Friday, February 18, 2011

Important OPMA case: Court forbids routine "sequencing" of open and closed sessions.

In an important ruling handed down today, the Appellate Division ruled that the routine sequencing of a five-minute open session, followed by a closed session of indeterminate duration, followed by the resumption of an open session, violates the Open Public Meetings Act (OPMA).

The court found that such sequencing forces citizens to wait a considerable period of time while the body is in closed session and provides them no guarantee when the open session will resume. Such uncertainty, the court ruled, will inevitably cause some members of the public to leave the meeting, a result that would be avoided if the closed session did not begin until the entire public session had been completed.

The court did not rule that there could never be a case where it was proper for a closed session to be held before the public portion ended. Rather, it ruled against the public body in this case because the record reflected that the body routinely engaged in this practice.

Also of importance was the court's ruling that resolutions passed in advance of a closed session AND THE PUBLIC NOTICES ADVERTISING THE CLOSED MEETING, "should contain as much information as is consistent with full public knowledge without doing any harm to the public interest."

The court also ruled that the body's discussion regarding "the need for clear rules to be implemented across all facets of the University" should not have been held in closed session.

The decision, McGovern v. Rutgers, is on-line here.

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

Wednesday, February 9, 2011

State fines four Roselle Park officials for failure to disclose finances

On January 31, 2011, the Local Finance Board, which is within the New Jersey Department of Community Affairs, levied $100 fines against four Roselle Park (Union County) officials who failed to file their Financial Disclosure Statements (FDS) in 2008.

The four officials are:

Gail Bradley, Board of Health member
Robert Tobe, Fire Chief
Bill Heim, Zoning Board member
Jeff Regan, Library Board member

The Notices of Violations against the four officials are on-line here.

The FDS forms are required by New Jersey's Local Government Ethics Law to be filed by elected and certain appointed municipal officials. The forms disclose officials' sources of income, business interests and real estate holdings so that members of the public can better determine if officials have a conflict of interest in any given matter.

For example, a Zoning Board member's form might disclose, among other things, that the member's spouse works for a particular company. If the company for which the spouse works applies for a variance before the Zoning Board, the public might not realize that the member is conflicted from acting on that application had the member failed to file an FDS form.

The fines were levied in response to an October 1, 2009 complaint filed by the New Jersey Libertarian Party's Open Government Advocacy Project. In that complaint, the Project alleged that twenty-seven Roselle Park officials had failed to file the FDS forms due on April 30, 2008. Among those named in the complaint for failing to file was First Ward Councilman Laurence Dinardo. The New Jersey Libertarian Party's complaint and letter to the Mayor and Council are on-line here.

During 2008, 2009 and 2010, the Libertarian Party filed complaints against hundreds of officials in approximately fifty municipalities around the State. Previously, the Local Finance Board has steadfastly refused to fine officials who fail to file as long as the official later files the delinquent form.

In light of the Libertarian Party's complaints, however, Thomas H. Neff, who chairs the Local Finance Board, has informed the Party that "the Board is considering implementation of a stricter policy of fining local government officers who fail to file annual financial disclosure statements in a timely manner." Neff added, however, that "pending advance notice of such a policy, the past policy of not fining officers who file statements in response to complaints will continue." A January 31, 2011 letter from Neff that contains these quotes is on-line here.

It is believed that the fines levied against these four Roselle Park officials are the first fines to be levied against non filers by the Local Finance Board since the Local Government Ethics Law was enacted in 1991.

Friday, February 4, 2011

Senate Substitute for S-1351 (Open Public Meetings Act)

A few readers have asked me for my thoughts on the Senate Committee Substitute (SCS) for S-1351 that was passed by the Senate State Government Committee on Monday, January 31st.

(Both the SCS and the version of S-1351 that was introduced are on-line here.)

Most of the SCS's changes are clearly good, but I've noted some possible concerns below:

1. The SCS defines "effective majority" as "the number of members necessary to conduct public business." Accordingly, an "effective majority" will be the same as a quorum. SCS/page3/line39. Many activists had previously argued that "effective majority" meant a majority of a quorum.

2. Instead of requiring bodies to notify the public of the "specific starting times" of a closed session, the SCS allows them to announce those times "as nearly so as can be established." SCS/4/33.

3. The SCS allows members of public bodies to send text messages to each other during meetings as long as those messages are "purely administrative in nature." SCS/6/28. Yet, a citizen observing two council members texting each other will have no way of knowing whether those texts are administrative or substantive.

4. The SCS requires bodies to audio-record their public meetings only if they already own sound recording devices. SCS/9/31. Accordingly, public bodies can avoid audio-recording meetings by refusing to purchase audio devices or by disposing of the devices they already possess.

5. The SCS removes the requirement that closed meetings need to be audio-recorded by a public body and allows any recordings of closed sessions that a public body voluntarily records to be kept confidential unless otherwise ordered by a court. SCS/9/35 and SCS/10/4.

6. The SCS allows for dismissal of a lawsuit to void a public body's action because of sunshine noncompliance if a) the body takes action after the lawsuit's filing that moots the case and b) if it's the public body's first instance of noncompliance. And, the SCS denies attorney fees for non-prevailing plaintiffs who bring such suits even if their suits are "found to have been instrumental in bringing about compliance." SCS/10/29 and SCS/10/40.

7. The SCS limits the public's enforcement of sunshine penalties to only those members of the public who have "suffered an injury in fact" by the sunshine violation. SCS/11/19 and SCS/11/29.

8. The SCS allows for removal of an appointed official only if a court determines that his or her sunshine violations "result in a significant denial of the public's right of access." SCS/13/26