McGovern v. Rutgers, The State University, 211 N.J. 94 (2012). Plaintiff complained that the Board of Governors of Rutgers, The State University, violated the Open Public Meetings Act, N.J.S.A. 10:4-6 to -21 (“OPMA”), in connection with a special meeting on November 10, 2008 in several ways. First, he charged that the Board did not provide advance details of its agenda “to the extent known,” as required by N.J.S.A. 10:4-8. Second, plaintiff asserted that when the Board announced, at the beginning of the special meeting, that it was going into executive session and identified certain general topics to be discussed in that closed session, those topics did not fall within categories for which the OPMA allows executive deliberations. Third, plaintiff contended that the Board’s practice of placing its executive session before most of its public deliberations violated the OPMA, in that the public could not know when the public session would begin. The parties agreed that Rutgers was a public body subject to the OPMA. The question was how to apply the OPMA.
The Law Division granted a motion by Rutgers to dismiss the case for failure to state a claim. Plaintiff appealed, and the Appellate Division affirmed in part and reversed in part. That decision, reported at 418 N.J. Super. 458 (App. Div. 2011), is discussed here. The Supreme Court granted certification and, in an opinion by Judge Wefing for a unanimous five-member Court (Justice Patterson did not participate), reversed the Appellate Division and dismissed the case.
Since the issues involved statutory interpretation, Judge Wefing noted that the Court’s standard of review was de novo. As in all cases of statutory interpretation, the Court’s “role is to determine and effectuate the Legislature’s intent.” Judge Wefing gave a detailed description of the OPMA and its purposes as background to the Court’s ruling, emphasizing New Jersey’s long “history of commitment to public participation in government and to the corresponding need for an informed citizenry.” She then turned to the various issues presented.
First, the Court found that the Appellate Division erred in ruling that Rutgers had violated the OPMA by failing to give the public “as much knowledge as possible” in the advance notice of the agenda for the special meeting. N.J.S.A. 10:4-8 requires only notice “to the extent known.” Nonetheless, Rutgers had not satisfied the “to the extent known” standard. Its notice stated 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.” But Rutgers knew more than that about what the special meeting executive session would cover. Indeed, at the September 10 meeting, when the Board announced to those present that it was going into closed session, the resolution to do so stated that “matters involving contract negotations for sports marketing, naming rights of athletics 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 with respect to those subjects” would be discussed. Thus, the advance notice was inadequate under N.J.S.A. 10:4-8.
The question then became what, if any, remedy was warranted. Judge Wefing observed that the OPMA provides three potential remedies: the voiding of any action taken at a meeting that violates the OPMA’s requirements, N.J.S.A. 10:4-15; an injunction against future violations of the OPMA, N.J.S.A. 10:4-16; and the imposition of fines, N.J.S.A. 10:4-17. Since no action was taken at the meeting, there was nothing to void under section 15. An injunction was not called for either, since such relief is appropriate only where there is “a pattern of non-compliance.” Plaintiff had not shown that here. Finally, a fine is permitted only for a “knowing” violation, and there was no evidence that this OPMA violation was “knowing.” Thus, no remedy was warranted.
The Court then turned to the issue of whether all topics discussed in the executive session were properly taken up outside the public view. Judge Wefing found that most of the topics were permissibly discussed in executive session. However, remarks of the University’s president and Board chairman regarding “anticipated policy recommendations and formulation of clear rules or guidelines” should have been discussed in public. Though Rutgers argued that these things “indirectly relate[d]” to the subjects as to which executive session was proper, the Court rejected that contention. Accepting it would “eviscerate the statute and run[ ] counter to our mandate to construe the statute in such a manner as to maximize public participation.” Again, however, none of the three OPMA remedies were available to plaintiff for this violation.
Finally, Judge Wefing rejected plaintiff’s argument that the Board had no right to structure its meetings to begin with a brief public session, followed by an executive session, and then followed by a resumed open meeting. Requiring the Board to complete its open session before going into closed session “lacks textual support in the statute and is too sweeping in scope… [A] public body must be afforded discretion in determining the most advantageous and efficacious manner of proceeding through its agenda items. Absent proof of bad motive, courts should be loathe to intervene in such highly individualized decisions.”