Open Public Meetings Act

Plaintiff John Paff filed a lawsuit in the Law Division of the New Jersey Superior Court against the Trenton Board of Education (“Board”) alleging, in part, that the Board violated the Open Public Meetings Act (“OPMA”) and the New Jersey Civil Rights Act (“NJCRA”) because the Board did not reference the payment of a merit bonus to the Superintendent on its agenda for a public meeting. Plaintiff argued that if he prevailed on this issue, he would be entitled to attorney’s fees under OPMA. While the Superior Court found that the Board violated OPMA by failing to provide the public with adequate notice pursuant to N.J.S.A. 10:4-8(d), it denied Plaintiff’s request for attorney’s fees. Plaintiff appealed to the New Jersey Appellate Division.

On November 13, 2020, the Appellate Division in Paff v. Trenton Board of Education confirmed that attorney’s fees are not an available remedy under OPMA or NJCRA. The plain reading of OPMA demonstrates that OPMA provides limited monetary penalties for persons who knowingly violate this law, but it does not provide for attorney’s fees and costs to the prevailing party. Similarly, the NJCRA does not supplement remedies under OPMA. As such, even though Plaintiff was successful in obtaining a ruling that the Board violated OPMA, he was not entitled to attorney’s fees.

Note that OPMA is different than the Open Public Records Act, which does expressly provide for attorney’s fees if a party prevails in Superior Court against a public entity.

On October 30, 2020, the New Jersey Appellate Division in Schwartz v. Princeton Board of Education issued an unpublished decision affirming that a board of education may utilize an electronic voting system so long as all of the other requirements of the Open Public Meetings Act (“OPMA”) are met. In other words, electronic voting by board of education members is not a per se violation of OPMA.

Plaintiffs, members of the public, filed a lawsuit against the Princeton Board of Education (“Board”) alleging that its vote on a specific agenda item at its June 12, 2018 public meeting violated OPMA. The agenda item involved whether to approve a send-receive agreement with a neighboring school district. Plaintiffs primarily argued that the Board’s electronic system of voting was a “secret ballot” and that they did not fully witness the Board’s decision making process.

The Appellate Division affirmed the trial court’s determination that OPMA was not violated. Plaintiffs and thirty other members of the public physically attended the June 12, 2018 Board meeting. The Board also live-streamed the meeting on YouTube for additional public access. The Board used a cloud-based electronic system called BoardDocs to take Board members’ votes on agenda items from their laptops. Once the vote on an agenda item was closed, the votes were saved and then projected on a screen for public viewing.

In their lawsuit, Plaintiffs claimed that that they were unable to hear or see the votes. However, Plaintiffs nor any member of the public complained at the June 12, 2018 meeting or thereafter that they were unable to see the results on the screen or asked that the results be read aloud. While the trial court acknowledged that the display screen was “difficult to read” and that it would have been “better for the public to know how each member voted at the time,” these issues did not rise to the level of an OPMA violation.

The Appellate Division agreed with the trial court that OPMA allows for flexibility in the manner in which public bodies conduct their meetings. Contrary to Plaintiffs’ arguments, OPMA does not require sequential or roll call voting for this kind of item. The Board’s meeting minutes also made clear how each Board member voted. Based on the totality of the circumstances, the Appellate Division affirmed that there was no secrecy in the Board’s voting process.

The Board, in this case, maintained the public’s right under N.J.S.A. 10:4-7 to be present at all public meetings and witness in full detail all phases of the deliberation, policy formulation, and decision making of the Board.

On September 24, 2020, the Department of Community Affairs, Division of Local Government Services (“DLGS”) issued Local Finance Notice 2020-21 to further explain the new emergency regulations for remote public meetings held during a declared emergency.  The emergency regulations were promulgated by the Director of DLGS in accordance with Section 8 of newly enacted L. 2020, c. 34, and are codified as N.J.A.C. 5:39-1.1. through 1.7.  The emergency regulations aim to ensure continuity of government operations and transparency in conducting public business when an emergency requires a governing body, subject to the Open Public Meetings Act, to hold meetings remotely.  Boards of education are included in these emergency regulations and are subject to their requirements.

