WILLIAM J. BRENNAN, Plaintiff-Respondent, Cross-Appellant,
JOINT LEGISLATIVE COMMITTEE ON ETHICAL STANDARDS, Defendant-Appellant, Cross-Respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 4, 2013
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2499-11.
Robert P. Zoller argued the cause for appellant (Eckert Seamans Cherin & Mellott, LLC, attorneys; Mr. Zoller and Frank J. Petrino, of counsel; Robert J. McGuire, on the briefs).
William J. Brennan, respondent, argued the cause pro se.
Before Judges Graves, Ashrafi and Espinosa.
A member of the New Jersey Joint Legislative Committee on Ethical Standards (Joint Committee), who had recently broken his knee, participated in a meeting by speakerphone and voted on the dismissal of an ethics complaint. This appeal presents the question whether such participation is permitted or whether members of the Joint Committee are required by N.J.S.A. 52:13D-22(b) and the Open Public Meetings Act (OPMA), N.J.S.A. 10:4-6 to -21, to participate in person. For the reasons that follow, we conclude that the member was permitted to participate by speakerphone and reverse an order that granted summary judgment to plaintiff. In his cross-appeal, plaintiff argues that the Joint Committee failed to follow Joint Rule 19 of the Senate and General Assembly (Joint Rule 19) in addressing his challenge to the qualifications of its chairman. Because this issue is nonjusticiable, we dismiss the cross-appeal.
In March 2010, plaintiff William J. Brennan filed an ethics complaint against Assemblyman Scott T. Rumana with defendant Joint Committee. Plaintiff ran unsuccessfully against Rumana for the Assembly in 2011.
The Joint Committee convened on seven different occasions to consider the charges against Assemblyman Rumana: May 18, July 20, and September 21, 2010,  and February 15, April 26, June 28, and September 27, 2011. Throughout this time, the Joint Committee was comprised of eight members: Alan Rosenthal, who served as chairman, Mark C. Alexander, former Senator Peter A. Inverso, Nancy Erika Smith, and four retired judges, John J. Harper, who served as vice-chairman, Daniel P. Mecca, Eugene D. Serpentelli, and Neil H. Shuster.
In July 2011, plaintiff sent an email to the Joint Committee, which he asked the Committee to consider as a motion to disqualify Chairman Rosenthal from participating in the proceedings. The Joint Committee replied with an email that stated in part, "After consultation with counsel, Chairman Rosenthal has decided not to recuse himself in this matter."
On September 27, 2011, the Joint Committee convened, for a final time, to review the remaining charges against Assemblyman Rumana, having previously dismissed several of plaintiff's charges against him. Judge Mecca had recently broken his knee. He was willing to attend the meeting in person. However, after counsel for the Joint Committee advised Judge Mecca to participate by speakerphone, he participated accordingly. The audio recording of the meeting documents his active participation and reveals that no one objected to Judge Mecca's ticipation by speakerphone. See N.J. State Legislature Archived Media, supra.
Before reviewing the charges, the Joint Committee met in closed session to obtain legal advice, as explicitly permitted by N.J.S.A. 10:4-12(b)(7). The Joint Committee reconvened in public session, amended the charges and then considered a motion to adopt the charges as amended. Four members opposed the motion, and it failed. Chairman Rosenthal moved to dismiss the complaint, which motion passed by a vote of five to two. Chairman Rosenthal and Judge Mecca were among those who voted to dismiss the complaint.
Plaintiff then filed a three-count complaint in lieu of prerogative writs against the Joint Committee in the Law Division. Count one alleged that the Joint Committee violated OPMA "by meeting in closed session on September 27, 2011, without advance publication." Count two alleged that the Joint Committee violated Joint Rule 19 by allowing Chairman Rosenthal to participate in the vote despite plaintiff's challenge to his qualifications. Finally, count three alleged that the Joint Committee "violated its ...