STATE OF NEW JERSEY
PRE-FILED FOR INTRODUCTION IN THE 2012 SESSION
Senator NIA H. GILL
District 34 (Essex and Passaic)
Senator LORETTA WEINBERG
District 37 (Bergen)
Strengthens public disclosure and monitoring requirements of "Open Public Meetings Act".
CURRENT VERSION OF TEXT
Introduced Pending Technical Review by Legislative Counsel
An Act concerning meetings of public bodies and amending and supplementing P.L.1975, c.231.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. Section 3 of P.L.1975, c.231 (C.10:4-8) is amended to read as follows:
3. As used in this act:
a. "Public body" means a commission, authority, board, council, committee or any other group of two or more persons organized under the laws of this State, and collectively empowered as a voting body to perform a public governmental function affecting the rights, duties, obligations, privileges, benefits, or other legal relations of any person, or collectively authorized to spend public funds including the Legislature, but does not mean or include the judicial branch of the government, any grand or petit jury, any parole board or any agency or body acting in a parole capacity, the State Commission of Investigation, the Apportionment Commission established under Article IV, Section III, of the Constitution, or any political party committee organized under Title 19 of the Revised Statutes.
b. "Meeting" means and includes any gathering whether corporeal or by means of communication equipment, which is attended by, or open to, all of the members of a public body, held with the intent, on the part of the members of the body present, to discuss or act as a unit upon the specific public business of that body. Meeting does not mean or include any such gathering (1) attended by less than an effective majority of the members of a public body, or (2) attended by or open to all the members of three or more similar public bodies at a convention or similar gathering.
c. "Public business" means and includes all matters which relate in any way, directly or indirectly, to the performance of the public body's functions or the conduct of its business.
d. "Adequate notice" means written advance notice of at least 48 hours, giving the time, date, location and, to the extent known, the agenda of any regular, special or rescheduled meeting, which notice shall accurately state whether formal action may or may not be taken and which shall be: (1) prominently posted on the public body's Internet website and in at least one public place reserved for such or similar announcements[,]; (2) mailed, telephoned, telegrammed, or hand delivered to at least two newspapers which newspapers shall be designated by the public body to receive such notices because they have the greatest likelihood of informing the public within the area of jurisdiction of the public body of such meetings, one of which shall be the official newspaper, where any such has been designated by the public body or if the public body has failed to so designate, where any has been designated by the governing body of the political subdivision whose geographic boundaries are coextensive with that of the public body; and (3) filed with the clerk of the municipality when the public body's geographic boundaries are coextensive with that of a single municipality, with the clerk of the county when the public body's geographic boundaries are coextensive with that of a single county, and with the Secretary of State if the public body has Statewide jurisdiction. For any other public body the filing shall be with the clerk or chief administrative officer of such other public body and each municipal or county clerk of each municipality or county encompassed within the jurisdiction of such public body. Where annual notice or revisions thereof in compliance with section 13 of [this act] P.L.1975, c.231 (C.10:4-18) set forth the location of any meeting, no further notice shall be required for such meeting except for website notice required pertaining to agenda and formal action.
(cf: P.L.1981, c.176, s.2)
2. Section 4 of P.L.1975, c. 231 (C.10:4-9) is amended to read as follows:
4. a. Except as provided by subsection b. of this section, or for any meeting limited only to consideration of items listed in subsection b. of section 7[.b.] of P.L.1975, c.231 (C.10:4-12) no public body shall hold a meeting unless adequate notice thereof has been provided to the public.
b. Upon the affirmative vote of three quarters of the members present a public body may hold a meeting notwithstanding the failure to provide adequate notice if:
(1) such meeting is required in order to deal with matters 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; and
(2) the meeting is limited to discussion of and acting with respect to such matters of urgency and importance; and
(3) notice of such meeting is provided as soon as possible following the calling of such meeting by posting written notice of the same on the public body's Internet website and in the public place described in subsection d. of section 3 [. d. above] of P.L.1975, c.231 (C.10:4-8), and also by notifying the two newspapers described in [section 3. d.] that subsection by telephone, telegram, or by delivering a written notice of same to such newspapers; and
(4) 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.