The emergency regulations are presently in effect and have been concurrently proposed for permanent adoption in the October 19, 2020 New Jersey Register.  Public comments may be submitted on the regulations until November 18, 2020.

The new regulations impose various new obligations on governing bodies that hold fully remote and/or hybrid (in-person and remote) meetings during a declared emergency.  These obligations include but are not limited to:

• No cost public access;
• Platform selected to facilitate the remote meeting must have the capacity for the normal public turnout at similar meetings.  That capacity must accommodate at least 50 individuals in addition to officials participating in the meeting;
• Platform utilized can be audio-only, audio plus video, or livestream;
• Telephone conference line for allowing members of the public with limited or no internet access to listen and provide public comment;
• Public comment submission in writing in advance of the meeting within a reasonable amount of time before the meeting;
• Any presentations or documents that could be viewed or made available to members of the public during an in-person meeting must be made visible on a video broadcast of the remote public meeting or made available on the website of the local public body; and
• Local public body holding the meeting must adopt, by resolution, standard procedures, and requirements for public comments.

In addition to the above, the regulations also account for proper notice of a remote public meeting and guidance on how local public bodies should revise their annual notices to incorporate remote public meetings.

As the new requirements differ greatly from those issued from DLGS in March 2020, it is imperative that boards of education review their current practices for conducting fully remote and/or hybrid (in-person and remote) meetings during the declared COVID-19 emergency.

About two weeks ago, we addressed the issue of how boards of education could conduct their school board meetings electronically and still comply with the Open Public Meetings Act (“OPMA”) when there is a severe restriction on public gatherings due to the coronavirus health crisis. Fortunately, the Division of Local Government Services (“DLGS”) recently provided additional guidance on this issue.

DLGS emphasized that telephonic or virtual public meetings without a physical meeting place should be utilized for the foreseeable future in light of the Governor’s Executive Order 107. Virtual meeting options include streaming and/or online meeting platforms, such as Google Hangouts or Cisco Webex.

While at least 48-hours notice is still required before a board meeting, such notice may be provided electronically during a declared emergency. The public must still be able to attend (view) the board meeting and provide public comment even if the meeting is conducted remotely.

While executive session should be avoided or limited if meetings are conducted virtually, some school boards may need executive session to address urgent issues. If executive session is conducted remotely, that part of the board meeting should occur on a separate and private virtual platform.

The complete DLGS guidance document can be found here.

Despite severe restrictions placed on public gatherings, school boards must meet during the coronavirus pandemic to address critical business, including convening a public hearing on the budget. The solution, holding a public meeting electronically, is supported by recent guidance from the Division of Local Government Services (“DLGS”).

The Open Public Meetings Act (N.J.S.A. 10:4-8(b)) permits public meetings to be held in person or by means of communication equipment.  DLGS guidance provides that communications equipment includes streaming services and other online meeting platforms.

Notice of a meeting held by electronic equipment must be properly noticed.  Similarly, the board must provide a means of public comment.

A number of logistical issues arise when holding a meeting remotely.  One of these is finding an electronic platform that allows a board to preserve the integrity of the board’s discussion in the public portion while at some point permitting public comment to occur.   Platforms exist that can accommodate this need. There will be a cost attached and a need for careful implementation of the technology. 

Another issue that arises is maintaining confidentiality presuming there is a need for an executive session. This issue can be addressed by announcing the executive session at the public portion of the meeting and using a separate, non-public, dial-in mechanism for the executive portion of the meeting.

Streamlining a board meeting held electronically is likely the most important consideration.  Limit the agenda to the most critical issues and forego nonessential business.  Include an executive session on the agenda for a remotely held meeting only when absolutely necessary.

The good news is that the law and technology allow a board meeting to be held remotely so that critical business can be conducted.  Boards should examine their policies and consult with counsel when considering holding a meeting electronically.

