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Burnett v. Gloucester County Board of Chosen Freeholders

August 20, 2009

DAVID B. BURNETT, PLAINTIFF-APPELLANT,
v.
GLOUCESTER COUNTY BOARD OF CHOSEN FREEHOLDERS AND COUNTY OF GLOUCESTER, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-1393-08.

The opinion of the court was delivered by: Lihotz, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued April 30, 2009

Before Judges Parrillo, Lihotz and Messano.

Plaintiff David Burnett appeals from a July 25, 2008 Law Division order dismissing, with prejudice, all but one count of his complaint filed in lieu of prerogative writs, which alleged violations of the Open Public Meetings Act (OPMA or the Act), N.J.S.A. 10:4-6 to -21, by defendant the Gloucester County Board of Freeholders (Board). The court, on cross-motions for summary judgment, determined the Board violated the OPMA during its November 20, 2007 closed session when it established a new public position, the Superintendent of Elections, and provided "[a]ll employees of the current Board of Elections would become the staff for the Superintendent of Elections, and all property currently belonging to the Board of Elections would become that of the Superintendent of Elections." Accordingly, the action creating the Superintendent of Elections position was voided, and the issue was referred back to the Board, giving it the right to conduct remedial proceedings in accordance with N.J.S.A. 10:4-15(a). The Board has not challenged this portion of the order.

The order also dismissed, with prejudice, the remaining counts of plaintiff's complaint, wherein he listed numerous executive sessions closed to the public, during which he alleged the Board conducted public business in violation of the Act. First, the motion judge concluded the request to void the Board's actions, pursuant to N.J.S.A. 10:4-15, was barred, as the events occurred beyond the statute's forty-five day limitation period. Second, with respect to plaintiff's request for injunctive relief, pursuant to N.J.S.A. 10:4-16, the trial court reviewed eleven alleged instances which the judge found to be "clearly on their face meritless," because the sessions discussed the settlement of litigation or personnel matters, areas excepted from the provisions of the OPMA. Further, the court concluded injunctive relief was not appropriate because the remaining allegations were remote and time barred by Rule 4:69-6. The court granted the Board's request for summary judgment and dismissed plaintiff's complaint.

On appeal, plaintiff does not challenge the motion judge's denial of relief under N.J.S.A. 10:4-15. Rather, he argues the court erred in denying prospective injunctive relief, pursuant to N.J.S.A. 10:4-16, as the alleged violations show a pattern of wrongful conduct in violation of the Act. Additionally, he challenges the motion judge's conclusion that the exceptions set forth in the Act apply to the Board's conduct.

Following our review of this record, we are persuaded by plaintiff's arguments. As to the eleven closed session actions reviewed by the motion judge, we agree that based on this record, it does not appear they are all encompassed by the exceptions of N.J.S.A. 10:4-12(b)(7) and (8). We also determine the alleged violations were submitted as evidential support of the Board's past pattern of noncompliance with the OPMA and not intended to void the purported actions. If plaintiff is correct, and he provided evidence that the Board has repeatedly ignored its obligations to assure the public's presence in "all phases of the deliberation, policy formulation, and decision making," then the court must determine whether prospective injunctive relief is necessary to prevent future violations. In this regard, to support a request for injunctive relief, pursuant to N.J.S.A. 10:4-16, evidence of violation of the OPMA is not limited to Board actions that occur within forty-five days of the filing of plaintiff's complaint.

Accordingly, we affirm the motion judge's denial of all relief under N.J.S.A. 10:4-15, except for the Board's action on November 20, 2007. We affirm the dismissal of paragraphs 21 and 34 of plaintiff's complaint, as the discussions were properly held in closed sessions to discuss possible settlement of ongoing litigation. We reverse the grant of summary judgment in favor of the Board and the dismissal of the remaining counts in plaintiff's complaint presented in support of a request for injunctive relief, pursuant to N.J.S.A. 10:4-16. Finally, we remand for further proceedings to review the remaining allegations to ascertain whether the Board violated the OPMA and whether a pattern of conduct was demonstrated warranting the imposition of prospective injunctive relief.

The facts are taken from the summary judgment record. Plaintiff is a Gloucester County resident and taxpayer. He filed a verified complaint alleging fifty-nine dates on which the Board violated the OPMA. The complaint alleged that from January 25, 2006 through November 20, 2007, the Board held twenty-four sessions closed to the public, during which the Board improperly discussed sixty-one matters and wrongfully acted on seventeen of those matters, none of which fall within a permissible statutory exception allowing action in closed session.

