Opinion
DOCKET NO. A-3238-12T1
07-15-2014
GARY KUEHNAPFEL, Plaintiff-Appellant, v. RAYMOND CHINTALL, WEST DEPTFORD TOWNSHIP MAYOR; SAMUEL CIANFARINI, WEST DEPTFORD TOWNSHIP COMMITTEEPERSON; SEAN KILPATRICK, WEST DEPTFORD TOWNSHIP DEPUTY MAYOR; and the TOWNSHIP OF WEST DEPTFORD, Defendants-Respondents.
Trimble & Armano, attorneys for appellant (John W. Trimble, Jr., and Katrina M. Geary, on the briefs). Beckman Roth Ogozalek & Perez, attorneys for respondents (Lilia Londar, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Espinosa and Koblitz.
On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-883-12.
Trimble & Armano, attorneys for appellant (John W. Trimble, Jr., and Katrina M. Geary, on the briefs).
Beckman Roth Ogozalek & Perez, attorneys for respondents (Lilia Londar, on the brief). PER CURIAM
Plaintiff filed a verified complaint in lieu of prerogative writs and brief in support of an order to show cause seeking a declaration that West Deptford Township (the Township) had violated the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and seeking to enjoin defendants from violating the Open Public Meetings Act (OPMA), N.J.S.A. 10:4-6 to -21. Plaintiff appeals from the trial court's dismissal of his complaint in lieu of prerogative writs. We affirm.
Defendants Raymond Chintall and Samuel Cianfarini, both registered Republicans, were elected to the West Deptford Township Committee in November 2011. At that time, the Township Committee consisted of three Democrats, one Independent, and one Republican, defendant Sean Kilpatrick. Therefore, the election would shift the political makeup of the governing body and create a Republican majority on the five-member Township Committee once Chintall and Cianfarini were sworn in on January 5, 2012.
Plaintiff sought injunctive relief, arguing in part that certain action taken by Chintall, Cianfarini, and Kilpatrick (collectively, the individual defendants) before Chintall and Cianfarini were sworn in constituted a violation of OPMA. We hold that the three individual defendants did not constitute a "public body" and their gathering did not fall within the definition of "meeting" under OPMA. Further, the Township did not violate OPRA by failing to produce a letter written by the three individual defendants prior to January 5, 2012.
I
In mid-December 2011, Cianfarini obtained Township letterhead for the purpose of writing a letter to the Township's insurance carrier. According to defendants, the Township's property and casualty insurance was set to expire at the end of the month, and the Township's insurance broker, The Martin Company, had refused to provide the 2011 policies or insurance identification cards for 2012 for the Township's vehicles. The letter to Travelers Indemnity Company, dated December 23, 2011, referenced the relevant policy numbers and stated,
Please let this letter serve to advise you that as the incoming elected officials for West Deptford Township it is our intention to change brokers for our property and casualty insurance from The Martin Company and to name as our new broker AJM Insurance Management, Inc. We are being sworn in on 1/5/12 and will send the notification of the broker change on that day.In signing the letter, Kilpatrick identified himself as "Committeeman"; Chintall and Cianfarini each identified themselves as a "Committeeman-elect."
Defendants took additional measures regarding Township professional appointments before Chintall and Cianfarini were sworn in. In certifications, the committeemen-elect each stated:
Due to the political ramifications the upcoming professional appointments would have on the Republican Party of West Deptford and the lack of knowledge I had concerning the professionals who had submitted responses to the Township's Request for Proposals, the three individual defendants convened in political caucus on December 27, 2011, with their political advisors to interview professionals who potentially might represent the Township in their respective fields after their January 5, 2012 swearing in.
One of the interviews conducted that day was with Edwin Steck and Jim Oris, two Senior Vice Presidents of T&M Associates, a firm that had responded to the Township's request for proposals for the position of Township Engineer for 2012. Brandon Umba, a political advisor to the West Deptford Republican Party, also attended. No Democrats or Independent committeepersons were present. All attendees had a copy of the Statement of Qualifications T&M had submitted in response to the Township's posting. During the meeting, which lasted approximately forty-five minutes, the T&M representatives were questioned about Steck's experience and familiarity with the Township and about T&M's billing rates.
