Monday, March 30, 2009

Audio-recording Executive Sessions

When asked to audio-record their nonpublic (executive or closed) meetings, most governing bodies will dismiss the suggestion without even weighing its pros and cons.

The fact that one public body--the High Bridge Borough Council (Hunterdon County)--resolved earlier this year to audio-record its executive sessions, might help readers get their town councils and school boards to more seriously consider doing the same. The High Bridge resolution is on-line here.

Note that the resolution states that High Bridge's audio-recordings of executive sessions "are subject to the same retention schedule as Open Session Meeting recordings." According to the state's record retention schedules, tapes can be destroyed “80 days after summary or verbatim transcript have been approved by the governing body whichever is later.” In other words, High Bridge can apply for permission to destroy its executive session audio recordings a mere 80 days after the executive session minutes are approved. (See the Records Retention Schedules promulgated by the Bureau of Records Management. For the particular record that is the subject of this article, scroll down to the General Schedule for Municipal Agencies.  There you will find Records Series # 0511-000 (Recordings of Public Meetings - audio and video).)


John Paff
Somerset, New Jersey

Friday, March 27, 2009

Public speaker's First Amendment suit rebuffed

In an unpublished decision released today, the Appellate Division affirmed a trial court's dismissal of Doris Lin's First Amendment case against the Monmouth County Board of Chosen Freeholders. The decision is on-line here.

Lin filed suit after the Freeholders ordered her to stop speaking during the public comment portion of their August 25, 2005 meeting. Freeholder Director Thomas Powers told Lin that she was "out of line" when she asked three Freeholders whether they defended former Freeholder director Harry Larrison Jr. who, according to the Asbury Park Press, was "brought up on corruption charges before he died in May 2005." According to the decision, Lin's out of line statement was "So I ask you now, publicly and on the record, Freeholders Barham, Narozanick and Powers, do you condemn corrupt officials and praise the US Attorney's Office, or do you stand by your defense of Harry Larrison?"

In its decision, the Appellate Division recognized that "[t]he Government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction." But the court held that the Freeholders' silencing of Lin "did not constitute viewpoint discrimination." The court also found that the Freeholders were entitled to qualified immunity

John Paff
Somerset, New Jersey

Thursday, March 26, 2009

Oxford school board to shrink size of committees

In a March 2, 2009 letter to the Oxford Township (Warren County) Board of Education, Walter Luers challenged the Board's procedure of staffing Board committees with three Board members. Luers asked that the Board either open its committee meetings to the public or reduce the number of Board members on a committee.

In its March 17, 2009 response, the Board said that they disagreed with Luers' suggestion that three Board members constituted an "effective majority" under the Sen. Byron M. Baer Open Public Meetings Act. Yet, it decided "to err on the side of caution" and reduce committee membership from three to two "to avoid the possibility of needless, budget-busting litigation."

The correspondence is on-line here.

John Paff
Somerset, New Jersey

Board of Ed committees to take meeting minutes

In a March 25, 2009 letter, the High Bridge (Hunterdon County) Board of Education agreed that its committees (e.g. Policy Committee, Personnel Committee, etc.) will now take minutes of their meetings. This change was made in response to a March 6, 2009 request from the New Jersey Libertarian Party's Open Government Advocacy Project. The request and the response available here.

Readers may wish to submit an OPRA request for the minutes of their local school boards' committee meetings. If they find that the committees do not take minutes of their meetings (i.e. if the OPRA request is answered "there are no responsive records") they may wish to send the correspondence at the above link to the board members and ask that they consider adopting the High Bridge Board's procedure.

John Paff
Somerset, New Jersey

Saturday, March 21, 2009

Neptune Township agrees to specific start time for "regular portion" of its meetings.

Neptune Township (Monmouth County) holds two successive meetings on the same night (a "workshop" meeting followed by a "regular" meeting). They advertise a) that the "workshop" meeting will begin at 6 p.m., and b) that the "regular" meeting will commence "immediately after" the "workshop" meeting.

