Update: Judge Holden’s Order is on-line here.

I attended my Open Public Meetings Act (OPMA) hearing today, January 11, 2013, before Judge Stephen M. Holden in Camden.  (Background information and case documents are available here.)  Following are the court’s main holdings:

1. Even though the February 5, 2008 order that I sought to enforce required Lawnside to keep “reasonably comprehensive” minutes of its future closed meetings, Judge Holden decided, based on the context of the order, that Judge Orlando (now retired), who had entered the order, used the word “comprehensive” by error and actually meant to use the work “comprehensible.”  This ruling resulted in significant harm to my case because “comprehensive” minutes are much more complete than ones that are “comprehensible.”

2. Even under the lower “comprehensible” standard, the minutes of the Lawnside Borough Council’s March 28, 2011,  May 30, 2012 and June 6, 2012 closed session minutes (on-line here, here and here) were insufficient because they did not include: a) the location of the meeting and b) any decisions made (as opposed to “action taken”) at the meeting.  Further, the March 28, 2011 minutes were not comprehensible because it was impossible to tell from them what a discussion regarding “Public Works – Hours of Operation” entailed, and it wasn’t even clear if the matter that was privately discussed legally qualified for discussion outside of the public view.

3. Even though the May 30, 2012 and June 6, 2012 closed meetings lasted, respectively, for 1.5 and 1 hours, Judge Holden found that other than the deficiencies noted in #2 above, they were reasonably “comprehensible” and consistent with the law. 

My lawyer, Walter M. Luers, argued that boiling two and a half hours of closed session discussion to the words “discussion ensued” appearing in the minutes was not enough, and that the minutes need to set forth at least a summary of the discussion that actually occurred.  Minutes should, for example, state: “The lawsuit plaintiff tendered a settlement offer of $100,000 and all except for Councilman Doe felt that the Borough’s attorney should be authorized to offer plaintiff $85,000 and go as high as $100,000 if negotiations failed.”

Mr. Luers also offered that in some situations, the detail in the minutes may need to be redacted before public disclosure in order to keep the adverse party from gaining a strategical advantage.  Luers then argued that even if closed minutes would forever be redacted, it is preferable to have minutes from which details are redacted rather than minutes from which those details are absent.  This is because more verbose minutes would aid future members of the Borough Council who would, of course, be allowed to read the minutes unredacted.

Judge Holden then made what I consider to be an erroneous ruling.  He held that a conversation between an attorney and his public body client was so “sacrosanct” that the possibility that some unauthorized person might wrongfully get a copy of an unredacted version of the closed minutes justifies the Borough Council’s refusal to record anything regarding the nature of its attorney-client discussions within those minutes.  According to Judge Holden, attorney client discussions are so sensitive that they should not even be written down.

4. Mr. Luers argued that since our motion caused the Borough to change its minute recording process, I was the prevailing party and the court should exercise its discretion to award me my attorney fees.  Morris G. Smith, Lawnside’s attorney, took this opportunity to launch personal attacks against me and to also argue that since I failed to achieve what he alleged was the main point of my motion–to get some details of attorney client conversation captioned in the minutes–that I was not the prevailing party.  Judge Holden agreed with Smith and declined to award me my attorney fees.  Yet, he did find that my motion met with enough success to warrant an order requiring Lawnside to pay my and Mr. Luers’ out-of-pocket costs in filing and prosecuting the motion.

Chairman of the New Jersey Libertarian Party's Open Government Advocacy Project. Please send all comments to [email protected]