A Brighter Future for New Jersey’s Sunshine Law?

Joe Tyrrell | June 15, 2012 | More Issues
Lawmakers want to bring the legislation into the 21st century, but some municipalities argue changes will get in the way of doing business

Two years ago, Stephen Sweeney and his colleagues on the Gloucester County freeholder board were subjected to court monitoring to correct a pattern of violations of the state’s “Sunshine Law,” the Open Public Meetings Act.

Now, as state Senate President, Sweeney (D-Gloucester) has pledged to push through legislation sponsored by Sen. Loretta Weinberg (D-Bergen) and others to strengthen that law and its sister statute, the Open Public Records Act. The legislators said they expect to move the bills despite “misinformation” from municipal officials opposed to some of the proposed changes.

Credit: Amanda Brown
Sen. Loretta Weinberg
The intent, Weinberg said, is to bring the laws “into the 21st century” by extending public disclosure requirements to electronic messages such as e-mails and texts, allowing the public to record meetings, and posting more information publicly on the web. Both laws are outdated, she said, noting the Internet “wasn’t even named” when the current meetings law was passed.

Over the past two years, though, municipal government groups have expressed reservations ranging from procedural concerns and costs, to suggestions that the changes could make it harder to fill potholes or burden meetings with extended discussions of
routine matters.

A Wake-Up Call

At a Statehouse press conference yesterday called by Weinberg, Sweeney said the Gloucester situation served as his personal wake-up call about government openness in New Jersey. The monitoring by a retired judge resulted from a lawsuit against the freeholders by a one-time Republican leader, who objected to a lack of information about dozens of their closed-door meetings.

“We thought we were following the law, we thought we were doing it right, but we weren’t,” Sweeney said. “And then we did a survey of all the towns in the county and found that none of them, Republican or Democrat, were doing it right.”

Texting has been a particular problem, he said. “There are meetings within meetings” as some board members send comments back-and-forth without speaking to the public or their colleagues, he said. That has led some bodies to ban texting during meetings, while Weinberg would merely limit it to “administrative” matters not being discussed or voted on, Sweeney said.

Credit: Amanda Brown
Senate President Stephen Sweeney
Sweeney’s enthusiastic intervention changes the dynamic of the slow-moving bills, now numbered S-1451 on public meetings and S-1452 for public records. The latter would also rename OPRA for the late Martin O’Shea, a former New York Times editor and activist for open government.

Those interests often put O’Shea into conflict with local officials in his hometown of West Milford, as well as in other New Jersey jurisdictions. The same friction crept into long-running talks among the legislative sponsors and various interested parties, including the state League of Municipalities, the American Civil Liberties Union and the Municipal Clerks Association of New Jersey.

With Sweeney by her side at a Statehouse press conference, Weinberg said that despite her outreach, she is still seeing the same “misinformation” about the bills in resolutions of opposition from towns around the state. While hoping the league and the clerks will support her, Weinberg said she nevertheless expects the bills to come to a vote in “the near future.”

Sweeney did not commit to a date for a floor vote, but said it is possible they could come out of the Senate Budget and Appropriations Committee by the end of the month. But the legislators acknowledged they are still tweaking the language, so the latest versions were not immediately available. The Assembly versions are in the State Government Committee.

Cautious Reaction

After the session, skeptics about the Weinberg bills reacted cautiously, saying they hope her promised amendments would alleviate some of their concerns. Like proponents, they said they are anxious to see the language when revised drafts are released.

But their analyses reflected a virtual clash of cultures. Talking about the same points in previous drafts, the legislators emphasized a goal of making government easier to navigate for the public, while municipal representatives bemoaned a potential for greater workloads and costs.

“Everyone supports the bill’s intent,” said Drew Pavlica, city clerk and deputy manager of Garfield and current president of the clerks’ association. “We’re all in favor of open and transparent government.”

But taken at face value, the meetings bill might be construed to require statements explaining every vote, “even whether to hold a raffle,” he said. Limits on texting could prevent a public official from alerting a spouse if a meeting was running late, while it is unreasonable to expect elected officials to take their own subcommittee minutes, he said.

