Update: Court Rules Rutgers Open Meeting Law Violations Not Actionable

Donald ScarinciThe New Jersey Supreme Court recently ruled that violations of the state’s Open Public Meetings Act (OPMA) by Rutgers University are not actionable. While the court acknowledged that the university’s Board of Governors did not fully comply with the letter of the law, it held that the minor violations did not warrant a legal remedy.

As we previously discussed on this New Jersey Government and Law Blog, Francis McGovern, Jr., a Rutgers alumnus, filed a lawsuit alleging that the university violated OPMA when its Board of Governors met privately to discuss the football program. He alleged that the meeting notice lacked the specificity required under OPMA and that the board used the executive session to discuss issues that should have been addressed publicly.

The lawsuit also called into question the practice of “sequencing” — holding long closed-door sessions between public sessions. Critics of the practice have argued that it often leaves members of the public waiting for long periods of time for the public part of the meeting to resume and, therefore, runs afoul of OPMA’s objectives.

While the New Jersey Supreme Court agreed that the Board of Governors should have provided further details about what would be discussed in closed session and that it acted improperly by engaging in “sequencing,” it ultimately concluded that the university should not be held liable for these infractions. The N.J. Supreme Court reasoned that legal remedies were not warranted because the Board took no official action at the meeting in question, did not have a history of OPMA violations, and did not knowingly violate the act.

“We agree with defendants and amicus Attorney General that public bodies are often confronted with fluid, ongoing situations, and it is often difficult, if not impossible, to determine at a later juncture whether the public body provided ‘as much information as possible’ of the intended scope of discussions at a closed session,” Appellate Division Judge Dorothea Wefing wrote.

Despite the favorable ruling, the Court did caution about the use of closed-door sessions by New Jersey public entities in light of OPMA’s requirements.

“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,” Wefing wrote. “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.”

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