(cf: P.L.1975, c.231, s.4)
3. Section 9 of P.L.1975, c.231 (C.10:4-14) is amended to read as follows:
9. Each public body shall keep reasonably comprehensible minutes of all its meetings, including any portion of a meeting from which the public was excluded pursuant to section 7 of P.L.1975, c.231 (C.10;4-12), showing the time and place, the members present, the subjects considered, the actions taken, the vote of each member, and any other information required to be shown in the minutes by law, which shall be promptly available to the public to the extent that making such matters public shall not be inconsistent with [section 7 of this act] section 7 of P.L.1975, c.231 (C.10;4-12).
(cf: P.L.1975, c.231, s.9)
4. Section 12 of P.L.1975, c.231 (C.10:4-17) is amended to read as follows:
12. Any person who knowingly violates any of the [foregoing sections of this act] provisions of P.L.1975, c.231 (C.10:4-6 et seq.), as amended and supplemented, shall be fined $100.00 for the first offense and no less than $100.00 nor more than $500.00 for any subsequent offense, recoverable by the State by a summary proceeding under "the penalty enforcement law" (N.J.S.2A:58-1 et seq.). The Superior Court shall have jurisdiction to enforce said penalty upon complaint of the Attorney General or the county prosecutor. Whenever a member of a public body believes that a meeting of such body is being held in violation of the provisions of this act, he shall immediately state this at the meeting together with specific reasons for his belief which shall be recorded in the minutes of that meeting. Whenever such a member's objections to the holding of such meeting are overruled by the majority of those present, such a member may continue to participate at such meeting without penalty provided he has complied with the duties imposed upon him by this section.
(cf: P.L.1994, c.58, s.41)
5. Section 13 of P.L.1975, c.231 (C.10:4-18) is amended to read as follows:
13. At least once each year, within 7 days following the annual organization or reorganization meeting of a public body, or if there be no such organization or reorganization meeting in the year, then by not later than January 10 of such year, every public body shall post and maintain posted throughout the year on the public body's Internet website and in the place reserved for such or similar announcements, as described in paragraph (1) of subsection [3.] d. [(1)] of section 3 of P.L.1975, c.231 (C.10:4-3), mail to the newspapers described in [subsection 3. d.] paragraph (2) thereof, submit to the persons described in [subsection 3. d.] paragraph (3) thereof, for the purpose of public inspection a schedule of the regular meetings of the public body to be held during the succeeding year. Such schedule shall contain the location of each meeting to the extent it is known, and the time and date of each meeting. In the event that such schedule is thereafter revised, the public body, within 7 days following such revision, shall post, mail and submit such revision in the manner described above.
(cf: P.L.1975, c.231, s.13)
6. (New section) a. Every public body shall designate by resolution an Internet website for making available to the public certain information regarding the public body's meetings, except that the designation shall only be required if the public body can confirm that a public, non-profit or private sector Internet publisher is available that meets the following criteria:
(1) the publisher, without charge to the public body, shall receive from the public body the information that the public body provides in a reasonable and appropriate manner specified by the publisher;
(2) the publisher, without charge to the public body, shall provide unrestricted and charge-free access to the information to all members of the Internet on-line public whether or not the members identify themselves; and
(3) the publisher, without charge to the public body, shall provide continued access to each item of information for at least a full year from the time of initially providing access to it.
b. The public body shall promptly provide notice of the designated Internet website and publisher by:
(1) providing to the Attorney General of the State a certified copy of the resolution of designation;
(2) prominently posting at the public meeting room a notice informing the public of the Internet website and its kinds of content.
