This morning Judge Wilson heard oral arguments on the OTOV petition and delivered a prepared decision from the Bench.

The order has been filed, allowing the question to proceed to the ballot in November.  The Township indicated it would appeal based on various issues.

The order appears below (the full decision hasn’t been entered on the docket.  The petitioners did not receive attorneys’ fees, so petitioners will bear their own costs.

Continue reading “OTOV: Order Entered, Appeal TBD”

The Open Public Meetings Act (“OPMA”)

Title X mandates that any meeting of the Municipality (Council or BOE) must be made in public, upon notice and with an opportunity provided to members of the public to speak on any matter they wish.

Whether at the council, Board of Education, Planning Board or Environmental Commission, there’s a chance to speak directly to those in power to decide issues, before those issues are voted upon.

But there’s another principle at play with the public’s right to speak: namely, the right of everyone to have business conducted by their elected representatives.

Imagine what would happen if someone didn’t like something the council was proposing and lined up enough people to speak for hours until we could no longer hold a vote?

In essence, it would be a veto by a filibuster (sometimes called the “heckler’s veto“).  Therefore, while I’ve rarely seen it employed, the ability to cut off speakers at a reasonable point exists, to ensure that the business of the public is properly capable of being conducted, while still protecting the right of the public to speak.

The Open Public Records Act (“OPRA”)

OPRA has a similar issue in terms of balancing priorities.

The law was enacted to enable public access to public records.  If you want to see Ordinance 33-2018, all you need to do is request it and the clerk’s office is obliged, under statutory authority to provide a copy to you within 7 days.  You can even get it via email.

OPRA is a wonderful law, in terms of moving forward with transparency.

But like OPMA, it has the ability to be abused.  We’ve seen this in the past.

The Government Research Council (“GRC“) has dealt with this as well.

In a decision on Complaint 2012-82, the GRC was asked to decide what to do when the request was for:

“All e-mails between Executive Director Mr. William Fellenberg to NJCU OPRA Officer Alfred Ramey”

You see, this isn’t asking for the email sent regarding X.  It’s just a request for everything.

OPRA is meant to allow access to public documents, but it’s not meant to enable snooping through files for anyone who wishes to do so. Continue reading “OPRA and OPMA: Balancing important principles”

The State of NJ has a process called the “Initiative”.  Residents have the capability to form a group, obtaining consent from the public via petition — and placing the ordinance for a vote in the next election.  It’s not an easy lift to proceed via initiative.  This is by design.

Normally, the people are represented by the leaders elected in free and fair elections.  In Teaneck, that legislative body is the Township Council.

The Council is tasked with the creation of ordinances and the ordinances may be amended or rescinded by the Council only upon Public Notice and a Public Hearing at which the community may comment.

An important facet here is that no one should ever wish to make it too easy to go around the will of the people expressed via those the voters chose in an election.  Put another way: Anything you can do via initiative, those with opposing ideological viewpoints can undo and even do the opposite, via initiative.

NJSA 40:69A-184

“The voters of any municipality may propose any ordinance and may adopt or reject the same at the polls, such power being known as the initiative.”

Clearly lawmakers wanted the people to be able to create laws.  But the same lawmakers didn’t want everything set via popular referendum.  They understood that laws made via the whim of the people could be dangerous.

“Any initiated ordinance may be submitted to the municipal council by a petition signed by a number of the legal voters of the municipality equal in number to at least 15% of the total votes cast in the municipality at the last election at which members of the General Assembly were elected.  An initiated ordinance may be submitted to the municipal council by a number of the legal voters of the municipality equal in number to at least 10% but less than 15% of the total votes cast in the municipality at the last election at which members of the General Assembly were elected, subject to the restrictions set forth in section 17-43 ( C. 40:69A-192 ) of this act.”

The bar was set at 10% or 15%* (the choice of which number depends on several factors outside the scope of this post).

• In 2016 some 20,152 Teaneck voters walked into the voting booth
• In 2018, some 17,450 Teaneck voters walked into the voting booth
• In 2020, some 23,526 Teaneck voters sent in mail-in ballots

But none of that matters for the initiative bar here, because “at the last election at which members of the General Assembly were elected“, means we look to 2019.

In the 2019 election, there was no race President, no Governor to be chosen, no major contests to draw crowds.  There was a contested BOE race, but even there 27.6% of eligible votes weren’t cast.

• In 2019, some 7,908 Teaneck voters walked into the voting booth

Therefore, the lowest threshold for a valid petition today would be 10% of 7,908, or 791 signatures.

CCA Petition Signatures

The chart below represents all registered voters of Teaneck and the signatures for the Community Choice Aggregation Petition appear as indicated:

• Valid signatures supporting the initiative: Green boxes (187)
• Hand-Written Signatures with deficiencies: Red Boxes (76)
• Electronic Signatures**: Orange Boxes (562)
• Electronic Signatures with Deficiencies**: Yellow Boxes (52)
• Number of valid signatures required: 791*
• Registered Voters not submitting a signature: White boxes (28,758**)
• Total boxes: 29,635*** Registered Voters
  

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* The clerk’s response states: “There exists a legitimate question of what the statute means by the “total number of votes cast” but giving the statute the most liberal reading possible, the best reading for the Committee would be based on the total number of voters who voted at the last election at which members of the General Assembly were elected in Teaneck, which figure was 7908. Thus, the total number of signatures required to submit an initiated ordinance pursuant to N.J.S.A. 40A:69A-184 is 10% of 7908 or 791 signatures.”
** Electronic signatures were authorized for submission until June 4th.  The date was extended for 30 days, but all electronic signatures here were submitted after the 30 day deadline authorizing the clerk to accept them.
*** The voter list I’m using was last obtained during the 2020 General Election.  It has certainly changed somewhat, but I think the point is made.