. The MVFD also filed a brief in support of the reconsideration
motion. The GRC denied reconsideration and reaffirmed its prior interim order.
The Appellate Division granted leave to appeal and, in an unpublished decision, affirmed the GRC’s
interim order, concluding that the MVFD is a public agency subject to OPRA. The panel held that the GRC did not
misapply case law involving the “creation” and “governmental function” tests to identify whether the MVFD is a
public agency subject to OPRA. The panel “agree[d] with the GRC that [the MVFD], at least since 1974, has
become an instrumentality of the District and thus a public agency subject to OPRA.”
The GRC stayed its interim order pending the District’s motion for leave to appeal to this Court. On June
1, 2016, the Court granted the District’s motion for leave to appeal and directly certified the entire matter, including
the issues remanded by the Appellate Division. 226 N.J. 206.
HELD: The fire district, to which the OPRA request was made, is obliged to release such documents in its possession
or to obtain them from a member volunteer fire company under its supervision and release them. OPRA demands such
transparency and accountability of public agencies, and the fire district is undoubtedly a public agency subject to
OPRA. The Court therefore affirms the judgment in that respect. However, to the extent the holding under review also
concluded that the member volunteer fire company is a “public agency” subject directly and independently to OPRA
requirements, the Court disagrees and modifies the judgment.
1. In enacting OPRA, the Legislature has declared that “government records shall be readily accessible for
inspection, copying, or examination by the citizens of this State, with certain exceptions, for the protection of the
public interest.” N.J.S.A. 47:1A-1. OPRA’s disclosure requirements apply to public agencies. The definition of
1
public agency includes “any political subdivision of the State or combination of political subdivisions, and any
division, board, bureau, office, commission or other instrumentality within or created by a political subdivision of
the State or combination of political subdivisions, and any independent authority, commission, instrumentality or
agency created by a political subdivision or combination of political subdivisions.” N.J.S.A. 47:1A-1.1. (pp. 10-15)
2. The Legislature granted to municipalities lacking a paid or partially paid fire department the power to create a
fire district. N.J.S.A. 40A:14-70. Within the same statute, the Legislature specifies the exact nature of the entity
that it authorizes a municipality to create and elaborates on the process of creating a fire district: “The district or
each district shall be assigned a number and the commissioners thereof and their successors shall be a body
corporate . . . .” Ibid. (emphasis added). The Legislature did not provide that the fire district being created would
itself be a political subdivision. The additional words “and political subdivision,” often used elsewhere in legislative
authorizations, are not included in the authorizing language for a fire district. Indeed, the Legislature has enacted
many other statutes authorizing the formation of an entity by another form of legislatively created entity, like a
municipality or a county, to be both “a body corporate” and “a political subdivision.” (pp. 15-18)
3. When established, a fire district is a creation of a municipality—which is undoubtedly a political subdivision—
that utilizes authority available to it pursuant to N.J.S.A. 40A:14-70 to form a fire district. That makes the fire
district an instrumentality of a political subdivision or multiple political subdivisions, as the case may be. However,
the fire district itself is not a political subdivision. The Legislature did not designate it so. For OPRA disclosure-
requirement purposes, as an instrumentality of a political subdivision, a fire district clearly meets the definition of
public agency under the second sentence of OPRA’s definition. OPRA provides that an “instrumentality within or
created by a political subdivision” is considered a “public agency.” N.J.S.A. 47:1A-1.1. As a result, a fire district is
subject to OPRA and must respond to requests made under the statute. (pp. 18-20)
4. A member volunteer squad may be regarded as an instrumentality of a fire district. However, because the
District itself is not a political subdivision, but rather the instrumentality of one, the volunteer company is only the
instrumentality of an instrumentality. Although OPRA provides that an instrumentality of a political subdivision
constitutes a public agency, it does not provide that an instrumentality of an instrumentality constitutes a public
agency. See N.J.S.A. 47:1A-1.1. OPRA requires a direct connection to a political subdivision. The Court cannot
conclude that the Legislature intended for a volunteer fire company to be considered a separate public agency for
OPRA purposes. Nor does a contract establish the type of relationship that fits within the definition of public
agency under OPRA. Because the District is an instrumentality of a political subdivision, it falls within the plain
language of the statutory definition of public agency. By contrast, the MVFD is a non-profit association and, while
it is supervised by the District, the volunteer company is not a public agency as defined by OPRA. (pp. 20-24)
5. The District, upon receiving a request for the constitution and bylaws of the MVFD, was obligated to provide
access to those documents because they should have been on file with, or accessible to, the District pursuant to its
authority to supervise the MVFD. It is not necessary to resolve whether the MVFD enjoys a relationship as a
member volunteer squad of the District under N.J.S.A. 40A:14-70.1(a) or if the District merely supervises the
volunteer squad pursuant to a contractual relationship under N.J.S.A. 40A:14-70.1(b). Under either provision, the
District supervises the MVFD and has certain responsibilities to provide public access to records relating to that
supervision. The Court therefore affirms the judgment of the Appellate Division that upheld the GRC order. To the
extent that the judgment included a conclusion that the MVFD was a public agency that was itself subject to OPRA
demands, the Court disapproves of that analysis and modifies the judgment accordingly. (pp. 24-26)
The judgment of the Appellate Division is AFFIRMED AS MODIFIED.
JUSTICE ALBIN, DISSENTING IN PART AND CONCURRING IN PART, finds that a fire district
retains its nature as a political subdivision despite the label or lack of label given it. In Justice Albin’s view, the
District is a “political subdivision” of the State and the MVFD is an “instrumentality” of the District that meets
OPRA’s definition of “public agency,” and therefore its records are subject to scrutiny. Even if the District were an
instrumentality of the municipality, the MVFD should be deemed the same instrumentality for OPRA purposes.
