Mercer County Superior Court Assignment Judge Mary Jacobson/photo by Carmen Natale Mercer County Superior Court Assignment Judge Mary Jacobson/photo by Carmen Natale

In what appears to be a novel theory, a New Jersey open government activist is asking a judge to rule that when public agencies violate the state’s Open Public Meetings Act, they could be forced to pay complainants’ counsel fees under the state Civil Rights Act’s fee-shifting provision.

Plaintiff John Paff, chairman of the state Libertarian Party’s Open Government Advocacy Project, filed his complaint against the Trenton Board of Education on Nov. 1 in Mercer County Superior Court.

Assignment Judge Mary Jacobson is scheduled to hear arguments in the case on Jan. 9.

Paff wants a violation of the OPMA to trigger a CRA violation, which provides for an award of counsel fees to successful complainants. Fee-shifting is not expressly available under OPMA, unlike the Open Public Records Act, which does allow for fee-shifting for violations.

The dispute arose after the Trenton school board on Sept. 24 awarded a $25,000 bonus to Superintendent Fred McDowell. The board awarded the bonus after going to executive session, then returning to a public session after members of the public had left.

Paff then filed the complaint alleging that the school board violated the OPMA by deciding on the bonus behind closed doors.

“This case addresses rather narrow issues arising from the TBOE’s continual failure to address open government issues,” Paff’s attorney, Ocean City solo Donald Doherty, wrote in the  complaint.

The complaint claims that if Paff is successful, he should  be awarded counsel fees under the CRA.

“Of particular relevance, it allows a cause of action—an injunction to correct offending conduct and counsel fees as well—if a person is deprived of a right protected by statute,” the complaint said.

It added, “The right of the plaintiff and the public to have adequate notice of public meetings is a substantive right or privilege secured by the laws of this state.”

Doherty declined to comment beyond what is in the complaint.

The school board did not respond to a request for comment.

Lance Kalik, an attorney who, as part of his practice, represents school boards in OPMA matters, expressed skepticism about the suit’s fee-shifting theory.

“The plaintiff is attempting to bootstrap the Open Public Meetings Act onto to the Civil Rights Act,” said Kalik, of Morristown’s Riker, Danzig, Scherer, Hyland & Perretti.

The Legislature, he said, chose to provide for fee-shifting in OPRA cases, but did not do so for OPMA cases.

“The Legislature should be the best body to  determine whether there should be fee-shifting in OPMA cases,” Kalik said.