Tuesday, May 12, 2009

Councilmember audio-recording executive sessions

UPDATE 12/20/11: A school board member was cleared of ethics charges for audiotaping an executive session. For more information, click here.

From time to time I receive correspondence from members of municipal councils, school boards or other public bodies explaining that they are in the political minority and that the majority does not obey the Senator Byron M. Baer Open Public Meetings Act and routinely discussed impermissible topics during closed session.

My suggestion--for individuals not afraid to push the envelope--is to write something along the lines of the following letter to the chairmen of their public bodies. So far, I have not been informed of any public body member having actually done this, but would look forward to learning the experience of anyone who does send in the suggested letter.

John Paff
Somerset, New Jersey

Dear Mayor and fellow members of the Borough Council:

I would like to inform you of my intention, beginning at the Council meeting of [insert upcoming meeting date--perhaps two months away], to make it my practice to audiotape the Council's nonpublic sessions.

Among my purposes for making these recordings: a) to create a personal archive of the Council's non-public discussions so that I can refresh my recollection on what was said during those discussions in the future, and b) to retain evidence to counter any Open Public Meetings Act violations that may be brought against me in the future by the County Prosecutor or Attorney General in accordance with N.J.S.A. 10:4-17. Moreover, I feel that the existence of these recordings will help assure the public that the Council's nonpublic discussion is restricted to only those topics permitted by N.J.S.A. 10:4-12(b).

If anyone has an objection based on the possibility that the tapes may fall into the wrong hands, I will agree to leave the recordings with the Clerk where they can be retained under lock and key. If I (or any other member of Council wants to review the tapes, I will visit the Clerk's office.

You will note that I do not intend to begin recording closed meetings until the above mentioned date. This is to allow the Council an opportunity to discuss the legal ramifications of my plan (e.g. will the tapes fall within the Open Public Record Act's definition of "government record" (N.J.S.A. 47:1A-1.1)?) and to give anyone who opposes my plan an opportunity to state his or her reasons or to seek legal advice.

If more time is needed to resolve the questions my intention raises, I will be happy to delay implementing my plan for a reasonable period. Absent a timely objection, however, I will begin audiotaping the meetings beginning on the above-mentioned date without further notice.

Thank you. etc.

cc. Borough Attorney

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