JUSTICES PATTERSON, FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE
LaVECCHIA’s opinion. JUSTICE ALBIN filed a separate, partially dissenting and partially concurring
opinion, in which CHIEF JUSTICE RABNER joins.
2
SUPREME COURT OF NEW JERSEY
A-77 September Term 2015
077495
ROBERT A. VERRY,
Respondent,
v.
FRANKLIN FIRE DISTRICT NO. 1,
Appellant,
and
MILLSTONE VALLEY FIRE DEPARTMENT,
Respondent.
Argued March 27, 2017 – Decided August 7, 2017
On appeal from the Superior Court, Appellate
Division.
Dominic P. DiYanni argued the cause for
appellant (Eric M. Bernstein & Associates,
attorneys).
Aldo J. Russo argued the cause for
respondent Millstone Valley Fire Department
(Lamb Kretzer, attorneys).
Walter M. Luers argued the cause for
respondent Robert A. Verry (Law Offices of
Walter M. Luers, attorneys).
Raymond R. Chance, III, Assistant Attorney
General, argued the cause for respondent
Government Records Council (Christopher S.
Porrino, Attorney General, attorney; Raymond
R. Chance, III, of counsel, and Debra A.
Allen, Deputy Attorney General, on the
brief).
1
Edward L. Barocas argued the cause for amicus
curiae American Civil Liberties Union of New
Jersey (Edward L. Barocas, Legal Director,
attorney; Edward L. Barocas, Iris Bromberg
and Jeanne LoCicero, on the brief).
JUSTICE LaVECCHIA delivered the opinion of the Court.
In this appeal we review a judgment requiring the release,
pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1
to -13, of the constitution and bylaws of a volunteer fire
company that is a member of a fire district established pursuant
to N.J.S.A. 40A:14-70. We hold that the fire district, to which
the OPRA request was made, is obliged to release such documents
in its possession or to obtain them from a member volunteer fire
company under its supervision and release them. OPRA demands
such transparency and accountability of public agencies, and the
fire district is undoubtedly a public agency subject to OPRA.
We therefore affirm the judgment in that respect. However, to
the extent the holding under review also concluded that the
member volunteer fire company is a “public agency” subject
directly and independently to OPRA requirements, we disagree and
modify for the reasons expressed herein.
I.
On February 28, 2013, plaintiff Robert A. Verry submitted a
public records request to Franklin Fire District No. 1
(District), seeking disclosure of the constitution and bylaws of
2
the Millstone Valley Fire Department (MVFD), a volunteer fire
company operating within the District. The District denied the
request on the basis that it does not maintain such documents
for its member companies. Verry filed a complaint with the
Government Records Council (GRC), which created the record on
which we review this matter.
A.
By way of background, the MVFD is a non-profit association
incorporated on March 12, 1929 with the objective “to protect
life and property from fire, by the usual means of fire
companies.” The MVFD operated independently as a volunteer fire
company in Franklin Township for decades until 1973, when it
requested membership in the already-existing District. The
evidence in the record regarding the relationship between the
MVFD and the District is contained in minutes from the 1973
meetings of the commissioners of the District and, of more
recent vintage, contracts that have been entered into between
the two.
Members of the MVFD first expressed interest in joining the
District at a meeting of the District’s commissioners held March
26, 1973. The District contacted the township attorney to
discuss the legality of the proposed merger, and a special
meeting was held to explore the proposal on April 19, 1973. The
District informed members of the MVFD that, in order to join the
3
District, the volunteer company would be required to transfer
title in all fire-fighting vehicles and equipment to the
District. Annually, the MVFD would submit a budget to the
commissioners. The size of the District’s commission would not
change from its five-person composition, but members of the MVFD
would be eligible to run for a commission seat.
The MVFD submitted vehicle and equipment lists to the
District at a May 21, 1973 regular meeting and also reported
that it would contact the township attorney to inquire as to the
steps necessary to join the District. Several months later, at
the District’s regular meeting on November 26, 1973, it was
reported that “Millstone Valley [had] been officially accepted
in Fire District 1 by virtue of a Township Council resolution”
dated October 25, 1973. There is no statutory reference
explaining the “official acceptance” into the District. The
MVFD has been partially funded by the District since 1974.
Notwithstanding the MVFD’s acceptance into the District
through a resolution of the Township Council, the MVFD, as a
member fire company operating within the District, annually
enters into a contract with the District to provide firefighting
services to the public. Through that contract, the MVFD
receives public funds to cover the housing and maintenance of
firefighting equipment owned by the District, training for the
MVFD’s members, and the purchase of new equipment.
4
B.
On February 28, 2013, Verry emailed an OPRA request to the
District, seeking disclosure of the MVFD’s constitution and
bylaws in effect from 2007 through 2013. The next day, Verry
received an email response from the District’s only office
employee, Dawn Cuddy, on behalf of the District’s elected
Records Custodian, Timothy Szymborski. The response stated that
“there are no responsive records to [Verry’s] request that the
[D]istrict maintains.” Verry replied, asserting that because
the MVFD is under the statutory supervision and control of the
District, the Records Custodian was obliged to obtain and
produce responsive records regardless of whether the District
regularly maintains them. Cuddy sent a follow-up email on March
11, 2013, informing Verry that the District does not consider
the requested documents to be public records under OPRA and
denying his request.
Verry filed a denial-of-access complaint with the GRC,
seeking an order compelling the District’s Records Custodian to
release records responsive to his request. In opposition, the
Records Custodian filed a Statement of Information Form and a
certification that the District’s files had been searched prior
to the denial to confirm that the MVFD’s constitution and bylaws
were not in the District’s possession. Further, Szymborski also
certified that, in his capacity as Commissioner of the District
5
from 1986 to 1988 and from 2006 to the present, he was not aware
that the District had ever maintained records of its member
companies’ internal bylaws or constitutions. Szymborski added
that he requested the documents from the MVFD and that his
request was denied. Finally, addressing the argument that the
District was required to obtain the documents because, under
N.J.S.A. 40A:14-70.1(b), volunteer fire companies such as the
MVFD operate under the “supervision and control” of the fire
district, Szymborski stated:
Although the requestor did cite [N.J.S.A.
