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

July 25, 2012

FRANCIS J. MCGOVERN, JR., ESQ., PLAINTIFF-RESPONDENT,
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-APPELLANTS.



On certification to the Superior Court, Appellate Division, whose opinion is reported at 418 N.J. Super. 458 (2011).

The opinion of the court was delivered by: Judge Wefing

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized.)

Francis J. McGovern, Jr., Esq., v. Rutgers, the State University of New Jersey (A-113-10) (067787)

Argued April 24, 2012 -- Decided July 25, 2012

WEFING, P.J.A.D. (temporarily assigned), writing for a unanimous Court.

In this appeal, the Court determines the extent to which the Board of Governors of Rutgers, the State University (University), has complied with the requirements of the Open Public Meetings Act (OPMA), N.J.S.A. 10:4-6 to -21; and, if its compliance has been deficient, the extent to which plaintiff is entitled to a judicial remedy.

OPMA states New Jersey's public policy "to insure the right of its citizens to have adequate advance notice of and the right to attend all meetings of public bodies at which any business affecting the public is discussed or acted upon." N.J.S.A. 10:4-7. The statute designating Rutgers as the State University, N.J.S.A. 18A:65-1 to -93, provides for a Board of Governors (Board) that supervises University conduct, administration, and development. Pursuant to its bylaws, the Board must hold regular meetings each year, which must conform with OPMA; and "closed meetings" may be held only under the circumstances in OPMA. Under OPMA, except for two exceptions, no public body may meet without having provided "adequate notice" to the public, N.J.S.A. 10:4-9, which is defined as "written advance notice of at least 48 hours, giving the time, date, location and, to the extent known, the agenda."

N.J.S.A. 10:4-8(d).Oneexception permits a meeting without "adequate notice" if the public body must deal with urgent matters and providing "adequate notice" would likely result in "substantial harm to the public interest."

N.J.S.A. 10:4-9(b). Second, N.J.S.A. 10:4-12(b) lists subject areas that a public body may discuss in a session closed to the public. These include legally confidential matters, purchase of realty and decisions that could adversely affect the outcome if made public, pending litigation and contract negotiations, and employment matters.

The Board called a special meeting to be held on September 10, 2008. The notice of that meeting stated the Board would "act on a resolution to meet in immediate closed session to discuss matters falling within contract negotiation and attorney-client privilege." Plaintiff Francis McGovern attended the meeting. When the meeting opened, the Board chairman moved to close the meeting to the public. Despite plaintiff's objection, the Board approved a resolution to hold an immediate closed session "to discuss matters involving contract negotiations for sports marketing, naming rights of athletic 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 these subjects." The Board then went into closed session for four hours. According to redacted minutes, the Board discussed the University's contract with Nelligan Sports Marketing, Inc. (Nelligan), construction of the expanded football stadium, naming rights for athletic facilities, and an overview of the University president's policy recommendations that the administration was considering. Also, the Board chairman expressed that there was a need to implement clear, University-wide rules.

Plaintiff filed a complaint alleging 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. Plaintiff sought a judgment voiding Board actions taken at meetings that had not complied with OPMA and injunctive relief compelling future meetings to be held in compliance with OPMA. The trial court dismissed the complaint, concluding that defendants had complied with OPMA's notice requirements, the discussion topics fit within the statutory exemptions, and OPMA does not require a public body to complete all public business before going into closed session. The Appellate Division affirmed in part and reversed in part. McGovern v. Rutgers, 418 N.J. Super. 458 (App. Div. 2011). The panel determined that the notice was inadequate because, by not mentioning the Nelligan contract and the facility naming rights, it did not provide "as much knowledge as possible" of the topics to be discussed; that because University counsel was involved in discussions about those issues and negotiations were ongoing, they were appropriate topics for a closed session; and that policy recommendations and comments on the need for clear rules did not fall within any OPMA exception and should not have been discussed during a closed session. The panel also held that the Board's practice of holding a very brief public meeting, followed immediately by a closed session of indeterminate length, followed by the resumption of the public meeting violated OPMA because it decreased public access to meetings. The panel remanded for entry of an order requiring the Board to complete its open session before commencing a closed session. The Court granted certification. 207 N.J. 227 (2011).

HELD: The Board's resolution adopted at the special meeting satisfied N.J.S.A. 10:4-13 by advising of "the general nature" of what was to be discussed at the closed session. The notice of that meeting was not adequate under N.J.S.A. 10:4-8 because it did not include the proposed agenda for the meeting "to the extent known" at the time the notice was prepared. OPMA does not permit excluding the public from discussion of issues such as policy recommendations and rule formulation. However, OPMA affords no remedy for these violations because the Board took no action that could be voided and there was no showing of a pattern of noncompliance or of a knowing violation. Finally, OPMA does not require that a public body complete the open portion of its meetings before going into closed session.

