EVESHAM — Township officials violated the state's Sunshine Law by emailing one another prior to a meeting concerning a controversial "helistop" project off Route 73, the Burlington County Prosecutor's Office announced Friday.
Burlington County Prosecutor Robert Bernardi made the decision after a six-week investigation into whether the Open Public Meetings Act was violated.
"Based on all the available information, I concluded that Evesham Township officials did unwittingly run afoul of the prohibitions contained in the (act)," Bernardi said in a written opinion.
He said the issues discussed in a string of emails between the mayor, Township Council members and other local officials over two days in March represented "public business" and should have been discussed in an open meeting.
"In short, the emails represent an active dialogue between members of council that sometimes occurs in almost real time," Bernardi said. "If these discussions had occurred in person, no one could reasonably dispute the violation of the (Open Public Meetings Act)."
The prosecutor declined to press charges, which could have resulted in a fine of $100 for the first offense and $500 for subsequent offenses.
Rather, Bernardi said he favored education over prosecution.
"In my view, educating public officials who may have mistakenly violated the provisions of the statute is far more effective than the imposition of nominal fines," he said. "On the contrary, the litigation of this issue would do little to ensure future compliance and would invariably penalize taxpayers, who would bear the burden of the costs of any legal action."
William J. Kearns, a special attorney hired to represent the township, said he agreed that the emails should be made public, but he didn't believe they constituted a public meeting.
"An email is the same as a letter," Kearns said. "Letters are public record, (but) you don't convert them into a meeting."
He said the township has already begun to develop guidelines regarding the use of emails and other electronic messages.
The issue came up after John Paff of the Libertarian Party filed a complaint with the prosecutor about the email exchange, which occurred March 22-23 before a meeting to amend a "helistop" ordinance that was adopted several months earlier.
The exchange centered on additional recommendations made by the Planning Board, including the creation of a larger buffer around the landing pad and a ban on helicopter taxi service.
Mayor Randy Brown opposed amending the ordinance.
"I'm against any changes to the original ordinance and will not approve any new ordinance!!!" Brown wrote in an email sent March 23 to Township Manager Thomas Czerniecki, council members and other officials.
Earlier that day, Councilman Steven Zeuli wrote that he had concerns about the proposed helicopter landing pad.
Conner Strong and Buckelew, a national insurance firm partially owned by South Jersey Democratic power broker George Norcross III, was seeking to build the pad in the parking lot of the Lake Center Executive Park off Route 73.
"Since the ‘heliport' is my neck of the woods, I have gotten some concerns from the residents about any increased helicopter traffic. I don't think it would be a bad idea to spell out that taxi service is not permitted," Zeuli said.
Deputy Mayor Joseph Howarth's response two hours later was: "Don't think that will happen. It is one guy that wants to land and take off. He needs to go up and follow Rt. 70 and 73."
In April, the mayor and council members unanimously agreed to amend the "helistop" ordinance, which included a number of the recommendations.
Two months later, the Planning Board approved the Conner Strong application. Brown was among the majority of the board who approved the application despite the objections of dozens of residents living in the area. Zeuli and Paul Cortland voted against it. Eileen Lenihan abstained.
On Friday, township officials indicated that they looked forward to moving on.
"Today, Burlington County Prosecutor Robert Bernardi concluded that members of the Evesham Township governing body ‘inadvertently' held a meeting ... through the use of electronic communication equipment. We want to thank Prosecutor Bernardi for thoroughly reviewing all the facts and finding no sanctions were warranted," the statement from the Township Manager's Office said.
Officials thanked Paff for bringing the matter to their attention and said they are "committed to transparency and (seeking) to set a high standard in this regard.
"To that end, we will be moving forward with a suggestion made by Deputy Mayor Howarth to the township manager that we implement more comprehensive OPMA training for elected officials. We will also develop new guidelines for the use of emails among elected officials and share said guidelines with the (state) League of Municipalities and others. Hopefully, Evesham can set an example for other governing bodies in the state in this regard."
The move follows Bernardi's putting the council on notice that the Prosecutor's Office construes the use of emails and similar means of communication such as text messaging and instant messaging as a means in which public officials can "meet" under the Open Public Meetings Act.
He recommended that the guidelines include the following requirements:
- Email communications should, as far as practicable, not include an effective majority of the governing body and should never include an effective majority of the governing body where discussion of information related to the business of the township is involved.
- Where email communications do include an effective majority of the governing body, such communications should not include any request for a response. In fact, any email communication should indicate that there should be no email reply or other responsive communication.
- In the rare instance when a response to an email is necessary, such response must not involve any decision making or deliberative function of the governing body or otherwise addresses public business as contemplated by the OPMA. Further, the response shall not be made to the entire list of email addresses to avoid even the appearance of impropriety. Utilizing a third party, such as the clerk, does not change the requirements of the OPMA.
- "Rolling" email conversations must also be avoided. A "rolling" email occurs when one member of the governing body or a third party contacts other members via email individually to successively discuss or gain opinions on an item of township business. This would apply to other forms of electronic communication as well. However, communications between less than an effective majority of the governing body do not violate the OPMA, provided the dialogue does not become a "rolling" discussion that ends up including an effective majority of the governing body.
New Jersey's Open Public Meetings Act, also known as the Sunshine Law, requires governing bodies to advertise any meetings or gatherings at which a voting majority of their members will discuss municipal business or issues. Most discussions must be open to the public.
Governing bodies are permitted to hold closed discussions on issues related to personnel, contract negotiations and litigation, but must pass a resolution during the public meeting announcing their intention to do so and the subjects that will be discussed.
Bernardi said he recognizes the challenges faced by elected officials as they attempt to communicate and effectively represent the public.
"While the use of email and similar means of communication is unavoidable, and often more efficient than more traditional means of communication, council members must be conscious of the requirements of the OPMA," Bernardi stated. "Full and complete compliance with all provisions of the OPMA is absolutely necessary to avoid the possibility of monetary sanctions and maintain the public trust."
Source: http://www.phillyburbs.com
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