New Jersey’s Sunshine Law and Closed Sessions: A Primer

sunshine lawWhen the Princeton governing body held an emergency closed session to discuss the recreation director last week, residents and some officials asked questions about the procedure for holding a closed session. Some thought the notice listing the item to be discussed “personnel – recreation director” was too specific, while others thought it was too vague. Others questioned why an emergency meeting was necessary.

The Sunshine Law, otherwise known as the Open Public Meetings Act, gives the public the right to be present at meetings of public bodies and to witness in full detail the deliberation, policy formulation and decision making of public bodies.  The Sunshine Law requires public bodies to provide the public with adequate advance notice of all its meetings, the right to attend its meetings, and
reasonably comprehensive minutes of all meetings.

When a closed session is held, it is not enough to list a general reason such as “litigation” or “personnel.” A 2012 New Jersey Supreme Court ruling reinforced that the agenda must list items to be discussed “to the extent known,” rather than making generic references. In the case of the recreation director, the town could have listed recreation director  plus “contractual negotiations” or “salary negotiations” to be more specific. Not only would such a description have been more specific,  it also would not have led people to believe the meeting was about a disciplinary matter.

Members of the public may be excluded from sessions when on of the following is being discussed:

– Matters considered confidential by law or court rule.

– Matters that would diminish the chances of receiving federal funds if released to the public.

– Material which would constitute an unwarranted invasion of individual privacy.

– Collective bargaining agreements, including negotiations about them.

– Matters involving investments of or real estate transactions with public funds, or the setting of banking rates, where disclosure of information could adversely affect the public interest.

– Tactics and techniques used in protecting the safety and property of the public and investigations of violations or possible violations of the law; Pending or anticipated litigation or contract negotiations involving the public body, and matters covered by the attorney-client privilege.

– Personnel matters including the employment, appointment or termination of current or prospective employees (unless affected individuals request for the matter be discussed).

– Deliberations that could result in a fine or the suspension or loss of a license or permit (but only after an initial public hearing on that subject).

A public body should provide adequate notice for all meetings, but can meet without notice if all of the following criteria are met:

– Three-quarters of the members present vote in favor of conducting a meeting without notice.

– The meeting is required to deal with urgent or important matters and a delay for the purpose of providing adequate notice would likely result in substantial harm to the public interest.

– The meeting is limited to only the urgent and important matters.

– Notice of the meeting is provided as soon as possible.

– The need for such a meeting could not have been reasonably foreseen at a time when adequate notice could have been provided, or such need could have been foreseen and the public body subsequently provides reason(s) why adequate notice was not provided.

Public bodies must keep “reasonably comprehensible” minutes of all their meetings, including closed session meetings. At a minimum, the minutes must reflect the time and place, members present, subjects considered, actions taken, and the votes of each member. Citizens have the right to obtain meeting minutes for both public and closed sessions.

The law currently requires municipal governing bodies and school boards to set aside a portion of every meeting for public comments. Other public bodies may also allow public comments, but they are not required to do so. If a public body provides a time for public comment, it may adopt written policies that require speakers to sign up in advance and that limit the time of each speaker. A governing body can’t arbitrarily apply the time limit when it chooses, and must have written policies to enforce the sign up and time limit.

Members of the public can file a lawsuit in the Superior Court of New Jersey to void any action taken by a public body at a meeting in violation of the Sunshine Law. The lawsuit must be filed within 45 calendar days after the public body’s action has been made public. Citizens can also apply to the court for an injunction or other relief to ensure the public body complies with the law in the future. You can also file a complaint with the county prosecutor or the Attorney General, which could result in fines for any person who knowingly violates the law. Currently the fine is $100 for the first offense, and between $100 and $500 for any subsequent offenses.