40A:14-70.1(b)] . . . that statute does not
require or mandate that the Fire District
maintain a copy of a member Fire Department or
Fire Company’s Constitution and By-Laws.
Nowhere could I find such a rule, regulation,
statute, policy, or the like which required or
mandated such a thing. Even the District’s
Attorney, whom I consulted with about the
statute, was also unable to locate such a
[requirement]. I understand that the member
Companies/Departments are under the
supervision and control of the District but
that does not require or mandate that their
own internal By-Laws and Constitution be
provided to the District. . . . The member
Companies and Departments can adopt their own
internal rules, regulations, By-Laws and
Constitution which is their own document and
not a Fire District wide document.
Verry’s reply disputed the District’s legal position.
The GRC considered the parties’ submissions and its
Executive Director’s proposed Findings and Recommendations at a
public meeting on April 29, 2014. The Executive Director’s
6
proposed findings addressed a threshold issue, not thoroughly
briefed by the parties: whether the MVFD is a “public agency”
for purposes of OPRA. The findings stated, in relevant part:
Notwithstanding that MVFD was likely created
by the volunteer membership, [it] is clear
that member companies within a fire district
exercise a government duty and are under the
supervision and control of the district, which
is clearly a “public agency.” N.J.S.A.
40A:14-70.1. In essence, although the
creation of a volunteer fire company is
reserved only for the membership, said company
organizing within a fire district is expressly
required to apply to the district.
The proposed findings concluded that the MVFD “serves a
governmental function under the supervision and control of [the
District]” and therefore “it is a public agency for purposes of
OPRA.”
The GRC unanimously adopted the Findings and
Recommendations of its Executive Director, and in an interim
order, dated May 1, 2014, required the District to obtain the
requested documents from the MVFD and to turn them over to
Verry. To the extent individuals at the MVFD refused to provide
the documents, the GRC ordered those individuals to identify
themselves and to provide a lawful basis for withholding the
records. The GRC deferred consideration of whether Szymborski
knowingly and willfully violated OPRA and whether Verry was a
prevailing party under the statute.
7
The District moved for reconsideration, arguing that the
GRC had misapplied the “creation test” established in Fair Share
Housing Center, Inc. v. New Jersey State League of
Municipalities, 207 N.J. 489 (2011), to address the scope of
OPRA’s coverage. The MVFD also filed a brief in support of the
reconsideration motion, arguing that, in addition to its
firefighting functions, the MVFD operates as a social
organization and that subjecting it to the burden of OPRA
compliance would dissuade future members from joining. The MVFD
urged the GRC, should it sustain its interim order finding the
volunteer department to be subject to OPRA, to permit redaction
of information relating to its social activities. The GRC
denied reconsideration and reaffirmed its prior interim order.
The District sought leave to appeal to the Appellate
Division and also sought and obtained a stay of the GRC’s order
pending appeal. On April 16, 2015, the Appellate Division
granted leave to appeal and ordered the parties to address, in
particular, “whether [Paff v. New Jersey State Firemen’s Ass’n],
431 N.J. Super. 278 (App. Div. 2013), or any of the analysis in
that opinion, bears upon the issue in this appeal.” Following
oral argument, the panel directed that the MVFD be joined as a
party.
In an unpublished decision issued March 15, 2016, the
Appellate Division affirmed the GRC’s interim order, concluding
8
that the MVFD is a public agency subject to OPRA. The panel
held that the GRC did not misapply case law involving the
“creation” and “governmental function” tests to identify whether
the MVFD is a public agency subject to OPRA. In particular, the
panel rejected the District’s reliance on a prior decision of
the GRC, Carrow v. Borough of Newfield, in which a volunteer
fire company was found not to be a public agency. The panel
explained that, in Carrow, a fire district was not involved;
rather, the volunteer company contracted directly with a
municipality. By contrast, based on the MVFD’s membership in
the District by virtue of a township resolution, the panel
“agree[d] with the GRC that [the MVFD], at least since 1974, has
become an instrumentality of the District and thus a public
agency subject to OPRA,” (citing N.J. State Firemen’s Ass’n,
supra, 431 N.J. Super. at 289-90).
The Appellate Division did not reach whether the MVFD
should be permitted to withhold records unrelated to its
governmental function of firefighting, noting that the interim
order left open the possibility that the MVFD might come forward
with “a lawful basis for not providing” the requested records,
such as an OPRA exemption. The panel remanded the matter for
further proceedings before the GRC.
The GRC stayed its interim order pending the District’s
motion for leave to appeal to this Court. On June 1, 2016, we
9
granted the District’s motion for leave to appeal and directly
certified the entire matter, including the issues remanded by
the Appellate Division. 226 N.J. 206. We thereafter granted
motions to expand the record on appeal to include the parties’
appellate division briefs and appendices, to allow the MVFD to
participate, and to allow the American Civil Liberties Union of
New Jersey (ACLU-NJ) to participate as amicus curiae.
II.
A.
In enacting OPRA, the Legislature has declared that
“government records shall be readily accessible for inspection,
copying, or examination by the citizens of this State, with
certain exceptions, for the protection of the public interest.”
N.J.S.A. 47:1A-1. We have frequently explained the import of
OPRA’s broad public policy in favor of public access to
government records, which serves to “maximize public knowledge
about public affairs in order to ensure an informed citizenry
and to minimize the evils inherent in a secluded process.”
Mason v. City of Hoboken, 196 N.J. 51, 64-65 (2008) (quoting
Asbury Park Press v. Ocean Cty. Prosecutor’s Office, 374 N.J.
