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.
The Open Public Meetings Act (“OPMA”)
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.
“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”
DCA Grants announced recently show that the Shared Services award the Township and Hackensack received for fire dispatching.
A total of $218,693 will be used to further this project.
With much thanks to the Township Manager, Dean Kazinci for spearheading this project, along with fire Chief Zaretsky.
In his post on Planning Board Application 2021-19, Bill Orr says that “the proposal was to build one residence on the left and another on the right of the historic home”.
Is that true?
I say it is not.
Orr claims to be “reporting local news” and information for residents. He goes as far as to say I am “rarely a reliable source of information“.
So what is a member of the public supposed to do when we claim diametrically opposite views on a situation?
Ask for evidence and review it critically.
Case in point: The Brinckerhoff-Demarest House*
This is a guest post from reader and group member Yoni Bak.
Vaccine Mandates and Mask Requirements
I reached out on facebook to the candidates for BOE about their positions on vaccine mandates for staff and mask mandates for students. I asked in a neutral way to try & get their honest opinions. Presented without comment are the responses I received from Victoria Fisher, Lori Fein, Yassine S. Elkaryani & Rachel Schiffman Secemski.
To speak to the council regarding the Ordinance below, you may click the link here:
Members of the public can speak about the ordinance (full text and link below) for up to 3 minutes each.
As previously reported, Mr. Shamiq Syed who submitted petitions with Teaneck Board of Education Trustee Victoria Fisher and Jonathan Rodriguez, was preliminarily removed from the BOE race when it was determined he may not have met the one-year residency requirement.
Since that time, Mr. Syed provided various documents to support his claim / establish proof of residency.
Among the items received by the county were:
- “Notice to Vacate” his prior residence (in Weehawken)
- A bill of lading for the shipping of a motor vehicle (Porsche 911) from Vancouver to Teaneck in September 2020
- 2 Paychex reports mailed to Teaneck
- Information relating to purchase of a property in Teaneck by Mr. Syed’s father (including various financial documents associated with the sale)
- Certifications from Mr. Syed and his family members
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.
“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
* 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.
Community Choice Aggregation
As previously covered, some members of the community have been working on a program call Community Choice Aggregation (“CCA”). The program uses credits from renewable energy providers elsewhere to “transfer” that energy (via credits) to our area.
The net result is that energy is purchased at lower rates (through aggregating demand). The program has positives and negatives (which I’ve covered in the post linked here.
On July 15, 2021 the petitioners submitted their petitions (with an enclosed ordinance to be proposed for the ballot).
The clerk issued a response, which can be found here:
Unlike the One Town, One Vote petition, the CCA petitioners do both
- enclose the required ordinance and
- cite the correct Statute for initiating a petition (N.J.S.A. 40:69A-184 ).
Why was the petition rejected?
Among the reasons for rejection:
- The petition did not contain the requisite number of signatures.
There’s little the clerk can do if you don’t supply the signatures required.
- The petition contained electronic signatures which were not authorized to be accepted.
Due to the pandemic, Governor Murphy issued a series of Executive Orders. Among them was EO 132 which allowed petitions such as an initiative or referendum to be accepted by a municipal clerk in electronic form. EO 132 was further modified by EO 216 which extended the rule through the end of the Public Health Emergency.
On June 4th, Governor Murphy announced EO 244, which ended the public health emergency. Had nothing else happened, the authorization that permitted a municipal clerk to accept an electronic petition would have ended that moment. However, the Legislature enacted P.L. 2021, CHAPTER 103, (approved June 4, 2021) which extended the EO 216’s operation for 30 days.
Petitioners were noticed and should have been aware that the authorization for acceptance of electronic signatures ended on June 4th. They also should have been aware the extension for such authorization was extended 30 days past June 4th. That would enable the clerk to be authorized to accept electronic petitions (assuming they were in the proper form) only until Sunday, July 4th. Being generous and giving them an extra day until Monday, July 5th, they missed the deadline by 10 days, having only submitted the petition on July 15th. Without express authorization by Statute or Executive Order, the clerk is not authorized by statute to accept the petitions.
The Cure Period
As indicated in the clerk’s notice, “[p]ursuant to N.J.S.A. 40:69A-188, the Committee may amend the Petition at any time within ten days from this Notice of Insufficiency.”
How many more signatures are required?
The following signatures were submitted
- Electronic: 614 total (52 contained deficiencies as listed below):
- 1 was deficient for not being fully completed (e.g. missing printed name, address, signature)
- 8 were deficient for providing information not corresponding with voter registration information (e.g. name, address)
- 32 were deficient for not being registered voters or not being registered voters in Teaneck
- 11 were deficient for being duplicates
- Hard copy: 263 (76 contained deficiencies as listed below):
- 2 were deficient for not being fully completed (e.g. missing printed name, address, signature);
- 50 were deficient for providing information not corresponding with voter registration information (e.g. name, address
- 17 were deficient for not being registered voters or not being registered voters in Teaneck
- 3 were deficient for being duplicates;
- 4 were deficient for being illegible
As electronic petitions are not permitted, the balance of valid handwritten signatures stands at: 187
How many signatures are required to have an ordinance placed on the ballot?
As indicated in the clerk’s response:
“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.”
As 187 is below the threshold level of 791, the petition was found deficient. Petitioners may amend and cure deficiencies within 10 days of being notified.
A statement by Paula Rogovin, one of the Petitioners appears below:
Further explanation regarding electronic signatures for petitions
What does the Executive Order authorize?
EO 216 says in relevant part:
1. “The… municipal clerks… shall allow for any… initiative, referendum, or other petition required to be filed prior to an election to be submitted by hand delivery and
2. The… municipal clerks… shall accept petitions with hand-written signatures and signatures collected via an online form created by the Secretary of State.
4. The requirements of N.J.S.A. 19:23-7, N.J.S.A. 19:23-15, and N.J.S.A. 19:13-8 that a candidate provide a notarized oath of allegiance shall be in effect regardless of whether a petition is submitted by hand delivery or electronically.
9. This order shall take effect immediately and shall apply to any petition that is due or may be submitted during the Public Health Emergency, first declared in Executive Order No. 103 (2020).
Clerk’s may only do what they are authorized to do by Statute. Here, the EO (132, supplemented by 216) authorized the clerk to allow for any initiative to be submitted (paragraph #1) on a form created by the Sec. of State (paragraph #2) with the necessary oaths (paragraph #4) and applied to any petition that was due or submitted during the Public Health Emergency (which ended via EO 244 on June 4, 2021).
Once EO 216 ended, paragraph #9 meant that the public health emergency no longer allowed clerks to accept submitted electronic petitions. But, they got a 30 day extension, via legislation. That extension was on notice to the public (including petitioners).
Therefore, after the 30 days extension elapsed (on July 5th, 2021), the authorization to accept the petitions ceased and the clerk was precluded from doing so.
To be clear: the clerk was not authorized, absent express authorization to accept electronic signatures. It did not exist on July 15th.