CHAPTER 3  SECRETARY TO THE GOVERNING BODY

 

 

I.          OPEN PUBLIC MEETINGS ACT

 

A.         INTRODUCTION\POLICY BEHIND THE ACT

 

Introductory Statement - Assembly No. 1030 - L. 1975 c. 231 "This bill requires that the public and the press have advance notice of and the opportunity to attend most meetings, including executive sessions of public bodies, except where the public interest or individual rights would be jeopardized. The public's right to know the process by which governmental decisions are made and to witness that process in full detail may be obstructed by needlessly barring members of the public and the press from certain policy making meetings of public bodies. If the public and the press cannot attend, they cannot learn of many positions that are considered or taken at such meetings by individual officials serving the public. Lack of information can lessen public confidence in governmental decisions and impair the public's function of holding officials accountable in a democracy."

 

This Act shall be known and may be cited as the "Senator Byron M. Baer Open Public Meetings Act."  [N.J.S.A. 10:4-6]    9/15/06

 

B.         PURPOSE  [N.J.S.A. 10:4-7]

 

LEGISLATIVE FINDINGS AND DECLARATION - "To insure the right of citizens to have adequate advance notice of and the right to attend meetings of public bodies at which any business affecting the public is discussed or acted upon in any way except in those circumstances where the public interest would be endangered or the personal privacy or rights of individuals would be endangered."

 

C.         DEFINITIONS  [N.J.S.A. 10:4-8]

 

1.         "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 legal relations of any person, or collectively authorized to spend public funds including the Legislature. - (Exclusions as cited in N.J.S.A. 10:4-8 (a).)

2.         "MEETING" means and includes any gathering whether corporeal or by means of communications 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.

Except as provided in Subsection I(H) of this Chapter regarding Closed Sessions, all meetings of public bodies shall be open to the public at all times. Nothing in the statutes shall be construed to limit the discretion of a public body to permit, prohibit or regulate the active participation of the public at any meeting, except that a municipal governing body shall be required to set aside a portion of every meeting of the municipal governing body, the length of the portion to be determined by the municipal governing body, for public comment on any governmental issue that a member of the public feels may be of concern to the residents of the municipality.  12/02

Note - A meeting must be open to all the public body's members, and the members present must intend to discuss or act on the public body's business. Therefore, typical partisan caucus meetings and chance encounters of members of public bodies are not covered. Specific exemptions are provided for public bodies meeting as a part of a convention and meetings where an effective majority fails to attend. Gatherings of enough members to constitute a quorum of a governing body or any other public board or commission are prohibited when no public notice has been given. Exceptions are allowed for events that clearly constitute purely social gatherings and for political meetings.

 

3.         "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.

 

4.         "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 etc. as noted in N.J.S.A. 10:4-8 (d) Amended 1981, by including Section 10:4-18 which addresses Regular Meetings of a Public Body which is addressed under "Annual Notice."

In addition, a public body may provide electronic notice of any meeting of the public body through the Internet.  "Electronic Notice" means advance notice available to the public via electronic transmission of at least forty eight (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 at such meeting. 10/31/04

 

5.         "OFFICIAL NEWSPAPERS" means paid, published and circulated in the municipality, and if there be no such newspaper, then in at least one published in the county in which the municipality is located and said newspaper is circulated.

Notices to Official Newspapers must be transmitted to two (2) news-papers, being mindful of the fact that one of the official newspapers may be a "Weekly" and the 48 hour notice requirement must be fulfilled so that the weekly newspaper can potentially publish prior to the meeting. Therefore, at the Reorganization or Organization Meeting more than two official newspapers should be designated if necessary. The newspapers selected should be those most likely to inform the people within the public body's jurisdiction of the meeting. 12/97

 

D.         NOTICES  [N.J.S.A. 10:4-18]

1.         "ANNUAL NOTICE" means at least once each year, within seven (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 10th of such year, every public body shall adopt, post and distribute a schedule of its regular meetings for the coming year. The schedule must contain the date, time and location of the meeting. In addition, it shall be mailed, telephoned, telegraphed or hand delivered to at least two (2) newspapers which newspapers shall be designated by the public body to receive such notices.

 

Note - (Annual Notice) - In the event that such schedule is thereafter revised, the public body, within seven (7) days following such revision, shall post, mail and submit such revision in the manner described above. Annual Notice should also include the language that "Official Action may be taken".

 

2.         "48 HOUR NOTICE" means notice of meeting (commonly known as special meeting) shall be mailed, telephoned, telegraphed or hand delivered to at least two (2) newspapers, posted where notices are generally and prominently posted and said notice shall contain, date, time, place of meeting and the purpose(s) for which the meeting was called.

 

Note - (48 Hour Notice) - Purpose of Special Meeting when transmitted to newspapers shall include whether official action will be taken.

 

3.         Notices are not required to be published in order to comply with the "Open Public Meetings Act", but merely must be transmitted to the newspapers.

 

4.         Notices for special meetings must be provided to the publications at a time that provides the newspapers with the opportunity to actually publish notice at least 48 hours in advance of the meeting.  Otherwise, there is no compliance with the Open Public Meetings Act.  Actual publication is not required.  9/15/18

 

E.         REQUESTS FOR NOTICES OF MEETINGS: ANNUAL RENEWAL [N.J.S.A.10:4-19]

 

Any person may request that a public body mail to him copies of any meeting notices, whether they be regular, special or revised notice. The individual, upon prepayment of a reasonable sum, if fixed by resolution of the public body to cover the costs providing such notice, shall receive such notices. All requests for notices shall terminate at midnight on December 31 of each year, but shall be subject to renewal upon a new request to the public body.

 

F.         EXCEPTIONS - MEETING OF PUBLIC BODY: EMERGENCY MEETING [N.J.S.A. 10:4-9] (WAIVER OF NOTICE REQUIREMENT)

 

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 in the public place, delivering to two newspapers as described in N.J.S.A. 10:4-8 (d) - "Adequate Notice"; 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.

