Thursday, July 29, 2010

Judge Acts to Enforce Spirit of Open Public Meetings Act

This Gloucester County judge's actions against that county's freeholder board has implications for towns like Asbury Park, who also handle many of the same actions cited here behind closed doors. For example, discussion of salary increases should not be discussed under the law's personnel exemption, since they involve the public's money and do not meet the exemption for protecting employee privacy. Also, legal settlements are only brought to the public in AP to have the amounts approved. The public is largely unaware they're even being approved let alone what the suit was about.
Note: The judge's assertion that "secrecy undermines the public faith in open government."

From The Philadelphia Inquirer.

Thanks to
John Paff

Somerset, New Jersey


Judge to ensure Glouco freeholders comply with Sunshine Law

By Jan Hefler


In a rare move, a state Superior Court judge Tuesday placed the Gloucester County Board of Freeholders under his watch for six months to keep it from improperly conducting public business behind closed doors.

Assignment Judge Francis J. Orlando Jr., who sits in Camden, will appoint an independent monitor to observe freeholders meetings and report on whether they are complying with the state's Open Public Meetings Act.

Last summer, an appeals panel suggested that the judge consider corrective action, saying it "found no authority" for this type of review but that the review may be warranted if "a pattern of wrongful conduct" was found. The freeholders had been accused of violating the open meetings law, also known as the Sunshine Law, more than 50 times in recent years.

Attorneys on both sides of the case said they had never heard of a state monitor charged with overseeing an elected board this way.

Orlando said the freeholders had failed to offer any defense as to why they voted in private to create public positions, establish officials' salaries, make special payments to lawyers, adopt policies, and authorize payment of legal settlements.

Instead of citing exemptions to the law with a strict interpretation, Orlando said, the freeholders should have followed the intent of the law, which is to be transparent and "to err on the side of openness." He pointed to the appeals panel's finding that "secrecy undermines the public faith in open government."

The judge ordered lawyers on both sides to come up suggestions within the next two weeks of retired judges who may be suitable as a monitor.

After the hearing, Mark Cimino, the lawyer who pushed for a monitor, said the decision was not just a victory for his client, David Burnett, a Clayton resident and former director of the county Republican Executive Committee. The ruling, he said, is about "safeguarding the public's interest."

The spokesperson for the all-Democratic freeholder board did not return calls for comment.

Michael Sullivan, the special counsel who represented the freeholders, said after the ruling that he could not comment, not even to say whether there would be an appeal. But during arguments, he suggested a court appointment of a monitor "crosses the line between the judicial and the legislative" branches of government.

Sullivan argued that the freeholders' recent appointment of retired state Superior Court Judge M. Allan Vogelson as a compliance officer would lead to more open sessions. The freeholders named Vogelson, who agreed to serve without a fee, to advise them and offer training on the "constantly evolving" laws that must balance transparency with privacy.

Vogelson's appointment, Sullivan said, could be "constructed in a way to satisfy the court.

Freeholder Jean DuBois said the Vogelson appointment was "a step in the right direction." The board had hoped it would be enough, she said. Other freeholders did not return calls for comment.

But Orlando disagreed. Saying he has great respect for Vogelson's legal acumen and integrity, Orlando said Vogelson had a conflict of interest because he works for the same firm that has been fighting the Sunshine Law case the last few years.

Vogelson works for Parker McCay, a law firm with offices in Marlton, Lawrenceville and Atlantic City, that does special legal work for the county. Last year, the county paid the firm about $500,000.

"It's the very firm that has been defending the county in this case," said Orlando, saying the conflict makes him "uncomfortable." Orlando said that Vogelson's obligation would be to its client, the county, and not to the court.

"At the end of the day" such a dual role could make it difficult for Vogelson to "run to the court and say, 'Guess what, they're doing things amiss and not heeding my advice,' " the judge said.

The judge said the "county has taken significant strides" to improve its transparency, by appointing Vogelson and by planning to put the minutes online, but he believed a monitor was still needed.

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