c. When a public body finds, after diligent exploration, that no Internet website and publisher is available which meets the criteria set forth in subsection a. of this section, it shall promptly provide notice of the problem by:
(1) providing to the Attorney General of the State a certified copy of a resolution citing the findings and problem; and
(2) prominently posting at the public meeting room a copy of the resolution
d. When a public body subsequently receives credible notification of an available Internet website and publisher which meets the criteria set forth in subsection a. of this section, the public body shall diligently explore the availability of the website and publisher, shall take appropriate action and shall provide a report to the Attorney General, to the party who provided the notification and to the public at an open meeting.
e. A public body may in its own discretion designate itself as the publisher of its own website, notwithstanding its failure to meet the criteria set forth in subsection a. of this section.
f. The information which the public body shall make available to the public on the Internet website shall include but not be limited to the following:
the public body's annual schedule of regular meetings and all of the notices of agendas and meetings, and revisions thereto;
the annual open meeting compliance checklist report required to be adopted by the public body;
notice of any meeting held without adequate notice pursuant to one of the exceptions to the adequate notice requirement listed in subsection b. of P.L.1975, c.231 (C.10:4-9);
the minutes, prepared pursuant to section 9 of P.L.1975, c.231 (C.10:4-14), of each meeting of the public body, including the minutes of the closed portion of any meeting to the extent that those minutes have been made available to the public, which shall remain posted on the website for a period of at least one year from the date of posting;
any resolution adopted by the public body for the purpose of complying with the provisions of section 8 of P.L.1975, c.231 (C.10:4-13 et seq.), which shall remain posted on the on the website for a period of at least one year from the date of posting;
the complete text of P.L.1975, c.231 (C.10:4-6 et seq.), and any rules or regulations, and official plain language material authorized by the Attorney General under section 9 of P.L. , c. (C. ) (now pending before the Legislature as this bill) or a link to a website providing this information; and
the toll-free telephone number and e-mail address established by the Attorney General, pursuant to section 8 of P.L. , c. (C. ) (now pending before the Legislature as this bill), for the filing of complaints regarding any noncompliance by the public body with the provisions of P.L.1975, c.231 (C.10:4-6 et seq.), or with any rules or regulations promulgated thereunder.
7. (New section) At least quarterly, a public body shall conduct a review of the minutes of the closed portion of any meeting held during the preceding three years any part of which has been withheld from public access. The review shall determine whether any part of any minutes which have been withheld from public access can now be made accessible to the public. If the public body determines that any part of previously-withheld minutes can now be disclosed to the public, it shall make that part thereof accessible to the public.
If a public body holds a meeting where the public has been excluded pursuant to subsection b. of section 7 of P.L.1975, c.231 (C.10:4-12), the public body shall require that an inventory and status report be prepared, maintained and made public on all minutes, tape recordings or other records of the meetings. The report shall conform to any standards adopted by the Attorney General and shall indicate for each subject designated by the resolution to be discussed at the meeting whether and when the minutes of such portion have been established by resolution for disclosure, drafted, submitted for approval of the public body, approved, designated for eventual release or redaction, redacted, released, and posted on the Internet. The Attorney General shall have access to the minutes and tapes at any stage for the sole purpose of monitoring compliance.
Upon completion of a review, the public body shall adopt a resolution indicating that it has conducted the review and that all information from closed meetings which can be made available to the public, as of the date of the review, has been made available. The resolution shall also state, as precisely as possible, the time when and the circumstances under which the withheld portion of any minutes can be disclosed to the public.
8. (New section) a. The Attorney General shall establish a toll-free telephone number and an Internet e-mail address which members of the public may use to file complaints with the Attorney General regarding noncompliance by a public body with the provisions of P.L.1975, c.231 (C.10:4-6 et seq.) or the rules or regulations promulgated thereunder.
b. The Attorney General shall investigate noncompliance by a public body with the provisions of P.L.1975, c.231 (C.10:4-6 et seq.), or the rules or regulations promulgated thereunder, and shall take appropriate enforcement action pursuant to the provisions thereof.
c. At the commencement of every meeting of a public body, the person presiding shall announce publicly, and shall cause to be entered in the minutes of the meeting, the toll-free telephone number and e-mail address established by the Attorney General, pursuant to subsection a. of this section, and that any member of the public may file a complaint with the Attorney General regarding noncompliance by the public body with the provisions of P.L.1975, c.231 (C.10:4-6 et seq.), or the rules or regulations promulgated thereunder.
