In a recent decision, the Superior Court of New Jersey has clarified certain requirements of the Open Public Meetings Act ("OPMA"), including:
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Sufficiency of a meeting notice or agenda that does not specifically identify topics to be discussed in closed session
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Closed-session discussion of those topics
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Permissible length of closed session
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Agenda order
McGovern v. Rutgers University
Superior Court of New Jersey, Appellate Division
February 11, 2011
This case involved the Rutgers University Board of Governors and its meeting procedure, but much of the Court's ruling applies to all New Jersey public bodies, including boards of education.
Facts of the Case
In September 2008, the Board of Governors issued a notice stating that it would hold a special meeting to "act on a resolution to meet in immediate closed session to discuss matters falling within contract negotiation and attorney client privilege…." At the advertised time, the Board opened the meeting and immediately adopted a resolution to go into closed session. In closed session, it discussed, among other topics, a contract with Nelligan Sports Marketing, proposals for naming rights for the new Rutgers stadium, and certain recommendations by the university president regarding policies and procedures for the athletic department. After the closed session, the Board reconvened in open session but took no action.
The Board of Governors' practice was to provide notice of its regular meetings by indicating that they would consist of an initial public session from 8:30 a.m. to 8:35 a.m., followed by a closed session from 8:35 a.m. to 10:00 a.m., and then a second public session to begin at 10:00 a.m. without a fixed end time. The Board did not always adhere to this schedule, however. Of the 12 regular meetings in the court record, each of the public sessions started at the specified time, but at only six of the 12 meetings did the public session resume at the specified time. At the other six meetings, the discrepancy between the specified and actual start time of the second public session ranged from 26 to 64 minutes.
The Court's Rulings
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Sufficiency of Notice of Closed Session
On the issue of whether the special meeting notice sufficiently described the topics to be discussed in closed session, the Court ruled that the notice "should contain as much information as is consistent with full public knowledge without doing any harm to the public interest." Accordingly, it found that the Board's notice was not sufficiently specific because no public interest would have been harmed had the Board specifically identified the contracts to be discussed. In particular, the Court found that because the sports marketing contract already had been executed at the time of the meeting and there was no indication that negotiations would have been disrupted if the Board had stated that it would discuss proposals for naming rights, both contracts should have been identified.
Thus, at least with respect to matters involving contract negotiations, the ruling appears to require specific matters to be identified in a special meeting notice (or regular meeting agenda) and in the closed session resolution where they are matters of public knowledge or where disclosure would not disrupt the negotiations. The ruling also appears to require specific identification where negotiations have concluded and a contract has been executed.
Even as the Court set this broad standard of "full public knowledge," it stated that with respect to personnel matters, a public body need not and should not provide detail regarding specific matters to be discussed, acknowledging the need for appropriate confidentiality. It did not directly address pending or anticipated litigation or matters within the attorney-client privilege, but the decision suggests that such matters should be identified as such, and whether they should be identified more specifically should be determined on a case-by-case basis: if they involve matters of public knowledge, specific information should be provided, but if disclosure would do harm to the public interest (i.e., the board of education's interest in the particular matter), confidentiality should be preserved.
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Topics Discussed in Closed Session
On the permissibility of closed-session discussion, the Court considered three items: the sports marketing contract, the naming rights proposals and the university president's overview of policy recommendations. It ruled that closed-session discussion of the contract and the naming rights proposals was permissible under the OPMA exceptions for pending or anticipated contract negotiations and matters within the attorney-client privilege, noting that minutes of the closed session demonstrated that the Board's attorney had provided legal advice regarding the contract and related litigation, and that the issue of naming rights had been the subject of ongoing negotiations. The Court concluded, however, that the president's overview of policy recommendations fell within none of OPMA's exceptions and should have been discussed in public.
These rulings reemphasize the well-established rule that matters that do not fall within any of OPMA's exceptions may not be discussed in closed session. They also underscore the need for public bodies to maintain reasonably complete minutes of closed-session meetings. Particularly important is the need for the minutes to reflect the issues discussed in closed session in order to support reliance on a particular OPMA exception to conduct a discussion in closed session. For example, where a board discusses matters within the attorney-client privilege, the minutes should identify the topics on which counsel provides legal advice to the extent possible without divulging privileged information. Where the board discusses particular pending litigation, the matters should be identified in the minutes unless it has a specific reason not to do so, such as to maintain necessary confidentiality. The minutes should not identify specific personnel matters or other matters involving individual privacy, for the same reasons that those matters should not be identified prior to going into closed session, as discussed above.
The Court considered whether the practice of beginning meetings with a brief public session, followed by a closed session of varied duration and then a second public session, was in accord with the OPMA provision requiring public bodies to specify in advance the time that meetings will begin. It concluded that the format employed by the Board deterred the very public participation that OPMA was intended to promote, by forcing members of the public to wait a considerable amount of time between the first and second public sessions without knowing whether the second session would resume at the specified time. Key to the Court's ruling was its finding that often the time specified in the notice for resumption of the public session, and the time it actually resumed, varied by as much as over an hour. The Court ruled that this discrepancy, when combined with the brief initial public session, created such uncertainty as to erode the reliability of the times specified in the notice.
Cautioning that "any act that would limit public access to all meetings of public bodies, or undermine public confidence in public bodies, should be avoided," and noting that OPMA "appears to contemplate [a] procedure under which the open meeting precedes the closed meeting," the Court ruled that the Board was required to complete its open-session business before moving into closed session.
We do not read the decision, however, to require public bodies to conduct all of their open-session business before moving into closed session. Such a format likely would prove unworkable for any board needing to take action on matters in public session after discussing them in closed session. In our view, the Court was concerned with negative impact on public participation caused by the format used by the Board of Governors: the very short initial public session followed by a closed session of indeterminate length, often much longer than indicated in the published notice. That concern can be addressed with an agenda by which a board conducts most, if not all, of its public-session business before going into closed session, then reconvenes to take any necessary action in open session, and by adhering to the schedule with reasonable consistency.
Conclusion
Many boards of education already conduct meetings in conformance with the Court's several rulings in this case. For others, a few minor modifications may go a long way toward ensuring compliance with the Open Public Meetings Act.
