In this matter, the Appellate Division of Superior Court took up the issue of whether a complainant is entitled to recover attorney’s fees after successfully bringing an Open Public Meetings Act lawsuit against a board of education.

The case began when an Open Public Meetings Act (OPMA) lawsuit was brought against a board of education for failing to place the discussion of its superintendent’s merit goals on the meeting agenda.  The trial court ruled that the board had violated the Sunshine Law by not placing the merit goals on the agenda. The judge also denied the complainant’s request for attorney’s fees because there was nothing in the Sunshine Law to indicate that the Legislature intended to permit the recovery of attorney fees under the OPMA.

On appeal, the plaintiff again raised the issue of attorney’s fees.  The plaintiff reasoned that the OPMA was a civil rights statute, similar to the New Jersey Civil Rights Act which permits the recovery of attorney’s fees for successful enforcement of a plaintiff’s civil rights. The plaintiff argued that the OPMA should also permit recovery of attorney’s fees.

The appellate court agreed that the OPMA creates a substantive civil right as the “public’s rights under the Act are not vague and amorphous and the enforcement of such rights would not strain judicial competence.  In addition, the Act creates unambiguous obligations on the part of public bodies that are subject to its requirements.”  However, the court could not find anything to support the argument that the Legislature intended for plaintiffs to be able to recover attorney’s fees under the OPMA.

Instead, the court found that the Legislature already had a comprehensive enforcement scheme in place for the OPMA. First, any action taken by a public body at a meeting that does not conform to the act’s requirements “shall be voidable in a proceeding in lieu of prerogative writ” that may be brought in the Superior Court.

Further, “[a]ny party, including any member of the public, may institute” such a proceeding. The court may specifically declare any action that does not conform to the OPMA to be null and void and require that the action be redone while observing the requirements of the law.

The act also states that “any person . . . may apply to the Superior Court for injunctive orders or other remedies to insure compliance with the provisions of [the] act and the court shall . . . provide such remedies as shall be necessary to insure compliance with the provisions of [the] act.”

The act also provides limited monetary penalties for persons who knowingly violate any provision of the act.  The court observed that even with all of those specific enforcement mechanisms, the act does not provide for the award of attorney’s fees and costs to the prevailing party.

The court concluded that the Legislature could have included payment of attorney’s fees in the OPMA, in the same way that payment of fees is permitted by the New Jersey Civil Rights Act. But the Legislature did not. Therefore, the court ruled against the plaintiff.

For further information about this case, please contact the NJSBA Legal and Labor Relations Department at (609) 278-5254 or your board attorney.

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