Residents interested in litigation discussed by the governing body behind closed doors have no idea what specific litigation the Princeton Council will discuss tonight in closed session, based on the posted agenda.
The closed session will take place at 6 p.m. at the municipal building at 400 Witherspoon Street an hour before the public session. The closed-session agenda lists the following items: COAH/affordable housing update (presumably litigation but the agenda does not say), the municipal engineer, and “general litigation update if necessary.”
But under New Jersey’s Open Public Meetings Act, commonly known as the Sunshine Law, public bodies must list what they will discuss in closed session to the extent known, and the agenda must be specific. It is not enough to list litigation as a generic subject. Any item not on the agenda is not supposed to be discussed.
Lawyer Walter Luers, the head of the New Jersey Foundation for Open Government, has pointed out on multiple occasions that Princeton’s closed session notices fall short when the agendas list a general area like “personnel” or “litigation” without listing the specific case or issue.
Specific resolutions are not just a formality. They indicate to interested members of the public that issues that are important to them are being discussed. Luers said “general litigation status update” is not sufficiently specific.
Will town officials be discussing the town’s legal bills, or Planet Princeton’s lawsuit against the town regarding policing jurisdiction, or some other case the public does not know about? Journalists would like to know and we think members of the public would too.
Planet Princeton has written about this a few times, but officials don’t seem to care about the issue. Unfortunately the only recourse to get the governing body to properly notice closed session topics would be to file a lawsuit in Superior Court. But then the taxpayers, the same people the suit is meant to stand up for, would be the ones footing the bill in the long run.
The courts recently have affirmed that public bodies must list specific closed session items. In 2012, the New Jersey Supreme Court ruled that the Rutgers University 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 meeting, and said the board also violated the act by improperly discussing public matters about the athletics program in closed session.
The court’s decision made 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. Issues not listed on the agenda should not be discussed.
At issue was a September 2008 meeting of the Rutgers Board of Governors. As required by law, the board placed advance 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 the notice 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 a 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 said such an ability would “eviscerate the (Sunshine Law) and runs counter to our mandate to construe the statue in such a manner as to maximize public participation.”