On July 25, 2012, the New Jersey Supreme Court ruled on an Open Public Meetings Act (OPMA) case that may have significant, long-term implications and may identify aspects of the OPMA that may need to be clarified by the New Jersey Legislature.
In McGovern v. Rutgers, the Supreme Court unanimously agreed to reverse the Appellate Division's February 18, 2011 ruling on the case. Both the Supreme Court and Appellate Division decisions are on-line here.
The highlights of the Supreme Court's ruling are:
Sequencing
The Appellate Division found that it violates the OPMA for a public body to open a public meeting, then immediately go into closed session for an indeterminate period, and then return to public session. The Appellate Division found that members of the public who arrive at the meeting when they believe the closed session might end "run of the risk of important business being conducted" prior to their arrival. This, according to the Appellate Division, "deter[s] the very public participation that Act is designed to promote."
The Supreme Court, however, held that "a public body must be afforded discretion in determining the most advantageous and efficacious manner of proceeding through its agenda items . . . and that [absent proof of bad motive] courts should not interfere with a body's exercise of its discretion."
Specificity of Meeting Notices and of Closed Session Resolutions
In the resolution it passed before going into its September 10, 2008 closed session, the Rutgers Board of Governors gave a fairly detailed description of the topics it was going to privately discuss. But, the notice that the Board issued to publicly announce its September 10, 2008 special meeting said only that the Board would "act on a resolution to meet in immediate closed session to discuss matters falling within contract negotiation and attorney-client privilege.”
The Appellate Division did not distinguish the OPMA's requirements for advertising a special meeting (N.J.S.A. 10:4-8(d)) from the specificity required in closed session resolutions (N.J.S.A. 10:4-13(a)). The court's failure to make this distinction caused it to erroneously conclude that "notice of the September 10, 2008 special meeting was inadequate, and ran afoul of N.J.S.A. 10:4–13, because it did nothing more than track the statutory exceptions upon which the Board relied."
The Supreme Court held that the Board's N.J.S.A. 10:4-13(a) resolution, which stated that it would "discuss matters [of] contract negotiations for sports naming rights of athletic and stadium construction; employment of personnel and terms and conditions of employment; and pending litigation, investigations, and matters falling within the attorney-client privilege with respect to these subjects" was "entirely adequate to meet the requirement of [the OPMA]."
The Supreme Court, however, found that the Board's notice of the public meeting fell short of N.J.S.A. 10:4-8(d)'s requirement that the meeting's agenda, “to the extent known,” be disclosed because "by the time this notice was prepared and published, more was known about the extent of the proposed agenda than what was conveyed by the generic references to 'contract negotiation and attorney-client privilege.'”
Discussing matters in private that ought to be discussed in public
The Supreme Court agreed with the Appellate Division that the Board's closed session discussion that drifted into "potentially significant policy issues" violated the OPMA. The Supreme Court warned public bodies to "be vigilant during closed sessions to ensure that they do not stray from the defined, circumscribed issues that may be addressed in a closed session." But, as explained below, the Court declined to remedy the violation because the Board took no action and there was no evidence of a pattern of noncompliance.
Citizen-Plaintiff's Remedy when OPMA is violated
The Appellate Division found that the Board violated OPMA and directed the trial court to formulate "an appropriate remedy."
The Supreme Court held that a citizen is not entitled to injunctive relief under N.J.S.A. 10:4-16 unless “a pattern of noncompliance has been demonstrated.” And, the Court held that a citizen is not entitled to relief under N.J.S.A. 10:4-15 unless action is taken. Even though the Supreme Court found that the Board violated the OPMA by having an improper closed session discussion, it ruled that the Plaintiff was not entitled to any remedy because "the record fails to disclose a repeated pattern of OPMA violations" and because no action was taken on the improperly discussed matters.