 

 

G.         STATEMENT IN MINUTES OF MEETING - ADEQUATE NOTICE  [N.J.S.A. 10:4-10]

 

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, an accurate statement to the effect:

1.         That adequate notice of the meeting has been provided, specifying the time, place and manner in which such notice was provided; or

2.         That adequate notice was not provided (EMERGENCY MEETING), in which case such announcement shall state:

a.         The nature of the urgency and importance of the meeting and the nature of the substantial harm to the public interest likely to result from a delay in the holding of the meeting;

 

b.         That the meeting will be limited to discussion of and acting with respect to such matters of urgency and importance;

 

c.         The time, place and manner in which notice of the meeting was provided; and

 

d.         Either:

 

(1)        That the need for such meeting could not reasonably have been foreseen at a time when adequate notice could have been provided, in which event, such announcement shall specify the reason why such need could not reasonably have been foreseen; or

 

(2)        That such need could reasonably have been foreseen at a time when adequate notice could have been provided, but such notice was not provided, in which event the announcement shall specify the reason why adequate notice was not provided.

 

H.         CLOSED MEETING (Commonly known as Closed Session, Executive Session or Closed Executive Session)  [N.J.S.A. 10:4-12]

 

If a public body wishes to hold a portion of a public meeting in closed session, it must (1) adopt a RESOLUTION at an open meeting; and (2)  read a statement that adequate notice of the Open Meeting was provided.  The resolution must provide reasons for going into a closed session, and state as precisely as possible, the time when and the circumstances under which the matter(s) discussed in private may be publicly revealed.  The resolution should specifically identify which of the subject matters below are applicable.  The circumstances which trigger authorization to enter closed session are limited by statute, and the discussion in closed session should only cover those topics identified in the resolution.

 

Upon returning from a closed session, the public body must take public action to indicate that the meeting is again open to the public. No official action should be taken in a closed session.  12/99; 9/15/18

Note – The public body must give 48 Hour Notice if knowledge of the closed session is known in advance.  The notice should contain the time, place and purpose of the closed session, identifying the relevant subject matters.

 

I.          SUBJECT MATTERS WHICH MAY BE COVERED IN CLOSED SESSION

 

1.         Any matter which, by express provision of Federal Law or State Statute, or rule of court shall be rendered confidential;

 

2.         Any matter in which the release of information would impair a right to receive funds from the Government of the United States;

 

3.         Any material the disclosure of which constitutes an unwarranted invasion of individual privacy such as any records, data, reports, recommendations, or other personal material of any educational training, social service, medical, health, custodial, child protection, rehabilitation, legal defense, welfare, housing, relocation, insurance and similar program or institution operated by a public body pertaining to any specific individual admitted to or served by such institution or program, including but not limited to information relative to the individual's personal and family circumstances, and any material pertaining to admission, discharge, treatment, progress or condition of any individual, unless the individual concerned (or, in the case of a minor or incompetent, his guardian) shall request in writing that the same be disclosed publicly.

 

4.         Any collective bargaining agreement, or the terms and conditions which are proposed for inclusion in any collective bargaining agreement, including the negotiation of the terms and conditions thereof with employees or representatives of employees of the public body;

 

5.         Any matter involving the purchase, lease or acquisition of real property with public funds, the setting of banking rates or investment of public funds, where it could adversely affect the public interest if discussion of such matters were disclosed;

 

6.         Any tactics and techniques utilized in protecting the safety and property of the public, provided that their disclosure could impair such protection. Any investigations of violations or possible violations of the law;

 

7.         Any pending or anticipated litigation or contract negotiation other than in section (4) herein which the public body is, or may become a party.  9/15/18

 

8.         Any matter falling within the attorney-client privilege, to the extent that confidentiality is required in order for the attorney to exercise his ethical duties as a lawyer.  9/15/18

 

9.         Any matter involving the employment, appointment, termination of employment, terms and conditions of employment, evaluation of the performance of, promotion or disciplining of any specific prospective public officer or employee employed or appointed by the public body, unless all the individual employees or appointees whose rights could be adversely affected request in writing that such matter or matters be discussed at a public meeting;  9/15/18

 

10.       Any deliberations of a public body occurring after a public hearing that may result in the imposition of a specific civil penalty upon the responding party or the suspension or loss of a license or permit belonging to the responding party as a result of an act or omission for which the responding party bears responsibility.  9/15/18

 

J.          PERSONNEL EXCEPTION - "RICE NOTICE" - DERIVED FROM "RICE V. UNION cm. REG. H.S.BD. OF ED., 155 N.J. SUPER 64 (APP.DIV. 1977); (9/15/17); (9/15/18)

 

N.J.S.A. 10:4-12 (b) 8 provides that all personnel matters, which includes any matter involving employment, appointment, termination, terms and conditions of employment, evaluation of performance, promotion or discipline of any specific prospective or current public officer or employee may be discussed in closed session.

 

Pursuant to N.J.S.A. 10:4–12(b)(8), employees whose employment interests could be adversely affected have the right to waive the protection of having their matter discussed in closed session. The subsection provides for such individuals to choose that the public body have the discussion in public.

 

The ability to make that request is of little import, however, if affected employees are not aware that their employment may be discussed at a future meeting—an issue addressed soon after the OPMA's adoption by the Appellate Division in Rice.  In that case, the Appellate Division considered whether a school board violated N.J.S.A. 10:4–12(b)(8) by entering into closed session and discussing whether to reduce staff by terminating seventeen school employees at the end of the school year for budgetary purposes.  The employees were not given advance notice that their termination would be discussed in a closed session.  In finding the board's failure of notice violative of the OPMA, the Rice appellate panel noted that the OPMA provides affected employees with the right “to have a public discussion of his or her personnel matter.” Tying the personnel exception of N.J.S.A. 10:4–12(b)(8) to the employees' privacy interests, the panel stated that the right to compel public action on the personnel topic would be rendered “useless and inoperative” if affected personnel are not given some form of notice that action affecting their employment status is on the agenda. Continuing, the panel stated:

 

“The plain implication of the personnel exception to the [OPMA] is that if all employees whose rights could be adversely affected decide to request a public hearing, they can only exercise that statutory right and request a public hearing if they have reasonable advance notice so as to enable them to (1) make a decision on whether they desire a public discussion and (2) prepare and present an appropriate request in writing.”