The date is variously identified as December 27 and 28 in the complaint and the record. To avoid confusion, we refer to the "December meeting."
At the January 5, 2012 Township Committee meeting, Cianfarini and Chintall were sworn in as committeemen, and Chintall was sworn in as mayor. The new five-member Committee then voted on resolutions appointing various positions in the Township, including Municipal Engineer. Cianfarini made a motion to approve Resolution #7 appointing Alaimo Group Consulting Engineers as Municipal Engineer. The motion was seconded by Kilpatrick and passed by a three-to-two vote, with Cianfarini, Kilpatrick, and Chintall voting for the resolution and the Democratic committeewomen voting against it.
On April 17, 2012, plaintiff's attorney submitted an OPRA request to the Township Clerk pursuant to N.J.S.A. 47:1A-5, demanding "any and all correspondence submitted by any West Deptford Township Committeeman-elect, and/or Ray Chintall, and/or Sam Cianfariani [sic] from November 8, 2011 through January 5, 2012." In response, the Township Clerk provided a series of emails. The December 23, 2011 letter to the insurance provider was not included in the response to plaintiff's OPRA request.
In June 2012, plaintiff initiated this litigation. The complaint alleged that the failure to supply "all requested correspondence including . . . the December 23, 2011 correspondence" to Travelers in response to plaintiff's OPRA request constituted a violation of OPRA. In addition, the complaint alleged that the December meeting violated OPMA.
Plaintiff did not ask the court to void any action taken at the December meeting pursuant to N.J.S.A. 10:4-15.
The trial judge denied plaintiff's request for a judgment declaring defendants in violation of OPRA and OPMA and set forth his reasons in a memorandum decision. The trial judge found that committeemen-elect are not members of a public body as defined in OPMA and stated,
In light of his findings, the trial judge found it unnecessary to address defendants' argument that the meeting fell within the "typical partisan caucus meetings" exception to OPMA. See N.J.S.A. 10:4-7; Mountain Hill, L.L.C. v. Twp. of Middletown, 399 N.J. Super. 486 (App. Div. 2008). It is similarly unnecessary for us to determine whether the meeting fell within this exception.
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Until they are sworn in, they are not part of a public body "organized under the laws of this State, and collectively empowered as a voting body to perform a public governmental function." N.J.S.A. 10:4-8(a). Therefore, it must follow that there was no "meeting" held as defined by the OPMA. A meeting cannot occur if "attended by less than an effective majority of the members of a public body." N.J.S.A. 10:4-8(b). The court finds that the Defendants did not violate the OPMA.
Finding that the December 23, 2011 letter was not a government record subject to OPRA, the trial judge also concluded there had been no violation of OPRA.
In this appeal, plaintiff argues that the trial court erred in finding no violation of either OPMA or OPRA and that he met the standard for the award of injunctive relief pursuant to Rule 4:52. We disagree.
II
In McGovern v. Rutgers, 211 N.J. 94 (2012), the Supreme Court discussed the settled principles of statutory interpretation applicable here. Id. at 107-08. As the issue of statutory interpretation is a question of law, our review is de novo. Ibid. We are "to determine and effectuate the Legislature's intent." Ibid. (citing Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 553 (2009)). To do so, "we look first to the plain language of the statute, seeking further guidance only to the extent that the Legislature's intent cannot be derived from the words that it has chosen." Pizzullo v. N.J. Mfrs. Ins. Co., 196 N.J. 251, 264 (2008). The statute's language is given its ordinary meaning and, if it is clear, "our task is to apply that language to the situation that confronts us." McGovern, supra, 211 N.J. at 108 (citing State v. Shelley, 205 N.J. 320, 323 (2011)). If the language of the statute fails to give such clear direction, "we look to extrinsic sources, including the legislative history, to determine the intent of the Legislature," ibid., mindful that our "primary task . . . is to effectuate the legislative intent in light of the language used and the objects sought to be achieved." Bosland, supra, 197 N.J. at 554 (citation omitted).
