McGovern v. Rutgers

47 A.3d 724, 211 N.J. 94, 2012 N.J. LEXIS 779
CourtSupreme Court of New Jersey
DecidedJuly 25, 2012
StatusPublished
Cited by107 cases

This text of 47 A.3d 724 (McGovern v. Rutgers) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McGovern v. Rutgers, 47 A.3d 724, 211 N.J. 94, 2012 N.J. LEXIS 779 (N.J. 2012).

Opinion

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 [99]*99OPMA’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, 14 A.3d 75 (App.Div.2011). We granted certification, 207 N.J. 227, 23 A.3d 934 (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 plaintiffs 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, 591 A.2d 921 (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, 379 A.2d 211 (1977). The roots to this tradition run deep and extend back more than two centuries. Id. at 570, 379 A.2d 211. 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, 379 A.2d 211.

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 con[100]*100strued 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 Cham” or “at the request of three voting members ... stating the purpose of the meeting.” The bylaws specify that the Board “shall conduct open meetings in accordance with [OPMA]” and that “[c]losed meetings shall be held only under circumstances and conditions in [OPMA].”

The statute directs that except for two limited exceptions, no public body may meet in the absence of having provided “adequate notice” to the public. N.J.S.A 10:4-9. Further, the statute provides a specific definition of what constitutes “adequate notice.” It is “written advance notice of at least 48 hours, giving the time, date, location and, to the extent known, the agenda ... which notice shall accurately state whether formal action may or may not be taken____” N.J.S.A. 10:4-8(d). Although the statute has been amended since its original enactment to provide for notification through the Internet, N.J.S.A 10:4-9.1, it also specifies that electronic notice shall not “be deemed to substitute for, or be [101]*101considered in lieu of’ the statutory adequate notice, N.J.S.A. 10:4-9.2.

The two exceptions that permit a public body to meet without having provided such “adequate notice” are contained in N.J.S.A. 10:4-9(b) and N.J.S.A. 10:4-12(b). Under the former statute, a public body may meet without having provided notice in accordance with N.J.S.A. 10:4-8(d) if the public body must “deal with matters of such urgency and importance that a delay [to provide] adequate notice would be likely to result in substantial harm to the public interest,” three-quarters of the members present vote to hold such a meeting, the only matters discussed and acted upon are those urgent and important matters, and notice “is provided as soon as possible following the calling of such meeting.” The latter statute lists nine defined subject areas which the public body may discuss in a session that is closed to the public. These include the following: legally confidential situations; matters affecting the receipt of federal funds; an individual’s private data; collective bargaining negotiations; purchase of realty or investment information and decisions that could adversely affect the outcome if made public; sensitive public safety data; pending litigation and contract negotiations; employment matters; and certain deliberations following a public hearing involving imposition of civil penalties or suspension of licenses. N.J.S.A. 10:4 — 12(b)(1) to (9). The public body may meet without having complied with the requirements of N.J.S.A 10:4-8(d) provided its discussion is confined to one of those nine subject areas.

II.

Plaintiff is an alumnus of Rutgers who, starting in July 2006, began attending the regularly scheduled meetings of the Board of Governors. The Board called a special meeting to be held at 3:30 p.m. on September 10, 2008, to “act on a resolution to meet in immediate closed session to discuss matters falling within contract negotiation and attorney-client privilege.” Plaintiff, in accordance with his past practice, attended the meeting. The meeting opened [102]

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47 A.3d 724, 211 N.J. 94, 2012 N.J. LEXIS 779, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcgovern-v-rutgers-nj-2012.