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Legal Q & A



Matthew Weng
Matthew Weng
League Staff Attorney

Public Comment, CFO Hiring Requirements
and Ordinance Summaries

Q We allow for five minutes (each speaker) on agenda items before official action is taken; at the end of the meeting, we allow for ten minutes (each speaker) for the “good and welfare of the borough.”
    My question is, can we require that someone be factual in his or her comments? For example, if someone says, “I know the Mayor missed the Planning Board meeting last week.” Do I have the right to stop him and correct him for the record?
    How about comments like, “I know you hate business people, so that is why you raised the fees on certain inspections.” During their ten minutes, do I (or members of the Council) have a right to correct their misinformation or inflammatory statements?

The Governing Body is pretty thick-skinned and most of it can be rather amusing, but where is the line on common decency and the truth drawn?

A Nothing in the First Amendment nor the Open Public Meetings Act prevents you from interrupting and correcting a speaker. I think that, to make sure you do not run in to OPMA problems, you should not count any time that you respond against that speaker’s five (or ten) minutes. In other words, bang the gavel, “stop the clock,” correct the speakers, “restart the clock,” and allow them to continue. That way they get their full time, and you will not run in to a situation where a council member attempts to run on and on to take up an unfriendly speaker’s full time.

You can also let them finish and then correct any factual errors after they have spoken and before the next speaker. This way, they have used their five minutes and they can’t attempt to goad you or any other member into a back and forth, such as “I did attend the meeting.” “No you didn’t!” “Yes I did!” etc.

I would like to add finally that OPMA does not give citizens the right to cross-examine governing body members.

In other words, if a misinformed gadfly gets up to the microphone and states something like, “Why do you hate business so much?” you are under no obligation to respond.

Q I have several questions about hiring Chief Financial Officers (CFOs):
If council appoints a CFO by resolution, does that automatically mean that, unless otherwise noted, the term is either four years or whatever is left of an unexpired term of a previous CFO?

A Yes. See N.J.S.A. 40A:9-140.10: The term of office shall be four years, which shall run from January 1 in the year in which the chief financial officer is appointed.

 

Q If a CFO has completed a four-year term, does a reappointment automatically mean a tenured position?

A Yes. See N.J.S.A. 40A:9-140.8: Notwithstanding the provisions of any other law to the contrary, any person who has served as the chief financial officer of a municipality for four consecutive years and who is reappointed as that municipality’s chief financial officer shall be granted tenure of office upon filing with the clerk of the municipality and with the Division of Local Government Services in the Department of Community Affairs a notification evidencing his compliance with this section.

Q If a CFO has completed an unexpired 4 year term (i.e., 3 years of a 4 year term), does that allow the next appointment to be tenured?

A No. If you look above, the statute for tenure requires four consecutive years of service, plus reappointment, for tenure.

Q Can Council terminate a CFO in the middle of a 4-year term if the CFO is not tenured?

A I believe that a CFO, without tenure, may not be removed during their initial 4-year term absent good cause. You should ask your municipal attorney if you believe you have cause to dismiss a CFO before the end of their term.

Q We are going to be introducing a Zoning Ordinance, which is voluminous and substantial in scope. I understand if it’s over six pages you can publish by title and summary with the date and time of hearing. Do you have any idea what the summary for something like this should be?

A The text of the Statute gives a good guide on what to do:         
“The publication of a notice citing such proposed ordinance by title, giving a brief summary of the main objectives or provisions of the ordinance, stating that copies are on file for public examination and acquisition at the office of the municipal clerk, and setting forth the time and place for the further consideration of the proposed ordinance”

As far as the summary, it must be “sufficient to alert a reasonable, intelligent reader as to the nature and import of the substantial changes.”

Therefore, I think you can be basic, so long as you include the main objectives or provisions, and you give sufficient detail to allow the average citizen to understand the nature and import of the changes.

 

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

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