Our analysis is further guided by the statutes' purposes. We construe OPMA liberally to serve "OPMA's clearly stated purpose of fostering opportunities for the public to witness the conduct of public business." McGovern, supra, 211 N.J. at 10 (citing N.J.S.A. 10:4-21). And we construe OPRA understanding it embodies the public policy that:
government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions, for the protection of the public interest, and any limitations on the right of access accorded by [OPRA] shall be construed in favor of the public's right of access . . . .[MAG Entm't, L.L.C. v. Div. of Alcoholic Beverage Control, 375 N.J. Super. 534, 544 (App. Div. 2005) (quoting N.J.S.A. 47:1A-1).]
III
OPMA addresses the right of the public "to have adequate advance notice of and the right to attend all meetings of public bodies at which any business affecting the public is discussed or acted upon in any way," with certain exceptions. Times of Trenton Publ'g Corp. v. Lafayette Yard Cmty. Dev. Corp., 183 N.J. 519, 529 (2005). To protect this right, OPMA established requirements for public bodies regarding adequate notice to the public of scheduled meetings and the items to be discussed and acted upon. N.J.S.A. 10:4-9; see also N.J.S.A. 10:4-9.1, -9.2, -10, -18, and -19. OPMA also requires that meetings be open to the public, N.J.S.A. 10:4-12, unless they fall within the exceptions in N.J.S.A. 10:4-12(b). See also N.J.S.A. 10:4-13. In addition, the minutes of the meetings must be available to the public. N.J.S.A. 10:4-14. The failure to invite a portion of the members of a public body to a meeting "for the purpose of circumventing" OPMA's provisions is explicitly prohibited. N.J.S.A. 10:4-11. Any action taken by a public body at a meeting that does not conform with OPMA's requirements is voidable in a proceeding in lieu of prerogative writs. N.J.S.A. 10:4-15; see Allan-Deane Corp. v. Twp. of Bedminster, 153 N.J. Super. 114, 120 (App. Div. 1977); see also S. Harrison, Twp. Comm. v. Bd. of Chosen Freeholders, 210 N.J. Super. 370, 376-79 (App. Div.), certif. denied, 104 N.J. 372 (1986). The act also provides for injunctive relief, N.J.S.A. 10:4-16, and establishes a penalty for knowing violations. N.J.S.A. 10:4-17.
The Legislature delineated the scope of OPMA by defining the terms "public body," "meeting," and "public business." See Introductory Statement to A. 1030 (Feb. 27, 1975).
"Public body" is defined as
a commission, authority, board, council, committee or any other group of two or more persons organized under the laws of this State, and collectively empowered as a voting body to perform a public governmental function affecting the rights, duties, obligations, privileges, benefits, or other legal relations of any person, or collectively authorized to spend public funds . . . .
[N.J.S.A. 10:4-8(a) (emphasis added).]
"Meeting" means
any gathering . . . which is attended by, or open to, all of the members of a public body, held with the intent, on the part of the members of the body present, to discuss or act as a unit upon the specific public business of that body. Meeting does not mean or include any such gathering (1) attended by less than an effective majority of the members of a public body, or (2) attended by or open to all the members of three or more similar public bodies at a convention or similar gathering.
[N.J.S.A. 10:4-8(b) (emphasis added).]
"Public business" is defined as "all matters which relate in any way, directly or indirectly, to the performance of the public body's functions or the conduct of its business." N.J.S.A. 10:4-8(c).
The certifications provided by Chintall and Cianfarini stated the December meeting was conducted "to interview professionals who potentially might represent the Township in their respective fields after their January 5, 2012 swearing in." The subject matter of the meeting therefore clearly fell within the statutory definition of "public business." However, the gathering of the incipient Republican majority did not fall within the statute's definition of either "public body" or "meeting."
Although the Legislature sought to protect "the right of the public . . . to witness in full detail all phases of the deliberation, policy formulation, and decision making of public bodies," N.J.S.A. 10:4-7, it clearly limited the application of OPMA to meetings where the public body was authorized to make such decisions:
[I]n order to be covered by the provisions of this act a public body must be organized by law and be collectively empowered as a multi-member voting body to spend public funds or affect persons' rights; that, therefore, informal or purely advisory bodies with no effective authority are not covered, nor are groupings composed of a public official with subordinates or advisors, who are not empowered to act by vote . . . .