9. (New section) After evaluating the effectiveness of Internet notice, the Attorney General may relieve public bodies of any requirements for mail notice, to the extent that they are found to be superfluous and no longer in the public interest. The Attorney General shall promulgate rules and regulations, pursuant to the provisions of the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), to effectuate the purposes of P.L.1975, c.231 (C.10:4-6 et seq.), as amended and supplemented, which shall include, but not be limited to, a plain-language summary of the provisions of P.L.1975, c.231 (C.10:4-6 et seq.).
10. This act shall take effect on the 180th day after enactment, but public bodies and the Attorney General may take anticipatory administrative action in advance as shall be necessary for the implementation of the act.
The purpose of this bill is to enhance compliance by public bodies with the provisions of the "Open Public Meetings Act," N.J.S.A.10:4-6 et seq., by strengthening the act's public disclosure and monitoring requirements.
Public access to government information has long been regarded as essential to the democratic process. James Madison called a popular government without popular information "a Prologue to a Farce or a Tragedy; or perhaps both." Openness in the conduct of government affairs also helps to prevent actual or perceived corruption because, as Woodrow Wilson observed, "corruption thrives in secret places and avoids public places."
The enactment of New Jersey's "Open Public Meetings Act" in 1975 was part of a larger nationwide trend toward greater openness in the conduct of government affairs. By 1981, every state, as well as the federal government, had enacted sunshine laws intended to restore public confidence in government and the political process.
New Jersey's "Open Public Meetings Act" guarantees the public's right to attend meetings of public bodies at which public business is discussed or acted upon and to have adequate advance notice of such meetings. The right to be present at a public meeting includes the right "to witness in full detail all phases of the deliberation, policy formulation and decision making" of a public body. In enacting the law, the Legislature declared that the right of the public to attend meetings of public bodies was "vital" to the democratic process and that "secrecy in public affairs undermines the faith of the public in government and the public's effectiveness in fulfilling its role in a democratic society." N.J.S.A.10:4-7.
At present, a public body can exclude the public from a portion of a meeting only to discuss certain specifically enumerated subjects and only after passing a resolution stating the general nature of the subject to be discussed and when, and the circumstances under which, the discussion conducted in closed session can be publicly disclosed. N.J.S.A.10:4-12, 10:4-13. The law also requires a public body to keep "reasonably comprehensive minutes of all its meetings," including closed meetings, and to make these minutes available for public inspection. N.J.S.A.10:4-14.
Nevertheless, recent events indicate that some public bodies have failed to comply with the act's provisions.
The bill would address the problem of noncompliance by increasing the act's public disclosure and monitoring requirements. It would require most public bodies to make available on the Internet, without having to pay for access: the public body's schedule of regular meetings; meeting agendas; the minutes of each meeting, including the minutes of closed sessions to the extent that those minutes have been made available to the public; any resolution adopted relative to closed meetings; the complete text of the sunshine law, and the rules and regulations promulgated thereunder.
The bill clarifies that public bodies are to make and maintain minutes of closed meetings. A public body is also required to conduct a review, at least quarterly, of the minutes of the closed portion of any meeting held during the preceding three years any part of which has been withheld from public access for the purpose of determining whether information which has been withheld can now be made accessible to the public. Upon completing its review, a public body would be required to adopt a resolution indicating that it has conducted the review and that all information from closed meetings which can be made available to the public has been made available and stating when any withheld information can be disclosed. The bill provides that if a public body holds a meeting where the public has been excluded, the public body will prepare, maintain and make public an inventory and status report on all minutes, tape recordings or other records of the meeting.
The bill directs the Attorney General to establish a toll-free telephone number and an Internet e-mail address which members of the public may use to file complaints with the Attorney General regarding noncompliance. The Attorney General is directed to investigate noncompliance and to take appropriate enforcement action.