NUTLEY, NJ — Just prior to the start of the July 1 Planning Board meeting in Nutley Township, Board attorney Barry Kozyra told Township resident Pennie Landry, who had a camera set up and running, that she couldn’t video-record the Board’s workshop meeting that night.
Feeling pressured, Landry turned off her camera, but not before recording a 25-second exchange with Kozyra.
“The…law says that public meetings can be recorded,” Landry said.
“Workshop sessions are not considered public meetings,” Kozyra told her. “We allow people to be in here,” he said, seeming to imply that the open-door policy is a courtesy rather than a legal requirement.
“The only meetings that can’t be recorded are executive sessions, Sir,” she replied.
The remainder of Mr. Kozyra’s comments are hard to make out, but Landry summed them up before she stopped the camera. “So you’re saying that I cannot record this meeting,” she said.
As it happens, video-recording an open public meeting is perfectly legal. In fact, the New Jersey Supreme Court held in 2007 that citizens have a common law right to video record. A public agency can set reasonable guidelines for video-recording, but they can’t disallow it.
At its May 18 meeting, the Nutley Zoning Board had passed a resolution listing very specific conditions for video-recording its meetings.
Curious whether the Zoning Board would attempt to enforce its rules or whether either board would again disallow video-recording, the New Jersey Foundation for Open Government (NJFOG) decided to find out.
The next meeting coming up was the August 5 regular meeting of the Planning Board, with the next Zoning Board meeting falling on August 17.
NJFOG board member Saul Qersdyn notified the Township Clerk, and by extension Board officials, in advance that he intended to video-record at the upcoming board meetings and would not comply with the terms in the Zoning Board resolution.
Qersdyn would show up at the meetings, set up his video-recording equipment and see what happened. Lee Dorry of EssexWatch.com, a hyperlocal publication that covers Nutley and Belleville, was contacted and agreed to capture the interaction with officials on a separate recording device.
On the afternoon of August 5, however, NJFOG was notified by the Nutley Township Clerk that the Planning Board would allow NJFOG to video-record that night but would adopt a resolution for the future. She also indicated, if we understood correctly, that the Planning and Zoning Boards would work jointly on a new resolution.
Qersdyn decided to attend the August 5 meeting, regardless. He set up one camera and Dorry set up another one, and both filmed without opposition, at first.
Though the meeting agenda made no mention of it, it wasn’t long before the Planning Board unanimously passed a restrictive filming resolution similar to that adopted by the Zoning Board. (Discussion of the resolution occurred about 4 minutes into the meeting, but the dialogue is hard to decipher in the meeting video and wasn’t that much more clear in person.)
A short while later, the Board went into an executive (closed) session for about 5 minutes. There was no formal motion or reason given other than “personnel issues” even though the law requires that a specific topic be provided and legally qualify for private discussion.
Following the Board’s return to open session, the meeting was relocated from the main room to the back conference room where the workshop meetings are typically held.
As the two men were moving their cameras from the main chambers into the conference room, the board secretary handed them each a copy of the agreement listing the newly-adopted rules for video-recording and tried to get them to sign it. Both politely refused. She was speaking to the board attorney, Mr. Kozyra, as they entered the conference room. Neither Qersdyn nor Dorry caught his response, but they were permitted to resume filming without any further challenge.
Adding to the ludicrousness of this situation, the new rules stipulate that a person filming a meeting can’t move the camera once the meeting begins. So, when the men relocated to the conference room to follow the rest of the meeting, they were in violation of the rules and risked having their equipment confiscated.
Fortunately, nothing was signed that might have given the board that authorization because, by relocating the meeting, the board ensured the rules would be broken.
This would be a comedy if not for the obvious violations of rights. Passing a resolution that implements a new policy and trying to enforce it on-the-spot utterly lacks in both fairness and transparency.
For one thing, how can citizens participate in their own governance if they don’t know the rules in advance? If a board voted mid-meeting that no pink shirts are allowed and you’re wearing one, would you be escorted out? Would it be right to demand that you agree pink shirts are taboo by signing a statement that gives them grounds to eject you?
The Planning Board’s weak attempt to enforce its new video-recording policy only to promptly waive it demonstrates that even they realize they’re on poor footing, and not just because of their timing. Setting rules that improperly restrict a lawful activity can get a public body into a lot of hot water.
The Zoning Board meeting is on August 17. NJFOG will be there. So will the local media.
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