The Open Public Meetings Act and the Board of Governors of Rutgers
On July 25, 2012, the New Jersey Supreme Court decided McGovern v. Rutgers. The Court’s ruling — which found violations of Open Public Meetings Act, N.J.S.A. 10:4-6 et seq. (“OPMA”), but no statutory remedy — highlights the need for an amendment to OPMA providing effective remedies for violations of OPMA.
In McGovern, the Board of Governors of Rutgers (“Board”) called a special meeting to act on a resolution to suspend the public portion of the meeting and go into immediate closed session to discuss matters involving contract negotiations for sports marketing, naming rights of athletic facilities and stadium construction; employment of personnel and terms and conditions of employment; and pending litigation, investigations and matters falling within the attorney-client privilege. Plaintiff, who was present at the special meeting and who objected to the closure thereof, was given a redacted copy of the minutes of the closed session, which indicated that the Board discussed the University’s contract with Nelligan Sports Marketing, Inc., matters involving construction of the expanded football stadium, naming rights for the University’s athletic facilities, the president’s policy recommendations that were under consideration by the administration and the need for clear rules to be implemented across all facets of the University.
The Plaintiff’s Complaint alleged that: (1) the Board violated the notice requirements of OPMA; (2) the topics discussed by the Board in closed session did not fit within the statutory exemptions to the open meeting requirement; and (3) the Board’s practice of immediately going into closed session for an unspecified period of time violated OPMA.
The New Jersey Supreme Court remanded the matter to the trial court for entry of an order dismissing Plaintiff’s Complaint. The Court held that the notice of the special meeting was inadequate under N.J.S.A. 10:4-8 because it failed to include the proposed agenda for the meeting “to the extent known.” The Court found that at the time the notice was prepared, more was known about the extent of the proposed agenda than was conveyed by the generic reference to “contract negotiation and attorney-client privilege.” The Court held, however, that the Board’s resolution to go into closed session satisfied N.J.S.A. 10:4-13 by advising of “the general nature” of what was to be discussed during the closed session. The Court also held that while some of the topics discussed by the Board were appropriate for closed session under N.J.S.A. 10:4-12(b), the remarks regarding policy recommendations and the formulation of clear rules and guidelines were not.
Despite finding that the notice of the special meeting was inadequate and that some issues discussed during closed session should have been discussed in an open meeting, the Court held that the Plaintiff was not entitled to a remedy. OPMA only provides for three forms of remedy for a violation: a prerogative writ action seeking to void any action taken at the meeting, N.J.S.A. 10:4-15; injunctive relief to assure future compliance, N.J.S.A. 10:4-16, and imposition of fines N.J.S.A. 10:4-17. The Court held that N.J.S.A. 10:4-15 did not apply because the Board took no action during the meeting. The Court further held that N.J.S.A. 10:4-16 and N.J.S.A. 10:4-17 were inapplicable since the record did not reflect a pattern of OPMA violations or a “knowing” violation in this case.
Senator Loretta Weinberg is the sponsor of a Bill that proposes to amend OPMA’s remedies. That Bill would allow a prevailing party to recover reasonable attorneys’ fees under OPMA when that party demonstrates a pattern of violations by the public body. While that amendment would not have allowed recovery in McGovern, as there was no pattern of violations, the prospect of recovery of attorneys’ fees in OPMA cases, just as in cases brought under the Open Public Records Act, N.J.S.A. 47:1A-1 et seq., would serve as an incentive to plaintiffs to challenge conduct of public bodies that those individuals believe violate OPMA.