Wednesday, August 19, 2009

Issue: "The Mayor and Council won't answer my questions."

From time to time I receive questions that I think may be of general interest. Here's one such question my answer to it.

Question: When I ask a question during a meeting's public comment session, either on a general issue or on a specific ordinance that is about to be passed, the mayor and council do not respond. Rather, the mayor just ignores the question and invites the next speaker to podium. Is this legal?

Answer: There are two statutes that pertain to the public's right to address a municipal governing body.

First, N.J.S.A. 10:4-12(a), which is part of the Open Public Meetings Act, requires municipal governing bodies and school boards "to set aside a portion of every meeting . . . the length of the portion to be determined by the [public body, for public comment on any governmental issue that a member of the public feels may be of concern to the residents of the municipality or school district.."

Unfortunately, this section does not require the mayor and council to respond to a citizen's question. In many towns, when a citizen asks a question, he or she is told that the mayor and council are under no duty to answer questions. Such a response, although repugnant, is consistent with N.J.S.A. 10:4-12(a).

Second, N.J.S.A. 40:49-2(b) requires a separate public comment period to be held whenever an ordinance is being considered for final passage (i.e. given a "second reading."). This statute says that prior to final vote on a proposed ordinance "all persons interested shall be given an opportunity to be heard concerning the ordinance. The opportunity to be heard shall include the right to ask pertinent questions concerning the ordinance by any resident of the municipality or any other person affected by the ordinance."

While the Open Public Meetings Act gives members of the public the right to "comment" on an issue, N.J.S.A. 40:49-2(b) confers a specific right "to ask pertinent questions.". This seems to imply that the mayor and council are under some duty to answer those questions.

Courts are supposed to construe statutes to give meaning and effect to the legislature's intent. While there is no case law on this subject, I believe that a court, if asked, would construe N.J.S.A. 40:49-2(b) to impose a duty on the mayor and council to answer citizens' questions. Otherwise, the legislature's inclusion of the "pertinent questions" language in the statute would be meaningless. In other words, is it reasonable that the legislature would have given the public the right to ask "pertinent questions" but allow the officials to whom the questions are directed to ignore those questions?

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