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Polillo v. Deane

Decided: October 19, 1977.

JOHN J. POLILLO, A RESIDENT AND TAXPAYER OF THE CITY OF ATLANTIC CITY, PLAINTIFF-APPELLANT,
v.
ADELAIDE DEANE, CLERK OF THE CITY OF ATLANTIC CITY, CARL A. VALORE, SR., CLERK OF ATLANTIC COUNTY, SETH GROSSMAN, JAMES W. MASLAND, III, REESE PALLEY, HARRY BACHEN, MEMBERS OF THE ATLANTIC CITY CHARTER STUDY COMMISSION, ET AL., DEFENDANTS-RESPONDENTS



For reversal and remandment -- Justices Mountain, Sullivan, Pashman and Schreiber. For affirmance -- Justices Clifford and Handler. The opinion of the court was delivered by Pashman, J. Clifford and Handler, JJ., dissenting.

Pashman

This case involves the applicability of the recently enacted "Open Public Meetings Act," or Sunshine Law, N.J.S.A. 10:4-6 et seq., to charter commissions which are governmental bodies established pursuant to N.J.S.A. 40:69A-1 et seq. for the purpose of adopting a new form of government in a municipality.

I

THE ATLANTIC CITY CHARTER STUDY COMMISSION

One year after the 1911 legislative enactment of the Walsh Act, N.J.S.A. 40:70-1 et seq., Atlantic City voters adopted the commission form of government as outlined in that Act. Recent questioning of the continued utility of the

city's form of government culminated on May 11, 1976 when the citizens of Atlantic City voted to reconsider their present form of municipal government. Utilizing the procedure established in the Optional Municipal Charter Law, N.J.S.A. 40:69A-1 et seq., ("Faulkner Act"), the voters approved the formation of a charter commission to study the problem of selecting a form of government for their city. It was empowered under the Faulkner Act to

study the form of government of the municipality, to compare it with other available forms under the laws of this State, to determine whether or not in its judgment the government of the municipality could be strengthened, made more clearly responsive or accountable to the people or whether its operation could be more economical or efficient, under a changed form of government.

[ N.J.S.A. 40:69A-7]

Five persons were elected to serve on the charter commission: Seth Grossman, James W. Masland, Reese Palley, Harry Bachen, and John J. Polillo. In order to fulfill its statutory purpose, the Commission held 27 regular meetings between May 13 and September 3, 1976. In addition, a meeting was held at Commissioner Polillo's home in the third week of July and an "emergency situation" caused another meeting to be held on September 3, 1976, just prior to the regularly scheduled meeting. See infra at 567 n. 2. The Commission filed its final report with the City Clerk on September 3, 1976, within the nine-month period set by the Faulkner Act. N.J.S.A. 40:69A-10.

The Commission's activities, however, were marked by dissension. In particular, there was vigorous debate led by plaintiff, Commissioner John J. Polillo, over alleged violations of the Sunshine Law. He had informed his colleagues at several meetings that they had failed to conform to the dictates of the Act. At the August 5, 1976 meeting a motion was passed to remove Polillo from the room after they had argued that the Commission's meeting was in violation of the Sunshine Law. Polillo also sent a letter to the Attorney General on August 12, informing him of this violation. At

the August 19 meeting, he complained that the Commission had failed to supply the public with an agenda of the meeting.

Essentially, plaintiff argues that the public notice accompanying each of the Commission's meetings failed to comport with the procedures required by the Sunshine Law.*fn1 In fact, notice of each meeting did not follow any set form. Although most meetings were publicized in some form by local newspapers, no formal notice was given of at least three of the meetings,*fn2 and many notices which were published failed to disclose the Commission's agenda.

Almost immediately after the Commission's report was released, Polillo filed suit challenging its legitimacy under the Sunshine Law. On September 23, 1976, he filed a complaint in lieu of prerogative writ in the Law Division, naming as defendants: Commissioners Grossman, Masland, Palley and Bachen; Adelaide Deane, Clerk of the City of Atlantic City; Carl A. Valore, Clerk of Atlantic County; Joseph Lazarow, Mayor of the City of Atlantic City; and Horace Bryant, Pierre Hollingsworth, Edmund Colanzi and Edwin Roth, Commissioners of the City of Atlantic City.

The trial judge concluded that a charter commission is more than a purely advisory body and was thus within the coverage of the Sunshine Law, N.J.S.A. 10:4-6 et seq. He also held that each meeting conducted by the Commission failed to meet the requirements of the Act. The court rejected defendants' alternative contention that even if the Act were applicable, substantial rather than strict compliance was sufficient. The trial court ordered that the public question dealing with the Commission's recommendation be struck from the November ballot.*fn3

Defendants obtained a stay of the trial judge's order from the Appellate Division. Although the appeal was heard on an accelerated basis, the election was held before the Appellate Division could render a decision. On November 2, 1976, the voters of Atlantic City approved the Commission's recommendation by a vote of 7,808 to 5,565.

The Appellate Division subsequently issued a per curiam decision reversing the trial judge and holding the Sunshine Law inapplicable to a charter commission established pursuant to the Faulkner Act. Specifically, it held that such commissions neither perform governmental functions nor are authorized

to spend public funds. The Appellate Division thus never reached the issue of the Commission's compliance with the Act. We granted certification, 74 N.J. (1977), and stayed the election scheduled for May 10, 1977 the purpose of which was to elect a mayor and seven councilmen, as recommended by the Commission and authorized by the vote of November 2, 1976.

We reverse the judgment of the Appellate Division.

II

THE SUNSHINE LAW

A. Statutory Purpose

The current "Open Public Meetings Act" is in keeping with a strong tradition both in this State and in the nation favoring public involvement in almost every aspect of government. In New Jersey the former "Right to Know Law" was passed in 1960, L. 1960, c. 173, and interpreted to apply to a broad variety of governmental agencies. See Kramer v. Bd. of Adjustment of Sea Girt, 80 N.J. Super. 454 (Law Div. 1963), aff'd 45 N.J. 268 (board of adjustment); Wolf v. Zoning Bd. of Adjustment of Park Ridge, 79 N.J. Super. 546, 552 (App. Div. 1963) (same); Tidewater Oil Co. v. Mayor, etc., of Carteret, 80 N.J. Super. 283 (Law Div. 1963), rev'd on other grounds, 44 N.J. 338 (1960) (planning board); Thomas v. Bergen Cty. Welfare Board, 122 N.J. Super. 371 (App. Div. 1973) (welfare board); Schults v. Bd. of Ed. of Teaneck, 86 N.J. Super. 29 (App. Div. 1964), aff'd 45 N.J. 2 (1965) (board of education). Legislation similar to our own now exists in virtually every state as well as in the District of Columbia. See Note, "Government in the Sunshine Act: Opening Federal Agency ...


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