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Liebeskind v. Mayor and Municipal Council of Bayonne

Decided: June 23, 1993.

MARC LIEBESKIND, PLAINTIFF-APPELLANT-CROSS-RESPONDENT,
v.
THE MAYOR AND MUNICIPAL COUNCIL OF BAYONNE, NEIL A. DESENA, BEN COSTANZA, DONALD X. AHERN AND DENNIS COLLINS, DEFENDANTS-RESPONDENTS-CROSS-APPELLANTS. MARC LIEBESKIND, PLAINTIFF-APPELLANT, V. THE MUNICIPAL COUNCIL OF BAYONNE, DEFENDANT-RESPONDENT



On appeal from Superior Court, Law Division, Hudson County.

Petrella, Long and Keefe. The opinion of the court was delivered by Long, J.A.D.

Long

A-1254-91T5

In this action in lieu of prerogative writs, plaintiff, Marc Liebeskind, alleges that the trial Judge erred in formulating remedies for violations of the Open Public Meetings Act ("O.P.M.A."), N.J.S.A. 10:4-6 to -21, by the Municipal Council of Bayonne on June 13, July 1, July 11 and July 25, 1990.

Plaintiff contended at trial that the challenged meetings violated the Act either because they were inadequately noticed, inadequately and tardily documented, or inconveniently timed. He demanded invalidation of an ordinance passed on June 13 which retroactively raised the salaries of certain city officials, including council members, and of all actions taken at the July 1 reorganization meeting. In addition, he demanded that future meetings, including caucuses, be adequately publicized by annual schedule or 48-hour notice, that minutes of future meetings be adequately recorded and timely made available to the public, and that no meetings be held on weekday afternoons.

The trial Judge, Judge Dowden, ruled that the meeting of July 1 failed to comply with the O.P.M.A. because there was no 48-hour notice of the revised annual meeting schedule, contrary to N.J.S.A. 10:4-8d, and that the June 13 meeting violated the O.P.M.A. because publication of the minutes was delayed by two months, contrary to N.J.S.A. 10:4-14. He also found that there was inadequate notice of the July 11 and July 25 meetings with respect to which plaintiff did not seek to invalidate any action. He concluded that afternoon meetings are permissible and that caucuses do not qualify as public meetings. He declined to invalidate any council actions based on his finding that there was no bad faith, but only technical noncompliance. He ordered that the council conform in the future to the 48-hour notice requirement by timely submission of meeting notices to newspapers and that copies of final meeting minutes be made available for inspection within two weeks after each meeting and at least three business days before the next meeting.

On appeal, plaintiff contends that the trial Judge erred in not voiding the nonconforming actions complained of; in not requiring publication of meeting notices, copies of meeting minutes, and an end to weekday afternoon meetings; and in not allowing plaintiff to amend his complaint. Defendants filed a cross-appeal, arguing that the trial Judge erred in ruling that the complaint was timely; and in not relaxing the two-week maximum during the summer months when meetings are monthly rather than fortnightly.

We have carefully reviewed this record in light of these contentions and have concluded that there is no warrant for our intervention. To be sure, the mandates of the O.P.M.A. must be followed by governmental bodies engaging in their public functions. Willful violations of the Act require swift and strong remediation. However, invalidation of public action is an extreme remedy which should be reserved for violations of the basic purposes underlying the Act. AQN Assocs., Inc. v. Township of Florence, 248 N.J. Super. 597, 614-15, 591 A.2d 995 (App.Div.), certif. den. 126 N.J. 385, 599 A.2d 162 (1991). Polillo v. Deane, 74 N.J. 562, 379 A.2d 211 (1977), expressly permits discretion in the

fashioning of remedies for technical violations of the Act which do not result from bad faith motives and which do not undermine the fundamental purposes of the O.P.M.A. Here, the trial Judge specifically found that the defendants' failure to comply with the Act by inadequate notice and late publication of minutes was not a result of "chicanery" but oversight. Under the circumstances, he was empowered by Polillo to formulate a remedy short of invalidation. The remedy chosen was a thoughtful, carefully crafted response to the problems presented by this record and was calculated to eliminate future O.P.M.A. violations. As such, it is authorized under Polillo and fully supported by the record.

Plaintiff's written motion to amend the complaint was effectively granted as he conceded at argument. His oral application was not made until the bulk of the hearing was completed and its denial was within the trial Judge's discretion. Hudson Foam Latex Products, Inc. v. Aiken, 82 N.J. Super. 508, 517, 198 A.2d 136 (App.Div.1964).

As to the cross-appeal, the effective date for determining the 45 day time bar of N.J.S.A. 10:4-15a and R. 4:69-6(a) is the date of plaintiff's original complaint, July 26, 1990, which was 43 days after June 13, the earliest action complained of. The case was thus timely filed.

The two week maximum rule imposed by the trial Judge without relaxation for summer vacation was well within his discretion and, indeed, is the subject of no argument on the cross-appeal.

Affirmed.

A-3162-91T5

In this action, plaintiff, Marc Liebeskind, sought to invalidate an ordinance enacted by the Municipal Council of Bayonne authorizing six-month retroactive salary increases for departmental directors. ...


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