On May 17, 2019, the New Jersey Appellate Division in Centrella v. Prospect Park Board of Education issued an unpublished decision confirming that, under the Open Public Meetings Act (“OPMA”), a public entity is not required to discuss a proposed employment action prior to actually voting on that action. This case involved a former Prospect Park Board of Education (“Board”) employee’s appeal under the OPMA in which she alleged that the Board improperly eliminated her position of speech language specialist and terminated her tenured position when the Board did not discuss the proposed action at the same meeting in which it voted to take that action.

The proposed termination of Plaintiff’s position was listed on the Board’s publicly available agenda, which also explained the reasons for the recommended action, including reasons of economy. In preparation of the Board’s June 17, 2017 meeting, Plaintiff received a Rice notice, to which she responded that she wished to have her employment discussed at the public portion of the meeting rather than privately in executive session. Without discussion, the Board voted to approve the resolution involving Plaintiff, along with fourteen other employment resolutions. A call for discussion amongst Board members was made, to which Board members had no comments.

Relying on Kean Federation of Teachers, the Appellate Division affirmed the trial court’s dismissal of Plaintiff’s complaint. In rejecting Plaintiff’s arguments, the Appellate Division confirmed that OPMA does not mandate that a public entity engage in any particular level of discussion at a public meeting. Instead, OPMA gives a public employee the right to require the public entity to conduct its discussion, if any, in public rather than in executive session. While Plaintiff requested that her employment be discussed in public session, she could not compel the Board to have a discussion prior to its voting on her employment.

Sanmathi (Sanu) Dev, Esq. concentrates her practice on the representation of boards of education and charter schools in all areas of school law including: labor and employment, special education, Section 504, student discipline, FERPA, Anti-Bullying Bill of Rights Act, student residency, civil rights, tenure, OPRA, and OPMA.

By: Robert A. Muccilli, Esq.
Editor: Sanmathi (Sanu) Dev, Esq.

Public bodies have flexibility when an action item presents itself at a meeting where the public was not given advance notice of the matter provided the body is not deceiving the public or intentionally omitting an item it knew would be acted upon. In Jeffrey S. Feld, Esq. v. City of Orange Township et al., the plaintiff alleged that the City of Orange Township violated the Open Public Meetings Act (“OPMA”) by passing a resolution settling outstanding water and sewer bills. Specifically, the plaintiff alleged that the City failed to give notice or an opportunity for the public to be heard on the resolution. The plaintiff asserted that the City did not list or include the resolution in its agenda packet prior to the meeting and that the resolution was addressed after the close of citizens’ comments.

In its decision issued on July 27, 2018, the Appellate Division found no violation of the OPMA. The Court explained that while the OPMA requires a public body to include in its notice of an upcoming meeting the agenda of that meeting to the extent known, the plaintiff had not alleged or produced any evidence substantiating that the City published an agenda calculated to mislead the public or otherwise intentionally omitted items from the agenda which it knew would be acted upon. Hence, the resolution was not subject to being voided.

Important to the Court’s ruling was evidence that certain council members were not aware that the matter would be coming before the body at the meeting. In circumstances where an action item is added to the agenda at the meeting it is prudent to provide an explanation to the public of why the matter was not originally listed on the agenda.

By: Cameron R. Morgan, Esq.
Editor: Sanmathi (Sanu) Dev, Esq.

On June 21, 2018, the New Jersey Supreme Court has reversed an Appellate Division ruling that many felt had overly burdened public bodies in the administration of their duties and gone beyond the requirements of the Open Public Meetings Act, N.J.S.A. 10:4-6 to -21 (“OPMA”).  Kean Fed’n of Teachers v. Morell, ___ N.J. ___, No. A-84-16 (2018).  Under the seminal decision in Rice v. Union County Reg’l High Sch. Bd. of Educ., 155 N.J. Super. 64, 73 (App. Div. 1977), public bodies seeking to invoke the OPMA exception allowing them to discuss personnel matters in closed executive session have long been required to provide written notice to employees whose employment could be adversely affected of their right to have the discussion held in public.  In Kean, the Court considered whether employees who were non-renewed had a right to receive Rice notices informing them of their right to have the discussion made public, even though the agenda did not include any discussion of the affected individuals’ employment scheduled to be held in private.