1. In construing a statute, the Court's role is to determine the Legislature's intent. The Court looks first to the plain language of the statute. The Court looks to extrinsic sources, such as legislative history, if the language is ambiguous or if the statute is silent on an issue. The Court applies theses principles in light of OPMA's purpose of fostering opportunities for the public to witness the conduct of public business. (pp. 16-17)

2. N.J.S.A. 10:4-8 requires that the notice given in advance of a meeting must include the agenda "to the extent known." N.J.S.A. 10:4-13 details the content of the resolution a public body must adopt once a meeting is underway before going into closed session. The resolution must state "the general nature of the subject to be discussed" in the closed session by providing "as much knowledge as possible." State College Locals v. State College Board, 284 N.J. Super. 108 (Law Div. 1995). That concept is not a requirement for the meeting notice. (pp. 17-20)

3. When the Board convened on September 10, it adopted a resolution to go into closed session to discuss a list of topics. That resolution satisfied N.J.S.A. 10:4-13 by advising the public of "the general nature" of what was to be discussed. However, the meeting notice stated only that the Board would "act on a resolution to meet in immediate closed session to discuss matters falling within contract negotiation and attorney-client privilege." When this notice was prepared, more was known about the proposed agenda than what was conveyed. This notice was inadequate because it did not include the agenda "to the extent" it was known. N.J.S.A. 10:4-8. Nonetheless, plaintiff is not entitled to any remedy because the Board took no action at the meeting to be voided, N.J.S.A. 10:4-15; injunctive relief under N.J.S.A. 10:4-16 is inappropriate because the record discloses no pattern of OPMA violations; and the record does not support a finding of a "knowing" violation required to impose a fine, N.J.S.A. 10:4-17. (pp. 20-23)

4. The Board's closed-session discussions about the University's relationship with Nelligan, construction of the expanded stadium, and naming rights could fall within N.J.S.A. 10:4-12(b)(7), which permits a public body to discuss "pending or anticipated . . . contract negotiation." Discussion of investigations and ongoing litigation also is permitted. OPMA does not permit closed-session discussion of issues such as policy recommendations and rule formulation. As with the previous issue, however, OPMA affords plaintiff no remedy. (pp. 23-25)

5. OPMA does not require that a public body complete the open portion of its meetings before proceeding into closed session. That plaintiff may experience inconvenience as a result of the Board's meeting structure does not mean that the Board acted with the purpose to discourage attendance. The Board has included as part of its regular meeting schedule the start time, a notation that the meeting will begin with a closed session, and the time at which the open session will start. This information assists members of the public in deciding how to structure their schedules. A public body must be afforded discretion in determining how to proceed through its agenda items. Absent proof of bad motive, courts should be loathe to intervene in such highly individualized decisions. (pp. 25-27)

The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the trial court for entry of an order dismissing plaintiff's complaint.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, and HOENS join in JUDGE WEFING's opinion. JUSTICE PATTERSON did not participate.

Argued April 24, 2012

JUDGE WEFING (temporarily assigned) delivered the opinion of the Court.

In this appeal we are called upon to consider the extent to which the Board of Governors of Rutgers, the State University (University), has complied with the requirements of the Open Public Meetings Act (OPMA), N.J.S.A. 10:4-6 to -21, and, if its compliance has been deficient, the extent to which plaintiff is entitled to a judicial remedy. Plaintiff Francis McGovern is an alumnus of the University who has attended regularly the meetings of the University's Board of Governors. Concerned at what he perceived to be a persistent disregard on the part of the Board for OPMA's mandates, he filed an action in lieu of prerogative writs. The trial court ultimately granted defendants' motion to dismiss this complaint. Plaintiff appealed, and the Appellate Division affirmed in part and reversed in part. McGovern v. Rutgers, 418 N.J. Super. 458 (App. Div. 2011). We granted certification, 207 N.J. 227 (2011). We also granted the motions of the Attorney General, the New Jersey School Boards Association (Association), and the American Civil Liberties Union of New Jersey (ACLU) to appear as amici curiae. We now reverse the judgment of the Appellate Division and remand for entry of an order dismissing plaintiff's complaint.

I.

New Jersey adopted OPMA in 1975. The statute reflects New Jersey's long "history of commitment to public participation in government and to the corresponding need for an informed citizenry." S. Jersey Pub. Co. v. N.J. Expressway, 124 N.J. 478, 486-87 (1991). The Court has noted New Jersey's "strong tradition . . . favoring public involvement in almost every aspect of government." Polillo v. Deane, 74 N.J. 562, 569 (1977). The roots to this tradition run deep and extend back more than two centuries. Id. at 570. Greater public involvement in the affairs of government fosters two goals: fulfilling our ideal of a "government of the people" and warding off corruption. Id. at 570-71.

The Legislature included in OPMA a clear statement of New Jersey's public policy "to insure the right of its citizens to have adequate advance notice of and the right to attend all meetings of public bodies at which any business affecting the public is discussed or acted upon in any way." N.J.S.A. 10:4-7. The only exceptions are instances "where otherwise the public interest would be clearly endangered or the personal privacy or guaranteed rights of individuals would be clearly in danger of unwarranted invasion." Ibid. To advance that stated public policy, the Legislature directed that the statute should be "liberally construed in order to accomplish its purpose and the public policy of this State." N.J.S.A. 10:4-21.

The enabling statute for Rutgers, N.J.S.A. 18A:65-1 TO -93, designates Rutgers as the state university. That enabling statute provides for a Board of Governors and a Board of Trustees. The Board of Governors has overall authority to supervise the conduct of the university, its organization, administration, and development. N.J.S.A. 18A:65-25. The Board of Trustees acts in an advisory capacity and has control of certain assets. N.J.S.A. 18A:65-26. For purposes of this opinion, "Board" refers to the Board of Governors, not the Board of Trustees. The parties do not dispute that the Board of Governors of Rutgers is a public body subject to OPMA.

The bylaws adopted by the University's Board of Governors recognize the Board's statutory obligations under OPMA. They call for the Board to hold "[a]t least six regular meetings" during the year and state that these "shall" conform with OPMA. The bylaws authorize the Board to hold special meetings, which "may be called at the discretion of the Chair" or "at the request of three voting members . . . stating the purpose of the meeting." The bylaws specify that the Board "shall conduct open ...


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