Rutgers University’s board of governors may not have complied with the strict letter of the Open Public Meetings Act in discussing certain athletic department matters behind closed doors, but the violations were minor and there are no available remedies, the New Jersey Supreme Court ruled Wednesday.
In a 5-0 ruling, McGovern v. Rutgers, A-113-10, the court affirmed Middlesex County Superior Court Judge James Hurley’s decision that an alumnus’s suit against the university be dismissed.
Although the board, in its meeting notice, should have been more descriptive in detailing what would be discussed in closed session, the resolution the board adopting before going into the closed session was adequate enough to comply with the OPMA, N.J.S.A. 10:4-6 to -21, the court said.
The court also found that the board did act improperly by engaging in “sequencing,” in which there isa brief open session, followed by a closed-door session of indeterminate length, followed by yet another open session.
Francis McGovern Jr., who runs a firm in North Brunswick, sued the university and the board in connection with a board meeting that occurred on Sept. 10, 2008. After a brief open session, the board went into a closed session to discuss several matters regarding the athletic department – including negotiations over the naming rights to the university’s football stadium and the stadium’s $102 million expansion – as well as policies that the university president wanted to implement.
In its notice about the September meeting, the board announced it would be discussing, in a closed-door session, contract negotiations and attorney-client matters. It offered no more information.
In the resolution adopted shortly before the closed-door session, the board said it would be discussing sports marketing, naming rights, employment matters, pending litigation and other attorney-client matters. The resolution said nothing about implementing university-wide policies.
Appellate Division Judge Dorothea Wefing, writing for the court, said the board’s notice should have been more descriptive since the board had more information at the time about what would be discussed. And, she added, the discussion of university policies did not fall within one of the statutory exceptions and should have been discussed publicly.
But in the end, the court ruled that the university would not be held liable for the OPMA violations.
“We agree with defendants and amicus Attorney General that public bodies are often confronted with fluid, ongoing situations, and it is often difficult, if not impossible, to determine at a later juncture whether the public body provided ‘as much information as possible’ of the intended scope of discussions at a closed session,” Wefing wrote.
The OPMA, also known as the Sunshine Law, required public bodies to outline their agendas “to the extent known,” and the board abided by that language, she said.
“We decline to impose a greater burden on public bodies than what the Legislature has required,” said Wefing.
The court also said that while there were technical infractions, there was no remedy available to McGovern since the board took no official action, engaged in no pattern of misconduct and did not knowingly violate the act.
Wefing did say that public bodies should be careful in what is discussed in closed sessions.
“We recognize that, as a meeting progresses, there may be a natural progression from the discussion of topics from which the public may be excluded to topics from which the public may not be excluded,” she said. “Members of public bodies must be vigilant during closed sessions to ensure that they do not stray from the defined, circumscribed issues that may be addressed in a closed session.”
She also said there was no evidence to indicate that the board, by using sequencing, did something in an effort to exclude the public from the decision-making process.
The court agreed with Rutgers, the attorney aeneral and another amicus, the New Jersey School Boards Association, that public bodies should be given as much discretion as possible in determining how to set their agendas.
“Absent proof of bad motive, courts should be loath to intervene in such highly individualized decisions and to impose rigid mandates that could prove unworkable,” Wefing said.
McGovern says that while the ruling is “not wonderful,” he is pleased that the court at least recognized that the initial meeting notice was inadequate.
But he says he does not understand why the court said that in order to obtain a remedy, a plaintiff must first prove a pattern of misconduct and bad motive.
“That would require lengthy discovery,” McGovern says, adding that few attorneys would agree to take on such cases unless there was a chance at winning counsel fees.
“Maybe there should be a fee-shifting provision in the act, such as the one in the Open Public Records Act,” he says.
The American Civil Liberties Union of New Jersey also participated as amicus. Its legal director, Edward Barocas, says the ruling is a mixed bag.
“This decision sets an important precedent that government bodies cannot be so vague in their meeting notices so as to effectively hide from the public issues that they expect to discuss at a public meeting,” he says.
But he adds that the decision to not provide a remedy is troubling.
“This highlights one of the major deficiencies of the current law,” says Barocas. “Government agencies will have no incentive to follow the law if there are no consequences for violating the law.”
Rutgers’ attorney, John Peirano, of Morristown’s McElroy, Deutsch, Mulvaney & Carpenter, did not return a telephone call.
Rutgers spokesman Greg Trevor issued a brief statement. “Rutgers University is pleased that the [court] recognizes that public bodies can structure their meetings in the most effective and efficient manner,” he said.