WikiFOIA / Monmouth Prosecutor's brush-off

Following is the full text of a June 21, 2007 letter I received from the Monmouth County Prosecutor's Office in response to Open Public Meetings Act complaints I filed with that office against the Sea Girt Borough, Keyport Borough and Howell Township municipal councils. (For an example of the nature of my complaints, I have posted my complaint against Howell at http://www.lpcnj.org/OGTF/HowellWebready.pdf)

I think that it's fair to say that the Prosecutor's response is nothing more than a brush off. The Assistant Prosecutor's statements in the penultimate paragraph of her letter regarding her lack of power to "make criminal arrests" of Meetings Act violators, for instance, indicate that she doesn't have a complete grasp of the prosecutorial function assigned to her by N.J.S.A. 10:4-17.

In most New Jersey counties, unfortunately, the Open Public Meetings Act will not be enforced unless private citizens bring lawsuits for injuctive and declaratory relief against governing bodies that violate the Act. Unfortunately, there is no provision in the Act to allow a successful citizen litigator to recover his or her attorney fees.

The text of Assistant Prosecutor Barbara Suppa's letter follows.

John Paff

Somerset, NJ

LUIS A. VALENTIN

MONMOUTH COUNTY PROSECUTOR

71 MONUMENT PARK

FREEHOLD, NEW JERSEY 07728-1789

732/ 431-7160

FAX 732/ 409-3673 FAX 732/ 409-4830

June 21, 2007

Mr. John Paff

P.O. Box 5424

Somerset, New Jersey 08875

Re: Open Public Meetings Act PC:06-0042

Dear Mr. Paff:

The Monmouth County Prosecutor's Office, Special Prosecutions Bureau, has thoroughly reviewed the aforementioned matter which pertains to your Open Public Meetings Act complaints against the Sea Girt Borough Council, Keyport Borough Council and Howell Township Council. The investigation reveals that you, as the complainant, monitor various borough governmental business via the Internet and should you observe a violation, you subsequently make an Open Public Records request ("OPRA"). If the request does not receive an expeditious response, you contact the Prosecutor's Office and seek an investigation. Further, it is the State's understanding, to date, the Keyport Borough, Sea Girt Borough and Howell Township have attempted to comply or did comply with your requests. Responses by each individual Council details a full explanation regarding noncompliance or reasons as to why such information cannot be disseminated (i.e. attorney client privilege).

Notwithstanding, the public policy behind the Open Public Meetings Act requires the public to have advance notice of all public meetings of public bodies except where general public interest or individual rights would be jeopardized. The public's right to know the process by which governmental decisions are made and the ability to redress governmental decision making in full detail are the purposes of the Open Public Meetings Act. When the public is prevented from being a part of this basic democratic process, the public confidence in governmental decisions and a general accountability for which all public officials should be held becomes endangered.

To be covered by the Open Public Meetings Act, a public body must be one which is organized by law and collectively empowered as a multi-membered voting body to spend public funds or affect individual rights. As such, the aforementioned entities, which are governing bodies, satisfy the definition and are, as a matter of law, public bodies subject to the Open Public Meetings Act.

Further, if any member of the public believes that a governing body has violated any section of N.J.S.A. 10:4-6, et seq., Open Public Meetings Act, (hereinafter the "Act") it is incumbent upon the aggrieved member of the public to bring a proceeding in lieu of Prerogative Writ in Superior Court within forty five (45) days after the action sought to be voided has been made public. However, the public body, if they acknowledge their error, may take corrective or remedial action by acting de novo by holding a public meeting held in.conformity with the Act. If a Judge finds that the actions taken at the Meeting do not conform to the provisions of the Act, then the Court shall declare such action void, according to N.J.S.A. 10:4-15A(b). Any person who knowingly violates any of the sections of the Act, shall be fine $100.00 for the first offense and no less than $100.00 and no more than $500.00 for any subsequent offense recoverable by the State in a summary proceeding under the Penalty Enforcement Law. The Superior Court shall have the jurisdiction to enforce said penalty on complaint of the Attorney General or the County Prosecutor, but the Attorney General or the County Prosecutor may refer the matter to the Public Advocate.

Pursuant to N.J.S.A. 10:4-17 of the Act, there are no criminal sanctions for nonconformance and thus, the Monmouth County Prosecutor's Office has no statutory mandate in this area to make criminal arrests. Accordingly, the Monmouth County Prosecutor's Office will not be pursuing this matter and renders the investigation closed.

I thank you for your continued interest and should you have additional questions, I can be reached at 732/308-2927.

RESPECTFULLY SUBMITTED,

LUIS A. VALENTIN

MONMOUTH COUNTY PROSECUTOR

By:/ Barbara Suppa Assistant Prosecutor