Decision also highlights limitations in current Sunshine Law to hold public bodies accountable for violating law
Newark — The American Civil Liberties Union of New Jersey (ACLU-NJ) applauds today’s decision by the New Jersey Supreme Court, which held that Rutgers Board of Governors violated the Open Public Meetings Act (also known as the Sunshine Law) by failing to inform the public of issues it planned to discuss at a 2008 meeting and for improperly discussing public matters about the athletics program in closed session.
“Open government is a cornerstone of democracy that enables advocates, activists and the press to monitor government performance and expose corruption,” said ACLU-NJ Legal Director Ed Barocas. “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.”
The court’s decision makes clear that government bodies must provide the public with an agenda that describes issues to be discussed “to the extent known,” rather than merely making “generic references” about what might be discussed. It also held that a government body cannot discuss public matters in private simply because the discussion may “indirectly relate” to issues that could be discussed in closed session.
At issue is a September 2008 meeting of the Rutgers Board of Governors. As required by law, the board placed advanced notice of the Sept. 10, 2008 meeting in newspapers. The notice stated the board would convene immediately in executive session to discuss contract negotiations and attorney-client matters, but it did not offer any other details. There was no mention of the Rutgers athletic department, a controversial stadium project, or naming rights for the stadium, even though the board knew these items would come up for discussion.
The court took issue with Rutgers’ actions, noting, “clearly that by the time this notice was prepared and published, more was known about the extent of the proposed agenda than what was conveyed by the generic references to ‘contract negotiation and attorney-client privilege.’ ... The Board had an obligation to include as part of the notice of the meeting of September 10 the agenda of that meeting to the extent it was known.”
The court also rejected the board’s contention that its discussion of policies and guidelines could be done behind closed doors because it “indirectly relates” to subjects that could properly be the subject of a closed meeting. The court rejected this argument, stating that it could “eviscerate the (Sunshine Law) and runs counter to our mandate to construe the statute in such a manner as to maximize public participation.”
Although Rutgers violated the Sunshine Law, it will not suffer any consequences because no formal action was taken at the meeting and because the plaintiff did not establish a pattern and practice of violations. The current Sunshine Law does not offer a remedy for situations such as the one in this case.
“This highlights one of the major deficiencies of the current law,” Barocas said. “Government agencies will have no incentive to follow the law if there are no consequences for violating the law.”
The case is captioned McGovern v. Rutgers Board of Governors, can be read online, as can the ACLU-NJ’s amicus brief.