Q With the upcoming elections, I was curious about the impact of the Open Public Meetings Act on individuals who have been elected, but have not yet taken office. What should those individuals be careful about between November 6 and January 1?
A There is not much case law on this issue. Most references on New Jersey local government law refer to a single unpublished trial court decision from the early 1990’s called Messick v. City of Brigantine. Here’s what the Judge said in that case:
I find as a fact that the council elect as they constituted themselves by their actions was a public body within spirit, if not the exact language, of this statute; that their meetings were attended by a quorum that is an effective majority sufficient to reach conclusions such as they did with respect to a change in the designation of the judge of the municipal court; that they're subject to N.J.S.A. 10:4-6 et seq.; that the Act was violated, unintentionally as it is may have been, and even with advice of counsel it was nonetheless violated. No meetings except those which are specifically excluded by the terms of the Act at which an effective majority of the members of council are present are to be conducted in the City of Brigantine without strict compliance with the Open Public Meetings law.
The first and most important thing to keep in mind about this case is that as an unpublished trial court decision, it is of limited precedential value.
The facts in this case are unique as well. The “meeting” at issue here took place after a change in the municipality’s form of government. Therefore, the voters at the recent election choose an entirely new council. In addition, this newly elected but not office holding council held a meeting to discuss future policy for the town. In fact, after this meeting, they sent out letters indicating that they had made official decisions; specifically, they decided to make a change in municipal judges, and indicated to the former judge that the newly elected council had “met and determined” that he would not be reappointed.
The Judge in Messick focused on these issues in determining that a meeting under OPMA had taken place, even though the council-elect did not fit the definition of a public body.
Again, this case is not binding precedent, and the fact situation is unique. However, newly elected council members should still be careful and educate themselves about the requirements of OPMA before they take office. To avoid potential lawsuits, newly elected council members should not meet in a quorum, either among themselves or with currently sitting members of the council.
Keep in mind that OPMA also makes exceptions for party caucuses. It is perfectly legitimate for party leaders, current council members (if any), and newly elected council members of the same party to meet and discuss party issues
Q I know that some time ago there was a pilot program started about red light cameras. Some municipalities have been using them for a while now. When does the program expire, and how will we know if it was useful?
A The act took effect on October 1, 2009, establishing a five-year pilot program.
The Commissioner of Transportation must provide an annual report, every year for the five years of the pilot program, to the Legislature and the Governor about the effectiveness of the program. The reports are due on the anniversary of the first installation of the first red light camera.
The fifth and final report must include, among other things, “a comprehensive review of the pilot program, including but not limited to, an evaluation of the program's effectiveness, a discussion of extending the program to other intersections in the State, and any other information relevant to the report.”
The pilot program officially expires when the fifth
and final report is submitted, likely sometime in the fall
This column is for informational purposes only, and is not intended as legal advice.