City Solicitor: Council Member's Email Violated Sunshine Law

Summit Solicitor Barry Osmun agrees with a local resident that four City Council members violated open government laws by discussing the town's parking ordinance over email and purposely out of the public eye.

Osmun was asked to issue an opinion on the matter after calling into question the local body's adherance to open meetings, or sunshine laws. Osmun issued a memo Wednesday to Haselmann, the council, the mayor, the city administrator and the city clerk, stating an email sent from a council member to a majority of the governing body was a violation of the Sunshine Law.

At issue was an email sent June 17 by Councilman Tom Getzendanner to council members David Bomgaars, Rich Madden and mayoral candidate Ellen Dickson. The message was sent on a Friday night, four days before the next council meeting, in regard to the heated debate over .  In the email, Getzendanner outlines what he intends to say at the meeting, namely that he supports the return of paid shopper parking if prepaid discounts are discontinued. He then asks his Republican colleagues who sit on the Finance Committee, “Can I please make that motion?”

Osmun wrote in his memo that the email violated the (OPMA) and that the council members listed in the email acted “upon the specific public business” regarding the paid shopper parking ordinance. The email was a violation because it was conducted out of the public's view, according to Osmun.

The council members who received the email do not agree it was a violation and others say Osmun's opinion lacks legal support.

“I was sent an email, I probably read it, maybe not. I didn’t respond to it,” Dickson said. “I had nothing to do with it. You can’t control who sends you an email. It had nothing to do with my vote. In the end I voted against the parking ordinance, because there was such contentiousness over the issue. And I thought it needed furhter discussion."

Coucilwoman Nuris Portuondo, who is a lawyer, wrote an email contesting the allegations, saying: “If this is in fact a legal opinion, it lacks facts and legal support.  I cannot understand how an email by one individual without a response can constitute a ‘deliberation’ or whether individuals can be faulted with the violation if they are recipients but do not respond.”

Osmun acknowledges that emails did not exist in 1976 when the Open Public Meetings Act was enacted. However, based on the legal definition of "meetings," which includes telecommunications equipment, Osmun said that the statute would apply to email.

Bomgaars said he did not feel the one email constituted a pattern of activity in violation of the Sunshine Law, yet he agrees the council needs a policy pertaining to emails.

"Many of the councils throughout the state are developing a policy about emailing, IMing and texting,” Bomgaars said. “How does the majority viewpoint move forward in a professional manner, when you have the minority viewpoint taking great exception,” asked Council President David Bomgaars. Bomgaars says he respects Osmun’s opinion, which potentially carries a fine between $100 and $500 if the Union County prosecutor backs Osmun’s ruling.  Regardless, he says the paid shopper parking debate will continue.

Coucilman Rich Madden, also listed in the memo says that he did not respond to the email, nor did it sway his vote any particular way.

“I'm informed that there is no law, but only interpretations, regarding emails since the 1976 OPMA law enactment,” Madden wrote in an email regarding the memo. “Barry's untimely and unsigned memo should have been delivered personally at a council meeting, where the issue was raised.”

A receptionist answering the phone at Osmun’s law firm did not want to answer questions about the memo, since Osmun is away on vacation and will not return until Nov. 7th, a day before city elections. Osmun is expected to retire from his solicitor postion after a little more than two decades working for the council.

“The bottom line is that they continue to break the law and do a disservice to the community they are suppose to be representing,” said Guy Haselmann, who filed the open records request to see the coucil members' email.

Although the parking ordinance never passed, Haselmann says that’s not the point. He’s glad his findings could bring attention to what he called a pattern of ethical violations by council members. “I believe their big egos make them feel as if the rules do not apply to them," he said.

Councilman At-Large, Steve Murphy said “I’m very happy for the citizens of Summit.” Murphy has been a critic of fellow council members actions for some time. He was one of the the council meeting where all of the allegations originally came to the surface. “The majority of council got what they deserved. We have arrived at the truth,” he said.

“Council has been advised by our City Administrator in no uncertain terms at his briefing for new council members that you must "avoid tricks" to circumvent the Sunshine Law,” said councilmember and mayoral candidate , who was not mentioned in the email. He says the council had participated in information sessions regarding email and the Sunshine Law this year.

But, the council president still questions the context of the allegations. “In all forms of government, the majority opinion rules and those in a minority have the right to advocate for their opinion,” said Councilman Bomgaars. He says he will have the next City Soliciter, who will take the helm in the next several weeks review the emails and offer another opinion on the matter. He says the council should discuss the decision at the Nov. 14 council meeting, upon Osmun’s return. 

Coucilman Getzendanner was contacted for this article, but did not want to speak on the record.