Prosecutor checking Evesham e-mails for Sunshine Law violations

The Burlington County Prosecutor's Office is poring over a pile of lively e-mails that Evesham Township officials sent to one another in the spring after residents began questioning a helipad project proposed by a politically connected insurance firm.

Robert Bernardi, the county's top law enforcement official, is trying to determine whether the private chat among the mayor, Township Council members, town manager, clerk, and solicitor via smartphones and laptops was a discussion that should have been aired at a public meeting. If so, officials could be charged with violating the Open Public Meetings Act, also known as the Sunshine Law.

The exchanges occurred in March, months after the council passed an ordinance to allow Conner Strong & Buckelew to build a helicopter pad at the Lake Center Executive Park in Marlton, off Route 73 and Cropwell Road. The company's founder and executive chairman is South Jersey Democratic power broker George E. Norcross 3d.

At the time, the Evesham planning board was under siege by residents who complained that the helipad would bring unwanted noise and create a hazard.

The planning board had recommended a buffer, a ban on helicopter taxi service, and other changes to the law.

"I am against any changes to the original ordinance and will not approve any new ordinance on this issue!!!!" Mayor Randy Brown wrote in a message sent via his iPhone to the four council members, the town manager, the clerk, and the solicitor March 23.

"I think the real issue is who on the planning board took it upon themselves to add to the original," Councilman Joe Howarth replied.

Fifteen minutes went by, and Brown tapped out: "Got it taken care of."

This is the kind of "horse-trading" that should be done in public, said John Paff, an open-government advocate who asked the prosecutor to investigate.

In April, Brown and the council unanimously passed a second heliport ordinance, which included several of the recommendations.

The Inquirer obtained copies of the e-mails through the state's Open Public Records Act.

Brown said the township solicitor, John Gillespie, had advised him and the other officials to decline to comment while the matter was under investigation. Gillespie also would not comment.

William J. Kearns Jr., a lawyer hired by the township to represent the mayor and council in the matter, said, "E-mail communications are just like letters, except they go faster, and they do not constitute a meeting."

New Jersey's Sunshine Law says governing bodies must allow the public to listen whenever they discuss policies, ordinances, and public business, even when using "communication equipment."

Open-government advocates say that clearly includes texts, e-mails, and video phones, though such things didn't exist when the law was last amended in 1976.

The New Jersey State League of Municipalities warned public officials in a November article titled "E-Mailers Beware" to be cautious when using e-mail, text messages, or social media.

"Many public officials are not aware of the legal implications" and could be breaking the law, said the article from the league's official magazine, posted on the organization's website.

Mass e-mails and "rolling" e-mails that continue a stream of conversation should be avoided, the article said.

In June, a prosecutor in Cape May County ordered Lower Township officials to stop using e-mails to talk about public business or he would take action. Michael J. Donohue, the township solicitor, established guidelines to correct the problem.

"Legal scholars continue to argue" over the legality of using e-mails, but Donohue told the Township Council members to avoid using them as a body and to refrain from offering opinions in e-mails to one another.

Paff, who heads the New Jersey Libertarian Party's open-government advocacy project, instigated the investigation in Burlington County.

The party filed similar complaints in 2008, leading Bernardi to warn the county's 40 municipalities that he would pursue charges if they ignored the Sunshine Law. The penalties are $100 for a first offense and $500 for subsequent convictions.

"The right of the public to be present at all meetings of public bodies, and to witness in full detail all phases of the deliberation, policy formulation, and decision-making," is vital to a democracy, Bernardi wrote in letters to the towns.

There are a few exceptions, such as personnel matters. And two council members may chat, but not a quorum.

Paff said he had read about the Evesham e-mails in a June 23 story in the Camden Courier-Post, which obtained copies.

"When they do all that horse-trading behind closed doors and then they come before the public and just do a formal vote, it deprives the public of what they are supposed to get," Paff said. He said the public deserved to see government in action, even when "it's messy."

Bobby Conner, the head of the open-governance project with the New Jersey American Civil Liberties Union, has not reviewed the e-mails regarding the heliport but said chat among government officials beyond the earshot of residents "corrodes the public's trust in public officials."

"The Legislature wanted the greatest amount of transparency. . . . When you are talking about the public's business, it should occur in public," he said.

Kearns dismissed the Evesham e-mails as banter and said it was not the stuff of public meetings. The governing body "raised an issue to be talked about but didn't really debate the issue," he said.

Another of the e-mails under scrutiny was written by Councilman Steven Zeuli on March 23. "Since the 'heliport' is in my neck of the woods, I have gotten some concerns from the residents about any increased helicopter traffic. I don't think it would be a bad idea to spell out that taxi service is not permitted," he suggested to the others.

The day before, Howarth had sent an e-mail proposing that the council "get an interpretation" of the differences between what the original ordinance said and what the planning board wanted.

Brown's reply? "No need to accept the recommendations, this was a silly and rather obscure one. We will put this on for second reading [adoption of the ordinance] in April."