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Witt v. Gloucester County Board of Chosen Freeholders

Decided: October 6, 1983.

FRANCIS A. WITT, PLAINTIFF-RESPONDENT,
v.
GLOUCESTER COUNTY BOARD OF CHOSEN FREEHOLDERS, DEFENDANT-RESPONDENT, AND SHIRLEY ROGERS, ROBERT BUTLER, JOHN BURZICHELLI AND JOHN HUNT, DEFENDANTS-COUNTERCLAIMANTS AND THIRD PARTY PLAINTIFFS-APPELLANTS, V. GLOUCESTER COUNTY UTILITIES AUTHORITY, A BODY POLITIC OF THE STATE OF NEW JERSEY, THIRD PARTY DEFENDANT



On certification to the Superior Court, Appellate Division.

For reversal -- Chief Justice Wilentz and Justices Clifford, Schreiber, Handler, Pollock, O'Hern and Garibaldi. For affirmance -- None. The opinion of the Court was delivered by Pollock, J.

Pollock

The primary issue concerns the effect of the Open Public Meetings Act, N.J.S.A. 10:4-6 to -21, on two resolutions adopted by the Gloucester County Board of Freeholders (the Board) on December 2, 1981. One resolution increased the membership of the Gloucester County Utilities Authority (the Authority) from five to nine members, and the other resolution appointed the four individual defendants to the newly created positions. A second issue involves the validity of a subsequent resolution of the Board adopted on January 13, 1982, reducing the Authority's membership from nine back to five.

The Law Division held both resolutions valid, with the result that the Authority consisted of five members. In an unpublished opinion sustaining that result, the Appellate Division declared invalid the initial resolution increasing the Authority's membership. Accordingly, that court found to be moot the question of the validity of the second resolution reducing the Authority's membership. We reverse. Although the notice for the December 2 meeting complied with the Open Public Meetings Act and the resolution increasing the Authority's membership was valid, the Board lacked power subsequently to reduce the Authority's membership from nine to five members.

I

This matter arises out of a struggle among members of the two political parties on the Board for control of the Authority. In 1968, the Board created the Authority and provided for five commissioners to serve staggered five-year terms. See N.J.S.A. 40:14B-4. On subsequent occasions, the Board informally discussed increasing membership of the Authority, but did not increase the membership until December 2, 1981. At various times during the Authority's existence, each party has controlled the Board. The Republican Party controlled the Board immediately

prior to the November 1981 general election, which caused control of the Board to shift to the Democratic Party effective January 1982.

In the interim following the election, the Board held a "work session" or agenda meeting on December 1, 1981 to discuss the agenda for a regularly scheduled meeting on the following day, December 2, 1981. Pursuant to the Board's rules, a copy of the agenda for the December 2, 1981 meeting, including the subject resolutions, was placed on each freeholder's desk. As permitted by N.J.S.A. 40:14B-4 b, the first resolution enlarged the membership of the Authority from five to nine members; the second resolution appointed the four individual defendants as the new members.

The record is devoid of any proof of the circumstances surrounding the authorization of the resolutions. Apparently no discovery was made of the Republican members of the Board, and none of those members testified before the trial court. At the December 1, 1981 meeting, however, Democratic members protested the expansion of the Authority and the appointments. At trial, they testified that at no time prior to the December 1 meeting had they known of or discussed the resolutions.

Although the public had the opportunity to discuss the two resolutions at the public portion of the December 2 meeting, the part of the meeting when the resolutions were specifically considered was closed to the public. Nonetheless, the Democratic members questioned the reason for the expansion, which they viewed as "strictly political." According to the minutes, however, Freeholder Kennedy, a Republican member, explained "that times change over the years and responsibilities are added and that major problems and projects are here and must be addressed, and by [sic] expanding the expertise and input from five members to nine, is in keeping with the expanding roll [sic] that the Utilities Authority is facing." The minutes disclose further that Freeholder Fredericks, a Democrat, "responded by stating that the expansion of the Authority may indeed be valid,

but he felt the responsibilities of jobs that are being stated as reasons for expanding, [sic] should be spelled out and made abundantly clear before additional members are added, not after they are added." By a 5-2 vote along partisan lines, the Board adopted the resolutions, thereby increasing the membership from five to nine and appointing the individual defendants as members of the Authority.

In addition to questioning the reasonableness of the increase in Authority membership, the Democratic members also challenge the adequacy of the notice for the December 2, 1981 meeting. At the annual meeting on January 2, 1981, the Board had adopted a resolution establishing a schedule of regular meetings for the year 1981. The schedule included the December 2 meeting, the location of which was changed by later resolution from Woodbury to Newfield. As required by N.J.S.A. 10:4-6 to -21, notice of those resolutions indicating ...


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