The Open Public Meetings Act (OPMA), or the Sunshine Law, as it’s commonly known, is a very important piece of legislature, in that it guarantees the rights of the public to attend all meetings of governing bodies, with a few explicitly defined exceptions (such as for a closed session). This Act also guarantees the right of the public to speak at all public meetings about anything that they feel is of concern to the community.
This is the OPMA.
Now, this is a very confusing mess of legal-speak, but the gist of it is really simple:
1) The public has the right to attend and speak at all meetings, except as already stated, for things like closed sessions, but these NEED a reason to kick the public out, and it can be challenged.
2) The right to attend and speak is worthless without adequate knowledge that the meetings are happening. To this end, the Act includes instructions for government bodies telling them that they need to provide adequate notice to the public in the following forms:
a) Public announcement of the meeting needs to be displayed in a prominent location that has been established for this purpose.
b) Written notice must be sent to at least two newspapers that have been identified for this purpose, whose circulation is supposed to ensure as great a chance as possible that the public be made aware of the meeting.
c) Notice can be provided via the Internet (such as via the Borough’s website), but this is in addition to the other notice requirements.
Now, let’s look at the timing of how this is all supposed to work. Many of you may already be familiar with an Annual Notice for meeting dates. These are resolutions that municipalities will put together and approve during the annual Reorganization meeting that contains a list of dates and times for that year’s meetings, as well as the location. Within seven days of approval at the Reorganization, or by January 10th if there is no such meeting, government bodies are required to serve notice for these Annual Notices, as described above. For every meeting not covered by the Annual Notice (except in the case of an actual emergency), the government is required to serve notice at least 48 hours prior to the start of the meeting as described above.
Simple enough, right? The government wants to have a meeting, and they have to let everyone know so that they can attend if they choose to. Unfortunately, the Act itself is written a little ambiguously, in that it states that the body must send the notice to the newspapers, and it implies that it’s up to the newspapers to publish in time. This is the excuse that the Borough has been giving us for months. In fact, the Mayor himself reiterated it in the response that he sent to my email: “FYI:- Through the appropriate channel, proper notice was given out to the public for all our public meetings.“
Let me now direct your attention to a court case from 1980, Worts v. Upper Tp. which held the following:
When a public body sends meeting notices to newspapers for publication and, to the actual or readily ascertainable knowledge of that body, those newspapers cannot publish the notice at least 48 hours in advance of the meeting, there is no compliance with the Open Public Meetings Act. Logic demands this conclusion: were the opposite true, the purpose of the law would be circumvented easily. The legislative intent reflected in the act requires this interpretation.
Woodlynne Borough makes use of the Courier-Post and the Retrospect for these purposes. I have personally reached out to both newspapers and spoke to them regarding their policies, and this is what I’ve been told:
The Retrospect – Notice must be received by 11AM on Wednesday in order to be published on Friday (the only day that the Retrospect publishes).
The Courier-Post – Notice must be submitted by noon, two business days prior to publication. Therefore, in order for notice to properly be posted for a Thursday meeting, notice needs to be sent to the Courier-Post by noon on the prior Friday, so that it can be published by Tuesday.
If you have already seen my post regarding the email that I sent to Mayor Chukwueke after not being allowed to speak during the last meeting (yes, that’s right, an OPMA violation), then you may already have seen the list of notices that I sent to him. In case you’ve forgotten, or in case you haven’t seen it, here it is again:
Retrospect — 12/27/2019 — Good
Courier-Post — None — Fail
Annual Notice of Meeting Dates/Times:
Retrospect — 1/24/2020 — Late — Fail
Courier-Post — None — Fail
No Notice, given failure of Annual Notice
No Notice, given failure of Annual Notice
Courier-Post — 4/8/2020 — Late — Fail
Retrospect — 4/10/2020 — Late — Fail
Retrospect — 5/8/2020 — Good
Courier-Post — 5/12/2020 — Good
Courier-Post — 6/11/2020 — Late — Fail
Retrospect — None — Fail
(All of this is 100% verifiable on your own by checking http://www.njpublicnotices.com )
From this, you can see that every meeting held this year, except for one, failed to meet this notice requirement. The Reorganization failed it’s compliance, and so the Borough had until January 10th to get the Annual Notice published, which they also failed to do. It should also be pointed out that at the May 14th meeting, Mayor and Council illegally took a vote on an Ordinance that did not get introduced due to an earlier non-compliant meeting. I brought this to their attention, and the Borough Solicitor insisted that my “opinion” had been noted, and that the Borough had fulfilled its notice requirements.
From these pieces of information, we can conclude the following:
1) The Borough is absolutely violating the OPMA with its refusal to provide adequate notice.
2) Every member of the government body is looking at fines if this ever either goes to court, or if the State steps in and smacks them for breaking the law, if they proceed, aware that there is an OPMA challenge and choosing to disregard it. The only member of Council to vocally challenge the compliance of these meetings is Councilman Cook, who was mocked for doing so.
3) The Solicitor either doesn’t understand how a precedent works, couldn’t be bothered to make sure that he understood the law (as it pertains to his specialty), or lied to the Public to cover for the Borough, who is clearly in the wrong. Either way, this either makes him a bad lawyer or a bad person.
4) Assuming that the Borough is somehow in the right here (to be clear, they are not), they are continuously demonstrating that their priority is more on “being right” than “doing the right thing” by residents. Woodlynne Borough is the only local body that can’t seem to get their notices out, which largely appears to be the result of either just not submitting notice, or submitting it late.
Worts v. Upper Tp. tells us that it’s not just the spirit of the law that they’re breaking, but the actual letter.