Tuesday, May 12, 2009

OPMA's "safe harbor" provision

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

N.J.S.A. 10:4-17 (part of the Senator Byron M. Baer Open Public Meetings Act) contains a provision that I refer to as the "safe harbor provision." The statute reads

Penalty enforcement. Any person who knowingly violates any of the foregoing sections of this act shall be fined $100.00 for the first offense and no less than $100.00 nor more than $500.00 for any subsequent offense, recoverable by the State by a summary proceeding under "the penalty enforcement law" (N.J.S.2A:58-1 et seq.). The Superior Court shall have jurisdiction to enforce said penalty upon complaint of the Attorney General or the county prosecutor. Whenever a member of a public body believes that a meeting of such body is being held in violation of the provisions of this act, he shall immediately state this at the meeting together with specific reasons for his belief which shall be recorded in the minutes of that meeting. Whenever such a member's objections to the holding of such meeting are overruled by the majority of those present, such a member may continue to participate at such meeting without penalty provided he has complied with the duties imposed upon him by this section.

The "safe harbor" provision consists of the final two sentences of the above provision. Here is how it might be useful.

Suppose that a member of the body senses a violation of the OPMA, such as the body discussing a topic in closed or executive session that either is not allowed by statute or not within the resolution that authorized the private session. That members could announce:

"Madam Mayor - I believe that the subject that we're presently discussing is improper for this executive session. Specifically, I believe that [details]. Accordingly, I wish to invoke my rights under N.J.S.A. 10:4-17 by objecting. I ask, Madam Mayor, that you instruct the Clerk to record my objection in this meeting's minutes and poll the rest of the council to determine whether it sustains or overrules my objection. I also ask that you inform my colleagues that if they overrule my objection and continue with this discussion of the present topic, they may be subject to monetary penalties if the County Prosecutor or the Attorney General later agrees with my objection."

Admittedly, stating the above would have a much more dramatic effect if the county prosecutors or Attorney General actually imposed monetary penalties. Since the penalties are rarely if ever enforced it is not likely to have much impact on sophisticated members of public bodies. It may, however, cause novice members (or those experienced members who have a principled interest in open government) to ask the body's attorney to opine on whether the topic under discussion can lawfully continue in private.

In any event, it will build a record (i.e the recordings in the private meeting minutes) of the member's objections.

John Paff
Somerset, New Jersey

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