Super. 312, 329 (Law Div. 2004)).
OPRA’s disclosure requirements apply to public agencies.
OPRA defines “public agency” or “agency” as:
10
[A]ny of the principal departments in the
Executive Branch of State Government, and any
division, board, bureau, office, commission or
other instrumentality within or created by
such department; the Legislature of the State
and any office, board, bureau or commission
within or created by the Legislative Branch;
and any independent State authority,
commission, instrumentality or agency. The
terms also mean any political subdivision of
the State or combination of political
subdivisions, and any division, board, bureau,
office, commission or other instrumentality
within or created by a political subdivision
of the State or combination of political
subdivisions, and any independent authority,
commission, instrumentality or agency created
by a political subdivision or combination of
political subdivisions.
[N.J.S.A. 47:1A-1.1.]
This appeal requires application of that statutory
definition. In matters of statutory interpretation, our review
is de novo. Saccone v. Bd. of Trs. of Police & Firemen’s Ret.
Sys., 219 N.J. 369, 380 (2014) (noting that interpretation of
statute is “question of law subject to de novo review” on
appeal). The language of the statute that defines “public
agency” for OPRA purposes is paramount in this dispute.
The above-quoted definition of public agency defines the
term in two sentences addressing distinct categories of public
agencies. The first sentence captures a group of public
agencies in the Executive and Legislative Branches of State
government, including subparts to and creations of the Executive
and Legislative branches, as well as various types of
11
independent state entities. The case before us does not
implicate that first part of the public agency definition.
The second sentence of the definition is the pertinent
section for present purposes. To reiterate, that sentence
designates certain other entities as public agencies subject to
OPRA, specifically political subdivisions of the State and
bodies sharing a basic connection to those political
subdivisions:
The terms also mean any political subdivision
of the State or combination of political
subdivisions, and any division, board, bureau,
office, commission or other instrumentality
within or created by a political subdivision
of the State or combination of political
subdivisions, and any independent authority,
commission, instrumentality or agency created
by a political subdivision or combination of
political subdivisions.
[N.J.S.A. 47:1A-1.1.]
The question before us is whether the request to the District
sought records of a public agency as defined in this latter
portion of the statutory definition.
B.
1.
The GRC, Appellate Division, and the parties all focus on
the volunteer fire squad when addressing whether the requested
documents should be turned over. We briefly summarize the
12
parties’ arguments on the application of the term “public
agency” in this matter.
The District argues that the proper test to determine
whether an entity is a “public agency” under OPRA should begin
with an examination of the “formation, structure, and function”
of the entity. The District argues that the MVFD was created as
a non-profit entity years before joining the District, that its
contract with the District relates only to “prevention and
extinguishment of fires and the regulation of fire hazards,” and
that the public funds it receives support only that function.
The District emphasizes that its contract with the MVFD allows
the MVFD to regulate its own internal affairs, such as the
appointment of its fire chief, without interference by the
District. In addition, the District maintains that New Jersey
State Firemen’s Ass’n, supra, 431 N.J. Super. at 287-89, was
misapplied in this matter and that the earlier GRC decision in
Carrow was improperly distinguished.
The MVFD joins in the arguments of the District.
2.
Verry first emphasizes OPRA’s language generally mandating
broad construction of its provisions in favor of the right of
access, and he adds that the definition of public agency in
N.J.S.A. 47:1A-1.1 is itself expansive. Second, Verry maintains
that, under New Jersey State Firemen’s Ass’n, supra, 431 N.J.
13
Super. at 287-89, as well as other OPRA case law, the MVFD
qualifies as a public agency under OPRA because it is an
instrumentality of the District serving a governmental function.
Verry notes that “no fire company can lawfully operate in a New
Jersey fire district unless and until it is authorized by the
fire district pursuant to N.J.S.A. 40A:14-70.1(a),” and he
contends that, therefore, the MVFD performs a “governmental
function” under the District’s “supervision and control.”
3.
The GRC filed a brief in support of its decision, which, it
contends, reached the correct result, is entitled to deference,
and should be upheld. The GRC explains that it regards the
“fact-sensitive inquiry” required in New Jersey State Firemen’s
Ass’n, supra, 431 N.J. Super. at 288-89, which focuses on an
entity’s “formation, structure, and function,” to be the
dispositive test, and it asserts that its findings in this
matter are consistent with that test.
4.
Amicus ACLU-NJ argues that the MVFD is a public agency
under OPRA because it is an instrumentality controlled by the
state and it carries out a traditional governmental function.
The ACLU-NJ quotes portions of the agreement between the
District and the MVFD to demonstrate the extent to which
government -- in the form of the District -- ultimately controls
14
the MVFD. Amicus also emphasizes that oversight of the MVFD,
through access to its records, is important due to the essential
government function served by the fire company and this state’s
strong public policy in favor of open government.
III.
In order to unravel the public access to information issue
before us under OPRA, it is necessary to begin with an
understanding of the nature of the entities at the center of
this dispute and how they fit within OPRA’s definition of public
agency. We turn first to the District, for that is the entity
to which Verry made his request. The nature of the District and
how it fits into OPRA’s structure is rather straightforward.
A.
The Legislature granted to municipalities lacking a paid or
partially paid fire department the power to create a fire
district. N.J.S.A. 40A:14-70. In such municipalities, upon
application of the voters and following a hearing,
[i]f the governing body decides that the
designation of a fire district is appropriate,
it, by ordinance, shall designate a
territorial location or locations for use as
a fire district or fire districts and, by
resolution, provide for the election of a
board of fire commissioners for the district
or each district, to consist of five persons,
residents therein, and specify the date, time
and place for the election of the first board.
[Ibid.]
