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Woodcock v. Calabrese

February 18, 1977

JOSEPH C. WOODCOCK, JR., BERGEN COUNTY PROSECUTOR, PLAINTIFF,
v.
GERALD A. CALABRESE, FRANK BIASCO, PAUL ELIA, GEORGE GUNDERSON, EDWARD KOCHANSKI, SAMUEL MONACO, DEFENDANTS



Petrella, J.s.c., Temporarily Assigned.

Petrella

This case was brought under the penalty provisions of the Open Public Meetings Act, N.J.S.A. 10:4-6 et seq. (L. 1975, c. 231),*fn1 sometimes referred to as the "Sunshine Law." Section 12 (N.J.S.A. 10:4-17) allows recovery of fines in a summary procedure under the Penalty Enforcement Law, N.J.S.A. 2A:58-1 et seq. See R. 4:70-1 et seq.

The material facts are essentially undisputed. The court finds that on February 2, 1976, 14 days after the effective date of the Sunshine Law, the Mayor and Council of the Borough of Cliffside Park held an "open caucus meeting." The mayor and five of the six councilmen (defendants herein) were present, and the borough clerk was absent.

One item to be discussed at that caucus meeting was possible amendment of the municipal rent control ordinance and the formula thereunder determining rental increases. The members of the Rent Control Board (the board) were invited to the caucus meeting to confer with the mayor and council on possible changes in the ordinance. The board members arrived mid-meeting. The uncontroverted testimony was that the board was purely advisory, and the ordinance which created it so stipulated.*fn2

A newspaper reporter had attended the caucus meeting up to the point when possible rent control ordinance changes were to be discussed with the board. The reporter was then asked to leave the meeting during discussions with the board of potential changes in the ordinance. He refused to do so, relying on a copy of the Sunshine Law which he had in his possession. Apparently neither the governing body nor its attorney had a copy of the statute available that [148 NJSuper Page 531] evening. Thereupon, a resolution*fn3 was hastily passed and he was excluded from the meeting. Initially, defendants tried to take the position that the exclusion was under the provision of the law relating to transactions involving real property, N.J.S.A. 10:4-12(b)(5), although the subsequently prepared minutes of the meeting reflect that he was excluded pursuant to N.J.S.A. 10:4-12(b)(6), relating to tactics and techniques designed to protect the safety and property of the public. As a result of the dispute and confusion no meaningful meeting*fn4 took place that evening on the rent leveling ordinance because, as a result of the time delay, board members left shortly after the dispute with the reporter ended.

I.

The court must determine whether any specific exclusion from the requirements of the Sunshine Law applies and, if not, whether there was a knowing violation of the act such as would incur penalties under N.J.S.A. 10:4-17.

N.J.S.A. 10:4-12(b) states in part:

A public body may exclude the public only from that portion of a meeting at which the public body discusses:

(5) Any matter involving the purchase, lease or acquisition of real property with public funds, the setting of banking rates or investment of public funds, where it could adversely affect the public interest if discussion of such matters were disclosed.

(6) Any tactics and techniques utilized in protecting the safety and property of the public, provided that their disclosure could impair such protection. Any investigations of violations or possible violations of the law.

N.J.S.A. 10:4-12(b)(5) is inapplicable. That section concerns obtaining interests in real property, funding of public projects and investment matters. It has no applicability to a discussion of proposed changes to a rentleveling ordinance formula. The defendants argued that subsection (b)(6) of N.J.S.A. 10:4-12 authorized exclusion of the public from discussions of rent control with the board. They reasoned that due to the controversial and political nature of rent control the mayor and council were attempting to protect the citizenry by avoiding widespread public concern or premature rumors of a rental increase, and therefore N.J.S.A. 10:4-12(b)(6) was applicable. In light of the perceived strong emotions accompanying the ...


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