Resolution Survives Despite Absence of Advance Public Notice
By: Robert A. Muccilli, Esq.
Editor: Sanmathi (Sanu) Dev, Esq.
Public bodies have flexibility when an action item presents itself at a meeting where the public was not given advance notice of the matter provided the body is not deceiving the public or intentionally omitting an item it knew would be acted upon. In Jeffrey S. Feld, Esq. v. City of Orange Township et al., the plaintiff alleged that the City of Orange Township violated the Open Public Meetings Act (“OPMA”) by passing a resolution settling outstanding water and sewer bills. Specifically, the plaintiff alleged that the City failed to give notice or an opportunity for the public to be heard on the resolution. The plaintiff asserted that the City did not list or include the resolution in its agenda packet prior to the meeting and that the resolution was addressed after the close of citizens’ comments.
In its decision issued on July 27, 2018, the Appellate Division found no violation of the OPMA. The Court explained that while the OPMA requires a public body to include in its notice of an upcoming meeting the agenda of that meeting to the extent known, the plaintiff had not alleged or produced any evidence substantiating that the City published an agenda calculated to mislead the public or otherwise intentionally omitted items from the agenda which it knew would be acted upon. Hence, the resolution was not subject to being voided.
Important to the Court’s ruling was evidence that certain council members were not aware that the matter would be coming before the body at the meeting. In circumstances where an action item is added to the agenda at the meeting it is prudent to provide an explanation to the public of why the matter was not originally listed on the agenda.
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