Monday, April 16, 2012

Atlantic County Prosecutor's letter on OPMA

For the first time in my experience, the Atlantic County Prosecutor has taken a position on an Open Public Meetings Act (OPMA) issue.  In a March 27, 2012 letter, Chief Assistant Prosecutor Diane M. Ruberton advised that the Absecon Board of Education would have violated the OPMA if it had voted "through an exchange of e-mails to amend the budget to appropriate money for an increase in high school tuition."  But, Ruberton opined that since "no vote was ever taken and the matter was scheduled to be addressed at a public meeting, . . . no violation of the Open Public Meeting Act ever actually occurred."  Ruberton's letter is on-line here and the complainant's letter to the prosecutor's office is on-line here.

Are "private prisons" subject to OPRA?

On Friday, April 20, 2012, at 9 a.m., Essex County Superior Court Judge Rachel N. Davidson will conduct an Order to Show Cause hearing in the case of John Paff v. Community Educational Centers, Inc., Docket No. ESX-L-1658-12.  This case presents an issue of first impression in New Jersey--whether taxpayers lose their right to access government records when the government "contracts out" a traditional governmental function--in this case correctional services--to a private entity.

In New Jersey, 11.4% of non-federal prisoners are housed in private facilities.  Yet, as currently applied, the Open Public Records Act (OPRA), while allowing citizens access to certain categories of records held by government-run prisons, denies access to those very same categories when held by private prisons.  It seems to me that the public's rights under OPRA shouldn't turn on the government's decision to privatize its functions rather than executing them through government employees. 

The hearing, which is open to the press and public, will be held in Courtroom 302 at the Historic Courthouse at 470 Dr. Martin Luther King, Jr. Blvd in Newark.  Plaintiff's lawyer is Richard Gutman of Montclair (973-744-6038) and the private prison's lawyers are Debra Shannon and Nichoele Johnson of West Caldwell (973-226-2900).  The briefs filed by both parties are on-line here.  Anyone who wishes to attend the hearing is cautioned to telephone the court at 973-693-6716 on Thursday to ensure that it hasn't been postponed.

Wednesday, April 4, 2012

Mercer Prosecutor criticizes Trenton Council over tardy minutes

In a March 27, 2012 letter, Mercer County Prosecutor Joseph L. Bocchini, Jr. took the Trenton City Council to task for not making "available to the public written minutes of [Council] meetings for a substantial period of time."

Citing N.J.S.A. 10:4-14, Bocchini told the Council that going forward, minutes "should be made 'promptly available' to the public and noted that a 1986 court decision defined "promptly available" as meaning within two weeks after the meeting.

As for the Council's backlog of minutes from previous meetings, Bocchini asked the Council to provide him "with a timetable when minutes from past meetings will be complete and available to the public."

Bocchini's letter is on-line here.

I wish to thank Trenton resident Jim Carlucci for bringing this matter to the prosecutor's attention and for sharing Bocchini's letter with me.  It's not often that a county prosecutor enforces the Open Public Meetings Act.  Bocchini's letter is refreshing and may help convince other prosecutors around New Jersey to take action on complaints about tardy disclosure of meeting minutes.

Monday, April 2, 2012

Lavallette to investigate taxpayer organization critical of Borough operations

According to the ninth page of its March 12, 2012 minutes, the Lavallette Borough Council (Ocean County) voted to have its Borough attorney "investigate the non-profit, non-partisan status" of the Lavallette Voters & Taxpayers Association

The decision came after Mayor Walter G. LaCicero received the Association's recent newsletter and found it "pretty disturbing and filled with a lot of inaccuracies."  Mayor LaCicero said that he investigated the Association and found it to be run by a cabal of Democrats who "commandeered" the Association in order to mount "a partisan attack against the Republican Council."

As evidence of the Association's evil intent, Mayor LaCicero noted that the Association "brought in" an open government advocate from Somerset County which "resulted in thousands of dollars in costs to the Borough to comply" with the Open Public Records Act.  (The Government Records Council (GRC) decision, which found that Lavallette failed to abide by OPRA as well as the GRC's December 18, 2008 Interim Order is on-line here.)

When Joseph Ardito, a member of the Association, attempted to address the mayor's comments and the council's action, Mayor LaCicero did not permit him to speak.

Weinberg: Filing of OPMA lawsuits could have "negative impact"

In an April 1, 2012 article in the Record ("Meetings violation claimed," by Melissa Hayes) Senator Loretta Weinberg is quoted as stating that my filing of Open Public Meetings Act (OPMA) enforcement lawsuits has "a negative impact because it makes municipalities not want to cooperate."  I disagree with the Senator. 

A large part of the problem is that even though the OPMA has been in effect for nearly forty years, some very basic terms remain unclear.  For example, reasonable minds can differ on the amount of detail "reasonably comprehensible" meeting minutes must contain or what period of time must elapse after which meeting minutes are no longer considered to have been made "promptly available to the public."  

The fuzziness of these terms allows public bodies to plausibly provide a level of transparency that falls short of what open government proponents believe the Legislature intended. Other than clarifying legislation, which Senator Weinberg is admirably pursuing, the only way to sharpen up these fuzzy definitions is through litigation. 

If a Bergen County judge, in response to the fourth count of my lawsuit against the Englewood Cliffs school board, issues a written opinion holding that the board's executive session minutes must "contain enough detail and context to allow a reader to understand and get good sense of each matter discussed, the various sides of and points of view regarding those matters and any conclusions that the Board reached regarding those matters," I believe that the willingness of other public bodies to voluntarily comply with that ruling will increase rather than decrease as the Senator argues. (Quote taken from paragraph M of my complaint) If, however, the judge rules that the school board's present, terse executive session minutes comport with the OPMA, then the need for Senator Weinberg's curative legislation will be underscored. (The Board's minutes are attached to my complaint at the above link.)

In sum, I don't see any negative impact arising from my efforts to use litigation to more clearly define the contours of the OPMA.