 

The panel held that employees must be given “reasonable notice” when a public entity intends to consider taking adverse employment action related to them.  The details of that notice have become commonly known as a Rice notice.

 

If the discussion takes place in closed session, the employee or official does not have the right to be present in closed session.  The Rice case only supports the statutory intent of providing the affected employee with the right “to have a public discussion,” not a right to participate in a private discussion lawfully taking place in closed session.  

 

If the Clerk is being discussed, the Clerk does not elect to have the discussion at an open meeting, the Clerk has the right to exercise the duties of a Clerk and be present during the closed session. 

 

K.         MINUTES OF MEETINGS; AVAILABILITY TO PUBLIC  [N.J.S.A. 10:4-14]  9/15/18

 

See Section VI of this Chapter.

 

L.         VIOLATION OF THE OPEN PUBLIC MEETINGS ACT  [N.J.S.A. 10:4-15]

 

1.         Any action taken by a public body at a meeting which does not conform with the provisions of this act shall be voidable in a proceeding in lieu of prerogative writ in the Superior Court, which proceeding may be brought by any person within forty-five (45) days after the action sought to be voided has been made public; provided, however that a public body may take corrective or remedial action by acting de novo at a public meeting held in conformity with this act and other applicable law regarding any action which may otherwise be voidable pursuant to this section; and provided further that any action for which advance published notice of at least 48 hours is provided as required by law shall not be voidable solely for failure to conform with any notice required in this act.

 

2.         Any party, including any member of the public, may institute a proceeding in lieu of prerogative writ in the Superior Court to challenge any action taken by a public body on the grounds that such action is void for the reasons stated above, and if the court shall find that the action was taken at a meeting which does not conform to the provisions of this act, the court shall declare such action void.

 

Note - If after forty-five (45) days from the knowledge of the matter or the matter becoming public, no one has instituted a prerogative writ action, then the meeting (and actions therefrom) become valid.  Even if previously they had been voidable, the meeting is now valid.

 

N.J.S.A. 10:4-16 addresses Injunctive orders or other remedies to insure compliance; N.J.S.A. 10:4-17 addresses Violations; penalty; statement at meeting of nonconformance; inclusion in minutes;

 

M.         SUMMARY  9/15/18

 

Public bodies should always be cognizant of their obligations under their business in view of the public, absent specific circumstances.  Clerks and members of the public body should always contact their municipal counsel if they are uncertain about the application of the law. The provisions of the "Open Public Meetings Act" require strict compliance and Clerks have the responsibility to ensure compliance with these provisions on a day-to-day basis. When circumstances arise which warrant research or direction from the Municipal Attorney.  Also, clerks should consult Guides on the "Open Public Meetings Act" (many available) and should refer to N.J.S.A. 10:4-6.

 

N.         SOURCES FOR CONTENTS OF THIS CHAPTER

 

NEW JERSEY STATUTES ANNOTATED, TITLE 10

NEW JERSEY DEPT. OF LAW & PUBLIC SAFETY "VISION OF LAW"

CHAPTER XV AS PREVIOUSLY WRITTEN BY ERIC MARTIN BERNSTEIN, ESQ.

NEW JERSEY PRACTICE, LOCAL GOVERNMENT LAW BY MICHAEL A. PANE, ESQ.

 

(The writer as well as Rutgers University and the Municipal Clerks' Association of NJ wish to acknowledge and thank Eric Martin Bernstein, Esq. for this chapter as previously written by him in 1992 which serves as an excellent reference and understanding of the "Act.")

 

 

 

EXHIBIT

SAMPLE FORMS & STATEMENTS

 

 

STATEMENTS REQUIRED TO BE READ AND INCLUDED IN THE MINUTES

 

ANNUAL NOTICE STATEMENT (IF TRANSMITTED AND ADVERTISED IN NEWSPAPERS)

 

 

STATEMENT

 

This meeting is called pursuant to the provisions of the Open Public Meetings Law. This meeting of (Date) was included in a list of meetings notice sent to the (Newspaper) and the (Newspaper) on (Date) and advertised in said newspapers on (Date), posted on the bulletin board in the Municipal Building on (Date) and has remained continuously posted as the required notices under the Statute. In addition, a copy of this notice is and has been available to the public and is on file in the office of the Municipal Clerk.

 

Proper notice having been given, the Municipal Clerk is directed to include this statement in the minutes of this meeting.

 

Same statement to be used eliminating "advertised in said newspapers" if notice was just transmitted to newspapers.

 

SPECIAL MEETING NOTICE

 

 

STATEMENT

 

This Special Meeting was called pursuant to the provisions of the Open Public Meetings Law. Notices of this meeting were sent to (or faxed to) the (Newspaper) and the (Newspaper) on (Date). In addition, copies of notices were posted on the bulletin board in the Municipal Building and filed in the office of the Municipal Clerk on aforementioned date. Notices on the bulletin board have remained continuously posted.

 

Proper notice having been given, the Municipal Clerk is directed to include this statement in the minutes of this meeting.

 

Minutes of this meeting should also reflect the purpose for which the meeting was called.

 

 

RESOLUTION

EXECUTIVE SESSION

WHEREAS, the Open Public Meetings Act, P. L. 1975, Chapter 231 permits the exclusion of the public from a meeting in certain circumstances; and

WHEREAS, this public body is of the opinion that such circumstances presently exist; and

WHEREAS, the Governing Body wishes to discuss:

(One of Nine Reasons a Closed Executive Session is permitted)

Minutes will be kept and once the matter involving the confidentiality of the above no longer requires that confidentiality, then the minutes can be made public.

NOW THEREFORE BE IT RESOLVED that the public be excluded from this meeting.