15
Within the same statute, the Legislature specifies the exact
nature of the entity that it authorizes a municipality to
create and elaborates on the process of creating a fire
district:
The district or each district shall be
assigned a number and the commissioners
thereof and their successors shall be a body
corporate . . . . The said body corporate
shall have the power to acquire, hold, lease,
sell or otherwise convey in its corporate name
such real and personal property as the
purposes of the corporation shall require. .
. . Said body corporate may adopt and use a
corporate seal, sue or be sued and shall have
such powers, duties and functions as are usual
and necessary for said purposes.
[Ibid. (emphases added).]
No doubt the Legislature, in authorizing a municipality or
municipalities to choose to take action culminating in the
creation of this type of legislatively authorized body
corporate, conferred significant powers on a fire district.
Those powers include the ability to hold annual elections for
members of the board of commissioners of the fire district,
N.J.S.A. 40A:14-72; the power to create its own budget, N.J.S.A.
40A:14-78.1; and the capability to issue bonds and notes in
anticipation of bonds, N.J.S.A. 40A:14-86, -86.1. However, in
granting municipalities the power to create a fire district, the
Legislature did not provide that the fire district being created
would itself be a political subdivision. See Murray v.
16
Plainfield Rescue Squad, 210 N.J. 581, 592 (2012) (“It is not
our function to rewrite a plainly written statute or to presume
that the Legislature meant something other than what it conveyed
in its clearly expressed language.”).
Although a municipality is a political subdivision and has
long been understood as such, see, e.g., City of Jersey City v.
Martin, 126 N.J.L. 353, 361 (E. & A. 1941), the language used by
the Legislature to authorize the creation of a fire district
establishes the fire district as “a body corporate.” The
additional words “and political subdivision,” often used
elsewhere in legislative authorizations, are not included in the
authorizing language for a fire district.
Indeed, the Legislature has enacted many other statutes
authorizing the formation of an entity by another form of
legislatively created entity, like a municipality or a county,
to be both “a body corporate” and “a political subdivision.” By
way of example, for the creation of county or municipal parking
authorities, the Legislature has provided that, “[t]he governing
body of any county or municipality may, by resolution or
ordinance, as appropriate, create a public body corporate and
politic and a political subdivision of the State to be known as
the ‘Parking Authority of the [county or municipality].”
N.J.S.A. 40:11A-4 (emphases added). Similarly, for Beach
Erosion Control Districts, the Legislature has provided that,
17
“[e]very Beach Erosion Control District shall be a public body
politic and corporate, constituting a political subdivision of
the State.” N.J.S.A. 40:68-40 (emphases added).1
The Legislature did not confer “political subdivision”
status on a fire district, however. Where the Legislature has
“pointedly omitted” a term from an enactment, we cannot presume
to write that term into the statute. See DiProspero v. Penn,
183 N.J. 477, 492 (2005) (quoting Craster v. Bd. of Comm’rs of
Newark, 9 N.J. 225, 230 (1952)). When established, a fire
district is a creation of a municipality -- which is undoubtedly
a political subdivision2 -- that utilizes authority available to
1 By way of further examples, the Legislature has expressly
declared the following, upon their formation, to be political
subdivisions: port authorities, N.J.S.A 40:68A-7 (“Every port
authority shall be a public body politic and corporate
constituting a political subdivision of the State . . . .”);
solid waste management authorities, N.J.S.A. 40:66A-38 (“Every
solid waste management authority shall be a public body politic
and corporate constituting a political subdivision of the State
. . . .”); environmental services authorities, N.J.S.A. 40:66A-7
(“Every incinerator or environmental services authority shall be
a public body politic and corporate constituting a political
subdivision of the State . . . .”); sewerage authorities,
N.J.S.A. 40:14A-7 (“Every sewerage authority shall be a public
body politic and corporate constituting a political subdivision
of the State . . . .”); and pollution control authorities,
N.J.S.A. 40:37C-4(a) (“Any county may create an authority under
the provisions of this act which shall be a public body
corporate and politic and a political subdivision of the State .
. . .”).
2 Municipal corporations derive their powers from the
Legislature, as described in our Constitution. N.J. Const. art.
IV, § 7, ¶ 11; see Wagner v. Newark, 24 N.J. 467, 474 (1957)
(Vanderbilt, C.J.) (collecting and explaining cases that
establish, as “fundamental in our law[,] that there is no
18
it pursuant to N.J.S.A. 40A:14-70 to form a fire district. That
makes the fire district an instrumentality of a political
subdivision or multiple political subdivisions, as the case may
be. It is an entity “used to achieve an end or purpose.” See
League of Municipalities, supra, 207 N.J. at 503 (applying
generally accepted meaning of “instrumentality” for purposes of
OPRA). When created by a municipality, a fire district aids the
municipality in achieving the purpose of firefighting and fire
hazard protection for all or a portion of the municipality’s
geographic region. However, the fire district itself is not a
political subdivision. The Legislature did not designate it so.
For OPRA disclosure-requirement purposes, as an
instrumentality of a political subdivision, a fire district
clearly meets the definition of public agency under the second
sentence of OPRA’s definition. As quoted earlier, OPRA provides
that an “instrumentality within or created by a political
subdivision” is considered a “public agency.” N.J.S.A. 47:1A-
1.1. As a result, a fire district is subject to OPRA and must
respond to requests made under the statute.
B.
inherent right of local self-government beyond the control of
the State” and that political power flows to municipalities as
“creations of the State, limited in their powers and capable of
exercising only those powers of government granted to them by
the Legislature”); cf. League of Municipalities, supra, 207 N.J.
at 504 (referring to municipalities as political subdivisions).
