Thursday, February 12, 2009

"Effective Majority" argument causes reduction in council committee size

As you can see from the article below, the Spring Lake Heights (Monmouth County) Borough Council has reduced the size of its committees from three to two in order to better comply with the OPMA's "effective majority" requirement. My letter to the Borough Administrator, which is referenced in the article, is on-line here.

I suppose that this is progress, but my primary goal is not to reduce the size of council committees but to get council committees, regardless of their size, to open their meetings to the public. It is not unusual for important deliberations to occur at a private committee meeting, only to have the issue voted upon--with little or no debate--at a subsequent public meeting. The OPMA intends to provide the public with insight into the deliberations and policy formulation--not just an opportunity to witness a formal vote on an issue that has already been decided.

Still, the fact that Spring Lake Heights has determined that three-member council committees violates OPMA might help readers urge their own municipalities to review their own committee structures. If you live in a municipality where the governing body's committees are staffed with an "effective majority" of the body's members, you may wish to send a copy of the following article to your mayor and council and ask if they agree or disagree with Spring Lake Heights' position.

John Paff
Somerset, New Jersey

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Council committees to be reduced in size

By Brian O'Keefe

The Coast Star

Thurs., Feb. 12

At Monday night’s meeting, the Spring Lake Heights mayor and council discussed a concern about three-member council committees that was raised by John Paff, the chairman of the New Jersey Libertarian Party’s Open Government Advocacy Project.

In a Jan. 16 letter to Borough Administrator Theresa Casagrande, Mr. Paff asked what the borough would do if one additional council member decided to attend the meeting of a committee composed of three members.

Those four council members would constitute an “effective majority,” he said, citing a 2006 New Jersey Superior Court decision in a lawsuit against the South Brunswick Council.

The judge in that case ruled that three members of a nine-member planning board constitute an effective majority, because five members make a quorum, and three members form a majority of that quorum, according to Mr. Paff.

If an effective majority of council members attend a committee meeting, that would require that the public be allowed to attend the meeting, advanced notice be given of the meeting and that minutes be taken, Mr. Paff said.

The Spring Lake Heights Council has two committees that consist of three members: the personnel committee and the interlocal/shared services committee.

Mr. Paff also stated that he believed it would violate state law if council members were not allowed to attend meetings of committees of which they are not members, if the reason for prohibiting their attendance were to avoid the formation of an effective majority.

Restricting attendance in that way would constitute a failure to invite some council members to the committee meeting “for the purpose of circumventing the provisions of [OPMA],” which is specifically prohibited in OPMA, Mr. Paff wrote.

Councilwoman Kathleen Crippen said Mr. Paff believes three council members should not discuss any business together, outside of an open public meeting.

She said she agreed that “three’s a crowd,” and that if three council members were to come to a consensus during such a meeting, they could become an effective majority by swaying another council member or the mayor to their position.

Borough Attorney Frederick C. Raffetto suggested that one member of each of the three-member committees could voluntarily step down in order to avoid the problems raised by Mr. Paff.

Mayor H. Frances Enright said she agreed with that approach, and asked council members to decide among themselves who will step down from the two, three-member committees.

Mr. Paff also mentioned in his letter to Ms. Casagrande “an interesting and novel theory” by Rutherford Mayor John Hipp, who has suggested that it only takes two council members to form an effective majority.

According to Mr. Paff, Mayor Hipp argues that because the mayor and three council members constitute a quorum, and the mayor can only vote to break a tie, it would only take the votes of two of the council members to pass a motion, meaning two members are an effective majority.

The council did not address that argument during their discussion.

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