In a decision last year, a panel of the Appellate Division held that “a public body is required to send out a Rice notice any time it has placed on its agenda any matters” that involve employment, termination, discipline, or any of the other personnel items identified in the OPMA statute.  The decision had required Rice notices to be sent “in advance of any meeting at which a personnel decision may occur.”  That ruling had been widely criticized as an overreach that unnecessarily extended the provisions of OPMA, and, in effect, required Rice notices for nearly every personnel item placed on a public bodies’ agenda.  On June 21, 2018, the Supreme Court reversed the ruling, holding that there is nothing in the OPMA or the Rice decision to support the proposition that all potentially affected employees must receive notice whenever a personnel matter appears on a governmental bodies’ public meeting agenda.

The Court rejected an expansive reading of OPMA and the suggestion that the statute provides employees with the right to “select the forum of the discussion” about their employment.  Rather, the Court recognized that OPMA provides discretion to public bodies whether to hold personnel discussions in public or private.  If scheduled to be held in private, the statute requires Rice notices to the affected employees and the option for employees who could be potentially adversely affected to exercise their “right to move a private discussion into the sunshine of a public discussion.”  However, the Court clarified that the personnel exception is not applicable when a public entity already intends to take personnel action in public.

The Supreme Court also rejected the Appellate Division’s intimation that the subcommittee structure might be used to circumvent the protections of the OPMA, finding that the subcommittee process, of discussing personnel matters in advance of taking action at a public meeting by the full board, “is common and not fairly viewed as an inherent subterfuge to eschew public discussion.”  The Court went on to state that the OPMA does not contain any requirement about the robustness of the discussion that must take place on a topic.  The Court reasoned:  “Forcing public bodies to issue Rice notices and robustly discuss all personnel matters, as the Appellate Division intimated, would intrude on a public body’s prerogative as to how to conduct its meetings.”

Finally, the Court considered the requirement of the OPMA that public bodies make the minutes of their meetings “promptly available” to the public.  For both public meeting minutes and executive session minutes, the Court agreed with the parties that a fact-sensitive, case-by-case analysis is appropriate in assessing whether a public body has met the requirement, but added that the five month delay in publishing the minutes in Kean was unreasonable.  The Court held that “reasonableness must remain the touchstone” when assessing the promptness of a public entities’ action to approve its minutes, adding that minutes should also “be released within days of their approval, unless truly extraordinary circumstances prevent their availability to the public.”

Last week, we reviewed the New Jersey Appellate Division’s ruling in Kean Federation of Teachers v. Board of Trustees of Kean University, which changes a public entity’s obligations regarding Rice notices sent to its employees. You can read last week’s post here.

This week, we will examine the Appellate Division’s other decision in the Kean case regarding a public body’s duty under the Open Public Meetings Act (“OPMA”), N.J.S.A. 10:4-6 et seq., to make meeting minutes promptly available. While the OPMA itself does not establish a specific time period for the “promptly available” standard, the Appellate Division found that the Board of Trustees of Kean University (“Board”) violated the OPMA when it made its meeting minutes available 58 business days after its previous meeting.

During the 2014-2015 academic year, the Board held a total of five meetings on September 15, 2014, December 6, 2014, March 2, 2015, May 11, 2015, and June 29, 2015. Its practice was to consider for approval at each meeting the minutes of the immediately previous meeting, a typical procedure adopted by public entities. On December 18, 2014, an individual requested the minutes from the December 6, 2014 meeting. The Board’s Custodian of Records released the minutes on March 4, 2015 after the Board had formally approved them at the March 2, 2015 meeting, which was 58 business days and 88 calendar days after the December 6, 2014 meeting.

