Update–March 15, 2016: See Appellate Court: Volunteer Fire Company is subject to OPRA.

On April 29, 2014, the Government Records Council (the agency that enforces the Open Public Records Act (OPRA)) ruled in Robert A. Verry v. Franklin Fire District No. 1 (Somerset), GRC Case No. 2013-196 that Millstone Valley Fire Department “is a member of the Franklin Fire District No. 1 per N.J.S.A. 40A:14-70.1 and thus serves a governmental function under the supervision and control of the Franklin Fire District No. 1 [and] it is a public agency for purposes of OPRA.”

Both the Fire District and Millstone Valley called the decision “palpably incorrect or irrational” and urged the GRC to reconsider it.  The records requestor, Robert A. Verry, took the opposite position calling the GRC’s decision “well grounded in law.”  I have placed the GRC’s decision along with the briefs submitted by the District, Millstone Valley and Verry on-line here.  At this time, the GRC is still considering whether or not it will reconsider its decision and it is likely that the GRC’s ruling–whichever way it goes–will be appealed to the Appellate Division.

The case turns on N.J.S.A. 40A:14-70.1, which is the statute that establishes the relationship between fire departments and fire districts.  That statute reads:

Fire districts; establishment of or contract with volunteer fire company

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 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.

The statute lays out two ways that a volunteer fire department can become associated with a district.  First, under (a), districts can form volunteer fire departments through a petitioning process.  Second, under (b), fire districts can contract with volunteer fire departments that already exist.  Since Millstone Valley was not formed through the petition method under (a), then only (b) is applicable to the matter at hand.

Both the GRC and Verry (see page 3 of Verry’s brief) interpret (b) as saying that Millstone Valley Fire Department is “under the supervision and control” of the fire district. But that’s not what the statute says.  The statute says that the members of Millstone Valley, not Millstone Valley Fire Department itself, is under the district’s “supervision and control.”  This distinction causes me to believe that the GRC decided the issue incorrectly.

Chairman of the New Jersey Libertarian Party's Open Government Advocacy Project. Please send all comments to [email protected]