Court Agrees with NJSBA on Closed Session Sequence

TRENTON, July 26, 2012—The New Jersey Supreme Court yesterday overturned an Appellate Division ruling that would have required public bodies, including school boards, to conclude open sessions of meetings before they could enter closed session.  The court's July 25 decision concurred with arguments made by NJSBA as amicus in Francis J. McGovern, Jr., Esq. v. Rutgers, the State University of New Jersey.

The unanimous decision addressed action brought by a Rutgers alumnus against the university, charging a violation of the Open Public Meetings Act (OPMA) by its board of governors in September 2008.

Harm to Public's Interest  NJSBA supports and adheres to OPMA.  However, it found that the Appellate Division's ruling on the sequence of closed sessions could harm the public's interest.

In oral arguments before the Supreme Court in April 2012, NJSBA Counsel John Burns stated that the lower court's requirement that a board meeting's closed session follow completion of the open session is not in the text of the Open Public Meetings Act. Significantly, he asserted that such a requirement "may ultimately do harm to the public interest."

"There will be a delay in action. All votes need to take place in open session," Burns stated, adding that the appellate court's ruling would require school boards "to hold an additional meeting to resolve those issues that they discuss in closed session," rather than permitting boards to come back out and hold an open session.

For example, Burns said, a board may discuss the purchase of land in closed session, but under the appellate court's ruling it would need to wait until a subsequent meeting to actually vote on the purchase.  By that time the board may lose the opportunity to buy the land, or the price could increase.

In another example, Burns said the issue of removing a poor performing employee is appropriately discussed in closed session, but the lower court's ruling would require the vote to remove the employee to wait until another meeting to hold the public vote.  He also described situations in which students scheduled to appear before the board for a closed-session disciplinary issue would need to wait until late at night, during the closed-session portion of the meeting, before the matter would be addressed.

Court Agrees  The state Supreme Court found the arguments of the NJSBA, Rutgers and the Attorney General's office persuasive on this point.  A syllabus of the court's decision stated—

OPMA does not require that a public body complete the open portion of its meetings before proceeding into closed session. That plaintiff may experience inconvenience as a result of the Board's meeting structure does not mean that the Board acted with the purpose to discourage attendance. The Board has included as part of its regular meeting schedule the start time, a notation that the meeting will begin with a closed session, and the time at which the open session will start. This information assists members of the public in deciding how to structure their schedules. A public body must be afforded discretion in determining how to proceed through its agenda items. Absent proof of bad motive, courts should be loathe to intervene in such highly individualized decisions.

The Supreme Court also addressed other elements of closed session procedures under OPMA.

Closed Session Resolution  The court addressed the content of the resolution that a public body must adopt in order to go into closed session once a meeting is underway.  The court noted that the resolution must state "the general nature of the subject to be discussed" in the closed session by providing "as much knowledge as possible." And it held that the resolution adopted by the Rutgers board during its September 2008 meeting did not contain all of information known by the board at that time.  Such information must be included in the resolution, even if it had not been known at the time that the board issued the public notice of closed session.

Discussion at Closed Session  While closed session discussions of issues such as policy recommendations and rule formulation were not proper, the Board was free to discuss "pending or anticipated . . . contract negotiation" investigations and ongoing litigation in closed session, according the Supreme Court.  This part of the ruling came with a caution, however.

"We recognize that, as a meeting progresses, there may be a natural progression from the discussion of topics from which the public may be excluded to topics from which the public may not
be excluded," the decision states.  "Members of public bodies must be vigilant during closed sessions to ensure that they do not stray from the defined, circumscribed issues that may be addressed in a closed session."

The decision continued, "…we are satisfied that the statute affords plaintiff no remedy. The Board took no action that could be voided…there was no showing of a pattern of noncompliance justifying injunctive relief…and there was no evidence that any violation was knowing, justifying a fine…"

NJSBA recommends that boards of education discuss the impact of the court's ruling with their attorneys to ensure that their meeting practices and policies adhere to the requirements of the Open Public Meetings Act.

The New Jersey School Boards Association is a federation of 586 local boards of education and includes more than 75 charter school associate members. NJSBA provides training, advocacy and support to advance public education and promote the achievement of all students through effective governance.