In a February 3, 2009 letter to the Mayor and Township Committee, I raised two complaints regarding this procedure. First, I argued, if Neptune is going to have two separate meetings, it needs to have a public comment period at each meeting (Neptune's practice is to allow public comment only at the "regular meeting"). Second, I argued that if Neptune is holding two distinct meetings, it needed to publish, in advance, the start time of each of those meetings. In other words, it had to say that the "regular" meeting would start, say, at "8 o'clock" rather than just saying that it would start after the "workshop" meeting ended.

On March 9, 2009, the Township Committee discussed my letter in closed session. (The closed session resolution gave "Potential Litigation -- Meeting Procedure" as a reason for the closed session.) Predictably, the Township's attorney, in a March 16, 2009 letter, claimed that neither of my arguments had any merit because the Neptune Township Committee does not hold two meetings in the same night. Rather, he claimed, the Committee holds "one continuous meeting" which contains both a "workshop" and "regular" portion.

(Incidentally, I think that the attorney's argument is at odds with the facts. The agendas for both the "workshop" and the "regular" meetings held on March 9, 2009 are on-line here. The first words on each agenda show that "Mayor Brantley calls the meeting to order." So, it seems to me that the fact that both meetings were formally called to order strongly suggests that there were two distinct meetings.)

However, the Township Committee did agree, going forward, to schedule its "regular portions" to begin at 7 p.m. This is of some benefit, because it lets people who want to attend a "regular portion" know when they should arrive. Previously, those citizens had no idea when to arrive for the "regular portion" because its start time was dependent upon the end time of the "workshop portion."

The correspondence between me and the Township is on-line here.

John Paff, Chair
New Jersey Libertarian Party's
Open Government Advocacy Project.

Friday, March 6, 2009

Appellate Division examines OPRA's "personnel" exemption

Employees of the Bergen County Prosecutor's office (BCPO) must seek permission before they can work for another employer. The BCPO manual states that an employee's "outside activity or employment must not . . . give any improper appearance of conflict of interest."

A newspaper requested records of BCPO employees' outside employment activities presumably so that it and the public could judge whether any conflicts of interest arose out of such employment. The request was denied, the newspaper sued and then appealed after losing in the trial court.

In a March 3, 2009 published decision, the New Jersey Superior Court, Appellate Division ruled that the government's need to protect the safety and security of BCPO employees trumped the public's right, under OPRA and the common law, to access even redacted records related to those employees' outside employment. The case is available by clicking here.

John Paff
Somerset, New Jersey

Thursday, March 5, 2009

Permissible uses of OPMA "personnel" exception

In two recent letters, I've questioned the propriety of the Hanover Township (Morris County) Committee's use of the exception in the Sen. Byron M. Baer Open Public Meetings Act that allows "personnel" discussions to take place in closed session. (See N.J.S.A. 10:4-12(b)(8). My letters are on-line here.

My basic contention is that a public body can discuss and evaluate SPECIFIC EMPLOYEES in executive session but cannot discuss budgetary matters, such as the need to make cuts in staff that will affect SPECIFIC POSITIONS, without the public being in attendance.

John Paff
Somerset, New Jersey

Wednesday, March 4, 2009

March 26th: Open Public Records Act Seminar

The New Jersey Press Association, The Record and the Herald News are sponsoring a one-day seminar on New Jersey's Open Public Records Act.

The seminar will be held Thursday, March 26 from 10 a.m. to 3 p.m. at Bergen Community College's Ciccone Theater, 400 Paramus Road, Paramus. Cost is $10 per person, which includes a buffet lunch.

The seminar is for anyone interested in government records, including editors and reporters, elected and appointed officials, municipal clerks, attorneys and citizen activists. The seminar may be approved for continuing education credit for municipal clerks.

