Proposed Changes to State Sunshine Laws Continue to Face Hurdles

Oct 17, 2018

The state Senate Budget and Appropriations Committee earlier this week was expected to consider two bills that would effectively modernize the state’s sunshine laws. Changes to the bills have been in the works for years to no avail.

S-106, sponsored by Sens. Loretta Weinberg (D-37th) and Joseph Pennacchio (R-26th), looks to amend the Sen. Byron M. Baer Open Public Meetings Act (OPMA) by granting greater access to public meetings of governing bodies and information about those meetings.

“The bill clarifies and expands the public’s right to receive notice of meetings of public bodies, to be present at such meetings and, under certain circumstances, to be heard at meetings, as well as to have access to minutes of meetings,” according to the summary statement of the bill on the New Jersey Legislature website. “It extends the scope of the act to apply certain provisions to subcommittees and to include certain quasi-governmental entities.”

The summary statement also notes the bill addresses issues relating to communications among members of a public body, the recording of meetings, the posting of meeting-related information on the Internet, the use of closed sessions, and penalties for violations.

In June, the Senate State Government, Wagering, Tourism and Historic Preservation Committee voted in favor of the bill with some amendments, including allowing members of a public body to speak privately with consultants or advisers about agenda matters, requiring the Legislature keep comprehensive meeting minutes, clarifying that minutes should be made public within 15 business days after a public body’s next meeting, permitting a public body to vote in favor of a reasonable delay in making the minutes available due to an emergency, and requiring subcommittees to prepare reports of meetings that are closed to the public.

In conjunction with S-106, changes to the Open Public Records Act (OPRA), adopted in 2001, are also being considered. S-107 is also sponsored by Weinberg and Pennacchio.

In a nutshell, S-107 broadens and spells out definitions while making changes to the duties of record custodian and the Government Records Council, according to the summary statement of the bill on the New Jersey Legislature website.

“It specifies that the fines imposed pursuant to OPRA cannot be paid out of public funds,” the summary states. “In addition, the bill requires the State to create a public finance website and establish the New Jersey Local Public Finance Internet Website Development Program to provide advice and technical assistance to units of local government that elect to create a searchable local public finance Internet website.”

On June 14, the Senate State Government, Wagering, Tourism and Historic Preservation Committee voted in favor of the bill with some amendments, including, but not limited to, the removal of a provision allowing volunteer fire companies and departments from contracting with a municipal body to have its clerk serve as the fire company’s records custodian, excluding volunteer fire companies and departments from the definition of “public agency” and “quasi-governmental agency,” removing interns and volunteer employees in the definition of “public employee,” and requiring the Office of Information Technology to develop and maintain a searchable, online database to which units of local government may submit any government record for retention on the database.

“We appreciate the strides the sponsors have taken to address concerns we have raised, through the proposed amendments. They represent real progress in addressing both the privacy issues surrounding OPRA and the issue of commercial request for records,” the League of Municipalities said in a statement posted to its website earlier this week. “However, as discussed, we still have majors concerns with the bills and must continue to oppose S-106 and S-107.” Requests for further information on the issue from the League were not returned as of press time.

On the issue of subcommittees, which Walter Luers, an attorney associated with the New Jersey Foundation for Open Government, said proved to have the most pushback, the League of Municipalities argues a subcommittee’s primary goal is to obtain information informally ,then make a recommendation to the governing body. It does not take formal action.

“By their very nature, subcommittees are advisory, deliberative, and consultative,” according to the League’s Oct. 15 statement. “Just as advisory, deliberative and consultative material is exempted from the Open Public Records Act so should subcommittees remain not subject to the provisions of the Open Public Meetings Act.”

Finally, the League notes both bills exempt the state Legislature from most of the requirements of OPMA and all of the OPRA requirements.

“The League has strongly argued that in the interest of transparency and openness, the various exceptions in the Open Public Meetings Act and Open Public Records Act that apply to the legislature and legislators should be removed,” according to the League’s statement. “The rules that the legislation makes applicable to other governmental bodies should apply equally to all governmental levels and officials.”

— Gina G. Scala





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