Wednesday, June 24, 2009

Recording citizen comments in meeting minutes

I received the following question:
"I spoke during the public portion of a local board of education meeting and specifically requested that the concern I raised be recorded in the meeting's minutes. The Board secretary refused to do so and said that the required elements to be included in the minutes are time, attendance and votes on resolutions (actions taken) and that anything else that may appear in the minutes is subject to the board's discretion. Is this legal?"
I don't have a definitive answer. In an attempt to shed light on this question, I've located three Appellate Division decisions and one trial level decision on the issue and have quoted from them below. The decisions, especially the second and third ones, are not very hospitable toward minutes having to include anything more than the bare minimum.

But, in the Liebeskind decision (see below), the court ruled that it was an OPMA violation for the governing body to not include the fact that the plaintiff submitted a written objection to a proposal that was discussed at a meeting. Also, the Liebeskind court seems to say that a public body ought to at least include the names of citizens who spoke at a meeting even if it is not required to summarize what each citizen said.

Also the South Jersey Publishing case (quoted in Liebeskind below) requires a bit more detail and specificity to be included in the minutes when a personnel matter is decided. I read the Liebeskind decision as refusing to extend the South Jersey Publishing ruling to minutes that record matters other than personnel matters.

It is also worth noting that each of the appellate decisions dealt with applications to void out, in accordance with N.J.S.A. 10:4-15, an action taken by the public body. My thought is that a court may be more accommodating if more verbose minutes were requested by way of an application for injunctive relief in accordance with N.J.S.A. 10:4-16.

I think that more litigation needs to be brought to resolve the question of exactly what level of detail regarding citizens' public comments needs to be recorded in the meeting minutes. As an alternative, we can work to enact Sen. Loretta Weinberg's bill--S1548--which will specifically require meeting minutes to include "the identity of each member of the public who spoke and a summary of what was said."

John Paff
Somerset, New Jersey

CASE NO 1.

The following is taken from pages 400 through 402 of the Appellate Division's 1993 published decision in Liebeskind v. Mayor and Mun. Council of Bayonne, 265 N.J.Super. 389.

N.J.S.A. 10:4-14 requires the public body to keep “reasonably comprehensible minutes.” This does not mean word for word recitation of every event or a verbatim detailing of every public comment or objection. The cases cited by plaintiff in support of a contrary view do not advance his cause. In Battaglia v. O'Brien, 59 N.J.Super. 154, 171-72, 157 A.2d 508 (App.Div.1960), minutes of a zoning board of adjustment variance hearing were missing entirely, thus precluding any meaningful review. Similarly South Jersey Publishing Co., Inc. v. New Jersey Expressway Auth., 124 N.J. 478 (1991), no minutes were available at all because the authority acted in a private meeting. It was in this context that the Supreme Court utilized the language which plaintiff here relies on: “The minutes are intended to recite and disclose any official decision or action taken by a public body, and necessarily must contain sufficient facts and information to permit the public to understand and appraise the reasonableness of the public body's determination.” Id. at 493.

This does not mean that the public body must reveal the reasons why it took the legislative action that it did. Township of Bernards v. State, Dept. of Community Affairs, 233 N.J.Super. 1, 28, 558 A.2d 1 (App.Div.), certif. den. 118 N.J. 194-95, 570 A.2d 959 (1989). N.J.S.A. 10:4-14 simply requires that what took place at the meeting and what final action was taken should be reflected in the minutes. Here, what actually occurred at the meeting was that plaintiff submitted a letter objection to the proposed ordinance. Despite this, the minutes reported that no objections had been filed with the clerk. The minutes should have been corrected to reflect the receipt of plaintiff's letter and we so order. Other than this, we see no reason to intervene. The minutes indicated the action contemplated; declared who was present at the meeting; recited public notice; reflected who moved and seconded the resolution to amend the 1976 salaries ordinance; stated the names of the public participants, and recounted which council members voted in favor of passage of the amendment. We are satisfied that these minutes adequately reflect what transpired at the meeting and that a citizen of Bayonne who reviewed the minutes along with the ordinance, which included a new salary schedule with retroactive effect, would fully understand what had occurred. That is all that is required by N.J.S.A. 10:4-14.

CASE NO 2.

The following is taken from the Appellate Division's 2006 unpublished decision in Albano v. City of Vineland (2006 WL 3626766). The court considered a citizen's challenge to a redevelopment ordinance that permitted a Wal-Mart to be built. One of the citizen's arguments was that one of council members, James Forcinito, whose son worked at Wal-Mart, commented on his son's employment at a public meeting but that the Council failed to record that comment in meeting minutes. Thus, the citizen challenger argued that the meeting minutes were not "reasonably comprehensible" as required by N.J.S.A. 10:4-14. The court held:

Finally, plaintiffs assert that the adoption of the amendments to the redevelopment plan should be voided due to a violation of the Open Public Meetings Act (the Act), N.J.S.A. 10:4-6 to -21. The comments made by Councilman Forcinito during the May 10, 2005 City Council meeting were not placed in the minutes taken for that meeting. Plaintiffs argue that this violated the section of the Act requiring: "Each public body [to] keep reasonably comprehensible minutes of all its meetings showing the time and place, the members present, the subjects considered, the actions taken, the vote of each member, and any other information required to be shown in the minutes by law, which shall be promptly available to the public ..."

"Reasonably comprehensible" does not mean "word for word recitation of every event or a verbatim detailing of every public comment or objection." Liebeskind v. Mayor and Mun. Council of Bayonne, 265 N.J.Super. 389, 400-01 (App.Div.1993). Rather, N.J.S.A. 10:4-14 "simply requires that what took place at the meeting and what final action was taken should be reflected in the minutes." Id. at 401. The minutes satisfy the statutory requirement, and accordingly there was no violation of the Act. Therefore, Judge Forester properly held that Council did not violate the Act by failing to include Councilman Forcinito's comment about his son's employment at Wal-Mart.
CASE NO 3.

The following is taken from page 28 of the Appellate Division's 2006 published decision in Township of Bernards v. State, Dept. of Community Affairs, 233 N.J.Super. 1

Cherry Hill's next contention is that COAH did not keep “reasonably comprehensible” minutes, required by N.J.S.A. 10:4-14.

N.J.S.A. 10:4-14 states that "[e]ach public body shall keep reasonably comprehensible minutes of all its meetings showing the time and place, the members present, the subjects considered, the actions taken, the vote of each member and any other information required to be shown in the minutes by law...."

The elements required to make the minutes “reasonably comprehensible” are listed in the section. Although Cherry Hill claims that much more is needed, specifically, the reasons why the members voted as they did, we disagree. COAH has done all that the statute required it to do in recording its minutes.
CASE NO. 4

In Martin O'Shea's case against West Milford Township, Judge Passero in an unpublished trial level ruling in Passaic County, remarked that if a citizen makes a comment or asks a question during the public portion of a meeting, at least the subject of the citizen's comment or question should be recorded in the minutes. Otherwise, there would be no way of proving by way of the minutes that the body was on notice of a particular issue. See pages 14-15 of the transcript which is on-line here.

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