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Serra v. Borough of Mountainside

Decided: January 18, 1983.

RAYMOND DELLA SERRA, PLAINTIFF,
v.
BOROUGH OF MOUNTAINSIDE; THOMAS A. RICCIARDI, MAYOR; COUNCIL PEOPLE ABRAHAM SUCKNO, RONALD ROMACK, ROBERT VIGILANTE, MARILYN HART, LOUIS MAAS; AND WERNER SCHON, DEFENDANTS



Feller, J.s.c. (retired and temporarily assigned on recall).

Feller

[188 NJSuper Page 136] The issue here is whether defendants Mountainside Borough et al. violated the so-called "Sunshine Law" of N.J.S.A. 10:4-6 et seq. when they participated in private deliberations concerning the disciplinary complaint against plaintiff Sergeant Della Serra. The case comes before the court on motion and cross-motion for summary judgment.

The "Sunshine Law," entitled the "Open Public Meetings Act," had the following enunciated "Legislative findings and declaration":

The general rule is stated in N.J.S.A. 10:4-12 a, that "all meetings of public bodies shall be open to the public at all times." Exclusion of the public is permitted under certain circumstances, N.J.S.A. 10:4-12 b, the pertinent exceptions to the instant case being:

(8) Any matter involving the employment, appointment, termination of employment, terms and conditions of employment, evaluation of the performance of, promotion or disciplining of any specific prospective public officer or employee or current public officer or employee employed or appointed by the public body, unless all the individual employees or appointees whose rights could be adversely affected request in writing that such matter or matters be discussed at a public meeting.

(9) Any deliberations of a public body occurring after a public hearing that may result in the imposition of a specific civil penalty upon the responding party or the suspension or loss of a license or permit [Emphasis added].

These statutes have been liberally construed to favor "public involvement in almost every aspect of government," (N.J.S.A. 10:4-21), Polillo v. Deane, 74 N.J. 562, 569 (1977), and the exceptions have been narrowly construed, Rice v. Union Cty. Reg'l High School Bd. of Ed., 155 N.J. Super. 64, 70 (App.Div.1977), certif. den. 76 N.J. 238 (1978); Accardi v. Wildwood, 145 N.J. Super. 532, 545 (Law Div.1976).

Disciplinary hearings are obviously "meetings of public bodies" which are controlled by the Open Public Meetings Act, N.J.S.A. 10:4-12 a; 10:4-8 a. Any private meetings must be

valid under an exception, or the action taken, if not cured, is voidable. N.J.S.A. 10:4-15.

Plaintiff argues, and this court agrees, that the instant private sessions are not valid under exception 12 b(8). Plaintiff requested in writing that his case be discussed in public. Therefore, under the 12 b(8) exception, no private deliberations could occur.

Defendant argues, however, that the exception in 12 b(9) is applicable, and permits private sessions for the purpose of deliberations after a public hearing when the result may be "the imposition of a specific civil penalty."

Plaintiff argues that this exception is specifically directed at penalties resulting in suspension of licenses or permits. The actual language of the exception states: "the imposition of a specific civil penalty . . . or the suspension or loss of a license or permit" (emphasis added). Thus, a civil penalty or action on a license would seem to trigger this exception. But, if private deliberations by a public body can occur anytime a civil penalty may result, what happens to the purposes behind the Open Public Meetings Law? And what happens to the protection afforded to public employees who have the right to insist on open meetings when their employment is being deliberated under 12 b(8)? How are these two exceptions to be reconciled?

It is a fundamental principle that

In construing the enactment we must give effect to the overriding plan or purpose of the Legislature as fairly expressed in its language. We may freely look to its history for whatever aide it may furnish in ascertaining the true sense and meaning of the legislative terminology. And we must seek to avoid an interpretation that will render any part of the enactment "inoperative, superfluous or meaningless." [ O'Rourke v. Board of Review, 24 N.J. 607, 610-11 (1957); citations omitted]

The statute was introduced as Assembly Bill 1030 by Assemblyman Baer in January 1974 in which six exceptions to the open meeting rule were suggested. The only exceptions subsequently adopted which were not listed in the initial bill are subsections 12 ...


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