July 25, 2012
Re: An important decision regarding the Open Public Meetings Act
Today the Supreme Court announced their decision in McGovern v. Rutgers. In 2008, the Rutgers Board of Governors held a special meeting. At that meeting, the first order of business, which was conducted in open session, was a resolution to go into closed session. The Board remained in closed session for four hours before returning to the open meeting. McGovern accused Rutgers of several violations of the Open Public Meetings Act, including inadequate notice, discussion of impermissible topics in closed session, and that immediately going into closed session violates OPMA.
The Supreme Court found that, under OPMA, the Board was required to provide notice of the agenda of a public meeting “to the extent known.” The Court found that the Board knew it would discuss more than what was included in the agenda, but declined to provide any relief, because no action was taken that could be voided and fines were not warranted.
The Court also found that the Board discussed policy recommendations in closed session, and that these are impermissible closed session topics under OPMA. However, for the same reasons as above, they declined to provide any relief to McGovern.
Finally, McGovern challenged the Board’s practice of beginning a public meeting with a closed session. The lower court order required the Board to complete its open session first before commencing any closed session. The Supreme Court found this too sweeping and without statutory authority. The Court stated: “It does not follow that because plaintiff may experience some inconvenience as a result of this sequence that the Board acted with the purpose to cause that inconvenience and to discourage him from attendance.”
The Court noted that the Board included as part of its meetings the time that the meeting would start, and indication that it would start in closed session, and an approximate time at which the open session would commence. The Court advised other bodies who follow this schedule to include this information as well.
Finally the court indicated that, “a public body must be afforded discretion in determining the most advantageous and efficacious manner of proceeding through its agenda items...absent proof of bad motive.”
We urge you to discuss the impact of this decision with your municipal attorney. If you have any questions please contact Matthew Weng at 609-695-3481 ext. 137 or at email@example.com.
Very truly yours,
William G. Dressel, Jr.