The Town Crier - Legislative Backgrounder

This post is the fourth in a series of blog posts to detail the amendments proposed in S-106, which amends the Open Public Meetings Act (OPMA) and S-107, which amends the Open Public Records Act (OPRA).  This blog post primarily focuses on the proposed amendments in OPMA.

Current law:

In passing the Open Public Meetings Act law the State Legislature declared it public policy of this State to “ensure the right of its citizens to have adequate advance notice of and the right to attend all meetings of public bodies at which any business affecting the public is discussed or acted upon in any way except only in those circumstances where otherwise the public interest would be clearly endangered, or the personal privacy or guaranteed rights of individuals would be clearly in danger of unwarranted invasion.” (N.J.S.A. 10:4-7)

The law requires that public bodies provide public notice of their meetings.  The annual notice must be provided within 7 days following the annual or reorganization meeting but no later than January 10. The annual notice must include the schedule of the regular meetings for the year, the time and date of each meeting. (N.J.S.A. 10:4-18). For special or reschedule meetings, the public body must provide at least 48 hours written notice of their meetings, giving the date, time, and location and to the extent known the agenda of the meeting. The notice must accurately state whether formal action may or may not be taken. The notice must be prominently posted in at least one public place mailed, telephoned, or hand-delivers to at least two newspapers, one of which is the official newspaper.  (N.J.S.A. 10:4-8)

The law permits public bodies to provide electronic notices of any meeting on their website. (N.J.S.A. 10:4-9.1)

The law also permits any person to request that the public body mail copies of any regular meeting schedule or revised notices upon prepayment of a reasonable sum to cover the costs of providing such notice. All requests for notices made expire at midnight on December 31 of each year but are subject to renewal upon a new request to the public body. (N.J.S.A. 10:4-19)

The law does permit a meeting to be held without adequate notice upon an affirmative vote of ¾ of the members present in very limited circumstances. The meeting is required to deal with matters of such urgency and importance that a delay for the purpose of public notice would likely result in substantial harm to the public interest, and the meeting is limited to discussion of and acting upon such matters. Notices of such meetings must be provided as soon as possible by posting a written notice in a public place and by notifying the two newspapers that receive public notices.  The notice must state, either: (a) the public body could not reasonably have foreseen the need for such meeting at a time when adequate notice could have been provided; or (b) although the public body could reasonably have foreseen the need for such meeting at a time when adequate notice could have been provided, it nevertheless failed to do so.  (N.J.S.A. 10:4-9)

Proposed legislation:

Section 2 of S-106:

• Adds and defines the term “agenda” to mean “the list of all items of business to be discussed or voted on at a public meeting.”

• Requires for the purpose of providing adequate notice that the agenda “include each individual item to be discussed or acted upon and a brief description thereof, and shall identify the names of the parties to ensure approximate dollar amounts of any contracts, including employment contracts and collective bargaining agreements, for which agreements the agenda shall list the number, but not the names, of employees covered thereby, to be discussed or acted upon.”

• Prohibits a public body from acting upon a matter that is not listed on the agenda, however, an item may be added to the agenda by an affirmative vote of a majority of the governing body members present when necessary to “deal with a matter of such urgency and importance that a delay for the purpose of providing adequate notice would be likely to result in substantial harm to the public interest.”

• If an item is added to the agenda after the fact the minutes must “contain a statement that explains the reason for adding that item to the agenda, why the item did not appear on the agenda for that meeting, and why delaying consideration of the item would be likely to result in substantial harm to the public interest, except that the State Legislature may add an item to its agenda at any time.”

• If an agenda includes a reference to an attachment, appendix, or other document that is a government record, then the agenda must include a statement that the reference item “shall be available for public inspection, copying, or the purchase of copies.” If a public member requests the referenced item at least 24 hours prior to the meeting, the records custodian must send an electronic copy of the referenced item. If a public member requests the referenced item within 24 hours prior to the meeting, the referenced item must be made available to the public member at the public meeting.

• Removes the language “to the extent known” under the definition of adequate notice. In other words, when providing notice for a meeting, including regular and special meetings, no longer can you list the items known at the time. If the item is not included in the notice, the governing body cannot take action unless they take a vote to add the item to the agenda.