 

 

RESOLUTION

EMERGENCY MEETING

 

WHEREAS, this emergency meeting has been called for the following purpose:

(Purpose) and;

 

WHEREAS, the normal requirements of the law regarding 48 hours notice have not been met due to lack of time and subject matter, however notices of this Emergency Meeting were (hand delivered) or (faxed) to the (Newspaper) and the (Newspaper); and (Specify time, place and manner in which notice was provided)

 

INCLUDE:

1)         Nature of urgency and importance;

2)         Nature of substantial harm to public interest likely to result from a delay in holding meeting;

3)         Either:

(a)        That the need for such adequate notice could not reasonably have been foreseen at a time when adequate notice could have been provided or

(b)        That such notice could have been foreseen at a time when adequate notice could have been provided, in which event the resolution shall specify the reason why adequate notice was not provided.

 

NOW THEREFORE BE IT RESOLVED that there should be a vote on this Emergency Meeting of 3/4ths of the members of the Governing Body.

 

 

PERSONNEL EXCEPTION

 

RICE NOTICE

9/15/18

 

Date:

 

To:

 

Re:

 

Dear [Employee]:

A matter concerning your employment is scheduled to be discussed in closed session at a meeting of the Governing Body on (Date) (Time) or shortly thereafter. The Governing Body intends to discuss [very brief explanation of matter to be discussed]. 

 

If you wish to have this matter discussed in open session, please sign this statements and return to me prior to (Date).

 

Thank you.

Municipal Clerk

 

REQUEST FOR OPEN PUBLIC DISCUSSION - I, _____________________ hereby request that the matter involving [very brief explanation of matter to be discussed] be discussed openly at the meeting of the Governing Body on (Date).

 

 

Signature

 

 

II.        MEETINGS

 

A.         QUORUM

 

1.         The number representing the majority of members of a body that when duly assembled is legally competent to transact business.

 

2.         A quorum of the full authorized membership of a Governing Body must be present in order for the Governing Body to meet and conduct business.

 

B.         AGENDAS

            9/15/18

 

1.         PREPARATION/DISTRIBUTION/USE

 

a.         Preparation:

 

(1)        By Municipal Clerk (core statutory responsibility);

 

(2)        By Municipal Clerk in consultation with one or more officials (i.e. Mayor, Manager, Administrator), depending upon form of government and practical issues;

 

(3)        By Municipal Manager;

 

(4)        By Governing Body in Agenda-preparation meeting:

 

(a)        Should be scheduled several working days before business meeting;

 

(b)        May, by showing the Governing Body's intent, make orderly action possible;

 

(c)        Provide, in the interval before the business meeting, time for staff to prepare appropriate resolutions and/or ordinances for action.

 

b.         The Open Public Meetings Act requires that, to the extent known, an agenda should be available to the public 48 hours in advance of a public meeting;

 

c.         Should serve as a concise, well-organized blueprint for Governing Body to follow on matters to be addressed at the meeting;

 

d.         If prepared properly, an agenda will:

 

(1)        Reduce meeting time;

 

(2)        Inform the public;

 

(3)        Avoid deviation from business at hand; and

 

(4)        Promote orderly process within the meeting.

 

e.         If poorly done, the agenda may:

 

(1)        Include items that do not require action;

 

(2)        Confuse members of the public and the Governing Body;

 

(3)        Promote time-consuming, profitless discussion among Governing Body members that reflects poorly on the municipality.

 

f.          One recommended Order of Business is as follows:

 

(1)        Pledge of Allegiance;

 

(2)        Statement of public notice of meeting (required by Open Public Meetings Act);

 

(3)        Roll Call;

 

(4)        Approval of previous meeting minutes;

 

(5)        Presentation of petitions and communications;

 

(6)        Reports from officials;

 

(7)        Reports of special committees;

 

(8)        Reports of standing committees;

 

(9)        Unfinished business;

 

(10)      New business;

 

(11)      Approval of bills for payment;

 

(12)      Privilege of the floor;

 

(13)      Adjournment.

 

g.         The standard order of business may at any time be suspended for such items of business as:

 

(1)        Receipt of bids (if done at a full meeting);

 

(2)        Public hearings on proposed assessments or pending ordinances;

 

(3)        Matters of immediate general concern on which members of the public have made it clear they wish to speak;

 

(4)        Presence of a public figure the Governing Body wishes to welcome and/or hear.

 

h.         Matters not requiring action should not appear on the Regular Agenda (although they may have a place on the Consent Agenda), for example:

 

(1)        Matters needing in-house administrative work (research or inspection and report, for example) before becoming ripe for Governing Body action;

 

(2)        Items needing only acknowledgement of receipt;

 

(3)        Routine matters requiring no discussion.

 

 

i.          Agenda distribution to Governing Body:

 

(1)        Should be done well before meeting;

 

(2)        Should allow time for Governing Body members to familiarize themselves with agenda items.

 

j.          Supplements to Agenda:

 

(1)        Explanatory memorandums from relevant departments attached to agendas circulated pre-meeting to Governing Body can be helpful if:

 

(a)        A new or unexpected item requires action;

 

(b)        New Governing Body members have not been briefed on an old item resurfacing for action.

 

(2)        Procedural outlines are sometimes attached to Governing Body packet agendas; these can:

 

(a)        Help Governing Body members fulfill legal procedural requirements on:

 

i)          Introducing and adopting ordinances;

 

ii)         Opening/closing public hearings.

 

(b)        Help governing bodies that rotate moving and seconding to know whose turn it is to act;

 

(c)        Ensure that minutes will reflect proper procedure by setting forth prescribed forms for action.

 

k.         Agendas are permanent records and must be permanently filed.

