Monday, February 6, 2012

Improper meeting notice? No problem.

I don't recall ever before encountering a public agency misusing the "emergency meeting" exception to the Open Public Meetings Act. I did encounter such a violation today by the Election Law Enforcement Commission (ELEC). After determining that it didn't give 48 hours advance public notice of a rescheduled meeting, ELEC held the meeting anyway, blithely finding that to do otherwise "would result in harm to the public interest."

Following is the text of my letter to the Commission.

February 6, 2012

Ronald DeFilippis, Chairman and members of the
Election Law Enforcement Commission
P.O. Box 185
Trenton, NJ 08625-0185 (via Fax to 609-292-7664)

Dear Chairman DeFilippis and Commission Members:

I write both individually and in my capacity as chairman of the New Jersey Libertarian Party's Open Government Advocacy Project to challenge the manner in which the Commission conducted its November 15, 2011 meeting. The minutes of this meeting are on-line here.

According to the meeting minutes, timely notice, in accordance with N.J.S.A. 10:4-8(d), was given for a meeting to take place on November 15, 2011 at 11 a.m. However, the Commission thereafter desired to change the meeting's starting time to 1 p.m. but was not able to give notice of that change until November 14, 2011 at 1 p.m. The Commission, despite being aware that 48-hour advance notice must be given for rescheduled meetings, decided to hold the meeting anyway.

The Commission attempted to justify its improperly noticed meeting by passing a motion labeling the meeting as an "emergency meeting" in accordance with N.J.S.A. 10:4-9. The minutes recite that "Executive Director Brindle said the Commission could not have foreseen the need for the change in the meeting time when adequate notice could have been provided [and] that it in the public interest to deal with matters of importance and of concern to the public interest as set forth in the agenda scheduled for today." The Commission, by a 3-0 vote, then passed a motion holding that delaying the meeting to allow for proper public notice "would result in harm to the public interest." The meeting then continued as usual. Meeting minutes were approved, a "more visually attractive, more interactive" PowerPoint presentation was reported, and other business was attended to.

This meeting was held in violation of the Senator Byron M. Baer Open Public Meetings Act. As you are aware, the Legislature found that the public's ability to observe public meetings is "is vital to the enhancement and proper functioning of the democratic process." N.J.S.A. 10:4-7. Toward that end, the Legislature wished to "insure the right of . . . citizens to have adequate advance notice of and the right to attend all meetings of public bodies at which any business affecting the public is discussed or acted upon." Ibid.

Through N.J.S.A. 10:4-9, the Legislature carved out an exception to properly noticed meetings when a public body needs "to deal with matters of such urgency and importance that a delay for the purpose of providing adequate notice would be likely to result in substantial harm to the public interest." N.J.S.A. 10:4-9(b)(1). This exception is clearly meant for situations that are truly dire and emergent--something in the nature of appropriating funds to repair a bridge that was washed out by a flood.

Does the Commission seriously believe that approving prior meeting minutes, reporting on the new PowerPoint presentation and the other such business was urgent and important enough to justify an emergency meeting? Even if there was an item that was truly urgent, N.J.S.A. 10:4-9(b)(2) restricts emergency meetings to only those matters of proper urgency and importance.

The citizens of this State have a right to expect their public bodies to turn sharp corners when dealing with the notice requirements for public meetings. The actions of the Commission on November 15, 2011 fell well short of that expectation. Be assured that I ever hear of another similar occurrence by the Commission, I will file suit seeking relief under both N.J.S.A. 10:4-15 and N.J.S.A. 10:4-16 as well as my costs of court without further notice.

Very truly yours,

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

cc. Bruce Solomon, Esq. Attorney General's Office (via e-mail to bruce.solomon@lps.state.nj.us)
Andrew M. Baron, Esq. ELEC Legal Counsel (via Fax to 732-382-5914)

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