19
We next consider whether the MVFD is a public agency under
OPRA. That the MVFD is a member volunteer company of the
District is conceded by all parties; however, the precise import
of that membership is a point of disagreement. The working
relationship between the District and the MVFD has apparently
been characterized by a degree of informality. On the one hand,
the District meeting minutes from 1973 reflect that the then-
existing volunteer firefighting squad petitioned to become part
of the District. On the other hand, the annual agreements
signed by the District and the MVFD suggest that their
relationship has recently been a contractual one. There may not
have been a need previously to clarify the nature of the
relationship. That said, the pertinent statute addressing
relationships between a fire district and volunteer squads
permits two specific types of relationships.
N.J.S.A. 40A:14-70.1 permits newly formed volunteer fire
companies to be created within a fire district; it also permits
a contractual relationship between a fire district and a
volunteer squad:
a. Any persons desiring to form a volunteer
fire company to be located within or otherwise
servicing the area encompassing a fire
district or other type of volunteer
organization which has as its objective the
prevention of fires or regulation of fire
hazards to life and property therein shall
first present to the board of fire
commissioners a written application for the
20
organization of such company. Such
application shall be in the form of a duly
verified petition signed by them stating the
kind of company which they desire to organize,
the name or title thereof, the number and
names of the proposed members thereof, and
their places of residence. The board of fire
commissioners, after considering such
application and approving the members of the
proposed company, may by resolution grant the
petition and constitute such applicants a
volunteer fire company of the district.
b. The board of fire commissioners of a fire
district not having a paid or part-paid fire
department and force may contract with a
volunteer fire company or companies for the
purpose of extinguishing fires, upon those
terms and conditions as shall be deemed
proper. The members of the company shall be
under the supervision and control of the board
of fire commissioners and in performing fire
duty shall be deemed to be exercising a
governmental function; however, the
appointment or election of the chief of the
volunteer fire company shall remain the
prerogative of the membership of the fire
company as set forth in the company’s
certificate of incorporation or bylaws.
[N.J.S.A. 40A:14-70.1.]
The key inquiry here is whether, by virtue of N.J.S.A.
40A:14-70.1, the MVFD is a “division, board, bureau, office,
commission or other instrumentality within or created by a
political subdivision of the State . . . [or an] independent
authority, commission, instrumentality or agency created by a
political subdivision.” N.J.S.A. 47:1A-1.1. As a member
volunteer squad under subsection (a) of N.J.S.A. 40A:14-70.1,
because it aids in fulfilling the greater fire district’s
21
purpose, a volunteer squad may be regarded as an instrumentality
of a fire district. However, because the District itself is not
a political subdivision, but rather the instrumentality of one,
the volunteer company is only the instrumentality of an
instrumentality. Although OPRA provides that an instrumentality
of a political subdivision constitutes a public agency, it does
not provide that an instrumentality of an instrumentality
constitutes a public agency. See N.J.S.A. 47:1A-1.1. OPRA
requires a direct connection to a political subdivision.3
Therefore, we cannot conclude from the language used by the
Legislature that it intended for a volunteer fire company to be
considered a separate public agency for OPRA purposes under
N.J.S.A. 40A:14-70.1(a).
Nor does a contract under N.J.S.A. 40A:14-70.1(b) establish
the type of relationship that fits within the second sentence of
the definition of public agency under OPRA. We discern no
3 Of course, as the dissent observes, municipalities may
contract directly with a volunteer fire company rather than
creating a fire district. N.J.S.A. 40A:14-68. Although such a
company would meet OPRA’s definition of a public agency, unlike
the MVFD, that outcome would result from the company’s direct
relationship with a municipality -- a political subdivision.
The various statutes governing municipal fire services have been
enacted by the Legislature over the course of many years and
allow for a number of permissible configurations for those
services. Unlike the dissent, we recognize that we are
constrained by plain statutory language that does not designate
fire districts as political subdivisions. Any alteration of
that language must come from the Legislature.
22
evidence that the Legislature intended for an entity under a
contractual relationship with an instrumentality of a political
subdivision to become a public agency for OPRA purposes. Thus,
no matter which category of N.J.S.A. 40A:14-70.1 might apply to
the MVFD due to its relationship with the District, neither
supports a conclusion that the MVFD itself has become a public
agency under OPRA, subject directly and independently to OPRA
demands.
C.
In reaching the conclusion that the District is a public
agency subject to OPRA but that the MVFD is not, we do not rely
on the reasoning in New Jersey State Firemen’s Ass’n, supra, 431
N.J. Super. at 287-89, which is distinguishable from the instant
matter. The New Jersey State Firemen’s Association, whose
records were sought under OPRA in that matter, was itself a
creation of the State Legislature. See N.J.S.A. 43:17-41.
Therefore, it is an entity that squarely fits under OPRA’s
parameters for a State agency under part of the first
definitional sentence: “any office, board, bureau or commission
within or created by the Legislative Branch; and any independent
State authority, commission, instrumentality or agency.”
N.J.S.A. 47:1A-1.1.
Similarly, we find distinguishable the analysis in Times of
Trenton Publishing Corp. v. Lafayette Yard Community Development
23
Corp., 183 N.J. 519 (2005), where we considered an entity that
was controlled and directed by governing members of a municipal
political subdivision, the City of Trenton. As we explained in
Lafayette Yard, supra, in that case “the Mayor and City Council
[had] absolute control over the membership of the Board of
Lafayette Yard and . . . the Corporation could only have been
‘created’ with their approval.” 183 N.J. at 535. Nothing in
our opinion today alters our conclusion that such an entity,
controlled and created with the approval of a political
subdivision, is itself a public agency under OPRA.
To the extent our prior decisions have discussed “creation”
or “governmental-function” tests when demarcating the boundaries
of what qualifies as a public agency, see, e.g., League of
Municipalities, supra, 207 N.J. at 507, such tests are useful
only insomuch as they effectuate application of the statutory
language. Because the District is an instrumentality of a
political subdivision, it falls within the plain language of the
statutory definition of public agency. By contrast, the MVFD is
a non-profit association and, while it is supervised by the
District, the volunteer company is not a public agency as
defined by OPRA.