 

C.         CONSENT AGENDAS

            9/15/18

 

1.         Consent Agendas provide rapid, effective action on matters needing no discussion.

 

2.         Consent Agendas include routine items of business which do not require individual discussion. Examples are:

 

a.         Approval of routine licenses:  bingo, raffle, business;

 

b.         Approval of previously circulated meeting minutes;

 

c.         Approval of routine financial matters requiring individual authorization (i.e. release of guarantees, fee payments from escrow accounts);

 

d.         Receipt and filing of routine monthly reports;

 

e.         Routine resolutions of congratulations and commendation; support/opposition on legislation (if so previously directed by the Governing Body);

 

f.          Awards of contracts.

 

3.         Consent Agenda items are not individually discussed.  A resolution approving the Consent Agenda, which may or may not include the reading of the list of items appearing on the Consent Agenda, is moved, seconded and voted upon as one item by the Governing Body.

 

4.         If any discussion is requested on a Consent Agenda item, it is removed from the Consent Agenda to the Regular Agenda.

 

5.         Consent Agenda items are fully recorded in the minutes to the extent dictated by local practice:  Reports and resolutions are spread in full in the minutes if so recorded in the Regular Agenda minutes.

 

D.         AUTHORIZATION TO PAY BILLS  10/31/04; 9/15/18

 

1.         Law requires listing of all bills approved for payment, regardless of municipality size or size of bill list.

 

a.         Some municipalities list bill numbers, payee and amount;

 

b.         Some also show the appropriation account charged.

 

2.         Some municipal auditors permit this alternative:

 

a.         Listing of all claims by department on separate "appropriation sheets" identified by a budget appropriation number;

 

(1)        Each sheet itemizes the list of charges, usually showing payee, amount and the grand total;  10/31/04

 

(2)        Each such departmental or appropriation total is separately listed in the authorization resolution, showing the account charged and the total expended.

 

b.         This method shortens minutes and bill payment resolutions.

 

c.         If used, such authorizations to pay bills should clearly specify what is paid, including for example:

 

"Itemized claims listed on the following schedules, which are made a part of the minutes of this meeting as a supplemental record."

 

d.         The appropriation sheets containing payment details should be bound and kept immediately available.

 

3.         A Certification of Available Funds from the Chief Municipal Finance Officer is required by many governing bodies before approving a bill list since overexpenditures of a municipal appropriation is by law an indictable offense.

 

4.         If a member of the governing body has a conflict on one particular bill that must be paid, and cannot participate in that vote, the authorization to pay that bill must be separated from the other bills paid so that the conflicted member can recuse himself from the vote.  9/15/18

 

E.         REORGANIZATION MEETING

            9/15/18

 

1.         Reorganization Meetings are held annually at the beginning of the Governing Body's operational year.

a.         For Governing Bodies elected for terms of office commencing January 1, the Governing Body may, by ordinance, fix the date and time of its annual organization or reorganization meeting at 12:00 Noon on January 1, or at some other hour on any day during the first week in January. [N.J.S.A. 40:45A-1]  10/31/04

b.         Terms of office for Governing Body members elected under the Uniform Non-Partisan Election Law commence on July 1, and annual organization or reorganization meeting must be held on July 1 of each year. [N.J.S.A. 40:45-17]

2.         In forms of government where the Mayor/Presiding Officer is selected annually by the members of the Governing Body or when the Mayor has been elected the preceding November, the Municipal Clerk convenes the Reorganization Meeting, presides over the meeting until the person elected or selected to serve as Mayor is sworn into office, and then relinquishes the Chair to the Mayor. This role is based on the Municipal Clerk’s statutory position as Secretary to the Municipal Corporation. 9/15/18

3.         The following items of business are conducted during the Reorganization Meeting:

 

a.         Appointment of Mayor (if applicable), Council President (if applicable), Municipal Attorney and other Municipal Officials whose terms of office have expired.

 

b.         Appointments to expired or vacated terms on all municipal boards, commissions and committees;

 

c.         Adoption of rules for the conduct of meetings, including such as Roberts or Cushings Rules of Order.

 

d.         Annual meeting calendar;

 

e.         Establishment of depositories for municipal funds.

 

III.       ORDINANCES, GENERALLY

            9/15/18

 

An ordinance adopted by a municipal Governing Body are essentially permanent laws of the municipality, unless they expire pursuant to the terms of the ordinance.  Ordinances will continue in effect until they expire, are repealed by subsequent ordinance, or obviated by State or federal law.  Ordinances are required by statute in a number of circumstances.  The procedural requirements for the adoption of ordinances are   established by statute. An ordinance may never be amended or repealed by resolution.  Generally, ordinances of a municipal Governing Body may be adopted by an affirmative vote of the majority of the membership of the Governing Body participating at a meeting for which a quorum is present.  Bond ordinances, for example, may only be adopted with the affirmative vote of 2/3 of the authorized membership of a Governing Body.  9/15/18; 9/15/19

 

The term "ordinance" when used in this subtitle means and includes any act or regulation of the governing body of any municipality required to be reduced to writing and read at more than one meeting thereof and published. [N.J.S.A. 40:49-1] 9/15/19

 

Ordinances dealing with Zoning/Development are covered under Chapter 7; Ordinances dealing with Bond Ordinances are covered under Chapter 9.

 

A.         FIRST READING/INTRODUCTION  9/15/13

 

1.         Written document;

2.         Read by title only;

 

B.         LEGAL ADVERTISING

 

1.         Publish in the legal newspaper of the municipality at least one (1) week prior to the scheduled public hearing date. 

 

2.         The following ordinances are exceptions and must be published in the legal newspaper of the municipality at least ten (10) days prior to the scheduled public hearing date:

 

a.         Local Improvements contemplating assessments;

 

b.         The establishment or change of grades of any street, highway, lane, alley or portion thereof;

 

c.         Vacation of any street, highway, lane, alley or portion thereof;

 

d.         Vacation of any public place that has not been accepted or opened;

 

e.         Zoning ordinances and their amendments.

 

3.         When calculating advertising date, the date of publication is not counted/date of hearing is counted.

 

4.         Ordinances may be published by title, with a clear and concise statement prepared by the Municipal Clerk setting forth the purpose of the ordinance, the time and place a copy of the ordinance can be obtained (without cost) by any member of the general public, and the date, time and place for further consideration or final passage. N.J.S.A. 40:49-2.

