The Rutgers Board of Governors violated the state’s Open Public Meetings Act by failing to inform the public of issues it planned to discuss in a closed session at a 2008 meeting, and for improperly discussing public matters about the athletics program in closed session, the state’s highest court ruled today.
The New Jersey Supreme Court’s decision makes it clear that government bodies must provide the public with an agenda that describes issues to be discussed to the extent known, rather than merely making generic references about what might be discussed. Regional and local governing bodies and school boards often make such generic references such as “personnel” or “litigation” instead of the specific topic to be discussed under such categories.
The court also held that a government body cannot discuss public matters in private simply because the discussion may indirectly relate to issues that could be discussed in closed session.
Open government advocates like the ACLU-NJ praised the court’s decision today, saying the decision also highlights limitations of the current Open Public Meetings Act, commonly known as the Sunshine Law, to hold public bodies accountable for violating the law.
“Open government is a cornerstone of democracy that enables advocates, activists and the press to monitor government performance and expose corruption,” said ACLU-NJ Legal Director Ed Barocas. “This decision sets an important precedent that government bodies cannot be so vague in their meeting notices so as to effectively hide from the public issues that they expect to discuss at a public meeting.”
At issue is a September 2008 meeting of the Rutgers Board of Governors. As required by law, the board placed advanced notice of the Sept. 10, 2008 meeting in newspapers. The notice stated the board would convene immediately in executive session to discuss contract negotiations and attorney-client matters, but it did not offer any other details. There was no mention of the Rutgers athletic department, a controversial stadium project, or naming rights for the stadium, even though the board knew these items would come up for discussion.
The court took issue with Rutgers’ actions, noting, “clearly that by the time this notice was prepared and published, more was known about the extent of the proposed agenda than what was conveyed by the generic references to ‘contract negotiation and attorney-client privilege….The Board had an obligation to include as part of the notice of the meeting of September 10 the agenda of that meeting to the extent it was known.”
The court also rejected the board’s contention that its discussion of policies and guidelines could be done behind closed doors because it “indirectly relates” to subjects that could properly be the subject of a closed meeting. The court rejected this argument, stating that it could “eviscerate the (Sunshine Law) and runs counter to our mandate to construe the statue in such a manner as to maximize public participation.”
Although Rutgers violated the Sunshine Law, it will not suffer any consequences because no formal action was taken at the meeting and because the plaintiff did not establish a pattern and practice of violations. The current Sunshine Law does not offer a remedy for situations such as the one in this case.
“This highlights one of the major deficiencies of the current law,” Barocas said. “Government agencies will have no incentive to follow the law if there are no consequences for violating the law.”