Open Public Meetings Act Doesn't Apply to Atlantic

The public does not have the right to know what business is going on with the planning board.”

“Individual residents should have the right to privacy when they are making applications to the planning board.”

“Opening a meeting to the public virtually is “like a zoo.”

“Residents making applications for changes to their property don’t deserve to have people from the other side of town know what they are doing with their property.”

These were some of the opinions expressed by at least one planner at a recent meeting of the municipally appointed board last week

Instead, the planning board feels, things will be much better and people will understand a lot more if they knew exactly what the planning board does. So toward the end of the last meeting there was general agreement, though no formal vote taken, that board attorney Michael Steib write up a “lesson plan” that will be available at borough hall so all residents can, “at their leisure” come in and read the duties, obligations and rights of the planning board and its members.

It would seem the “lesson plan” should instead be one for the Planning Board on their responsibility to strictly adhere to the Open Public Meetings Act Law; the NJ Legislature declared the right of the public to be present at all meetings of public bodies. Some planning board members think opening these meetings to enable all residents to participate using 21st century technology will cause problems, and have the potential of enabling people to file suit against the borough for a violation of their due process rights.

Joseph Caccamo, a resident appointed to the planning board and currently serving until December 2024, led the discussion on whether the planning board should open their meetings to a hybrid format to enable residents to not only see all applications submitted during public meetings, but also have input into conversation or questions during the proper parts of the meeting.

Caccamo said he felt it is enough to enable people to see what is going on at a meeting, but felt strongly they should have no right to participate unless they are personally present at the meeting.

In contrast to this board, whose members are all appointed to their positions, the Mayor and Council recently spent several thousands of dollars to improve the broadcasting equipment they have had in place since mandated by Governor Murphy during the Covid closedowns. When specifying the new installation, careful consideration was given to the multiple end-users to make broadcasting of Council and Planning Board meetings as simple as possible, as well as municipal court being able to interface with the state prison system to efficiently process cases virtually instead of transporting those incarcerated to the borough for in-person court hearings.

Once training is complete on the new equipment, all meetings of the governing body will be hybrid meetings, with residents having equal opportunity to either attend and participate in-person or attend virtually and be able to participate.

Virtual attendees will also get a general view of people in the meeting chamber. But some planners were adamant, therefore denying persons with disabilities, persons with no access to getting to meetings, or persons with other obligations that prevent them from attending meetings in person any right to participate, ask questions or give input.

And there’s that “secrecy” thing; “Some people might not want their stuff broadcast,” Caccamo said, in opposing any virtual attendance at meetings. “If someone cares enough”, he said, “they would be at the meeting in person. The meetings should not be broadcast," Caccamo continued, "an applicant's intentions should be kept private.”

Caccamo continued to defend what he apparently feels is the planning board’s obligation to protect the privacy of applicants who “follow the rules” over the public’s right to know what‘s going on in their community, reiterating "everyone should not know everyone else's business", and "why should someone on the other side of town have a say on someone's application?"

Because that is the law. That should be reason enough.

Planning Board Chairman Douglas Pepe opened the discussion at the beginning of the meeting which is open to matters not involved with specific applications. Members spoke on the number who have attended virtual meetings, at least only three at one meeting, prompting Councilman Brian Dougherty to suggest the board keep track of utilization of the virtual service, as if to indicate it should not be necessary to provide access to all if only a few take advantage of it.

Sorry, that is not for the Planning Board to decide; 100 people, or just one person, is entitled to hear and see the applicant/Planning Board deliberation, then contribute prior to the final decisions.

Another Board appointee, Katrina Majewski, said she is in favor of virtual meetings because they provide an opportunity for persons not able to attend in person and it is good to embrace 21st century technology. But, she added, it should be necessary for them to attend in person if they want to participate in the proceedings.

In an effort to reach some conclusive action, Pepe offered several possible actions for board members, including asking applicants if they mind if their applications are presented virtually. His suggestions brought more negative responses from Caccomo who said he feels the board and the applicants have “met their obligation” and there is no need for any further action.

However, the Open Public Meetings Act (“OPMA”), aka the “Sunshine Law” precludes any “offer” of keeping a planning board application hearing “private” at an applicant’s request.

As a quasi-judicial body and a functioning municipal board, all planning board business must be held in public so that the public can see and hear how and why application decisions are made. And at every board meeting, the public, by law, must be given ample opportunity to both ask questions of the presenters and provide final comments on each application before the Board.

The question comes down to this: will the Planning Board of Atlantic Highlands finally bring itself into the 21st century for good? Broadcasting meetings is not rocket-science; every corporation and most municipalities have been doing it for well over two years. Or will the Planning Board not give any choice to the residents that they serve other than to show up in-person to speak? If they choose the latter, it is akin to denying residents fully willing to participate virtually their First Amendment Right to free speech.

Holding hybrid meetings is something that the Mayor and Council have deemed essential to the business of the Borough, hence the expenditure of the thousands of dollars in new broadcast equipment. It would seem that the business of the Planning Board is as essential as the Borough Council.

Board attorney Steib stated that if meetings were hybrid, “a tech would have to be hired” to run the broadcasting piece. Currently, and since the beginning of this year, the Borough Engineer employed by CME controls the Zoom app broadcast for the Council meetings; they are already on the clock in the Chamber and provide a neutral approach to the responsibility.

The Borough Engineer is already required to be at all Planning Board meetings, therefore no one else would need to be hired and that person would already be familiar with the new system just installed.

Matters discussed as public business as defined under the state OPMA law, are “matters which relate, in any way, directly or indirectly, to the performance of the public body’s functions, or the conduct of its business.” The fact that planning board members discussed keeping public meeting proceedings “private” for over 15-minutes gives some idea of the authority the planning board thinks it has.

Similar opinion is probably why the “Sunshine Law” was created decades ago: to keep all public business public.

In the end, the planning board put off until next month any possible action on whether they will follow the state law to ensure that all residents have the right to participate in all meetings open to the general public, regardless of how a meeting participant attends; either in-person or virtually.