Officials with opposing positions on an issue may not trust each other to provide accurate reports of key subcommittee meetings, said Lori Buckelew, a legislative analyst for the League of Municipalities. They will require “neutral, professional” staff to attend, increasing work hours, she said.

The municipal groups have contacted telecommunications companies, and “the technology does not exist” to accomplish some goals of the bills, such as keeping track of text content for longer than 90 days, Buckelew said.

Fixing Potholes

Both Pavlica and Buckelew said a provision in the Sunshine Law bill to prevent action on non-agenda items could stop a governing body from responding to complaints about potholes.

“That’s the heart of our democracy,” Pavlica said. “There’s no point to a public meeting if you can’t have back-and-forth with your public officials.”

“There’s never been anything in the language to prevent a member of the public from speaking up on an issue,” Weinberg said. “That provision is directed at the public body, to stop them from springing a surprise vote.”

Weinberg said the amendments include a provision to allow a board or council to add something by a two-thirds vote, “as long as they state the reason.” That and an amendment limiting information about children in releases of public records show the legislators have responded to “valid concerns” about the proposals, she said.

The Assembly sponsor, Gordon Johnson (D-Bergen), said the bills do not require towns or school boards to buy technology they do not have. For those that have websites, making more use of them to disseminate agendas, notices, resolutions and other items — already being prepared electronically — should cut costs.

“So often, the problem in New Jersey is that technology is not seen as a solution by government,” Johnson said. Compared to having employees answering questions, making information available on the Internet is “cheap,” he said.

The skeptics also chided the Legislature for exempting itself from open government rules, the price exacted by then-Speaker Jack Collins (R-Salem) for moving the 2001 strengthening of the open records act. With that provision stripped from the bill, championed by the late Sen. Byron Baer (D-Bergen), Republicans supplied the votes and acting Gov. Don DiFrancesco’s signed it in the last minutes of his term.

But complaints about that omission clearly struck a nerve among the Democrats who now control the legislature, with Weinberg asserting that their proceedings are far more open than those of most towns opposing the new bills.

“Look at these provisions they’re complaining about, ‘We can’t get anyone to take minutes of subcommittees, we can’t post agendas,'” Weinberg said. “We do that all the time for our [legislative] meetings.”

“A letter written to a legislator is not a public record, but one written to a mayor is,” Pavlica noted.

“We think the standards should be consistent across all levels of government,” Buckelew said.

“You can’t compare the procedures of a body with three or five or nine members, where one vote is crucial, to one with 40 or 80 members, where you are just one voice,” Weinberg said.

Until now, only open government activists have ever made an issue of the legislative exemption, but it was seized upon by Gov. Chris Christie’s office in recent comments on the legislative proposals.

The Other Shoe

That may be because there is another shoe still to drop, a makeover of the secretive Government Records Council. Established in 2001 as a vehicle to resolve conflicts between records requesters and government agencies without litigation, it has instead become a back-room bureaucracy, slower and far less open than the courts.

“It was a real eye-opener to see what those folks were doing,” Weinberg said, after attending a meeting where the GRC, following its usual practice, voted on a controversial issue without discussion or even revealing what the decision was. “They’re doing the very things we’re fighting against.”

Jennifer Borg, general counsel and vice president of the North Jersey Media Group, held up a response to her request to the administration for a list of custodians of state records. In return, she received names, some incorrect, but with their phone numbers blacked out.

“It took four separate correspondences with the governor’s office to get the information” on who to contact to look at public records, Borg said. Most members of the public, or even media organizations, do not have the resources or attorneys to overcome such roadblocks, she said.

One who does is John Paff of the New Jersey Foundation for Open Government, who has used his own funds to pursue freedom of information cases around the state for NJFOG and as head of the Libertarian Party’s open government program.

Having access to minutes of previous meetings is critical for the public to understand the background of current discussions, he said. While he has won court rulings to have them released within two weeks, Paff said Weinberg’s 45-day standard would be a big step forward across New Jersey, where some boards are years behind.

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