The New Jersey Open Public Meeting Act (“OPMA”) does not contain a fee-shifting provision that would allow a plaintiff who brings a successful enforcement action to recover his/her legal costs. However, an ongoing OPMA lawsuit is relying on a novel legal theory to recover counsel fees under the fee-shifting provision contained in the New Jersey Civil Rights Act (“NJCRA”).
The OPMA establishes the right of all citizens to have adequate advance notice of all public meetings and the right to attend meetings at which any business affecting the public is discussed or acted upon.
In November, Plaintiff John Paff filed suit against the Trenton Board of Education. The suit alleges that the school board violated the OPMA by awarding a $25,000 bonus to Superintendent Fred McDowell after the public had left the meeting. According to the complaint, the board approved the bonus after going to an executive session, which was not listed on the meeting’s agenda, and then returning to a public session after members of the public had departed. According to the complaint:
The right of the Plaintiff and the public to have adequate notice of public meetings is a substantive right or privilege secured by the laws of this State, to wit, the Open Public Meetings Act. This right/privilege was denied to the Plaintiff and the public by the Defendants’ failure to properly notice the topics to be discussed at the meeting, clarify the cryptic references made regarding the “Completed Merit Goals Submission Form” and deliberately obfuscate through the use of bureaucratic-speak that the effect of approving the “Completed Merit Goals Submission Form” was to authorize a $25,000 bonus for the superintendent.
The suit asks the court to find that school board’s violation of the OPMA is also a violation of the New Jersey Civil Rights Act. The plaintiff argues that the NJCRA permits an injunction as well as an award of counsel fees, “if a person is deprived of a right protected by statute.” The Complaint argues the school board’s violation of the OPMA fits this criteria because it deprived him and the public of the right to “have adequate notice of public meetings.”
While the theory is novel, the Trenton Board of Education will likely highlight that the New Jersey Legislature included a fee-shifting provision in the New Jersey Open Public Records Act, but declined to include a similar provision in the OPMA. Thus, suggesting an intent to leave out a fee-shifting provision from the OPMA.
Oral arguments are scheduled for January 9, 2019.
Proposed Amendments to Open Public Meeting Act
Legislation pending before the New Jersey Legislature, Senate Bill 106, would make several changes to OPMA. Under one proposed amendment, any party, other than a public body, that prevails in an action brought pursuant to the OPMA would be awarded the amount of reasonable attorney’s fees incurred in bringing the action.
Supporters of the legislation argue that the fee-shifting provision would boost OPMA compliance and reduce the need for enforcement actions. To date, Senate Bill 106 has failed to advance out of the Senate Budget and Appropriations Committee.
For more information about the case or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group.