Saturday, January 28, 2012

Open Public Meetings Act court hearing in Camden on Friday, February 10th

Update: I telephoned the court today and learned that our matter will be heard at 10 o'clock on Friday, February 10, 2012 before Judge Fernandez-Vina in courtroom 63.

In November 2011, Camden resident Jose Delgado and I filed a pro se lawsuit against the Camden City Board of Education.

Our complaint, order to show cause and brief are on-line here.

The exhibits to our complaint are on-line here.

The exhibits to our brief are on-line here.

The Camden school board's answer and opposition are online here.

The lawsuit seeks answers to the following five questions regarding the Open Public Meetings Act:

1. How promptly must a government agency publicly disclose the nonexempt portions of its nonpublic (i.e. “closed” or “executive”) meeting minutes?

2. Does the agency’s claim that it must first “approve” its nonpublic meeting minutes prior to publicly disclosing even redacted versions of them have a basis in law?

3. Must an agency pass a separate, free-standing resolution in order to satisfy the requirements of N.J.S.A. 10:4-13, or is it sufficient for it to pass a motion, which is recorded in the regular meeting minutes?

4. In its N.J.S.A. 10:4-13 motions or resolutions, how specifically must an agency describe the topics it plans to discuss during its nonpublic meetings?

5. In its N.J.S.A. 10:4-13 motions or resolutions, how precisely must an agency state the time when and the circumstances under which the discussion conducted in nonpublic session can be disclosed to the public?

Our hearing on this suit will be on Friday, February 10, 2012, 9 a.m., before Hon. Francis J. Orlando, A.J.S.C. at the courthouse at 101 S. Fifth St, Camden. (Given Judge Orlando's retirement, the matter will probably be heard by a different judge.) The hearing will be open to the public and everyone is invited to attend. Those wishing to attend are advised to call the court at 856-379-2355 the day before the hearing to verify that it has not been postponed and to which judge it has been assigned. Refer to Paff and Delgado v. Camden City Board of Education, Docket No. L-5680-11.

One of the reasons we're doing this is to get a clear declaration from the court as to exactly what the Open Public Meetings Act requires. For example, it is not clear whether or not the Meetings Act requires public bodies to pass free-standing resolutions or a simple motion prior to going into closed or executive session. See N.J.S.A. 10:4-13. There is a significant difference between a resolution and a motion in that a copy of a resolution should be available to the public the day after the meeting at which it was passed, while a motion, which is embodied within a meeting's minutes, might not be available until the minutes are prepared--which often takes several weeks or months. So, if a member wants to know the exact, stated reasons why a body closed a meeting to the public, he or she can get that information quicker if the body passes resolutions instead of motions.

If the court decides this and/or some of our other questions in our favor, I plan on notifying every other public body (municipal councils, school boards, fire districts, etc.) in Camden County of the court's ruling. I will advise the bodies, in essence, that since the court required the Camden City Board of Education to obey the Meetings Act in a particular manner (e.g. by passing closed session resolutions as opposed to motions), the court, if asked, would very likely require other bodies to obey the OPMA in the same fashion. If, thereafter, anyone finds a public body in Camden County that is still not following the court's directions, as set forth in its decision in our case against the Camden Board of Education, it ought to be fairly simple to file a lawsuit and get the court to re-impose those same requirements.

If this process works, I will then endeavor to file similar lawsuits in every county in the state and, if successful, repeat the notification process. This, of course, is a very ambitious project and I will likely need a great deal of help. (Also, it strikes me that it is a bit unfortunate that private citizens have to work so hard to establish what the Meetings Act means and get local agencies to comply with it. It would be nice if agencies like the Attorney General and county prosecutors offices, which are allegedly in the business of enforcing laws, would take a more active role in Meetings Act enforcement.)

Intimidation Tactics?

Lester E. Taylor, III, Esq. of Florio, Perrucci, Steinhardt & Fader, LLC (yes, that Florio), who is representing the Camden school board claims that Jose and I have "unclean hands," would be "unjustly enriched" if we were to win our suit, and that because our claims are "frivolous," we should be made "liable for the [school board's] attorneys' fees and litigation costs." I realize that as long as a claim has evidentiary support and is made in good faith, it is not "frivolous" and that I can't be made to pay the school board's attorney fees even if the suit is unsuccessful. I suspect that Mr. Taylor knows this too, but raised the specter of me and Jose being forced to pay the Board's attorney's fees in order to intimidate us and dissuade us and other citizens from enforcing our rights in court. I think Mr. Taylor's assertion that our claims are "frivolous" is itself "frivolous" and reflect poorly on him, his law firm and the legal profession in general.

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