Access to government records can be as difficult as walking a high wire across the Grand Canyon. The public's right to know must be balanced against the government's obligation to keep certain records confidential.

The state's Open Public Records Act (OPRA) has made releasing records easier than it once was, but the law can be confusing. This seminar will be a productive five hours for everyone interested in government records.

Topics will include a comprehensive overview of everything you need to know about government records, how to get them, what can't be released, what to do if you are refused them, and a discussion about how OPRA can be improved. Four discussion panels will allow ample time for questions and answers.

For more information and a registration form, click here.

Sunday, March 1, 2009

Suggestions to the Government Records Council

I attended the February 25, 2009 meeting of the Government Records Council and offered some suggestions during the public portion of the meeting. Specifically:

1. That the Council make its public meeting minutes more promptly available.
2. That the Council hold one or more of its public meetings someplace other than Trenton, so that the public can more easily attend.
3. That the Council schedule its executive sessions so that members of the public who wish to attend the public meetings don't have to worry about showing up too early or too late.

All of my suggestions were rejected by the Council. So, I sent them the following e-mail to follow up. I ask that anyone who agrees or disagrees with my suggestions, or has additional suggestions, to please send them to the GRC at grc@dca.state.nj.us with a copy to me.

John Paff
Somerset, New Jersey
-------------------------------
Date: Sun, 01 Mar 2009 16:46:28 -0500
To: grc@dca.state.nj.us
From: John Paff
Subject: Follow-up to my comments on 02/25/09

Robin Berg Tabakin, Chair, and members of the
Government Records Council
PO Box 819
Trenton, NJ 08625-0819 (via E-mail only to grc@dca.state.nj.us)

Dear Ms. Tabakin and Council members:

I write to follow up on three matters I raised during the public portion of the February 25, 2009 meeting.

1. Availability of Meeting Minutes prior to their "approval" at a subsequent meeting.

I suggested that the Council's failure to have its November 19, 2008 public meeting minutes publicly available prior to their "approval;" at the February 25, 2009 meeting--more than three months later--violates the "promptly available" mandate of the Open Public Meetings Act, N.J.S.A. 10:4-14.

Executive Director Starghill responded that a) it is critically important for meeting minutes to be approved prior to public release so that the minutes contain no errors, and b) that she is aware of no appellate level decision requiring the Council to deviate from its present position. The fact that the verbatim transcript of the November 19, 2008 meeting erroneously attributed some remarks to the wrong speaker, she claimed, confirmed her conclusion that formal approval of minutes needs to precede their public release.

In follow-up, I invite the Council's attention to Liebskind v. Mayor and Municipal Council of Bayonne, 265 N.J. Super. 389, 394-395 (App. Div. 1993). In that case, the Appellate Division did not take issue with the trial court's order that required the Bayonne City Council to make "copies of final meeting minutes . . . available for inspection within two weeks after each meeting and at least three business days before the next meeting." Of course, this order required public release of minutes before they could be "approved."

Public bodies around the state are complying with the Liebskind decision by marking meeting minutes that are released prior to approval as "draft copies." The "draft copy" label warns the reader that the meeting minutes may be amended after review and prior to approval by the body. The New Jersey Municipal Clerks Association, in its "Study Guide" states that unapproved public meeting minutes are public records and that "draft copies" of those minutes must be publicly released. See Paragraph I of the Study Guide here.

Would you please let me know if the Council is willing to change its position on this issue and release "draft" versions of its public session minutes prior to their formal approval?

2. Holding Council meetings at locations other than the Community Affairs Building in Trenton.

I suggested that it would be convenient for the public if the Council were to occasionally hold its meetings someplace other than the Trenton meeting room on Broad Street. I stated that the distance, traffic and (especially) the difficulty in finding parking in downtown Trenton dissuade citizens from attending meetings.

