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William G. Dressel Jr, Executive Director - Michael J. Darcey, CAE, Asst Executive Director

Legal Q & A
Subcommittees, Lame
Ducks Appointments and the Open Public Records Act


Deborah M. Kole
League Staff Attorney

Q Our governing body has a number of subcommittees that study various issues and report back to the council on their findings. The meetings of these subcommittees are not open to the public. I am told that this does not violate the Open Public Meetings Act because not all of the members of the governing body are present at these meetings. However, in some cases it seems as though, when a subcommittee's recommendations are finally presented at the open meeting of the governing body, they are approved with little or no discussion. When this happens, it appears to be a rubber stamp vote on a matter already decided. Isn't this a violation of the law?

A Legislature stated in N.J.S.A. 10:4-7 that the public has the right to be "present at all public bodies, and to witness...all phases of the deliberation, policy formation, and decision making of public bodies." However, many municipal governing bodies have subcommittees to research various issues and report back to the full body with their findings, and the sessions of these subcommittees need not be open to the public.

To be outside the reach of the Open Public Meetings Act, these subcommittees must function only in a research and advisory capacity. Furthermore, N.J.S.A. 10:4-11 provides that "No person or public body shall fail to invite a portion of its members to a meeting for the purpose of circumventing the provisions of this (Open Public Meetings) Act." Therefore, if subcommittees are used improperly in an effort to keep the public out of critical discussions, their meetings will be in violation of OPMA.

Q Our "lame duck" mayor and council, whose terms are all about to end, just appointed a Chief Financial Officer whose term of office will begin after they leave office. This doesn't seem fair, since they are saddling the new administration, of which I am a member, with an officer they may not want (and I, for one, do not like!) Can they do this?

A You will be glad to know that they cannot. N.J.S.A. 40A: 9-156 provides that "No appointment of any officer shall be made by the mayor or other chief executive officer or by the governing body of any municipality where the term of office is to commence after the expiration of the term of the officer making the appointment or of any member of the governing body." Therefore, the mayor and governing body cannot appoint a municipal officer to begin service after they have left office.

Q I have heard that the Attorney General has specifically exempted attorneys from the Open Public Records Act. Is is true, and if so, why are they given special treatment? Also, is it true that, although all municipalities were required to adopt a specific OPRA request form, we can no longer require requesters to fill one out?

A The Attorney General has advised that attorneys acting in their advisory roles as attorneys to records custodians are not subject to discipline under the Open Public Records Act because the practice of law in New Jersey is regulated and its practitioners are disciplined exclusively by the state Supreme Court. However, if an individual is acting as a record custodi­ an and violates OPRA, the fact that he or she is a New Jersey attorney will not insulate him or her from discipline under OPRA. It is the practice of law that is not subject to OPRA sanctions, because it is subject to other regulation instead. Individuals who happen to be attorneys are not given "special treatment" just because they are attorneys.

In a Records Note, the Government Records Council has indeed stated that requesters need not use OPRA forms as long as their requests contain all necessary information, including a clear statement that the query is an OPRA request. The Note explained that the requirement that municipalities and other public bodies adopt a request form was intended to make it easier for requesters to get the records they want. It was not meant to be another hurdle for the public to overcome in their efforts to gain access to government records.

This column is for informational purposes only, and is not intended as legal advice.


 

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