NJ Appeals Court Rules Electronic School Board Vote Didn’t Violate OPMA

In Schwartz v. Princeton Board of Education, the New Jersey Appellate Division held that a board of education properly cast votes using an electronic voting system...

NJ Appeals Court Rules Electronic School Board Vote Didn’t Violate OPMA

In Schwartz v. Princeton Board of Education, the New Jersey Appellate Division held that a board of education properly cast votes using an electronic voting system. According to the appeals court, the school board did not violate the Open Public Meetings Act (OPMA).

Facts of the Case

Plaintiffs Joel Schwartz and Corrine O’Hara filed a lawsuit alleging that defendant Princeton Board of Education (defendant or Board) violated the Open Public Meetings Act (OPMA) by improperly permitting Board “members to cast secret votes electronically during a public meeting.”

Plaintiffs and about 30 members of the public personally attended the Board’s June 12, 2018 meeting, which also was “live streamed” on YouTube for additional public access. After voting on other agenda items, the Board members reached Item P.23, which involved the renewal of a “sending and receiving” relationship between defendant and the Cranbury Township Board of Education, the latter of which pays tuition for its students in grades nine through twelve to attend Princeton High School.

The Board discussed the proposed sending and receiving agreement for more than 45 minutes. By a vote of seven to one, with two members abstaining, the Board adopted the resolution approving the agreement. The dispute involves the manner in which the vote was rendered using BoardDocs, an electronic cloud-based system. It permits Board members to vote on agenda items from their laptop computers. After the vote is closed, the BoardDocs operator saves the votes, which are then projected onto a display screen for public viewing. Board Secretary Stephanie Kennedy recorded each Board member’s vote in the minutes of the meeting. Each Board member reviewed the draft minutes; none advised Kennedy that she had “inaccurately recorded his or her vote from the June 12, 2018 meeting.”

Plaintiffs and eleven other attendees certified they were unable to see or hear the votes for Item P.23. Some attendees claimed the screen was “completely washed out” by the room’s lighting and, as such “nearly impossible to read.” According to the Appellate Division’s decision, it was also undisputed that “[a]s the Board’s vote took place, no one announced to the public how each Board member was voting.”

Nonetheless, the trial court sided with the Board, concluding that it properly noticed the public of the June 12 meeting, and “ensure[d] that this meeting was open to the public, that the debate took place in . . . public, [and] that every citizen there could follow every statement that was made by every member of the Board both in favor and against the resolution.” The court further found that the Board went “the extra mile to make sure that the meetings [we]re broadcast live.” Accordingly, the trial court concluded there was no violation of the OPMA because “the intent of the Board was to allow the public to see how each individual member voted.”

On appeal, the Plaintiffs again argued that the Board violated the OPMA by improperly permitting Board members to cast “secret ballots” on Item P.23. Accordingly, they argued that the vote must be set aside.

Appellate Division Decision

The Appellate Division affirmed the trial court’s decision in a per curium opinion. It agreed that the Board’s action did not violate the OPMA, writing:

Following our review of the record, we conclude the Board’s actions conformed to the provisions of the OPMA. The Board properly noticed the public of the meeting, including Item P.23, and discussed the proposed agreement for forty-five minutes in the presence of the public who physically attended the meeting and those who live streamed the meeting on YouTube. Upon the conclusion of the discussion, the Board members electronically voted using their laptops, and their votes were stored in BoardDocs. Although the votes were difficult to view as they were displayed, and were not cast aloud, no audience members asked to see or hear the votes or otherwise indicated they could not observe the votes. Moreover, each Board member’s vote was set forth in the minutes of the meetings.

The Appellate Division also rejected the Plaintiff’s argument that the vote for Item P.23 should have been cast aloud or through a roll call vote “so that each member may vote, seriatim, and the public may see and hear what transpires.” As highlighted by the appeals court, while the New Jersey Legislature has specified multiple instances in the education statute that expressly require a roll-call vote, there is no such requirement for a sending and receiving agreement. The Appellate Division also declined to impose one, finding that “Plaintiffs’ policy argument is best left to the other two branches of government.”

Key Takeaway

The Appellate Division’s decision in Schwartz v. Princeton Board of Education clarifies how New Jersey school boards can take advantage of technology while still complying with the OPMA. With reliance on technology increasing due to the ongoing pandemic, it is important to remain mindful of OPMA’s requirements.

If you have questions, please contact us

If you have questions about the Appellate Division’s decision, we encourage you to contact me, John Geppert, or a member of Scarinci Hollenbeck’s Government Law Group, at 201-896-4100.

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