Ms. Starghill explained that a) the Council gets the DCA meeting room for free, b) that it would be unduly burdensome on the taxpayers to pay the Council's staff for the time it would take them to travel to the remote meeting and c) that the sound equipment that the Council uses for a sound amplification and recording is available nowhere but in the DCA meeting room.

I invite the Council's attention to the New Jersey State Board of Agriculture's meetings schedule, which is on-line here.

As you can see, the Agriculture Board held its December 2008, January 2009 and February 2009 meetings in Flemington, Bridgeton and Cherry Hill, respectively. While I don't know for certain, I would imagine that the Agriculture Board has staff members who attend their meetings and probably also audio-records its meetings. If the Agriculture Board can meet outside of Trenton, it would seem that the Government Records Council could also do so.

As to the issue of getting a free meeting room outside of Trenton, I believe that at least some municipalities would be willing to offer their council chambers or municipal court rooms at little or no cost. If you like, I can check with some mayors and council members with whom I'm acquainted and see if I can find free accommodations.

Finally, when I offered this suggestion to the Council, I was mindful that N.J.S.A. 47:1A-7(b) calls upon the Council, when mediating and adjudicating cases, to "act, to the maximum extent possible, at the convenience of the parties; utilize teleconferencing, faxing of documents, e-mail and similar forms of modern communication; and when in-person meetings are necessary, send representatives to meet with the parties at a location convenient to the parties."

I realize that this section requires the Council to leave Trenton only when dealing with specific complaints. But reading 7(b) as a whole suggests to me that the Legislature intended the Council to be a helpful, user-friendly organization, and that it wouldn't be inconsistent with the Legislature's vision if the Council would sometimes meet outside of Trenton so that ordinary citizens could attend the Council's meetings and learn about the Open Public Records Act.

While it is certainly within the Council's prerogative to hold all its meetings on weekday mornings at a location that offers little or no parking, I ask that the Council discuss consider having at least one of its future meetings at a location where there is free and ample parking and perhaps outside of regular business hours.

3. Having a definite and predetermined starting time for the public portion of the meeting.

As it is, the Council's public meetings official begin at 9:30 a.m. at which time the Council goes into closed or executive session. After the executive session ends, which is usually no earlier than 10:00 a.m. but sometimes as late as 10:45 or 11 a.m., the public portion of the meeting resumes.

The problem is that citizens who are willing to come to Trenton are not really sure when to arrive. Speaking for myself, I try to get to 101 S. Broad Street by 9:50 a.m., because I don't want to miss any of the meeting. But, usually, I find myself waiting in the lobby for an hour or so while the Council finishes its executive session.

During the public portion of the February 25, 2009 meeting, I suggested that perhaps there was a different way for the Council to run its meeting so that it would be more convenient for public attendees. My recollection is that Ms. Starghill stated that since the duration of executive sessions are unknown, it is impossible for the meetings to be run differently.

After thinking about it a bit, I offer a suggestion. Perhaps the Council could schedule two separate meetings, the first being held at nine o'clock and the second at eleven. At the earlier meeting, the Council would do nothing except open the meeting to the public, read the "sunshine law" statement, immediately go into closed session and then immediately adjourn the meeting. At the later meeting, the Council would open the meeting and immediately being with the public agenda.

If the Council anticipated that an executive session would take more than two hours, it could start the earlier meeting at eight o'clock or perhaps seven-thirty so that the executive session would be completed before eleven o'clock.

The advantage of this suggested system is that a member of the public would no longer have to worry about showing up too early or too late for a meeting. Rather, he or she could show up at eleven, enjoy the meeting and then be on his or her way. Also, I notice that the Council's staff are sitting around in the lobby during the executive session. I think that adopting this suggestion would allow for them to be at their desks working until the eleven o'clock meeting starts.

Thank you for your attention to this matter. I appreciate your time and look forward to your response.

Sincerely,

John Paff

P.S. I noticed that I get errors when I try to download most of the Council's 2008 public meeting minutes from the Council's Internet site. Would you please check the links?