The Appellate Division disagreed with the Board’s argument that it promptly made the December 6, 2014 meeting minutes available by providing them two days after they were formally approved by the Board at the March 2, 2015 meeting. The Appellate Division also rejected the Board’s argument that it would be burdensome for it to convene additional meetings in order to approve the previous meeting’s minutes within 30-45 days. Rather, the Appellate Division relied on the Legislature’s commitment to transparency in public affairs through the OPMA. To that end, the Appellate Division reasoned that members of public bodies must act expeditiously and without delay to make minutes available to the public.

Public bodies should review their board meeting schedule and make sure their practices are consistent with making meeting minutes promptly available. As this case shows, 58 business days (88 calendar days) will not comply with the OPMA.

*Please note that the case discussed in this article has been reversed by the New Jersey Supreme Court on June 21, 2018 in Kean Fed’n of Teachers v. Morrell, ___ N.J. ___, A-84-16 (2018).*

In a published decision released on February 8, 2017, the New Jersey Appellate Division issued an important ruling regarding a public entity’s obligations regarding Rice notices provided to its employees. In Kean Federation of Teachers v. Board of Trustees of Kean University, the Appellate Division determined that a public body is required to provide a Rice notice to any employee whose name appears on the agenda regarding his or her employment, regardless of whether the public body intends to discuss that individual’s employment. Specifically, the Appellate Division held that “a public body is required to send out a Rice notice any time it has placed on its agenda any matters ‘involving the employment, appointment, termination of employment, terms and conditions of employment, evaluation of the performance of, promotion, or disciplining of any specific prospective public officer or employee or current public officer or employee employed or appointed by the public body.’”

The Open Public Meetings Act (“OPMA”), N.J.S.A. 10:4-6 et seq., requires public entities, including local boards of education and charter school boards of trustees, to conduct all discussions and actions of the public body in public, unless a specific exception applies. One such exception is personnel matters, in which case, these discussions must occur in closed session unless reasonable and proper notice is given to the affected employee and the employee requests the discussion to occur in public. This requirement is commonly known as the Rice notice pursuant to the case New Jersey Appellate Division case Rice v. Union County Regional High School Board of Education, 155 N.J. Super. 64 (App. Div. 1977).

At issue in Kean Federation of Teachers v. Board of Trustees of Kean University was whether the Board of Trustees of Kean University (“Board”) was required to send a Rice notice to a faculty member when the Board did not discuss the faculty member’s employment and voted to not reappoint her for another term of employment with the university. The Board argued that no Rice notice was required because the Board did not intend to nor did it actually discuss the faculty member’s employment and only voted on whether to reappoint her. Such vote occurred properly in public session. The Board explained that a subcommittee of the Board reviews and analyzes the administration’s recommendations regarding reappointments and non-reappointments. Thereafter, the subcommittee presents to the full Board a personnel report and its recommendations for the Board to vote on during public session.

Unfortunately, the Appellate Division rejected the Board’s arguments and determined that the Board’s practice contravenes the OPMA. While subcommittees are entirely permissible, the only discussions and deliberations relating to whether to reappoint the faculty member occurred in private with the subcommittee, and the recommendations of the subcommittee were presented to the Board for “rubber stamping” during public session at the full board meeting. Finding the Board’s practice problematic, the Appellate Division reasoned that the Rice notice requirement is rooted in the presumption that members of public entities should and will discuss personnel matters presented to them and engage in true deliberations before voting as a public body. The Appellate Division determined that when the Board did not issue the Rice notice, it prohibited this process. That is, by not issuing a Rice notice, none of the board members at the full board meeting were allowed to ask questions or seek clarification if they sought, which is against the purpose of the OPMA.

Stay tuned for the next NJ School Law Blog post in which we will examine the Appellate Division’s other ruling in this case regarding a public entity’s obligation to make meeting minutes “promptly available.”