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Crifasi v. Governing Body of Borough of Oakland

Decided: February 1, 1978.

JACQUES CRIFASI AND EDWARD VANDERBECK, PLAINTIFFS-RESPONDENTS AND CROSS-APPELLANTS,
v.
GOVERNING BODY OF THE BOROUGH OF OAKLAND AND JAMES MULCAHY, DEFENDANTS-APPELLANTS AND CROSS-RESPONDENTS



Lynch, Bischoff and Kole. The opinion of the court was delivered by Lynch, P.J.A.D.

Lynch

Defendants appeal from a judgment of the Law Division, reported at 151 N.J. Super. 98 (1977), which held that the appointment of defendant James Mulcahy to fill a vacancy in the Oakland Borough Council at a regularly scheduled work session of that body on May 4, 1977 was invalid because it violated the Open Public Meetings Act, N.J.S.A. 10:4-6 et seq. (hereafter, "Sunshine Law"). Plaintiffs cross-appeal from that portion of the judgment which held that a citizen's group in the borough, known as the "Independent Party" and which included plaintiff Jacques Crifasi, did not constitute a political party within the meaning of the Municipal Governing Body Vacancy Law, N.J.S.A. 40:45B-1 et seq. (hereafter, "Vacancy Law"). That law requires, among other things, that any person appointed by the governing body to fill a vacancy in that body "shall be of the same political party" as the previous incumbent. N.J.S.A. 40:45B-3.

Substantially for the reasons stated in the opinion below, we affirm that part of the judgment which holds that the "Independents" do not constitute a political party within the meaning of the Vacancy Law.

With regard to the issue under the Sunshine Law, we note that on June 1, 1977, subsequent to the trial judge's decision, Mulcahy was reappointed to fill the vacancy involved. Since there is no contention that the reappointment was illegal, any question concerning the prior appointment may be said to be moot. However, because many public bodies, state and local, as demonstrated by the Attorney General's interest herein, are in need of guidance as to the proper construction of the Sunshine Law, we reach the merits of that issue. See Dunellen Bd. of Ed. v. Dunellen Ed. Ass'n , 64 N.J. 17, 22 (1973); John F. Kennedy Memorial Hospital v. Heston , 58 N.J. 576, 579 (1971). Hereafter, all references to Mulcahy's "appointment" shall be understood to refer to his first appointment at the meeting of May 4, 1977, as though that issue were not moot.

Plaintiffs contend that "adequate notice" of the meeting was not given as required by N.J.S.A. 10:4-9(a) and N.J.S.A. 10:4-8(d). N.J.S.A. 10:4-9(a) declares that no public body shall hold a meeting unless adequate notice is given to the public. N.J.S.A. 10:4-8(d) provides the following definition of adequate notice:

d. "Adequate notice" means written advance notice of at least 48 hours, giving the time, date, location and, to the extent known , the agenda of any regular, special, or rescheduled meeting, which notice shall accurately state whether formal action may or may not be taken * * *. [Emphasis supplied]

That section further provides that if the public body has published an annual schedule of meetings pursuant to N.J.S.A. 10:4-18, "no further notice shall be required for such meeting."

It is conceded that the May 4 meeting was a "regular" meeting, listed on the annual schedule of meetings and duly publicized in accordance with N.J.S.A. 10:4-18. Plaintiffs contend, however, that defendant published an agenda for that meeting which "did not include, infer, or suggest that any nomination, discussion, or appointment of

a person to replace resigned councilman Crifasi would take place." This, too, is conceded. Therefore, the issue for resolution is whether a public body may consider a matter at a regularly scheduled meeting, for which annual notice has been given, where a separate agenda for the meeting has been provided which does not reflect that matter. The trial judge answered this question in the negative. We disagree and reverse on this issue.

First, there is no requirement in the Sunshine Law that an agenda need be published prior to a regularly scheduled meeting. N.J.S.A. 10:4-18 only requires that the annual schedule of such meetings "shall contain the location of each meeting to the extent it is known, and the time and date of each meeting." Second, as noted, N.J.S.A. 10:4-8(d) provides that where the annual notice lists a scheduled meeting, "no further notice shall be required for such meeting."

Despite this language, the trial judge held that where an agenda is issued for a regularly scheduled meeting, the public body may not act upon any matters not listed therein. There is nothing in the Sunshine Law which supports this conclusion. The sense of the cited provisions -- as to regular meetings -- is that once annual notice has been given in accordance with N.J.S.A. 10:4-18, the public body has met the mandate of the Sunshine Law. Even as to nonregular meetings where the 48-hour notice is required, the agenda must only be provided "to the extent known." N.J.S.A. 10:4-8(d). If the agenda of the nonregular meetings does not limit ...


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