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Francis J. Mcgovern, Jr., Esq v. Rutgers

February 18, 2011

FRANCIS J. MCGOVERN, JR., ESQ., PLAINTIFF-APPELLANT,
v.
RUTGERS, THE STATE UNIVERSITY OF NEW JERSEY,
RUTGERS' BOARD OF GOVERNORS AND M. WILLIAM HOWARD, JR.,
IN HIS OFFICIAL CAPACITY AS CHAIR OF THE RUTGERS BOARD OF GOVERNORS ONLY, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-8969-08.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued January 11, 2011

Before Judges Payne, Baxter and Koblitz.

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

This appeal requires us to construe portions of the Open Public Meetings Act (OPMA or Act), N.J.S.A. 10:4-6 to -21. Plaintiff, Francis J. McGovern, Jr., appeals from an October 20, 2009 Law Division order that granted summary judgment to defendants, Rutgers University and its Board of Governors (Board), thereby dismissing plaintiff's complaint with prejudice. Plaintiff also appeals from a December 18, 2009 order that denied his motion for reconsideration.

We agree with plaintiff's contention that the judge erred when he rejected plaintiff's arguments that: 1) the meeting notice the Board provided to the public concerning its September 10, 2008 special meeting contained an insufficient description of the types of matters expected to be considered in closed session; 2) one of the matters addressed behind closed doors during that meeting should have been discussed in public; and 3) the Board's practice of conducting its regular meetings with a brief open session, followed by a closed session of indeterminate duration, followed by the resumption of the open session, violates the requirements of the Act and subverts the very purposes the "Sunshine Law" was designed to achieve. In contrast, we affirm the judge's conclusion that the Board is not required to set aside a portion of each meeting for public comment. Indeed, we conclude that the Board's system for permitting public comment, if certain conditions are satisfied, exceeds the requirements of the Act. We thus affirm in part, reverse in part, and remand for the establishing of an appropriate remedy.

I.

In 2008, Rutgers became the subject of a series of unflattering articles published in the The Star-Ledger describing numerous questionable practices in the University's Athletic Department (Department). The Department's elimination of six varsity sports from its roster had also prompted widespread criticism. On August 15, 2008, Board Chairman M. William Howard, Jr. notified members of the Board of his intention to convene a special meeting, to be held on September 10, 2008, "to provide the Board with an opportunity to receive a first hand report of actions being taken by the University to address the ongoing revelations about [Rutgers] Athletics in the media, and to decide if action by the Board is required."

In keeping with the Act, see N.J.S.A. 10:4-8(d)(3), the Board notified the Secretary of State of the upcoming special meeting. The notice sent to the Secretary of State, and published in three newspapers, specified that the Board would meet in closed session on September 10, 2008 at 3:30 p.m. at 7 College Avenue in New Brunswick to act on a resolution to meet in immediate closed session to discuss matters falling within contract negotiation and attorney-client privilege, in accordance with Chapter 231, Public Law 1975, Section 7, Item b.(7).

On September 10, 2008, Chairman Howard opened the meeting at approximately 3:40 p.m. and immediately announced a resolution to go into closed session. The resolution was seconded and approved by the Board. The publicly-issued minutes of the September 10, 2008 special meeting revealed the topics that the Board discussed, although the content of the discussion itself was redacted. The topics discussed were:

CLOSED, CLOSED, CLOSED SESSION

Discuss[ion] [of] the legal and fiduciary obligations of Board members.

CLOSED, CLOSED SESSION ATTORNEY-CLIENT PRIVILEGE

Discussion of Matters Involving Legal Obligations, Contracts, Terms and Conditions of Employment Discussion of Matters Involving Stadium Construction Discussion of Matters Involving Naming Rights of Athletic Facilities Discussion of Matters Involving Ongoing Litigation and Investigations Plaintiff, an alumnus of Rutgers, began attending the meetings of the Board in July 2006. He also attended the September 10, 2008 special meeting and found, in accordance with the publicly-advertised notice, that the entire meeting was closed to the public.

On January 30, 2009, he filed a four-count complaint in lieu of prerogative writs. In the first count, he alleged that the Board "fail[ed] to provide adequate notice of the actual items the Board would be considering at its September 10, 2008 meeting," and failed to "accurately state whether formal action may or may not be taken." Consequently, the notice of the September 10, 2008 meeting was "inaccurate, incomplete and misleading." Plaintiff sought a judgment voiding any action taken at the September 10, 2008 Board meeting and requiring the Board in the future to provide the specific notice required by the Act.

In the second count, plaintiff alleged that the Board had improperly excluded the public from the September 10, 2008 special meeting of the Board by discussing matters in closed session that lay outside the exceptions specified in N.J.S.A. 10:4-12(b). In particular, he alleged that some of the topics discussed in closed session at the special meeting, such as the agreement between the University and Nelligan Sports Marketing (Nelligan)*fn1 , matters involving construction of the stadium, and the naming rights for the University's athletic facilities, all should have been discussed during an open public meeting. He maintained that the closed session discussion should have been limited to advice if any, rendered by the Board's attorney regarding those contracts. As with the first count, plaintiff sought an order voiding any action taken at the September 10, 2008 special meeting.

In the third count, plaintiff alleged that the Board's failure to set aside a portion of the September 10, 2008 meeting for public comment violated the Act. He sought an order requiring the Board to set aside a portion of any future open meetings for that purpose.

In the fourth count, plaintiff alleged that the notices of the Board's regular meetings were "confus[ing]" to the public and "discourage[d] public attendance and participation" at the meetings. In particular, the fourth count alleged that notice of the Board's meetings typically included a statement that an "'open session' (typically noted to be from 8:30 a.m. to 8:35 a.m.) will be held followed by a 'closed session' (typically noted to be from 8:35 a.m. to 10:00 a.m.), which will then be followed by another 'open session.'" Plaintiff maintained that the Board's practice of conducting an open session, followed by a closed session, which is then followed by another open session, "left the public attendees bewildered, not knowing what was going on and with nothing to do until the next 'open session' began later in the day." Plaintiff sought an order enjoining the Board from proceeding in that fashion, and requiring the Board to instead hold the entire open session first, followed by the closed session, "so that the public will understand what is going to be addressed when . . . ."

Three months after filing its answer, the Board moved to dismiss plaintiff's complaint for failure to state a claim, see R. 4:6-2(e), and plaintiff cross-moved for summary judgment. Prior to oral argument on the motions, plaintiff provided to the court and to defendants a color spreadsheet that compared the publicly-announced start time of the open meeting to the actual start time for twelve of the meetings that occurred between January 2008 and July 2009. Each of the open sessions started at the announced time specified in the public notice. For the same twelve meetings, the spreadsheet also compared the time the open session actually resumed after the conclusion of the closed session, to the publicly-advertised time that the open session was scheduled to resume. On the six occasions where the open session resumed at a time later than the original notice had specified, the discrepancies were as follows: thirty-five minutes, one hour and four minutes, twenty-five minutes, ...


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