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March 2, 2012

Re:      S-1451 Reforms to the Open Public Meetings Act

Dear Mayor:

The Senate State Government Committee on Monday, March 6 will consider S-1451, which revises the law concerning meetings of the public with greater access to meetings and to information about meetings.  S-1451 makes sweeping changes to the Open Public Meetings Act.

We agree and support the fact that  “the right of the public to be present at all meetings of public bodies, and to witness in full detail all phases of the deliberation, policy formulation, and decision making of public bodies, is vital to the enhancement and proper functioning of the democratic process”.  However, the changes proposed in S-1451 will not only be a cost driver for local and State government but make government less effective.

S-1451 will, among other things:

  • Changes the 48 hours for adequate notice to exclude weekends and state holidays and removes the clause “to the extent known” from adequate notice requirement: as a result, your adequate notice will have to include all agenda items.
  • Notices must include the estimated starting time for the public portion of any meeting.  In addition, every public body, except the State Legislature, shall be required to set aside 2 portions of every meeting for public comment and each person shall have at least 3 minutes for public comment.  Public comments shall be prior to consideration of items on the agenda to be finally approved by the public body at the meeting with comments limited to the matter at hand and the other public comment portion shall be on any governmental issue that a public member feels may be of concern to the public body.
  • It also prohibits the governing body from acting upon a matter that is not listed on the agenda for which 48 hours was given, except emergencies.  However, a governing may discuss, but not act upon, any matter not listed on the agenda brought to their attention by a member of the public OR the governing body, upon the affirmative vote of ¾ of the members present at the meeting, may add an item to the agenda provided that the minutes contain a statement of the reason for adding that item to the agenda.
  • Requires subcommittees, which is defined as any subordinate committee of a public body regardless of size or label that is formally created by the public body and comprised of less than a quorum, to provide adequate notices of meetings and keep reasonably comprehensible minutes.  A public body may determine whether meetings of a subcommittee shall be opened to the public.
  • A public body, other than the Legislature, shall permit all proceedings of any public meeting to be recorded, photographed, audiotaped, videotaped, broadcast or recorded for broadcast by any member of the public or news organization, subject only to such reasonable rules as the public body may adopt prior to the meeting to minimize undue disruption to its meetings.
  • Changes the items that can be discussed in closed session.  Removes pending or anticipated litigation or contract negotiations and replaces it with “any consultation with legal counsel concerning the legal rights and duties of the public body with regard to current litigation or litigation likely to be filed in which the public body is, or is likely to become, a party, or concerning current or anticipated contract negotiations, other than in subsection b. (4) herein in which the public body is, or may become a party.”.  In addition it modifies personnel issues by removing terms and conditions of employment and replaces it with “upon written notice to the individual employee or employees whose case or cases are to be discussed, any matter involving the employment, appointment, termination of employment, evaluation of the performance of, promotion or disciplining of any specific prospective public officer or employee or current public officer or employee employed or appointed by the public body  Public bodies shall give written notice of at least 2 business days to any officer or employee in advance of any proposed meeting at which his or her termination, hiring, promotion or discipline may be discussed and the matter or matters pertaining to him or her shall be discussed in closed session unless the employee, as well as every other known employee or officer whose termination, hiring, promotion or discipline would unavoidably have to be disclosed in the discussion, requests in writing that the matter or matters be discussed in open session.”
  • In addition the public may not be excluded from a public body’s discussion of actual contracts or final contracts. 
  • Each public body and subcommittee shall keep reasonably comprehensive minutes of all its meetings.  The minutes shall be made available to the public as soon as possible but no later than 45 days after the meeting, except closed session minutes which are still permitted be closed session minutes. At least quarterly, a public body, shall conduct a review of the minutes of any previous meeting when any part has been withheld from public access. 
  • Each public body that possesses sound recording devices shall record all meetings, except closed session.  The recordings shall be promptly made available to the public but no later than 45 days following the meeting, except closed session minutes.  In addition the minutes shall include any electronic communication among members of a public body, constituting a quorum, that does not address a purely administrative matter and which communication is otherwise consistent with the definition of a meeting.  Such electronic communications shall be accessible to the public as soon as practicable after the communication takes place.
  • Any party, other than a public body, that prevails in an action brought pursuant to this section, and demonstrates a pattern of violations by a public body, shall be awarded the amount of reasonable attorney’s fees incurred in bringing the action.  The cost of any attorney’s fee awarded by the court shall be paid by the public body.
  • Increases the fines from $100 to $250 for 1st offense & no less than $500 for any subsequent offence. If an appointed member of a public body has 2 or more violations the appointing authority may remove them from that position.
  • Requires the annual notice to be publish in the official newspaper as well as the public body’s website, if one exists.  If the annual notice is revised, the revised notices shall be published in the official newspaper as well as the public body’s website, if one exists.
  • Requires public bodies to post on their website, if one exists, their annual regular meeting schedule, agendas, minutes, resolutions, resolutions for closed session, and minutes.  Closed session resolutions and all minutes will be required to be posted for at least 5 years.  In addition, the public body must publish their official website in all public notices, agendas, minutes and announce it at its public meetings.

The totality of these new requirements will be a cost driver for local and State government.    There is no appropriation contemplated in S-1451, nor is there any alternate means to offset these costs, such a reasonable increase in fees.  As a result, there are numerous unfunded mandates in S-1451.   In order to meet the requirements of S-1451 municipalities will have to provide additional staff to subcommittees, published additional notices and purchase additional equipment or new equipment.

Finally, the provisions of S-1451 will impede the ability of the municipality to manage their personnel issues or negotiate with their unions.

We urge you to contact your State Senate and express your concerns with the provisions of S-1451.  While we all strive for and agree that open and transparent government is key, the provisions of S-1451 will make government inefficient.  If you have any questions or need additional information please do not hesitate to contact Lori Buckelew at 609-695-3481 x112 or lbuckelew@njslom.com

Very truly yours,

William G. Dressel, Jr.
Executive Director

 

 

 

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