The Agenda May No Longer Be Simply a List of Items to be Considered at a Public Meeting

By Robert A. Muccilli, Esq.

A recent unpublished Superior Court Law Division decision may cause surprise and discomfort to persons responsible for developing an agenda for a public meeting.  In Opderbeck v. Midland Park Board of Education, BER-L-8571-13 (Law Div. Dec. 24, 2013), the Honorable Peter E. Doyne found that the term “agenda” in the Open Public Meetings Act (“OPMA”) includes attachments which are distributed to Board members in advance of a board meeting, and ordered that Midland Park produce electronically with the agenda the attachments and supplementary documents which are not privileged or exempt pursuant to the Act.

Judge Doyne based his decision largely on a public policy rationale.  He cited the strong legislative policy in favor of public participation and transparency as manifested in the OPMA and the Open Public Records Act (“OPRA”).

Some might argue that the decision crossed the boundary from judicial interpretation of the law into legislating.  Certainly, there is a strong legislative policy in favor of public participation and transparency. However, it is also true that the Legislature has decided how these policy considerations will be implemented.

For example, the Legislature amended the OPMA a few years ago to require that a school board, like a municipality, to set aside a portion of each meeting for public comment.

Of consequence, the Legislature has not defined “agenda” to include attachments and supplementary materials.  Further, the common dictionary and legal dictionary definitions of the term “agenda” refer to a list of things to be done or items to be considered at a meeting.  These definitions do not reference attachments and supplementary documents.  In fact, the New Jersey Attorney General, in a formal opinion, concluded that the term “agenda” refers solely to the list of items to be discussed or acted upon at the meeting, and that the notice requirement under the OPMA, as it relates to the agenda, need only contain a listing of the items which will be before the board at the meeting and need not include the supportive or explanatory materials and reports relative to such items.  Also of significance, the publishing of an agenda is not required for a regular meeting for which an annual meeting notice has been published.

Reviewing attachments and supplementary materials prior to making them public in advance of a meeting to ensure that no privileged, confidential or deliberative process documents are included will often be a challenging, time-consuming and sometimes costly task.  As an unpublished Law Division decision, the determination in Opderbeck only directly affects MidlandPark.  However, one can expect public advocacy groups to raise the attachment and supplementary materials issue in litigation against other public bodies in which it will likely be argued that Judge Doyne’s analysis should be applied.

Sooner or later, the issue of whether attachments must be made public with an agenda in advance of a public meeting will have to be resolved at the appellate court level.  In the interim, public entities may find it prudent to review their policies concerning what constitutes an agenda and to consult with legal counsel concerning the ramifications of Opderbeck.