IV.
Having clarified the applicability of OPRA to the parties,
we turn next to examine the specific OPRA request submitted in
24
this case. We conclude that the District, upon receiving a
request for the constitution and bylaws of the MVFD, was
obligated to provide access to those documents because the
requested documents should have been on file with, or accessible
to, the District pursuant to its authority to supervise the
MVFD.
While we do not wish to be overly formalistic in drawing
lines between the two types of relationships that the MVFD might
actually have with the District, neither do we wish to
overextend the relationship between them. We need not resolve
whether the MVFD enjoys a relationship as a member volunteer
squad of the District under N.J.S.A. 40A:14-70.1(a) or if the
District merely supervises the volunteer squad pursuant to a
contractual relationship under N.J.S.A. 40A:14-70.1(b). Under
either statutory provision, the District supervises the MVFD and
has certain responsibilities under OPRA to provide public access
to records relating to that supervision. Thus, even if the MVFD
is under fire-district supervision and control to the more
limited extent applicable to companies contracting with fire
districts under N.J.S.A. 40A:14-70.1(b), such supervision still
requires integration with obligations imposed under the
volunteer fire company’s constitution and bylaws:
The members of the company shall be under the
supervision and control of the board of fire
commissioners and in performing fire duty
25
shall be deemed to be exercising a
governmental function; however, the
appointment or election of the chief of the
volunteer fire company shall remain the
prerogative of the membership of the fire
company as set forth in the company’s
certificate of incorporation or bylaws.
[N.J.S.A. 40A:14-70.1(b).]
In order for a fire district’s commissioners to perform the
oversight function expected by the legislative mandate, a fire
district must have authority to review basic documents relating
to the internal organization and functioning of volunteer squads
working with that district. In this instance, the documents
requested from the MVFD must be either on file with the District
or subject to the District’s demand for production. As such,
they are documents necessary to the District’s performance of
its responsibilities and properly were ordered by the GRC to be
produced and provided to Verry.
We therefore affirm the judgment of the Appellate Division
that upheld the GRC order. To the extent that the judgment
included a conclusion that the MVFD was a public agency that was
itself subject to OPRA demands, separate and apart from the
District, we disapprove of that analysis and modify the judgment
accordingly.
V.
As modified, the judgment of the Appellate Division is
affirmed.
26
JUSTICES PATTERSON, FERNANDEZ-VINA, SOLOMON, and TIMPONE join
in JUSTICE LaVECCHIA’s opinion. JUSTICE ALBIN filed a separate,
partially dissenting and partially concurring opinion, in which
CHIEF JUSTICE RABNER joins.
27
SUPREME COURT OF NEW JERSEY
A-77 September Term 2015
077495
ROBERT A. VERRY,
Respondent,
v.
FRANKLIN FIRE DISTRICT NO. 1,
Appellant,
and
MILLSTONE VALLEY FIRE DEPARTMENT,
Respondent.
JUSTICE ALBIN, dissenting in part and concurring in part.
The majority has taken the wrong path to get to the right
destination, but that path may lead in the future to the
withholding of important documents that belong in the public
realm. I concur in the outcome of this case: the release of
the Millstone Valley Fire Department’s constitution and bylaws,
which are clearly public records open to inspection. I do not
agree, however, with the majority’s conclusion that the
Millstone Valley Fire Department -- or a similar volunteer fire
department that is part of a fire district -- is not a “public
agency” subject to New Jersey Open Public Records Act (OPRA),
N.J.S.A. 47:1A-1 to -13.
To reach its conclusion, the majority reverses sound
1
opinions rendered by the Government Records Council and the
Appellate Division and parses the language of OPRA in a way that
will lead to absurd results that the Legislature could not have
intended. Under the majority’s interpretation, volunteer fire
companies contracting directly with a municipality are subject
to OPRA, but the same fire companies that are members of -- or
contract with -- an independent fire district are not. A
sensible reading of OPRA does not compel that arbitrary
distinction.
Unlike the majority, I believe that the Franklin Fire
District No. 1 is a “political subdivision” of the State and the
Millstone Valley Fire Department is an “instrumentality” of the
District. For that reason, the Fire Department meets OPRA’s
definition of “public agency,” and therefore its records are
subject to public scrutiny. Accordingly, I respectfully
dissent.
I.
The term political subdivision, though not defined in our
State Constitution or any statute, has a somewhat elastic
meaning. A political subdivision “is an agency created for the
exercise, within the prescribed limits, of the governmental
functions and powers of the [S]tate.” City of Jersey City v.
Martin, 126 N.J.L. 353, 361 (E. & A. 1941); see also Black’s Law
Dictionary 1277 (9th ed. 2009) (stating that political
2
subdivision is “[a] division of a state that exists primarily to
discharge some function of local government”).
By that definition, according to the majority,
municipalities are political subdivisions, even though the
Legislature does not designate municipalities as such by
statute. The majority acknowledges that political subdivisions
include Beach Erosion Control Districts, N.J.S.A. 40:68-40;
county and municipal parking authorities, N.J.S.A. 40:11A-4;
sewerage authorities, N.J.S.A. 40:14A-7; solid waste management
authorities, N.J.S.A. 40:66A-38; and pollution control financing
authorities, N.J.S.A. 40:37C-4(a)-(b), to name a few. Ante at
___ (slip op. at 18 n.1). Those districts and authorities are
political subdivisions, says the majority, because the
Legislature has given them the name political subdivision.
Presumably, the Legislature gives the name political subdivision
only to those entities that possess the attributes of one.
The Franklin Fire District No. 1 possesses every
characteristic of a political subdivision, except the name.
Fire districts are creatures of statute. N.J.S.A. 40A:14-70.