[Ibid.]
Consistent with the Legislature's stated intent, N.J.S.A. 10:4-8(a) defines "public body" as a "group of two or more persons organized under the laws of this State, and collectively empowered as a voting body to perform a public governmental function . . . or collectively authorized to spend public funds." Similarly, N.J.S.A. 10:4-8(b) explicitly excludes any gathering "attended by less than an effective majority of the members of a public body" from the definition of "meeting."
When Chintall, Cianfarini, and Kilpatrick assembled in December, they were neither collectively empowered to perform a governmental function nor collectively authorized to spend public funds. At the time of that meeting, Chintall and Cianfarini lacked any authority under the laws of this State. Even though Kilpatrick was a member of the Township Committee, he alone was not a "group of two or more persons" under N.J.S.A. 10:4-8(a). Although the three might have had the ability to exercise the influence of the majority as of January 5, 2012, they did not constitute "an effective majority of the members of a public body" at the December meeting. See, e.g., Neu v. Planning Bd. of Union, 352 N.J. Super. 544, 554 (App. Div. 2002) (finding that no meeting subject to OPMA had occurred when two of the nine members of the Board and a staff engineer met with a developer because the statutory definition of "meeting" excludes "any gathering attended by less than an effective majority of the members of a public body"). They took no action and arrogated no authority properly exercised by the Township Committee, where the "collective" power to act and spend resided. See Times, supra, 183 N.J. at 530 (stating that to be a "public body" subject to OPMA, "the entity must perform a governmental function as defined or must be authorized to expend public funds"). As the December gathering did not constitute either a "public body" or a "meeting" as defined by OPMA, there was no violation.
IV
Plaintiff also argues that the Township violated OPRA by failing to produce the letter on Township letterhead authored by Chintall, Cianfarini, and Kilpatrick. This argument lacks merit.
N.J.S.A. 47:1A-5 requires the "custodian of a government record [to] permit the record to be inspected, examined, and copied . . . ." Plaintiff's attorney made the OPRA request here to the Township Clerk. The definition of a "government record"
includes "any paper . . . that has been made . . . in the course of his . . . official business by any officer . . . of the State or of any political subdivision thereof . . . or that has been received in the course of . . . its official business by any . . . authority of the State or of any political subdivision thereof . . . ."
[N.J.S.A. 47:1A-1.1 (emphasis added).]
In light of our mandate to construe the statute "in favor of the public's right of access," MAG Entertainment, supra, 375 N.J. Super. at 544, the letter falls within the alternative definition of a government record because it was made, at least in part, by Kilpatrick, in the course of his official business as a committeeman.
Cianfarini admitted that he obtained Township letterhead for the purpose of corresponding with the insurance carrier. In Chintall's and Cianfarini's certifications, they stated that no copy was made of the letter. Defendants maintain that there was no copy of the letter in the Township's files to be produced in response to the OPRA request. There is no evidence in the record to the contrary.
Although the fact that the Township did not make or receive the letter in question is not dispositive as to whether it is a "government record," it bears heavily on whether there was a violation of OPRA here. Stated simply, one cannot withhold from disclosure that which one does not possess. In noting the need for a request to identify the records sought with specificity, we have observed that "the short timeframe within which custodians of public records must respond to document requests 'does not afford the custodian time to speculate about what the requestor seeks, research, [or] survey agency employees' regarding the request." Bart v. Passaic Cnty. Pub. Hous. Agency, 406 N.J. Super. 445, 451-52 (App. Div. 2009) (quoting N.J. Builders Ass'n v. N.J. Council on Affordable Hous., 390 N.J. Super. 166, 178 (App. Div.), certif. denied, 190 N.J. 394 (2007)).
The request here was for "correspondence submitted by any West Deptford Township Committeeman-elect . . . ." (Emphasis added.) This request can fairly be interpreted as calling for the production of documents Chintall or Cianfarini provided to the Township. We discern no requirement in either the request or the statute for the Township's custodian of records to survey the individual defendants regarding the request. No violation of OPRA occurred here.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION