Sunday, August 30, 2009

Montclair Council agrees to open meeting

The following article appeared in the Montclair Times. It reports on a letter that I had sent to the Montclair Township Mayor and Council regarding an Open Public Meetings Act violation. My letter is on-line here.

John Paff
Somerset, New Jersey

Council chided over closed-door meeting

(by Terrence T. McDonald - August 27, 2009)

After receiving a letter from an open government advocate who questioned the Township Council’s decision to hold a meeting behind closed doors on Aug. 4, the Township Council last week invited the public to meetings regarding the search for a new municipal manager.

The closed-door meeting was attended by at least one member of the public: a representative of the New Jersey Municipal Managers Association, who advised the council on how to begin their search for Township Manager Joseph M. Hartnett’s replacement. Hartnett will retire at the end of the year.

Though some council members insisted "personnel issues" discussed at the Aug. 4 closed-door meeting allowed them to bar the public from attending, John Paff, chairman of the New Jersey Libertarian Party’s Open Government Advocacy Project, said the council is misinterpreting the law.

In an Aug. 18 letter addressed to the mayor and council, Paff states the council’s reliance on personnel reasons to close the meeting to the public is "wholly misplaced," adding that the meeting "ought to have been held in public."

After receiving the Aug. 18 letter, the council opened the doors to the public on a meeting that night with two employment recruiters seeking to find Hartnett’s successor.

The following night, the council held another meeting with a third recruiter and kept the doors open for that meeting as well.

Mayor Jerry Fried said he has a hard time understanding the issue with the Aug. 4 closed-door meeting. Public bodies need to discuss some issues – such as matters involving contracts and personnel – without the public’s involvement.

"You have to be able to talk about all those things in private," Fried said.

The Open Public Meetings Act (OPMA), signed into law in 1975, requires governmental bodies to invite the public to all meetings, with nine exemptions. One exemption allows elected officials to bar the public from discussions of "any specific prospective public officer or employee or current public officer or employee."

If the council discusses a position, not a specific employee, then the public should be invited, Paff told The Times.

"The reason we have public meetings is so people can … judge if they’re making reasonable decisions, if they’re making decisions in favor of the many and not of the few," Paff said. "We want to see how they make those decisions."

Before the Aug. 18 meeting started, Fried consulted with Assistant Township Attorney Joseph D’Angelo on whether the council should exclude the public from that night’s meeting. D’Angelo told him that the council could shut the doors and say they were discussing "anticipated contractual negotiations."

"If you don’t want to [do that], you can always have it in open," D’Angelo told Fried.

Paff told The Times that D’Angelo’s comment "illustrates how loosely public officials define the Open Public Meetings Act." OPMA tries to maximize the public’s ability to judge their public officials, while public officials often attempt to minimize the public’s involvement, according to Paff.

"That’s not the way this law was supposed to work. All the meetings are supposed to be public, every meeting … the public has a paramount right to know," he said.

Contact Terrence T. McDonald at mcdonald@montclairtimes.com.

Thursday, August 20, 2009

Important OPMA decision handed down today

On August 20, 2009, the Appellate Division handed down an important, published decision clarifying the Senator Byron M. Baer Open Public Meetings Act (OPMA). The decision, from Burnett v. Gloucester County, Docket No. A-6131-07T2, is on-line here.

The thirty-six page decision covers a variety of topics, some of which will be discussed here.

First, the court found that OPMA plaintiffs, to be eligible for injunctive relief under N.J.S.A. 10:4-16, are not limited to OPMA violations occurring only within forty-five days of the filing of plaintiff's complaint.

Second, the court found that the county violated OPMA by taking formal action on lawsuit settlements "in the closed session and never ratified or even discussed [them] in a public session." According to the decision, "the Board voted to approve various settlements and disbursements of county funds . . . without benefit of public discussion or resolution. [Such] conduct flies in the face of the requirement for open government in pursuit of the "cherished ideal" of "government of the people."

Third, the court found that the Freeholder Board misused OPMA's personnel exception by "adopt[ing] policies affecting county employees generally or the creation of new county positions" in closed session. The court held that such was improper because it "did not relate to discussions regarding a specific employee."

I urge everyone to take the time to read this important decision.

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?

Saturday, August 15, 2009

Union County Freeholders to apologize for Trampling on First Amendment

At its August 20, 2009 meeting, the Union County Freeholders will read an apology that it recently negotiated with the New Jersey American Civil Liberties Union. The County's letter to the ACLU in which it agreed to apologize is on-line here.

The ACLU's involvement came in response to the Freeholder Board's informal "rule" that prohibits citizens from inquiring about nepotism during the public portion of the the Board's meetings. The Board has, in the past, prevented citizens from publicly asking questions concerning how many of the Freeholders' family members had County positions and whether those family members received preferential treatment during the hiring process.

Readers who would like to witness the issue should view the video of a Freeholder's June 25, 2009 meeting by clicking here and select "Tina Renna of Cranford Commented (1:04:49)" and "Bruce Paterson of Garwood commented (1:21:43). Readers will see the Board director tell Mr. Paterson that he "will not tolerate" questions and comments about Freeholders family members (1:23:15) and witness Ms. Renna being escorted out the meeting room by a uniformed officer.(1:10:25).

For more information on Union County nepotism, click here.

Ms. Renna requests members of the public who are concerned about this issue to attend the August 20th meeting, as a show of force. It begins at 7 p.m. at the Union County Administration Building, 10 Elizabethtown Plaza, Elizabeth. Directions are here.

Meeting attendees can park in the employee lot across from the Administration Building.

John Paff
Somerset, New Jersey

Friday, August 7, 2009

Hoboken sued for Meetings Act violation

I recently sued the Hoboken City Council on a single issue: Did the City Council violate the Meetings Act's "promptly available" mandate by refusing to disclose even redacted minutes of an executive session held approximately eight months earlier?

Instead of proceeding by summons and complaint, as I normally do, I asked the court to issue an order to show cause and to temporarily restrain the Hoboken Council, while the case is pending, from refusing to make the nonexempt portions of its executive session meeting minutes "promptly available." I requested the court, for the purposes of the temporary restraint, to define "promptly available" as "within 30 days after each meeting or prior to the next scheduled meeting, whichever comes first." This is consistent with the rulings of Judges Lawson and Perskie in my cases against Keyport Borough (Monmouth County) and Port Republic City (Atlantic County), respectively.

Hudson County Superior Court Assignment Judge Maurice J. Gallipoli denied my request for temporary restraints, but issued an order to show cause that will be heard on Friday, August 28, 2009 in Jersey City.

The order to show cause, verified complaint, brief and other case documents are on-line here.

Saturday, August 1, 2009

Atlantic County OPMA Suit

On October 3, 2008, I filed a civil complaint against seventeen (17) Atlantic County municipalities to challenge their noncompliance with the Sen. Byron M. Baer Open Public Meetings Act. The suit concluded yesterday.

Of the seventeen defendant municipalities, I entered into Consent Judgments with sixteen of them and won a summary judgment against one.

Copies of all the relevant case documents and Consent Judgments are on-line here.