Wednesday, December 11, 2013

Cape May Prosecutor questioned on Wildwood Crest's compliance with the Open Public Meetings Act

December 11, 2013

Robert L. Taylor, Prosecutor
Cape May County Prosecutor’s Office
Via e-mail only to prosecutor@cmcpros.net

RE: Question on Wildwood Crest's compliance with the Open Public Meetings Act

Dear Prosecutor Taylor:

I write on behalf of the New Jersey Libertarian Party's Open Government Advocacy Project seeking a finding by your office that the Wildwood Crest Board of Commissioners' notice of two of its recent special meetings did not comply with the "adequate notice" provisions of N.J.S.A. 10:4-8(d).  I write to you because you have previously sent admonishments to public bodies that have violated the Meetings Act.  (See, e.g. "Cape May County prosecutor says Lower Township is using emails to violate Sunshine Law," June 21, 2011 by Richard Degener of the Press of Atlantic City.)

N.J.S.A. 10:4-8(d) requires public bodies, among other things, to give notice of their public meetings by having the meeting notices:
"mailed, telephoned, telegrammed, or hand delivered to at least two newspapers which newspapers shall be designated by the public body to receive such notices because they have the greatest likelihood of informing the public within the area of jurisdiction of the public body of such meetings, one of which shall be the official newspaper . . ."  N.J.S.A. 10:4-8
At a link here I have placed Wildwood Crest's November 7, 2013 Notice of two special meetings to be held on Tuesday, November 12, 2013 at 1 p.m. and Wednesday, November 13, at 1 p.m.   According to the appended Certificate of Mailing, the Notice was both mailed and faxed to three newspapers.  One of those papers, the Press of Atlantic City, publishes daily and the other two, the Gazette Leader and Cape May County Herald, publish weekly.  The appended "Fax Call Report" indicates that each of the newspapers received its fax of the notice shortly after 5 p.m. on Thursday, November 7, 2013.

While actual publication of the notice by the newspapers is not required, public bodies must take the newspapers' publication schedule into account when sending notices of public meetings.
"When a public body sends meeting notices to newspapers for publication and, to the actual or readily ascertainable knowledge of that body, those newspapers cannot publish the notice at least 48 hours in advance of the meeting, there is no compliance with the Open Public Meetings Act."  Worts v. Upper Township, 176 N.J.Super. 78 (Ch.1980).
Although Worts is not binding precedent, the case has been cited by the Appellate Division with apparent approval. See Township of Bernards v. State, Dept. Of Community Affairs, 233 N.J.Super. 1, 26, (App.Div.1989), certif. denied, 118 N.J. 194 (1989), and certif. denied, 118 N.J. 195 (1989).  See also, Lakewood Citizens for Integrity in Government, Inc. v. Lakewood Tp. Committee, 306 N.J.Super. 500 (Law 1997).

If we follow the rule pronounced in Worts, in order for Wildwood Crest's notice of its November 12, 2013 and November 13, 2013 meeting to have been effective, it must have been received by at least two qualifying newspapers such that each newspaper could have published notice of each meeting at least 48 hours prior to each meeting taking place. 

The Herald publishes each Wednesday and the deadline for submitting legal advertisements is at noon on the prior Thursday. (See the Herald's publication policy on-line here).  As noted above, Wildwood Crest's notice was faxed several hours after the Herald's Thursday noon publication deadline, so the the earliest that the Herald could have published the notice consistent with its publication schedule would have been on Wednesday, November 20th, which was well after the November 12th and November 13th meetings.  Even if Wildwood Crest's fax had been received by the Herald prior to noon on November 7th, the notice would not have been published until November 13th, which would not have given Crest citizens 48 hours advance notice of either meeting.

Catamaran Media, which publishes several weekly newspapers including the Leader which publishes each Thursday, has its publication deadline policy on-line here.  In order for an announcement to be published in "Zone A" which includes the Leader, it has to be received by the newspaper by no later than 2 p.m. the prior Tuesday.  Thus, Wildwood Crest's notice, having been faxed on Thursday, November 7th, could not have been published by the Leader until Thursday, November 14th, which is after both of the meetings sought to be noticed.  Indeed, the Leader, in a November 14, 2013 article (on-line here), noted that the Crest's delivery of the meeting notice was "past the Leader's deadline for print." 

The only newspaper notified by Wildwood Crest which was capable of publishing a timely notice of the November 12th and November 13th special meetings was the Press of Atlantic City, which publishes daily.  But, the Press is only one newspaper and N.J.S.A. 10:4-8 expressly requires that timely notice be given to "at least two newspapers."  Accordingly, Wildwood Crest's notice of the November 12th and November 13th special meetings was deficient.

Would you please look into this matter and let me know your thoughts?

John Paff, Chairman
New Jersey Libertarian Party's
Open Government Advocacy Project
P.O. Box 5424
Somerset, NJ  08875
Voice: 732-873-1251
Fax: 908-325-0129
e-mail: paff@pobox.com

cc. Wildwood Crest Mayor and Board of Commissioners
     via e-mail only to jholzmer@wildwoodcrest.org












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