Just because a municipal attorney’s writings to the municipal governing body may be attorney-client privileged doesn’t mean that the body can’t or shouldn’t waive the privilege in certain cases.
Following is an excerpt from the April 21, 2010 minutes of the Spring Lake Heights (Monmouth Council) Borough Council meeting. At issue was my request for the Borough Attorney’s written opinion on how many members of the Council constitute an “effective majority” for the purposes of the Open Public Meetings Act. I wanted to publish the opinion on this blog and comment on it.
Request from John Paff to waive the attorney client exemption for his OPRA request for “effective majority” opinion from Frederick Raffetto, Esq. – Councilwoman Crippen – Mayor Enright gave an overview of the history of the John Paff OPRA request for Fred Raffetto’s legal opinion on Effective Majority, which was initially denied by the Municipal Clerk. Fred Raffetto added to the history and elaborated on his opinion on the matter, wherein he did not recommend that this privilege be waived. The Mayor deferred to Councilwoman Crippen to expand on her thoughts on the topic. Ms. Crippen noted that she felt Mr. Raffetto’s opinion was a good opinion, and she felt that the public had paid for the opinion. She also noted if the Council wanted to rely on that opinion if questioned in the future, it would be best to have the opinion as a public record. There was a discussion among the Governing Body members of the prevailing considerations. Ms. Crippen maintained that this opinion should be a public document; Councilman Brennan concurred. The Clerk elaborated on the reasoning for her rejection of this request and how she would handle any other similar OPRA request that she may receive in the future. The Mayor asked the individual Council Members for their respective opinions. Ms. Crippen asked what would happen if a member of the public asked for this opinion as a taxpayer in Spring Lake Heights; Ms. Casagrande responded that she would deny it under the Attorney-Client Privilege exception to the Open Public Records Act. There was a further discussion of the matter among the Governing Body members and the following motion was offered by Councilwoman Crippen.
MOTION TO WAIVE THE ATTORNEY CLIENT PRIVILEGE AND ALLOW THE RELEASE OF ATTORNEY RAFFETTO’S EFFECTIVE MAJORITY OPINION TO THE PUBLIC
Seconded by Brennan. Roll call: Ayes: Crippen and Brennan. Nays: Cindea, Kegelman, King and Maccanico.
I agree with Crippen and Brennan. I think that there’s a difference between an attorney’s opinion on, say, current litigation involving the Borough and advising the Council on its responsibilities under the Open Public Meetings Act. In the case of litigation, there is an identifiable adversary–the opposite party in the lawsuit–from whom secrets legitimately need to be kept. But, in the present case, there is no “adversary”–rather, those who are being kept in the dark are the voters and taxpayers themselves.
This reminds me of my recent loss where the New Jersey Appellate Division denied the public access to information regarding the Division of Law’s Administrative Agency Advice (AAA) letters which are, in essence, a body of law that state agencies use to enforce statutes and regulations. For background, click here and here.
Spring Lake Heights’ attorney’s opinion on how many members of the municipal council constitute an “effective majority” similarly guides–or even virtually controls–the Borough on how it self-enforces the Open Public Meetings Act. For many of the same reasons I disagree with the Appellate Division’s opinion, I also disagree with the Borough’s decision to shield the Borough Attorney’s opinion from public view.
Somerset, New Jersey