 

C.         ORDINANCE POSTING

 

1.         Post in a prominent place in the Municipal Building.

 

2.         Copies are made available to the public upon request; fee for copies may be charged pursuant to municipal policy unless ordinance was published by title only.

 

D.         PUBLIC HEARING  9/15/13

 

1.         Public Hearing must be at least ten (10) days after first reading.

 

2.         At the time and place stated in the legal advertisement a public hearing shall be held where all persons interested shall be given an opportunity to be heard concerning the ordinance.

 

E.         FINAL PASSAGE  9/15/13

 

1.         Final adoption must be at least ten (10) days after first reading by a roll call vote.

 

2.         Affirmative vote of majority of the Governing Body present in most municipalities; affirmative vote of majority of the full authorized membership of the Governing Body in Faulkner Act municipalities.  

 

3.         Notice of Adoption of Ordinance must be published in the municipality's official newspaper.

 

4.         Ordinance must be spread in full in minutes of the Governing Body.

 

EXHIBIT

ORDINANCE ACTIVITY CHART

 

 

ORDINANCE TYPE

VACATE STREET /PUBLIC PLACE

STATE CODE BY REFERENCE

CAPITAL IMPROVEMENT

INTRODUCTION

In Writing - Read by Title - Introduced by Motion

Affirmative Vote of a Majority of the Members Present Required

SUPPLEMENTS TO INTRO

Reserve Rights Public Utilities

State Code Annexed; three copies on file

Refer to Planning Board

LEGAL ADVER

10 days before hearing

7 days before hearing

7 days before hearing

OTHER NOTICES & POSTING

Post, Copies for public at fee unless published by title only

Post, Copies for public at fee unless published by title only

Post, Refer to Planning Board Copies for public at fee unless published by title only 12/99

AFFIDAVITS

2 Affidavits

1 Affidavit

1 Affidavit

AMEND PRIOR TO HEARING

Read by Title - Amended by Resolution - Consideration at least one week later - publish two days prior to hearing

SUPPLEMENTS /HEARING

None

None

Planning Board Report Required

 

 

FINAL ADOPTION

At least 10 days after introduction Affirmative vote of majority of members present EXCEPT AS NOTED BELOW OR (if Faulkner community, affirmative vote of majority of full membership)

Special Procedures for lack of Planning Board Approval

NOTICE OF FINAL ADOPTION

Publish Notice 12/99

Publish Notice 10/31/04

Publish Notice 10/31/04

AFFIDAVITS

2 Affidavits

1 Affidavit

1 Affidavit

EFFECTIVE DATE

Upon publication of Notice of Final Adoption (If Faulkner community, 20 days after final adoption unless emergency declared)  (Upon signature of Mayor if required by form of government)

AFTER ADOPTION

File with County Clerk within 60 days with Affidavits

Maintain three copies on file.  File Health Ordinances with State

File with County Planning Board within 30 days

 

Traffic Ordinances may require NJDOT approval; Alcoholic Beverage Ordinances may require ABC approval; Health Ordinances require approval of the State Commissioner of Health; Towing/Storage Charge Ordinances require filing with the State Division of Consumer Affairs. 12/98

 

The Clerk is required to have a grasp of these requirements and should consult with the Municipal Attorney whenever necessary to make certain that requirements are met.  9/15/18

 

 

IV.       RESOLUTIONS

 

A.         A resolution is any act or regulation of the Governing Body that is required to be reduced to writing but which may be finally passed at the meeting at which it is introduced. (N.J.S.A. 40:49-1)

 

Helpful tip: The procedural requirements to amend or repeal a resolution are accomplished by the same means by which they were enacted. A resolution may not amend or repeal an ordinance. 9/15/14

 

 

V.         CODIFICATION - A SYSTEMATIC ARRANGEMENT OF A MUNICIPALITY'S ORDINANCES

 

A.         Under the direction of municipal attorney or other attorney employed for and compensated for this purpose.

 

B.         When completed, codification must be reviewed and adopted by all agencies having ordinance adoption powers and must be adopted by ordinance.

 

C.         Procedures for ordinance adoption apply to codification ordinance.

 

D.         Entire codification need not be advertised provided such codification clearly describes the ordinances included and a copy of the codification is filed in the office  of the Municipal Clerk for public inspection.

 

E.         Codification shall be published in book form, certified by the seal of the municipality and shall be received in all courts of the State as evidence of the contents.

 

 

VI.       MINUTES

            9/15/18

 

A.         Each public body shall keep reasonably comprehensible minutes of all its meetings 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 the purposes of the Open Public Meetings Act. Minutes as outlined above pertain to all meetings: Regular, Special, Emergency and Closed Sessions.

 

Note - “Reasonably comprehensible” does not mean “comprehensive.”  Minutes are not transcripts.  The minutes should reflect the actions taken and the discussion at a meeting so that a member of the public could understand what occurred.  The minutes are not intended to be a verbatim recitation of a public meeting.

 

B.         Minutes of every meeting must be prepared in writing as soon as possible after the conclusion of the meeting. Executive session minutes must also be prepared in writing.  The Supreme Court has addressed the issue of releasing open and closed session minutes in unequivocal terms:  “Finally, we add what should be obvious: minutes should be released within days of their approval, unless truly extraordinary circumstances prevent their availability to the public.” Kean Federation of Teachers v. Morell, N.J. Supreme Court, 2018. (Official citation not available at time of publication)

 

C.         All minutes must be listed on the next agenda for approval by the Governing Body. Approval of the minutes, and any corrections to the minutes, must be recorded in the minutes of the meeting at which they are considered for approval. The minutes of the public meeting should be approved and made available to the public as soon as practicable.

 

D.         Closed session minutes should be confidentially circulated, listed separately for approval and maintained in a separate binder from the open session minutes, and approved in the same manner as open session minutes.  They should be reviewed periodically with the Municipal Attorney for release to the public.

