TOMSA Plant Tour During Public Meeting Violates the Open Public Meetings Act

by Linda Baum
Aug. 25, 2013

The most recent meeting of the Middletown Sewerage Authority (TOMSA) board was this past Monday, August 19. I’ve been attending TOMSA board meetings since November 2011 and for the second year in a row since I’ve been attending, they opened the public meeting, then all disappeared for 45 minutes on their annual plant tour that excludes the public. Both times, one person at the conference table stayed behind to babysit public attendees.

Last year I had a video camera with me and actually left it rolling for the whole meeting to emphasize the lunacy of a public board meeting absent a board. http://archive.org/details/8-9-12TOMSAMeeting During the public comments portion of that meeting, I had some things to say about the inappropriateness of scheduling a private tour during a public meeting, but the board was not inclined to change how they’d been operating for years. It didn’t seem right to me, and it turns out it’s not. It’s a violation of the Open Public Meetings Act (OPMA). You can’t have a public meeting that excludes the public.

This year, when they all got up to leave for the tour, I pointed out that they were not in compliance with the OPMA and suggested they could invite the public along or cancel the tour to be compliant. I asked if I could go with them and was told no. I wasn’t suggesting the public should be granted access to the plant, just wanted to verify that the public would be excluded from this portion of the public meeting.

The board’s attorney, Richard Leahey, said something about the Homeland Security Act superceding the OPMA. There were two other attorneys at the meeting, both board members and one a former mayor, and both said nothing. The Chairwoman, Chantal Bouw, stated that the tour was mentioned on TOMSA's website. I replied, "That doesn't make it lawful." Then off they went.

NOTICE: As part of this month's Board meeting, the Board will be attending to their annual tour of the Facility. This will be the first order of business. 

The website notice, shown above, seems to be an attempt to both justify the action and advise public attendees that they could arrive late. Still. Also note the meeting agenda doesn't mention the tour at all. If the tour is a legitimate “order of business”, why isn’t it on there?

Later, during public comments, I asked Mr. Leahey what section of the Homeland Security Act he was referring to earlier and what it stated. He said something about disallowing public access to certain areas for security reasons. I said OK, that I wasn't arguing that, but it had nothing to do with having a non-public tour during a public meeting and that the tour could be scheduled for another time. He replied that it was only once a year and not much of a public inconvenience. He meant, no doubt, that not many people were being inconvenienced since I was the only public attendee.

I’m not 100% sure what the law allows for here, but logically, compliance with one law shouldn’t give them the latitude to break another, especially if arrangements can be made to comply with both laws simply by rescheduling the tour.

It should be noted, however, that any gathering of a public body that has a quorum present and where public business is discussed, but that is not publicized or recorded or not open to the public, is a violation of the OPMA. So a plant tour that includes more than 3 members of the TOMSA board (4 is a quorum) may still run afoul of the Sunshine Law no matter when it’s held. Nor can the board simply enter into executive (non-public) session to take the tour because a tour is not one of the legal reasons for an executive session.

However TOMSA decides to handle this, they should discontinue the practice of holding the tour during a public board meeting. Imagine if you attended a Planning Board meeting and they all got up to visit a development site and left you sitting in the court room at Town Hall.