By PETE WALTON
A state Superior Court judge says Bradley Beach and Mayor Larry Fox committed “at least three violations” of state law by improperly holding closed door meetings.
Assignment Judge Lisa P. Thornton issued an injunction requiring Fox and the borough “to comply with the provisions of the Open Public Meetings Act” and “permanently enjoined [them] from meeting in closed or executive session with third parties unless such a meeting would not violate the Open Public Meetings Act.”
The judge retained jurisdiction “to hear and enforce any violation” of her order.
Thornton rejected the borough’s motion to dismiss a suit filed by Bradley Beach resident Thomas J. Coan and granted all but one of the motions filed on Coan’s behalf by attorney Walter M. Luers. The judge said the Open Public Meetings Act does not provide for legal fees to be shifted from plaintiffs to defendants, so Coan is bearing the cost of the suit himself.
“Defendants failed to prove a valid exception to meet in executive session,” Thornton said in her Oct. 13 order. She said Fox and other borough officials demonstrated an “apparent inability to appreciate the violation” of the act.
“The relevant facts are undisputed,” the judge said. “Defendants held a public meeting on Oct. 12, 2021. The published agenda stated defendants would “[h]old an ‘executive session to discuss an attorney/client privilege matter.'”
“In fact, defendants did not meet on an attorney-client privileged matter and instead met with representatives from New Jersey American Water regarding the possible sale of the borough’s sewer utility,” Thornton wrote. She said the published agenda for another meeting on Nov. 9, 2021 called for another executive session to discuss a matter of attorney/client privilege.
“However, defendants did not meet on an attorney-client privileged matter and instead met with representatives from Highwood Development and Holdings and InSite Engineering on the possible sale of public property,” the judge said.
After Coan filed his complaint, according to Thornton, “defendants attempted to cure deficiencies in the notice and convened a third meeting on Feb. 8, 2022 to hear presentations from NJAW and Highwood Development in executive session.”
Coan contended that the three meetings “did not fall under any of the recognized exceptions listed” in state law, and that Fox and the borough “violated the OPMA by meeting in closed session with counterparties in contractual negotiations.” Coan contended that an exception regarding contract negotiation only applies “to discussions about contract negotiations by the public body, not contract negotiations with the opposing party.”
In his suit, Coan argued that the state law prohibits third parties from convening in closed session because unlike government officials, third parties have no fiduciary duties owed to the municipality and are not required to keep the matters discussed confidential. He also said permitting third parties in executive sessions would chill discussions as government officials would be unable to discuss strategies in the presence of adversaries.
In requesting dismissal of the complaint, according to Thornton’s order, Borough Attorney Greg Cannon said violations were cured by the Feb. 8 meeting and that there was no “pattern of non-compliance” by the borough. Cannon said that Borough Clerk Erica Kostyz had “not even been registered long enough to have developed any “pattern of non-compliance” sufficient to warrant relief” which Coan’s suit requested.
“The OPMA is but one example of New Jersey’s strong tradition of favoring open government,” Judge Thornton wrote. “The statute codified the [state] Legislature’s desire to reinforce ‘the right of the public to be present at all meetings of public bodies, and to witness in full detail all phases of the deliberation, policy formulation, and decision making of public bodies.’ It was also designed to limit ‘secrecy in public affairs’ that would ‘undermine the faith of the public in government.'”
“Open government fulfills the ‘ideal of creating a government of the people and preventing corruption,” Thornton said.
The judge ruled that state law does not contemplate “discussions with opposing parties and instead provides for private discussions about contract negotiations or the purchase, lease or acquisition of real property by the public body alone.”
“More importantly, if the statute did condone such practices, a public agency would need to prove the exception by providing evidence of legitimate contract negotiations and not just an informational session as appears to be the situation here,” Thornton wrote.
“Defendants failed to present any evidence that any of the conditions of the statute were met at the time they engaged in discussions with NJAW, InSite Engineering and Highwood Development,” she said. “Consequently, the court cannot conclude they were engaging in ‘contract negotiation’ or legitimate discussions about land acquisition, especially when defendants discussions were not about the purchase of real property with public funds, but about the sale of public property, a transaction that is not covered by the exceptions to the OPMA. At best, the court can only conclude that defendants were engaged in preliminary discussions to obtain general information. To condone application of the exception on the sparse evidence in the record would be contrary to the requirement that exemptions be construed narrowly.”
“In the present matter, defendants violated the provision of OPMA on three (3) occasions,” Thornton ruled. “Defendants provided a list of reasons why their actions were appropriate. Consequently, injunctive relief is warranted to prevent future violations.”
