This opinion is written pursuant to R. 2:5-1(b) as amplification of an oral opinion rendered on January 12, 1979 at the conclusion of the trial in the above matter.
Three issues are raised in the case, only one of which is of significance. The first is whether "adequate notice" to the public, required by the Open Public Meetings Act, of meetings of the Newark Board of Education (board) on December 8 and 15, 1978 (N.J.S.A. 10:4-6 et seq.) was excused by reason of emergency. A second issue raised by the pleadings, whether the employees of the board were entitled to specific notice of termination of employment by the provisions of N.J.S.A. 10:4-12(b)(8), need not be resolved in view of my holding that the board did not satisfy the requirements of an emergency meeting under §§ 9 and 10 of the statute. In any event, its significance in the litigation is sharply diminished by reason of Rice v. Union Cty. Regional High School Bd. of Ed. , 155 N.J. Super. 64 (App. Div. 1977), certif. den. 76 N.J. 238 (1978). The third issue raised by the trial brief, but not pressed at oral argument at the conclusion of the case, that "the Court is without subject matter jurisdiction to consider issues raised by the plaintiffs under the Public School Education Act" by reason of N.J.S.A. 18A:6-9, which confers jurisdiction
upon the Commissioner of Education to hear controversies under the school laws, will be discussed infra.
The Open Public Meetings Act requires that "adequate notice" to the public be given of the transaction of "public business" by a "public body." The statute defines "adequate notice" as "written advance notice of at least 48 hours * * *." N.J.S.A. 10:4-8.
The question of when the giving of 48-hours' notice is excused by reason of what is called "emergency" has received consideration only in Dunn v. Laurel Springs , 163 N.J. Super. 32 (App. Div. 1978). There it was held (at 36) that an additional cost of $1200 for an election did not constitute "'substantial' harm" authorizing dispensation of the 48-hour notice requirement, "especially when balanced against the harm done from failing to give adequate notice to the public." In Polillo v. Deane , 74 N.J. 562 (1977), "emergency situations" were involved, but the court, in its holding that the Open Public Meetings Act applied to charter commissions, did not find it necessary to discuss the applicable provisions of the statute, except to observe (at 578) that § 9 of the statute involves "narrow exceptions to the law * * *."
The issue is whether, bearing in mind the purposes of the statute explicitly set forth in N.J.S.A. 10:4-7, and expounded in decisions of this State, particularly Polillo v. Dean, supra , there existed a situation which justified the board in failing to give "adequate notice" as required by the statute.
To refine the issue further, I find as a fact that the board complied with all the technical requirements of § 9 for an "emergency meeting" in so far as giving of notice, required vote of the members, statements made at the meeting, and limitation of the discussion and actions at the meeting to matters considered of urgency and importance. There is no need to discuss the factual basis for this conclusion, since it favors the party against whom the ultimate ruling is made.
However, I find that the prerequisites for an "emergency meeting" were not present in this case. In Dunn, supra , the court stated:
"(1) such meeting is required in order to deal with matters of such urgency and importance that a delay for the purpose of providing adequate notice would be likely to result in substantial harm to the public interest * * *."
The Attorney General has defined an emergency situation in terms of a "crisis." He states further "It may be that the need for such a meeting is great but the emergency not of such nature as to require an immediate meeting." Attorney ...