 

E.         Resolutions must be spread in full in the minutes, including the motion and roll call vote.

 

F.         Some municipalities maintain resolutions, ordinances and bill lists (vouchers and warrants) in separate volumes and refer to them by title or number in the minutes.  (Consult with your Auditor before deviating from the process of spreading these in full in the minutes.)

 

G.         The Municipal Clerk must sign minutes in all municipalities. In Faulkner municipalities, the minutes must be signed by the Municipal Clerk and the Mayor or Presiding Officer.

 

H.         Minutes, except closed session minutes which have not been authorized for release to the public by the Governing Body, must be accessible to the public. Draft copies of minutes should never be provided to the public.  Minutes are not official until reviewed and approved by the Governing Body.  Until approved, minutes are subject to change.  Distributing draft minutes is not legally required and could result in confusion.

 

I.          Fee may be charged for copies of minutes. See Chapter 4, Section XIII D for information on fees.

 

 

VII.     PARLIAMENTARY PROCEDURES

 

Parliamentary procedures may be adopted by a municipal Governing Body.  It is good practice to encourage the Governing Body to adopt and adhere to these rules and regulations.  Such procedures are needed to efficiently conduct the business of the Governing Body. Robert's Rules of Order or Cushing's Manual are samples of different books on rules which can be used as a basis for procedures adopted by the municipal Governing Body.  It is not recommended to simply rely on these samples without adopting procedures designed specifically for a particular Governing Body.  Each municipality is different and have varying needs.  Below are some considerations and underlying principles to consider when assisting the Governing Body in crafting and understanding procedural rules. 9/15/18

A.         MOTIONS

It is through motions that the business of an organization is transacted.  A motion of a higher rank takes precedence over a motion of lower rank.  Incidental motions and questions on rights and privileges take precedence over anything and can come up at any time regardless of the precedence of the subsidiary motions.

Motions are defined and ranked as follows:

PRIVILEGED MOTIONS - Do not relate to pending business but to special matters of immediate and overriding importance which, without debate, should be allowed to interrupt the consideration of anything else.

 

Fix time to which to adjourn (Set time for next meeting)

Adjourn

Recess

Question of Privilege

Orders of the day

 

MAIN MOTIONS - Proposals to commit the organization to action.  It is a motion that stands alone and does not apply to another motion.  There can be only one main motion on the floor at a time.

 

SUBSIDIARY MOTIONS - Change the wording, controls the discussion or disposes of a main motion without accepting or rejecting it.

 

Lay on the table

End debate

Limit or extend debate

Postpone to a definite time

Refer to committee

Amend

Postpone indefinitely               

 

B.         INCIDENTAL MOTIONS - Questions of procedure arising out of another pending motion or another motion or item of business.

 

Division of Question

Division of the assembly

Withdraw or modify a motion

Object to consideration

Point of order

Parliamentary inquiry

Point of information

Appeal from decision of the Chair

Suspend a rule

 

C.         SPECIAL MOTIONS - Motions to reopen matters previously voted upon.

 

1.          Take from the table

2.          Rescind, repeal or annul/amend something previously adopted

3.          Reconsider - Can only be offered by a member who voted on the prevailing side.  A second is required and may be made by any member.

 

D.         NOMINATIONS AND ELECTIONS - Procedures are detailed in an organization's bylaws or constitution. 

 

E.         VOTING ON MOTIONS

 

1.          Methods of voting:

 

a.         Voice vote

b.         Roll call vote*

c.         Standing vote/show of hands

d.         Ballot vote

e.         Rule of Consent

 

* The roll is called in alphabetical order except the presiding officer's name is called last.  Each member responds with:

 

"Aye" or "Yes";

"Nay" or "No";

"Abstain" or "Present" (both terms mean not voting);

"Pass" (not ready to vote and this member is called again at the end of the call of the roll).

 

f.          The results of the vote is determined by the number of "Ayes" and "Nays" only.  An "Abstention" is the same as "not voting".  It is not counted in tallying the vote, but it must be recorded in the minutes.  12/99

 

g.         The results must be announced before the action is official.

 

2.          A tie vote defeats a motion except to confirm action already taken by an officer (sustain the Chair).

 

3.          A member may change his/her vote at any time until the result is announced.  A member may never change his/her vote if vote is by ballot.

 

4.          A member does not have the right to explain his/her vote during voting (this would represent "debate" which is not permitted).

 

F.         DETERMINATION OF VOTE RESULT

 

1.          Majority Vote - more than half of the votes cast, excluding blanks or abstentions.  The majority vote is the basic requirement for approval of an action except where a rule or law provides otherwise.

 

2.          Two-thirds vote - two-thirds of the votes cast, excluding blanks or abstentions.

 

3.          Plurality vote - largest number of votes given to any candidate or proposition where three or more choices are possible.

 

4.          Unanimous vote or general consent - without the formality of a motion or vote when no one objects to the proposal.

 

 

 

MOTION ACTIVITY CHART EXHIBIT

 

P - PRIVILEGED MOTION

S - SUBSIDIARY MOTION

M - MAIN MOTION

SP - SPECIAL MOTION

I - INCIDENTAL MOTION

 

 

TYPE

MOTION

SECOND

DEBATE

AMEND

VOTE

SPECIAL CONDITIONS

P

Set time to adjourn (set time for next meeting 

Yes

No

Yes

Majority

May be reconsidered

  

 

 

 

 

 

 

P

Adjourn

Yes

No 

No

Majority

 

P

Recess

Yes

No 

Yes

Majority

 

S

Lay on the table

Yes

No

No

Majority

 

S

End debate - Call the question

Yes

No

No

Two-thirds

May be reconsidered

S

Limit or Extend limits of debate

Yes

Yes

Yes

Two thirds

May be reconsidered

S

Postpone to definite time

Yes

Yes

Yes

Majority

May be reconsidered

S

Refer to Committee

Yes

Yes

Yes

Majority

May be reconsidered

S

Amend

Yes

Yes

Yes

Majority

May be reconsidered

S

Postpone Indefinitely

Yes

Yes

No

Majority

May be reconsidered

M

Main motions

Yes

Yes

Yes

Majority

May be reconsidered

SP

Remove from Table

Yes

No

No

Majority

 

