Matthews, Seidman and Horn.
[148 NJSuper Page 44] The primary question raised in this appeal is whether the recently enacted Open Public Meetings Act, N.J.S.A. 10:4-6 et seq., L. 1975, c. 231 (act), also
unofficially referred to as the "Sunshine Law," applies to a Faulkner Act charter commission (commission).*fn1 The secondary question is whether there was sufficient compliance with the act by the charter commission in the instant case if it does apply.
For the reasons which will be apparent hereinafter, we have decided that the act does not apply to charter commissions. Accordingly, the judgment entered below reflecting a contrary view is reversed.
Plaintiff in this action is a resident and taxpayer of the City of Atlantic City. He is also one of the five members of the charter commission. Defendants are the other four members of the commission, and also the county clerk, the mayor and commissioners of Atlantic City and the municipal clerk of Atlantic City. Only the four defendant members of the commission appeal. The other defendants have assumed a passive role in the proceedings.*fn2 They asserted below that they would abide by any judgment or order entered in the proceedings. Consequently, in referring to defendants for the purpose of this opinion we include as such only the four defendants who are members of the charter commission.
Because our conclusion rests primarily on the legal proposition that Faulkner Act charter commissions are not required to conform to the provisions of the act, it would serve no useful purpose to recite at length the events which led to this action. We recite only those which we feel may be helpful to a full understanding of the reasons for our conclusion.
Shortly after the legislative enactment thereof in 1911 Atlantic City adopted by popular vote the commission form of government under the Walsh Act, N.J.S.A. 40:70-1 et seq.; Keffer v. Gaskill , 88 N.J.L. 77 (Sup. Ct. 1915). On May 11, 1976, pursuant to the Faulkner Act, N.J.S.A. 40:69A-1 and 2, the voters of Atlantic City elected a charter commission consisting of plaintiff and defendants to study the present charter of the city and to consider "a new charter or improvements in the present charter and to make recommendations thereon." Thereafter, numerous meetings of the commission were held preliminary to the filing of its report on September 3, 1976.*fn3
It appears that commencing the early part of August 1976 the theretofore apparently normal relations between Polillo and the other commissioners deteriorated. At that time, after approximately 13 meetings, plaintiff for the first time complained that the commission had been violating the Open Public Meetings Act.
On September 23, 1976 plaintiff initiated this action by the filing of a complaint in lieu of prerogative writs, asserting in his complaint that the commission violated the act by failing to give adequate notice of meetings and otherwise failing to conform to the requirements of the act, and that such violations rendered "all actions taken by the Charter Study Commission voidable." See N.J.S.A. 10:4-15. He sought to restrain the submission of the commission's recommendation to a vote at the general election of November 2, 1976.
The hearing before the judge, which took place on October 14, 15, 18 and 19, consisted almost entirely of the introduction of testimony and other proofs as to the notices, agendas and minutes referrable to each of the commission
meetings which preceded the filing of the commissioners' report. At the termination of the hearing the judge orally declared his findings -- that the commission did, in fact, fail to adhere to the requirements of the act, so that the report filed by it was a nullity "and the issue will be stricken from the ballot on November 2nd next."
The judge determined that each and every meeting conducted by the commission violated the act, particularly N.J.S.A. 10:4-9 and 10, in one or more ways, including the failure to give "adequate" notice of meetings.*fn4 This appeal followed. On defendants' application we stayed the trial judge's order restraining the Clerk of Atlantic County from placing on the ballot for the November 2, 1976 election the recommendation of the commission that the voters adopt mayor-council Plan C. N.J.S.A. 40:69A-55 et seq. We also directed that the appeal be accelerated on the filing of supplemental briefs by the parties.
On November 2, 1976 the voters approved the recommendation of the commission by a vote of 7,808 to 5,565.
In enacting the Open Public Meetings Act the Legislature declared its findings and its avowed salutary policy as related to the instant case partly in the following words:
The Legislature finds and declares that the right of the public to be present at all meetings of public bodies, and to witness in full detail all phases of the deliberation, policy formulation, and decision making of public bodies, is vital to the enhancement and proper functioning of the democratic process; * * * and hereby declares it to be the public policy of this State to insure the right of its citizens to have adequate advance notice of and the right to attend all meetings of public bodies at which any business affecting the public is discussed or acted upon in any way except only in those circumstances where otherwise ...