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NJ Supreme Court: Closed Rutgers Board Meeting Violated NJ Sunshine Law

Court Says It Can't Punish Violation Because No Formal Action Was Taken
NJ Supreme Court
The NJ Supreme Court unanimously ruled that Rutgers Board of Governors violated the Open Public Meetings Act in 2008. NJ State Supreme Court

TRENTON, NJ—After four years of legal wrangling, the New Jersey Supreme Court ruled unanimously last month that an impromptu closed session held by Rutgers Board of Governors in 2008 violated the state's Open Public Meetings Act (OPMA).  The board has broad powers to set tuition rates, negotiate with unions, buy land and build new buildings, as well as hire and fire the University's President.

The ruling, however, did not go as far as the man who filed suit, Rutgers University alum Francis J. McGovern, would have liked.

The case began when a claim against the board was filed by McGovern, an attorney and a regular attendee of the Board of Governors meetings.  He cried foul after the board abruptly ended the public portion of their September 10, 2008 meeting to go into an impromptu closed session.  The meeting came shortly after revelations in the Star-Ledger

To justify this, the board only indicated they would be discussing "contract negotiations" and "attorney-client privilege" surrounding the massive expansion of the Rutgers football stadium.

According to the syllabus of the case, the claim stipulated that the board "violated OPMA’s notice requirements, that the topics discussed in the closed session did not fit within the statutory exemptions, and that the Board’s practice of immediately going into closed session for an unspecified period of time violates OPMA.”

According to McGovern’s claim, the Board of Governors had not given substantial notice of the closed session nor enough details as to what would be discussed during the closed session and was therefore in violation of the Open Public Meeting Act, also known as the Sunshine Law.

On the latter point, the court agreed.  But not on the issue of notice.

In February 2011, a state appellate court, in a unanimous decision, ruled that the Board of Governors had indeed violated the stipulations of the Sunshine Law.

But on July 25, the NJ Supreme court overturned that ruling and that the Board of Governors actually had fulfilled their obligations to give proper notice to the public before their closed session.

However, they failed to notify the public of the specifics of what they were talking about "to the extent known."  In fact, the board knew far more details about what they intended to discuss in the meeting beyond "contract negotations" and "attorney-client privelege."

According to AppellateLaw-NJ.com, the board's resolution to enter into closed session included the following language, which was not disclosed to the public: "matters involving contract negotations for sports marketing, naming rights of athletics facilities and stadium construction; employment of personnel and terms and conditions of employment; and pending litigation, investigations, and matters falling within the attorney-client privilege with respect to those subjects"

However, since no policies were enacted during the closed session, the court was not able to assert a legal remedy.

McGovern, who had requested that the court mandate that the Board of Governors reform the “sequencing” of their meetings, specifically changing the agenda of Board of Governors meetings so that public sessions would come before closed sessions so as to not alienate the public and force them to wait.

McGovern said, "Historically, the Board of Governors has conducted itself in a way that is contrary to government transparency, and these actions discourage the public input and are ultimately detrimental to the students, faculty, and parents of the University."

McGovern, who has framed his 2008 claim as an issue of government transparency, believes that this ruling subverts the rights of the public to attain information on university issues.

This is not the first time that the Board of Governors' transparency during public meetings have been questioned.  In June of last year, the board's chairman Ralph Izzo ordered workers to erect a temporary wall to separate the board from the public when a meeting turned rowdy, according to a report on NJ.com.

And at this year's June meeting, the board introduced a resolution that would make it more difficult for members of the public who wish to address the board to do so.  The new policy would have required speakers to sign up 48 hours before the meeting, twice as far in advance as the current policy allows.

The board tabled the proposal and has not reintroduced it since.