On application of the voters, the governing body of a
municipality may pass an ordinance establishing a fire district
as a “body corporate” with “the power to acquire, hold, lease,
sell or otherwise convey . . . real and personal property.”
Ibid. The voters of a municipality elect the board of fire
3
commissioners, see ibid.; see also N.J.S.A. 40A:14-72, and
determine by ballot “the amount of money to be raised for the
ensuing year” for the fire district, N.J.S.A. 40A:14-72; see
also N.J.S.A. 40A:14-84. The fire district may borrow money
“for current expenses and necessary repairs to fire apparatus
and fire houses,” N.J.S.A. 40A:14-80, and taxes are separately
assessed on real property in the municipality to support the
fire district, N.J.S.A. 40A:14-79. Last, the fire district’s
commissioners have the same “powers, duties and functions” as a
municipality “relating to the prevention and extinguishment of
fires and the regulation of fire hazards.” N.J.S.A. 40A:14-81.
Just as a rose is a rose by any other name,1 so is a
political subdivision. A fire district retains its nature as a
political subdivision despite the label or lack of label given
to it. The Legislature has dubbed a municipal parking authority
“an agency and instrumentality of the municipality . . .
creating it,” N.J.S.A. 40:11A-4, and yet gives it the moniker of
“political subdivision.” The interchangeable use of the terms
“agency,” “instrumentality,” and “political subdivision” in that
statute and others, see N.J.S.A. 40:14A-7, :37C-4(a)-(b), :66A-
38, illustrates that the Legislature does not take a formalistic
approach in the classification of public bodies. The
1 See William Shakespeare, Romeo and Juliet act 2, sc. 2.
4
Legislature surely did not intend to classify a municipal
parking authority, whose members are appointed by the governing
body of a municipality, as a political subdivision, N.J.S.A.
40:11A-4, but not a fire district, for want of a name.
The purpose of OPRA is to make government records “readily
accessible for . . . the citizens of this State” and to construe
“any limitations on the right of access . . . in favor of the
public’s right of access.” N.J.S.A. 47:1A-1. That legislative
goal surely is not advanced by the majority’s strained
interpretation of the term political subdivision, an
interpretation that places fire companies, such as the one in
this case, beyond the reach of OPRA. Did the Legislature
“pointedly” omit the term political subdivision -- or for that
matter the terms agency and instrumentality -- from the fire
district statute, as the majority intuits? That is hard to
imagine.
Like the governmental authorities and Beach Erosion Control
Districts cited above, the Fire District is “an agency created
for the exercise . . . of the governmental functions and powers
of the state,” Martin, supra, 126 N.J.L. at 361, and therefore
is a political subdivision.
II.
It follows that if the Franklin Fire District No. 1 is a
political subdivision, the Millstone Valley Fire Department is
5
an “instrumentality” of the District. For OPRA purposes, an
“instrumentality” is “[a] thing used to achieve an end or
purpose” or “[a] means or agency through which a function of
another entity is accomplished, such as a branch of a governing
body.” Fair Share Hous. Ctr. v. N.J. State League of
Municipalities, 207 N.J. 489, 503 (2011) (alterations in
original) (quoting Black’s Law Dictionary 814 (8th ed. 2004)).
The primary mission of the Fire District is to prevent and
extinguish fires and to regulate fire hazards. See N.J.S.A.
40A:14-81. The Millstone Valley Fire Department is an
instrument through which that mission is accomplished. In 1973,
the Millstone Valley Fire Department was accepted into the Fire
District. The members of the fire company are “under the
supervision and control of the [Fire District] and in performing
fire duty shall be deemed to be exercising a governmental
function.” N.J.S.A. 40A:14-70.1(b). Each year, the Millstone
Valley Fire Department contracts with the District to provide
firefighting services and receives public funds for the training
of its members, the housing and maintenance of the District’s
firefighting equipment, and the purchase of new equipment.
Notably, under N.J.S.A. 40A:14-68, a municipality “may
contract with a volunteer fire company or companies . . . for
purposes of extinguishing fires,” and the members of those
companies, “in performing fire duty [are] deemed to be
6
exercising a governmental function.” No one questions that such
volunteer fire companies are instrumentalities of a political
subdivision subject to the disclosure requirements of OPRA.
It is difficult to conceive that the Legislature, for OPRA
purposes, intended the records of volunteer fire companies
aligned with a municipality to be open for inspection and those
aligned directly with a fire district to be free from public
scrutiny, except as the fire district may be required to
disclose certain records. Our canons of statutory
interpretation instruct us to harmonize congruent statutory
provisions with the understanding that the Legislature does not
intend its enactments to lead to absurd results. See DiProspero
v. Penn, 183 N.J. 477, 492-93 (2005).
I cannot conclude, as does the majority, that the Millstone
Valley Fire Department is an “instrumentality of an
instrumentality” of a subdivision and therefore not a public
agency subject to OPRA. Ante at ___ (slip op. at 22).
Moreover, even if the Fire District were an instrumentality of
the municipality, the Millstone Valley Fire Department is so
woven into the fabric of the Fire District -- having no
existence outside the District -- it should be deemed the same
instrumentality for OPRA purposes. If the Millstone Valley Fire
Department were subject to OPRA, then it could designate the
Fire District as the records custodian, with the District’s
7
consent.
III.
Clearly, the majority mitigated the harshness of its
decision by ordering the documents sought to be released through
the Fire District. But, nevertheless, the majority’s holding is
that the records of the Millstone Valley Fire Department -- an
agency that receives public funds and carries out a government
function relating to public safety -- are not subject to OPRA,
except to the extent the Fire District has access to those
records. I do not believe that result can be squared with
OPRA’s language or purposes. And it certainly does not further
the Legislature’s intent “to bring greater transparency to the
operations of government and public officials.” Paff v.
Galloway Township, ___ N.J. ___, ___ (2017) (slip op. at 15).
I therefore respectfully dissent.
8