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

Legal Q & A
Meeting Notices, OPRA
Requirements and Police Procedures


Deborah M. Kole
League Staff Attorney

Q The governing body of my municipality recently held a meeting that lasted from 8 p.m. one night until 2 a.m. the following morning. In providing the necessary notice under the Open Public Meetings Act, however, only the date and time the meeting began were given. Since the meeting lasted until the next day, a date not given in the notice, wasn't there a violation of the ACT?

A The date a meeting begins is the only date that must be set forth in a notice of a meeting under the Open Public Meetings Act. To require otherwise would be as unworkable as requiring notice of the hour the meeting will end. The date or time a meeting will end cannot be known before it begins. The Act only requires that the public be given sufficient notice of such a meeting so that they can attend it from the beginning if they wish to do so. Whether they remain through the whole meeting is strictly up to those who choose to attend.

Q I am a municipal clerk, and a reporter for a regional newspaper recently called and asked for the salaries of all municipal employees. I would have no problem releasing this information to a resident of the community, but it doesn't seem right to allow this information to be published throughout the region, particularly since the newspaper also appears on the internet. Do I have to release this information?

A Yes, under the Open Public Records Act you must release the salaries. Similarly, employment contracts between municipal officials and the municipality, and professional invoices submitted to a municipal government are also accessible under OPRA (although certain confidential information may have to be redacted). When individuals become public officials or employees, some information concerning them becomes open to the public in a way it would not be if they worked in the private sector only. This has always been true to some extent, but more such information is open to public scrutiny now that OPRA is in place.

Q A friend of mine was recently arrested for driving while intoxicated. The police administered a breathalyzer test to him at the police station. His blood alcohol level tested over the legal limit. The police then told him that he had a right to an independent test at his own expense under N.J.S.A.39 4-50.2(c). This test could be performed at a hospital or by a local doctor. The police also informed him, however, that he could only be released for this or any other purpose before he was sober if he was in the custody of a friend or relative. They allowed him to use the telephone, but he could not reach anyone to come and get him. As a result, he remained in police custody until he was sober, and therefore never had a chance to have an independent breathalyzer test done. Isn't this a violation of the law cited by the police ?

A A recent New Jersey Supreme Court case, State v. John P. Greeley, decided November 13, 2003, held that such a scenario does not unreasonably encroach upon a defendant's right to an independent breathalyzer test under N.J.S.A.39 4-50.2(c). The Court noted that the statute itself places no affirmative duties on the police other than to inform the person of his or her right to an independent test. Nevertheless, a series of cases has established the principle that police cannot then render this right meaningless with arbitrary policies that prevent the arrest­ed person of taking advantage of this right. For example, if the person arrested wants to call friends to arrange such a test but is not given access to a telephone by the police, the right to an independent test has been violated. However, the Court also pointed out that under N.J.S.A. 59:5-6, the immunity granted to police for injuries to an intoxicated driver after they release him or her will only apply if the person is released "in a position of relative safety and refuge." In this statute, the Legislature was obviously attempting to protect the public by limiting the circumstances in which police may release intoxicated drivers. Reading the two statutes together, the Court concluded that the policy of the police in this case to allow release only to a responsible friend or relative provided a reasonable opportunity for the defendant to secure an independent blood alcohol test. If the arrested person cannot arrange for such an escort, the police can hold him until he is sober without violating his right to such a test.

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


 

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