606 West Maple
(Wellwood Manor) Purchase - Mid-August 2008
This string is
presented because it represents what I believe is a serious breach of at least
the spirit of the New Jersey "Sunshine Law," in that the borough solicitor
encouraged the Council both to act on a request by him to approve a specific
action, and also to discuss that matter via e-mail.
Note that some of
the contents of the e-mail state specifics of a matter that is currently
private, as it involves contract negotiations for the purchase of 606 West
Maple. Those specifics have been removed from the e-mails below.
A brief background -
A company we know as NJ Norse has been attempting to purchase 606 W. Maple Av.
for about ten months (since October 2007). For reasons which he can best
explain, Mayor North has been working since roughly that same time to have 604
and 606 W. Maple declared by the Planning Board to be an area in need of
redevelopment. Until the redevelopment issue is resolved, the pending sale
of the property cannot be completed.
Meanwhile, since
roughly mid-March of this year the mayor and Norse have been in negotiations to
complete an agreement which will result in the mayor agreeing to the sale of the
property to Norse. Now, in mid-August, an agreement appears to be near which
will allow the sale to go through while providing the mayor assurances that the
apartment complex will be repaired and renovated, eliminating the slum
conditions that currently exist there. I say the mayor and not the borough in
the foregoing because the Council, the governing body of the borough, had not
been officially informed of any of the events regarding this potential sale, or
even the existence of a proposed agreement that it must ratify, until Monday, 11
August's Council meeting, in private session.
The outcome of that
private session precipitated the following e-mail:
Frank:
I received a telephone call today from Norse’s attorney
regarding the status of the Agreement. I was out of the
office and did not have a chance to respond to him today.
To recap, *****REDACTED*****
Based upon the conversations of Monday evening relative to
issues regarding the Developer’s Agreement, I added language
to the Agreement sent to the Members of Council that evening
which would *****REDACTED*****
With the approval of Council, I will forward this document
to Norse’s attorney. I would ask that the Members of
Council e-mail me their individual consent or objection to
the forwarding of this document to Norse’s attorney as soon
as possible. Please also feel free to make comments or
suggestions as to this proposed Agreement. Norse’s response
to this proposal can then be discussed at the 8/25/08
Meeting.
Please note that since this matter is a continuing
contract negotiation, it would not be appropriate for this
document to be released to the general public. Thank
you.
Timothy J. Higgins
Law Offices of Timothy J. Higgins
1040 North Kings Highway
Suite 300
Cherry Hill, New Jersey 08034
|
Note that the
referenced document, which was attached to the e-mail, was also redacted. I complied with
Mr. Higgins' request thusly:
Due to employer web restrictions, I will be unable to review
the document until I arrive home around 7:00 this evening.
However, if the changes are limited to what Mr. Higgins has
outlined, I have no objection to Norse seeing the revised
proposed agreement.
Do the proposed *****REDACTED*****. Just a thought.
Side note -
At the "Newly elected officials" seminar that NJLOM
presents, we were cautioned against using e-mail to conduct
borough business, for a variety of reasons. Sending out
information as the Clerk does (resolutions, agendas and such
that will be discussed at a meeting) is one thing; is
obtaining concurrence from Council to take specific action
another thing altogether? Would this constitute conducting
Council business outside of the prescribed meetings?
Mark B.
|
The NJLOM is the New
Jersey League of Municipalities.
I received this
rather surprising reply from Mr. Higgins:
Mr. Brunton:
Thank you for your response. To address the issues raised
in your "side note," please note that e-mail and the document proposed to be
sent to Norse's attorney are "informational" in nature, that is, this
document was sent to the Mayor and Council Members for review as to the
accuracy of the language of the document as it related to the discussion
regarding this property, and in confirmation that the Governing Body
wishedthis proposal be sent to Norse's attorney. This would not be contrary
to the OPMA.
However, the text of your discussion *****REDACTED***** could be
viewed as "decisional" and potentially contrary to the OPMA. That is why my
e-mail states that "Norse's response to this proposal can then be discussed
at the 8/25/08 Meeting."
Please be guided accordingly.
Timothy J. Higgins
Law Offices of Timothy J. Higgins
1040 North Kings Highway
Suite 300
Cherry Hill, New Jersey 08034
|
WHOA! He asked for
specific Council approval to a specific action! That's "informational?" And he
also encouraged discussion via e-mail, in his original statement "Please also
feel free to make comments or suggestions as to this proposed Agreement," which
is what I did.
I was expecting an
explanation of why a discussion of this matter via e-mail was
not a violation of the Sunshine Law (Mr. Higgins reference is to the OPMA, the
Open Public Meeting Act, which is also known as the "Sunshine Law"). Obviously I
should have gone with my initial instincts about the matter as stated in my
"side note."
I initially
responded with just this:
OK. Caution noted. Thanks.
|
Then after a little
thought, sent this as well:
Additional observation:
The statement "With the approval of Council, I will forward
this document to Norse's attorney" seems much more than
merely "informational." I find it fascinating that a
specific request for approval of a proposed action could, by
any stretch, be considered as nothing more than
"informational" in nature. Ya learn something every day.
I guess I'll have to do some research to understand this
one.
Just discussion - not trying to challenge anyone.
Everyone have a nice weekend...
Mark B.
|
I've heard nothing
else on this from anyone.
At least I wasn't
the only one to respond to Mr. Higgins' originally e-mail request. The mayor
also replied, with this:
Tim, I am okay with the revised
developer's agreement - Thank you for you assistance with
this matter
|
If anyone else on Council
replied, it wasn't a "reply to all," as I saw nothing from anyone else on this
matter.
Final comments (for now, at
least) -
My initial instinct was to
question the propriety of what Mr. Higgins was requesting, and in hindsight I
should have followed that instinct.
I apologize to the residents
of Merchantville for my participation in this matter. Even as I was doing it, I
had misgivings, but I did it anyway. Whether it was technically legal or not, it
was wrong, and it will
never happen again.
Revised Developer's Agreement
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