February 4, 2011
Re: Revisions to the Open Public Meetings Act
The Senate State Government committee released a Senate Committee Substitute for S-1351, which revises the Open Public Meetings Act. The bill has been second referenced to the Senate Budget and Appropriations Committee.
While certain amendments to S-1351 recognize changes in technology and the way business is conducted in today’s fast paced environment, other amendments will make it more difficult to conduct business. S-1351 changes the definition of adequate notice from 48 hours to three (3) business days and prohibits action or discussion of a matter that is not listed on the agenda “for which notice was given three business days prior to the meeting” unless the emergency provisions can be met. This will lead to further delays and the public’s frustration with government.
The language preventing discussion of any item that is not on the agenda would seriously impair the ability of the public to interact with their local officials. If a citizen were to raise an issue or question at the public comment portion of a meeting, the only response that could be made is that “we cannot discuss that, because it was not listed on the agenda for this meeting. We will place it on the agenda for the next meeting.” That “next meeting” might be weeks in the future. That would be directly contrary to any concept of good government.
In this time of electronic media and internet access, it should be sufficient to call for meeting notices and “anticipated” agendas to be placed on the municipal website
Also, the courts have narrowly defined uses for the emergency provision in the Open Public Meetings Act. The engineer forgetting to forward documentation to the municipality for the agenda does not constitute an emergency. However, with the three-business day rule, this mistake could lead to a municipality having to re-bid a project, forgoing grant funds, or unnecessarily extending a road project. We have respectfully suggested that the provision be three calendar days instead of three business days. This will provide extended notification but not slow the actions of governing body.
In addition, the bill defines “quasi-governmental agency” as any “association, commission, agency, authority, organization, public-private entity, or any other entity, in which one or more public agencies exercise substantial control based upon whether a public employee or public agency, as defined in section 1 of P.L. 1995, c. 23 (c. 47:1A-1.1), exercise control over the quasi-governmental agency or the public agency maintains the ability to review, approve or reject the quasi-governmental agency’s proposal or plans, holds a beneficial interest in the quasi-governmental agency’s assets, is the primary source of funding, of, or is indebted to, or is a creditor of, or guarantor of the debts of, the quasi-government agency” Under this definition, not only could office supply stores, newspapers, engineering firms, law firms, architectural firms, unions and professional associations be subject to the Open Public Meetings Act but so could a private business owned solely by a mayor or other elected official.
The bill also prohibits public members during any public meeting from communicating privately by any means with any other member of the public body about public business or any other person, except staff, about public business. We question how this will be enforced.
It also requires that the recording devices by used for all meetings, if the municipalities uses recording devices. There is a real danger with regard to closed session discussions on matters such as labor negotiations, litigation, etc. The requirement that those sessions be recorded, if other public sessions are recorded, places the municipality at a distinct disadvantage, since those on the other side of the negotiations or litigation are not required to make their closed strategy discussions available to the public. In particular, the strategy in labor negotiations does not end simply with the conclusion of a contract. The strategy continues in anticipation of future rounds of negotiations.
The bill also prohibits the exclusion of the public from any public body discussion of actual contracts or final contracts or agreements involving public funds or public concessions that are conducted with or in the presence of actual or potential adverse or beneficial parties. This will hinder contract negotiations and could ultimately lead to higher contract costs.
Finally, S-1351 also states that “the minutes of a meeting of a public body shall include any audio or video recording of the meeting….” By definition minutes are a permanent record of the municipality. However, S-1351 also states that the custodian “…shall maintain possession of the recordings for at least seven years…” This appears to be a contradiction. Also, from a practical position, it will be extremely difficult for municipalities to permanently store and maintain video and audio recordings.
If you have any questions or need additional information do not hesitate to contact Lori Buckelew at firstname.lastname@example.org or 609-695-3481 x112.
Very truly yours,
William G. Dressel, Jr.