A reading of the complaint makes clear plaintiff sought affirmative relief in paragraphs 8, 9, 10 and 11 to void the actions taken by the Board. However, the allegations listed in paragraphs 14 through 70 are cited to evince what plaintiff labels as the Board's "clear pattern and practice of... ignoring the mandate of the [OPMA] by conducting the public's business in private" for which he sought an injunction to prevent future wrongful conduct.*fn1 Defendant denies any OPMA violation occurred while the Board was in executive session.

The Board maintains each of the instances listed by plaintiff falls within a designated exception to OPMA compliance.

The motion judge did not review each allegation stated by plaintiff's complaint. However, he concluded the actions discussed in paragraphs 10, 14, 21, 34, 46, 50, 61 and 67 were discussions regarding the settlement of litigation, an area excepted from the OPMA, wherein the Board merely took permissible straw votes while in closed session. Further, paragraphs 9, 23 and 27 were determined by the court to address "conditions of employment including salary" encompassed by the personnel exception to the OPMA. As to the remaining allegations, the motion judge stated:

Other actions challenged arguably may have been proper for closed session[;] discovery would obviously need to take place. However, it must be recognized that Freeholder Boards organize annually. It's to be found at N.J.S.A. 40:20-3, 40:20-23 and 40:20-75.

At the time of an organization there is a new Freeholder Board constituted. While there will be some members who remain from a prior Freeholder Board and indeed on some occasions there may be all members. Each new Freeholder Board once constituted becomes a new entity.

It is important to note that there is no challenge to any action of the 2008 Freeholder Board. The general statute --well, it's not a statute of limitations. The [c]court rule to be found at [Rule] 4:69 provides -- dash 6 -- provides that the general period for bringing action is 45 days.

The [c]court can enlarge it where it is manifest in the interest of justice which [c]courts have interpreted involving public questions.

I decline to enlarge the time in this case for the following reasons. I've already determined that the essential relief sought, i.e., the voiding of the actions which the plaintiff challenges is time barred. I have determined that many of the challenges which the plaintiff has raised are meritless on their face.

Third, there has been a new Board constituted and there has been no challenge... [to] the operation of the [B]oard in 2008[, which] has [not] engaged in any actions which violate the Open Public Act.

And, finally, many of the actions are so very remote as I've indicated 41 or a full two-thirds of the actions challenged during the calendar year 2006. So for those reasons I am dismissing with prejudice the plaintiff's claims for injunctive relief.

Without considering whether the Board violated the OPMA, the court concluded plaintiff's remaining assertions were barred by Rule 4:69-6 and dismissed his complaint.

In reviewing an order granting summary judgment, this court employs the same standard of review as the trial court, Turner v. Wong, 363 N.J. Super. 186, 198-99 (App. Div. 2003); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998), which grants summary judgment "if the pleadings, depositions, [and] answers to interrogatories... show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law."

R. 4:46-2(c). Guided by this standard, we examine the Board's conduct.

From the more than sixty instances recited in plaintiff's complaint, we first describe those identified by the motion judge as meritless. Thereafter, we relate additional instances highlighted by plaintiff in his merits brief as illustrative of the type of objectionable conduct demonstrating the Board wrongfully acted "in closed session with the public excluded." The nature of the Board's discussions and actions are gleaned from the closed session minutes.

On March 22, 2006, Deputy County Administrator, Chad M. Bruner, presented the details for settlement of two workers' compensation claims. The proposed payment to the first claimant was $24,934.25 for damages, plus $4,986.85 for counsel fees and $650 for the county's legal fees. The second was $19,953 for damages, plus $3,990.06 for counsel fees and $650 for the county's legal fees. "It was the consensus of the Board to settle the claim for the amounts recommended."

On May 17, 2006, Patrick Madden, who provided the county's legal representation in Walker v. Gloucester County, advised a settlement had been reached, which required the county's approval. The county would pay $105,000 of the total $120,000 settlement, $102,500 of which would be paid by insurance. Mr. Leone, county counsel, stated, $17,000 of the $50,000 insurance deductible had been paid.

On June 21, 2006, Mr. Leone presented a recommendation from outside counsel to make payment to the realty owners in two condemnation matters, both of which "exceed the amount approved by resolution, thus the need for the freeholders to hear of them." The recommended payments were $29,000 and $36,000. "After a discussion of the matter, the [Board's] consensus was to agree with [the] recommendations."

On October 2, 2006, the Board "voted to pay over $50,000 as part of a settlement to an injured worker."*fn2

On October 25, 2006, the Board agreed the county would contribute $500,000 of the total $3 million necessary to settle an action entitled King v. Gloucester County. In a closed session, "Mr. Bruner stated he needs the freeholders' authorization to increase the settlement amount from $300,000 to $500,000, which is the county's portion, with the insurance company paying the balance." During the executive session, the Board gave its authorization to proceed.

In that same closed session, the Board authorized a $10,000 increase in settlement authority previously given to counsel to ...


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