SP

Reconsider

Yes

*

No

Majority

Motion by member who

 

 

*debatable if motion is debatable

 

voted with prevailing action

 

 

SP

Rescind, Repeal, Annul

Yes

Yes

Yes

Two-thirds

Without previous notice given

 

 

 

 

 

Majority

If previous notice given

I

Appeal decision of the Chair

Yes

Yes

No

Majority

May be reconsidered

I

Division of Question

Yes

No

Yes

Majority

 

I

Division of Assembly

No

No

No

None

 

I

Object to Consideration

No

No

No

Two-thirds

Negative vote may be reconsidered

I

Withdraw or Modify

No

No

No

Majority

Negative vote may be reconsidered

I

Suspend Rules

Yes

No

No

Two-thirds

 

 

 

VIII.    USE OF TAPE RECORDING/ELECTRONIC EQUIPMENT

            9/15/18

 

Electronic sound-recording systems are designed to provide complete and accurate documentation of public proceedings.  In New Jersey, sound recording has become an integral part of the recordkeeping of courts, governing bodies and various other agencies which conduct open public meetings.  The sound recordings of any agencies or organizations that receive a substantial contribution of tax dollars are considered public records.  The minutes or transcripts generated from such recordings are also public records.  However, there is no requirement that municipalities tape record meetings in any way.

 

The following basic guidelines are provided for the transcription, handling, storage and disposition of audio tape recordings.

 

A.         TAPE TRANSCRIPTION

 

1.         To assist in preparing transcripts of minutes of public proceedings, participants in a public proceeding should be asked to identify themselves and to speak loudly and clearly.  Proceedings should be conducted according to commonly accepted rules of order to avoid overlapping conversations.

 

2.         Requirements for generating transcriptions or minutes from tapes, and records retention requirements for maintaining taped sound recordings vary according to the type of public proceedings, such as:

 

a.         Judicial proceedings - trials and hearings.

 

b.         Meeting of public officials - School Boards, Governing Bodies, state and local agencies and commissions.

 

c.         Meetings of public officials pursuant to the Municipal Land Use Law - Planning and Zoning Boards of Adjustment.

 

3.         Once a sound recording of a public proceeding has been created, whether voluntarily or in compliance with a statutory requirement, it becomes subject to the State record retention laws and the Open Public Records Act.  Consult your municipal attorney on matters involving records destruction and requests for public records.  9/15/18

 

B.         SECURITY ISSUES

 

1.         Transcription of taped proceedings is frequently handled through an outside service bureau.

 

2.         Security duplicates - labeled security copies should be reproduced before delivering a tape to a transcription service.

 

3.         Documentation - a written record should be kept listing each proceeding and its date, the date the recording was shipped to the transcription service, and the date of return with the transcript.

 

C.         CONTRACTING FOR TRANSCRIPTION SERVICES

 

However frequent or infrequent a public agency's need for transcribing tape proceedings, it is important to solicit competitive bids for contracted transcription services.

 

D.         TAPE STORAGE

 

Audio tape is highly sensitive to environmental changes.  Exposure to fluctuations in temperature and relative humidity, excessive light, and polluted air accelerate the deterioration of magnetic tape.  Preservation of tape recordings therefore depends on protecting them from:

 

1.         Cycling of temperature and humidity - temperature and humidity fluctuations cause tape to swell and contract in cycles.  Over time, these cycles can break down the bond between the tapes' magnetic recording surface and the plastic backing, causing loss or distortion of recorded information.

 

Avoid keeping tapes in or on top of an operating recording/playback deck due to high heat generated by the motor.

 

2.         Accidental erasure - exposure to magnetic fields can distort or erase tape recordings.  Avoid storing near electrical motors.

 

3.         Contamination - the accumulation of dust and debris in a storage area or a playback deck affects the long-term preservation of audio tapes.  Exposure of tapes to dust, liquids, chemicals or airborne pollutants can cause loss of information.

 

Tapes should be stored in individual containers, stored on shelves and vacuumed regularly.

 

4.         Excessive or improper handling - magnetic tapes should be handled carefully:

 

a.         Contact with hands and fingers exposes tape surfaces to oil and dirt which can obliterate or destroy information.

 

b.         Tapes are more likely to break at the beginning and end of a reel or cassette.

 

c.         When breaks occur at a recorded portion of a tape, careful repair is necessary to avoid loss of information.  To splice tapes, overlap the broken ends and align their edges, making certain the glossy side of both ends face up.  Cut the overlapped ends at an angle and butt them together.  Connect the ends with professional splicing tape.  Tapes of judicial proceedings must be sent to the AOC for repair.

 

d.         If a tape is used too soon after a change in temperature, poor recording and playback can result.

 

E.         TAPE DISPOSITION

 

Audio tapes from which accurate transcripts or approved summaries have been generated in accordance with statutory or other requirements may be disposed of in one of three ways:

 

1.         Recycling - audio tape can be reused after bulk erasure.

 

2.         Physical destruction - discard after bulk erasure.

 

3.         Transfer of possession - through awarding custody to an archives.

 

NOTE:  In order to dispose of audio tapes, officials must submit a "Request and Authorization for Records Disposal" form to the Division of Archives and Records Management, following appropriate records retention schedules.

 

F.         PRESERVING SOUND RECORDINGS

 

A select number of sound recordings generated by public agencies document significant events worthy of long-time preservation. If stored under optimal conditions, audio tapes have a shelf life of ten (10) years.  The longevity can be further extended by duplicating the old tape to a new tape.

 

Cassette tapes are not appropriate for long term storage.

 

G.         Encourage your Governing Body or administrator to authorize a modernization of recording and storage techniques.  9/15/18

 

 

 

 

CHAPTER 3 SECRETARY TO THE GOVERNING BODY
Published by ClerkBase
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