In 1995, New Jersey voters approved an amendment to the State Constitution that was supposed to curb lawmakers’ penchant for mandating new programs for state and local governments without giving them the necessary funding.  In order to implement the law, the Legislature established the Council on Local Mandates, whose job is to review complaints from local government entities and then make a determination on whether new statutory or regulatory impositions by the State constituted “unfunded” mandates. 

Under the law, if a statute or regulation is deemed by the Council to be an “unfunded” mandate it ceases to be mandatory and expires. 

Twelve years later, the Council has made only eight decisions.  That’s one every 18 months.  In only two of those cases did the Council rule in favor of local governments.  And in one of those two cases the decision was pointless because the Council has no power to force the State to comply and local governments have no right to seek redress in the courts. 

Clearly, this is not the reform that people thought they were voting for in 1995.  Proof is that property taxes in New Jersey, which the people were seeking to control with the amendment, have nearly doubled since then.

The New Jersey Association of Counties recently undertook a statewide survey of county governments to identify the most onerous, expensive and outdated mandates.  It is our goal to persuade lawmakers to repeal or fund them.  In the meantime, I would like to propose that local and county officials join forces to push for a complete overhaul of the Council on Local Mandates, which in our view clearly has not satisfied the voters’ desire for reform. 

First, we should seek to change its composition.  Under the law, members of the Council are appointed by the Governor, the Legislature and the Chief Justice of the State Supreme Court -- in other words, the makers of mandates.  Even worse, there is no requirement that any of the members be current or former local officials, which is a curious omission since the Council’s only purpose in the world is to prevent state authorities from steamrolling local governments. 

A second glaring flaw is that state appointees, such as judges and prosecutors, can force county governments to hire court personnel and expand facilities, all without approval from voters or their elected representatives.  In Cumberland County, where this writer  lives and serves as Freeholder, the Prosecutor prevailed in a court case that forced us to spend millions of dollars to increase his staff.  Basically he got a green light to double his budget and increase salaries by 30 percent.  He is also demanding that Cumberland County build him a 32,000 square foot office space.  These are all state-mandated expenses, but the law doesn’t permit us to seek relief from the Council on Local Mandates.  These decisions are exempt.  This is a very big loophole that must be closed. 

While state officials can appeal to the courts, county and local officials don’t have that option.  Under the law, decisions made by the Council on Local Mandates are not eligible for judicial review.  That means that when the Council decides in favor of the State, county and local officials may not seek relief in the courts.  And even when the Council makes the correct decision, the State can ignore it without consequence. 

You may have read last year, for example, of a case involving several counties and the state Department of Transportation.  That case was precipitated when the DOT decided to stop paying for the removal of deer carcasses on county roads. Since dead deer don’t remove themselves, counties were forced to assume the responsibility and all of the resulting expenses.  The Council ruled in favor of counties, declaring the DOT’s decision an illegal “unfunded” state mandate.  The DOT refused to comply, however, and according to the law that’s as far as it can go.   

Two provisions are needed here:  one that would allow county and local officials to go to court; and one that would force the state to comply when the Council identifies an illegal “unfunded” mandate. 

Finally, we must also review the section of the “unfunded mandates” law delineating the exemptions.  For example, laws enacted before 1996 cannot be challenged as “unfunded” mandates.   That guarantees that counties, towns and school districts must keep paying for some of the most burdensome programs on the books.  I have argued in the past for a top-to-bottom review of all state mandates that would require the state to repeal the outdated ones and pay for the rest.  If it isn’t going to do so, then at least county and local officials should have the right to bring them before the Council for review. 

The truth is that when the people of New Jersey voted to curb “unfunded” mandates, they no doubt intended for a stronger, more comprehensive limit on the state’s ability to impose new costs without paying for them.  Mayors, council members and school district officials should join with county governments in calling for real reform this time that would close the loopholes, give property taxpayers real representation on the Council and hold the State accountable for dodging its decisions.