• Requires that adequate notice of a meeting be prominently posted on the public body’s internet site, if they have an internet site, in addition to the posting in a public place.

• Updates the method of delivery to the official newspapers by removing telegrammed and adding faxed or mailed electronically.

• Requires notices to include an estimated starting time, “as nearly so can be established” for the beginning portion of any meeting from which the public is not excluded.

Section 3 of S-106:

• Prohibits subcommittees which the public body has determined to have open meetings from holding a meeting unless adequate notice has been provided to the public.

• Requires notices of emergency meetings to be posted on the public body’s website and updates the manner to provide the notice to the newspapers.

• Removes the provision that allows an emergency notice when the “the public body could reasonably have foreseen the need for such meeting at a time when adequate notice could have been provided, it nevertheless failed to do so.”

Section 4 of S-106:

• Requires that a public body provide electronic notice of any meetings of the public body on their website.

• Defines electronic notice as “advance notice available to the public via electronic transmission of at least 48 hours, giving the time, date, location and the agenda of any regular, special or rescheduled meeting, which notices shall accurately state whether formal action may or may not be taken at such meeting.”

Section 5 of S-106:

• Requires all public bodies, except the State Legislature, to set aside a portion of every meeting for public comment with such comments being limited to the items on the agenda and any governmental issue that the member of the public feels may be of concern to and within the authority of that public body.

• Requires all public bodies, except the State Legislature, to 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 to only such reasonable rules as the public body may adopt prior to the meeting to minimize undue disruptions of its meetings.

• Requires public bodies to prepare a written policy that is intended to maximize public participation, and that addresses the amount of time it will devote to receiving public comments at meetings. This written policy must be included on each meeting agenda, on the public body’s website, and posted in a public place. The Division of Local Government Services is required to prepare guidelines creating minimum standards ensuring public participation for public bodies.

• Provides a limited exception for matters before the planning board and board of adjustment to requiring that the above provisions be complied with to the “maximum extent possible and practicable; however, the provisions of the Municipal Land Use Law” regarding the receipt of public comments shall be followed.

Section 12 of S-106:

• Permits any person to request that the public body mail or email at their option notice of agendas of all meetings. If a person requests the notices to be emailed, then no payment can be required.

Section 13 of S-106:

• Requires the Secretary of State to create and maintain a website for the posting of information for state agencies, including meeting notices and agendas for State agencies’ public hearings and meetings.

Section 16 of S-106:

• Requires every public body, except the State Legislature, that maintains a website to post the public body’s annual meeting schedule and its agenda of those meetings, including revisions; notice of emergency meetings; minutes of each meeting, including a statement that the closed session minutes will be available upon request once they have been deemed a government record; resolutions and ordinances, if they are not in the minutes; and closed session resolutions.  If a public body does not have a website, then the information is forwarded to the Secretary of State for posting on the website created under Section 13 of S-106.

• Requires minutes, including closed session minutes, once they are a government record, resolutions, and ordinances remain on the public website for at least five years from the date of posting.

• Requires all information posted on the website under this amendment must remain posted for a period of time determined by the State Records Committee.

• Requires that a public body provide any requestor with free paper copies of any information that is required to be posted on the website but is not so posted.

Section 17 of S-106:

• Requires that when a public body provides information on its website, it must make “reasonable efforts” to make the existence and location of its site or pages known to the public within their jurisdiction.  As such, at a minimum this information must be included in public notices, agendas, and minutes, as well as by announcing at a public meeting.

Although the League of Municipalities is a strong proponent of openness and transparency in government, we must continue to oppose both S-106 and S-107 as neither bill addresses the expenses municipalities currently incur and will incur under the new provisions.  Currently complying with the Open Public Records Act (OPRA), municipalities hire additional staff, incur increasing legal expenses to ensure compliance, and expend funds defending litigation based on existing Government Record Council (GRC) and conflicting case law. In addition, some of the new provisions, especially under the Open Public Meetings Act (OPMA), will establish bureaucratic processes for public meetings without consideration for operations or meeting the needs of our residents.

We also ask that you consider passing a resolution calling for a study commission, based on a League Conference resolution from last year, instead of this legislation.