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New Jerseyans urged to rally around issue
BY JOE TYRRELL
NEWJERSEYNEWSROOM.COM
In an election year with ethics at issue, New Jerseyans can bring their government into the sunshine, but only if they act soon, according to a state senator.
"The public needs to take ownership" of government records and meetings, said state Sen. Loretta Weinberg (D-Bergen). Last year, she introduced a bill to strengthen the state Sunshine Law, the Open Public Meetings Act, but it remains stuck in committee.
Weinberg's proposal would update the act to reflect recent court rulings, as well as technological advances not envisioned when her predecessor, the late Sen. Byron Baer, wrote the current law 34 years ago.
"We need to bring the Sunshine Law into the 21st Century," Weinberg told a seminar at Rutgers Law School sponsored by the New Jersey Foundation for Open Government.E-mail, cell phones, texting, streaming audio and video are among technologies "that Byron Baer never would have envisioned, nor would any of us" at the time the current law was enacted, she said.
Two prominent municipal attorneys cautiously agreed. While Weinberg's proposal needs to be limited in some areas, "I don't think it goes far enough" in others, said Peter Jost, president of the Institute of Local Government Attorneys.
He pointed to the advent of software allowing participants to "pop up" from various locations onto computer screens for remote conferencing, at a time when public bodies have varied participation standards for members calling in by phone.
Much of the current Sunshine Law is "stuck in the buggy age," while public officials and the public are communicating by an array of new means, said Jost, who serves as municipal counsel for several towns in Hunterdon and Warren counties.
"I wouldn't mind seeing something that mandated training for local officials" on open government, as the legislation does, said William Kearns, general counsel for the New Jersey League of Municipalities. "I think we should have some very productive discussions with Sen. Weinberg on this bill."
Ethics and corruption may well be issues in the fall campaign, but for the Sunshine bill to become law citizens must ensure legislators realize it is important, Weinberg said.
"We need you to call your legislators, e-mail your legislators, take time to introduce yourself to your legislators," she said. "And we need you to call Sen. (Nicholas) Scutari" (D-Union) the chair of the Senate State Government Committee.
The two attorneys defended the honesty and industriousness of most local officials, but both acknowledged prominent corruption cases contribute to what Kearns called "suspicion of government at every level."
"When I see a council meeting that only lasts 20 minutes, I get suspicious," Jost said, because it indicates members privately "discussed everything beforehand."
One widespread problem is not a flaw in the current law, but a failure to follow it, Weinberg said. While public bodies can meet in private to discuss "personnel," the exemption is designed to protect employees, she said.
"An employee who is going to be talked about must be notified in advance, and he or she decides whether to have the discussion in public," she said. "The exemption belongs to the employee, not to the public body."
Some municipal officials said even they have problems finding out what is happening in their towns.
Former Interlaken Councilman Robert Napoli successfully sued after the council withheld minutes of private discussions about the police department, which had been taken over by the Monmouth County Prosecutor's Office.
He described a meeting at a council member's house on Super Bowl Sunday, where officials shuttled in and out so a quorum was not in the room at any given time. In the absence of effective enforcement, "that stuff still happens, whether they're using e-mails, text messages."
Kearns and Jost said they both implement steps to prevent their clients from conducting e-mail discussions of legal advice. But it is harder to draw a line about messages officials receive from constituents, Jost said.
Kearns said he has a problem with Weinberg's proposal to make minutes of open meetings available before the next meeting. That might be impractical in small towns with weekly meetings, he said.
But Hoboken Councilwoman Beth Mason said public officials as well as residents need minutes promptly. "If they're not available in a timely fashion, what's the point" of requiring them, she asked.
Stanhope Councilman George Graham noted Mason was "skewered by your own (city) corporation council, simply for having the guts to stand up and say something was wrong."
The attorneys acknowledged that some municipal counsels may simply follow the lead of the mayors or council majorities. But Kearns said the attorneys are more vulnerable than many other appointees, because they "get only a one-year appointment" and can be dropped if they make waves.
Besides the technology updates, Weinberg's legislation would put some teeth into a law that now goes unenforced, raising the fine for a violation from $100 to as much as $1,000, and allowing plaintiffs to recover attorney fees.
"One of the best tools for educating municipal officials is the civil lawsuit," said John Paff of Franklin Township, an open government activist who frequently challenges public bodies over their meeting and records policies.
While the updated Open Public Records Act allows successful plaintiffs to recover their legal fees, that's not the case with the Sunshine Law. As a result, Paff said, only well-off people like himself can contest violations.
