UPDATE (8/17/15) – Judge Marc M. Baldwin will preside over the hearing in Paff v. Lumberton. The hearing is currently scheduled for September 4, 2015.
UPDATE (8/18/2015) – Click here for a Burlington County Times news story on this topic. According to the township attorney, the 2011-2013 closed session meeting minutes were stored on a thumb drive that was corrupted, and files were not recoverable.
UPDATE (8/20/2015) – Burlington County Times editorial: “Lumbertongate?”
UPDATE (8/28/2015) – This is an unusual turn of events. First, 2011-2013 closed session minutes were “forever lost”. Now, ““virtually all” of the missing 2011…minutes and portions of 2012 and 2013” have been found, and the municipal clerk has been temporarily suspended. Read the Burlington County Times article.
UPDATE (8/28/2015) – Here’s another article in the Philly Inquirer.
UPDATE (9/15/2015) – On September 8, 2015, John Paff entered into a court-approved agreement with Lumberton Township which, among other things, requires the Township Committee’s executive session minutes to be reviewed annually and posted on the Township’s website. Read more on NJ Open Government Notes.
UPDATE (9/16/2015) – Here’s a follow-up article in the Philly Inquirer that discusses the new settlement.
A Burlington County judge required corrective action when Lumberton Township couldn’t find minutes for closed-door meetings held prior to 2003. Less than a decade later, minutes went missing again.
LUMBERTON, NJ — When open government advocate John Schmidt sought minutes for private meetings of the Lumberton Township Committee, he was advised that several years’ worth of records were “forever lost,” the unfortunate result of failed computer hardware. The records supposedly included minutes for closed-door meetings held as recently as 2013.
Geek Squads have amazing success with drive recovery these days, but who knows if any effort was made to recover the files from the lone computer that housed them. You have to shake your head that a public agency didn’t have a better back-up system in the first place for official records that, by law, are required to be permanently retained.
That assumes, of course, that you buy the excuse for the missing records. It didn’t pass muster with Schmidt, who sued the Township in July for a range of violations under the State’s open public records and meetings laws (Docket # BUR-L-1666-15).
What’s interesting about the case – and particularly troublesome for the Township – is that a consent order was issued by a judge just a few years ago for the exact same infraction.
The November 2009 consent order derived from a separate lawsuit (Docket # BUR-L-2421-09) that called attention to Lumberton’s lack of closed session minutes for years prior to 2003 and prescribed policies intended to fix the problem. Going forward, the municipal clerk was required to prepare closed session minutes promptly, keep them in a binder and make them available in draft form upon request, subject to reasonable extra time for review, beginning one day before the next regular meeting of the Township Committee. The court required that a binder of printed closed session minutes be maintained for each year specifically to ensure they wouldn’t go missing again.
These procedures were adopted by the Township as Resolution 2009-9-202, titled “A Resolution Establishing a Process for Keeping, Approving and Releasing Minutes of Public Meetings.”
The earlier case was brought by John Paff, another open government advocate well-known in the state and a colleague of Schmidt’s. Both men serve together on the board of the New Jersey Foundation for Open Government but brought their respective actions in their capacity as private citizens.
Schmidt’s lawsuit cites Paff’s case and the existing consent order, for which it’s no surprise Paff is now seeking enforcement.
On August 4, Paff filed a motion in Burlington County Superior Court to enforce litigant’s rights. The court is required to hear Paff’s case by August 21. The court papers incorporate Schmidt’s suit in addition to the 2009 decision and municipal resolution.
We don’t know yet how Lumberton will defend these cases, and, to be fair, a judge has not yet ruled they’ve done anything wrong.
Schmidt’s lawsuit stems from an Open Public Records Act request submitted to Lumberton on April 17 for minutes of the Township Committee’s non-public (closed or executive session) meetings held in years 2010 – 2012 and from September 2014 through February 2015. He also requested the formal resolutions spelling out the reasons for those executive sessions.
In a series of email responses through the end of May that for 2014 minutes followed a May 26 resolution approving public release of the records, Municipal Clerk Stephanie Yurko provided now-public 2014 and redacted 2010 closed session minutes (including meeting resolutions and a redaction log), stated that the minutes for 2015 have not been released and broke the news that the closed session minutes for years 2011-2013 are gone forever due to faulty technology.
Assuming the latter records once existed, the file loss would not have mattered had the Township kept bound copies of its meeting minutes as ordered by the court in 2009, when Yurko was serving in her current position as municipal clerk.
Schmidt’s lawsuit was filed on or about July 10 and claims Lumberton failed to meet its obligations under both the Open Public Records Act (OPRA) and the Open Public Meetings Act (OPMA).
The suit’s OPRA counts include failure to provide executive session resolutions and minutes for 2015 and excessive redaction of the 2010 minutes.
Noticeable is what’s missing from the OPRA counts – i.e., the failure to provide the now-lost 2011 and 2012 closed session minutes that Schmidt requested. That’s because the Records Act does not require that non-existent records be created to fill a request. A public agency doesn’t have to provide what it doesn’t have even if the records are supposed to be maintained.
Failure to keep minutes is a violation of the Meetings Act, however.
Besides Lumberton’s failure to keep minutes, OPMA violations cited by Schmidt include vague executive session resolutions, improper meeting topics and minutes that are devoid of substance.
The Open Public Meetings Act, commonly known as the Sunshine Law, provides that only certain exempt categories of discussion qualify for deliberation in closed session. Topics to be privately discussed must be specifically listed in executive session resolutions. It’s not enough to list just the general categories allowed by law or vague wording that offers no real information.
A topic described only as “drainage issue” on a May 2010 executive session resolution surely falls short of the disclosure requirement.
Lumberton meeting minutes, even free of redactions, often provide no additional information.
The minutes for a closed-door Township Committee meeting lasting more than an hour and a half in February 2010, for example, state only “The topic of the emergency squad was discussed.” Nearly an hour was devoted to private discussion last December, with minutes stating only “A discussion was held pertaining to the reorganization meeting in January.”
The current standard for meeting minutes is that they be “comprehensible,” not comprehensive, a silly distinction that should be corrected in the statute to make clear that the records are required to be reasonably thorough.
Unfortunately, Meetings Act violations are commonplace, and poor enforcement is part of the reason. Because there is no mandate in the Meetings Act requiring a public agency to reimburse the legal fees of person who wins his case, few cases are brought to enforce the Act. The statutory mandate, called fee-shifting, exists only under the Records Act, for which there are many more enforcement actions.
Lumberton’s practices are not unique. Instead, they serve as an example of widespread abuses that underscore the need for statutory reform, including the addition of a fee-shifting provision to the Meetings Act.
Bills S781 (OPMA) and S782 (OPRA) provide for strong reform and are supported by numerous public advocacy organizations including the New Jersey Foundation for Open Government, the American Civil Liberties Union of New Jersey, the New Jersey Press Association and the New Jersey Chapter of the Society of Professional Journalists.
The New Jersey Foundation for Open Government (NJFOG) is the only non-profit organization in the state dedicated solely to improving New Jersey’s Open Public Records Act (OPRA) and Open Public Meetings Act (OPMA) and working to educate the public about these laws and increase governmental compliance.
NJFOG’s content may be re-published with credit to NJFOG.