Thursday, January 29, 2009

How many members make a borough council "meeting" under the OPMA?

According to statute, a borough's municipal governing body consist of an elected mayor plus six elected council members, for a total of seven. N.J.S.A. 40A:60-2. A quorum consists either of four members of council or the mayor plus three members of council. N.J.S.A. 40A:60-3(d).

I'm trying to understand exactly how many members of a borough municipal governing body can meet together to discuss public business without having to announce a formal "meeting" in accordance with the Open Public Meetings Act (OPMA). I'm finding that this is not a straightforward question.

N.J.S.A. 10:4-8(b) defines the term "meeting" as follows:

"Meeting" means and includes any gathering whether corporeal or by means of communication equipment, which is attended by, or open to, all of the members of a public body, held with the intent, on the part of the members of the body present, to discuss or act as a unit upon the specific public business of that body. Meeting does not mean or include any such gathering (1) attended by less than an effective majority of the members of a public body, or (2) attended by or open to all the members of three or more similar public bodies at a convention or similar gathering.

According to Riya Finnegan, LLC v. Township Council of South Brunswick, 386 N.J.Super. 255, 260-61 (Law. Div. 2006), three members of a nine-member planning board constitute an "effective majority" because a) a quorum of the nine-member board is five members and b) a majority of five is three. Thus, three members of a nine member board apparently cannot gather together without calling a formal, public OPMA "meeting."

Applying Finnegan's logic to a borough council, a gathering of three council members is an "effective majority" because three is a majority of a quorum of four. But, John Hipp, Mayor of Rutherford, has expressed an interesting and novel theory that takes this logic a step further.

Mayor Hipp points out that a borough mayor's voting power is specifically limited by N.J.S.A. 40A:60-5(c) which states that "the mayor shall preside at meetings of the council and may vote to break a tie." Apparently, then, a borough mayor is not allowed to vote unless the council vote is tied.

Mayor Hipp theorizes that if the mayor and three council members (i.e. a quorum that can legally transact business) are at a meeting and a motion is passed by the three council members by a vote of 2 to 1, then the mayor cannot legally vote because that vote would not "break a tie." Thus, Mayor Hipp reasons, two members of the borough council constitute an "effective majority."

If this argument is logically sound, it follows that two members of a borough council cannot meet together to discuss municipal business without giving public notice of the meeting, taking minutes and otherwise abiding by the OPMA.

I'm not sure what to think about this.

Suppose that a borough council's administrative code established a committee of two or three council members but specifically held that the committee's meetings were not open to the council members who were not committee members. It could be argued that the committee meetings are not OPMA "meetings" because the first sentence of N.J.S.A. 10:4-8(b) requires a "meeting" to be "open to" all the members of a public body.

But if this is the case, then the administrative code could likewise establish a committee of five or six council members--more than a quorum--and that a meeting of these five or six members, sitting as a committee, wouldn't be a "meeting" as defined by N.J.S.A. 10:4-8(b).

N.J.S.A. 10:4-11 appears to be intended to prevent such a result. That statute says that "no person or public body shall fail to invite a portion of its members to a meeting for the purpose of circumventing the provisions of this act." So, if a borough council established a committee of five or six members and took the position that committee meetings could be held without the public present, it would seem that a court would, or at least should, find that the committee meetings were OPMA "meetings." Otherwise, a council could shut out the public by deliberating all of its business in private, unadvertised meetings of committees that contain all but one member of the council.

The only way I can make sense of this is if OPMA, implicitly, prevents a borough council from disallowing council members who are not members of a committee from attending the committee's meetings. In other words, implicit in OPMA must be a requirement that every council committee meeting and subcommittee meeting must be "open to" all council members thus making each committee meeting and subcommittee meeting an OPMA "meeting" provided that it is attended by an "effective majority" of the council.

If this (i.e. that a council cannot, through its administrative code, establish a committee that can hold meetings that one or more members of the council are not allowed to attend) is true, then Mayor Hipp is correct that no two members of a borough council can meet together, as a committee or not, to discuss public business without formally giving the public formal notice of the meeting and otherwise abiding by the OPMA. It would follow that no two members of a borough council could speak to each other on the telephone or email each other about borough business because that would also be a "meeting" held "by means of communication equipment."

I'd would appreciate hearing anyone's comments on this question.

Originally distributed on January 15, 2009

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