Before going into closed (i.e. private or executive) session, public bodies are required by N.J.S.A. 10:4-13 to pass a resolution in public that announces the “general nature of the subject to be discussed” during closed session and “as precisely as possible, the time when and the circumstances under which the discussion conducted in closed session of the public body can be disclosed to the public.”  One of the most common violations of Open Public Meetings Act (OPMA) is for public bodies to exclude citizens and taxpayers from their meetings without providing the public with a real sense of the topics that are going to be privately discussed.

As an example, consider the Bloomsbury Board of Education (Hunterdon County).  The school board’s closed session resolutions passed on October 11, 2016, November 8, 2016, January 10, 2017, February 14, 2017 all identically state:

Motion by [member], seconded by [member], that be it

RESOLVED, that the Board of Education adjourn to executive session at [hour] pm to
discuss Student, Personnel and Legal issues.

Motion carried unanimous voice vote.

This is improper because the phrase “student, personnel and legal issues” is so general that it does not give the public any real sense of what topics the Board is going to privately discuss.  Nearly any topic imaginable can fit within this vague description. To paraphrase the supreme court of another state, by describing the reasons for going into executive session so broadly, the school board “has said nothing. It might has well have stated to the audience, ‘Ladies and gentlemen, we are going into executive session,’ and stopped there.” Hinds County Board of Supervisors v. Common Cause of Mississippi, 551 So.2d 107, 114 (MS 1989).  (The motion is also improper because it makes absolutely no attempt to satisfy the requirement of N.J.S.A. 10:4-13(b).)

So, how much detail does N.J.S.A. 10:4-13(a) require the Board to publicly disclose in its nonpublic meetings motions or resolutions? Controlling is the Appellate Division’s opinion in McGovern v. Rutgers, 418 N.J. Super. 458 (App. Div. 2011) which was mostly reversed by the Supreme Court at 211 N.J. 94 (2012). In part of its opinion that was not reversed, the Appellate Division upheld the ruling in Council of New Jersey State College Locals v. Trenton State College Board, 284 N.J. Super. 108, 114 (Law Div.1994) that public bodies must give the public “as much information [regarding the nonpublic meeting topics] as is consistent with full public knowledge without doing any harm to the public interest.” (emphasis supplied) For example, “the general nature of the subject to be discussed should not be set forth as ‘litigation’ but, rather, as ‘litigation-A vs. B.'” Id. at 114, quoting 34 New Jersey Practice, Local Government Law § 141, at 174 (Michael A. Pane) (2d ed. 1993).  (For a more complete explanation, see the letter brief filed in New Jersey Foundation for Open Government, Inc. v. Spotswood Board of Education, Docket No. MID-L-4615-16.)

Unfortunately, the minutes of the Bloomsbury board’s October 11, 2016, November 8, 2016, January 10, 2017, February 14, 2017 closed session minutes are so heavily redacted that it’s difficult to tell what topics were discussed and the privilege log that accompanied the minutes is not at all helpful.  Still, we can tell, for example, that a feasibility study was discussed at the January 10, 2017 closed meeting and that the 2017 special school election was discussed at the closed meeting held on February 14, 2017.  At a minimum, these topics should have been reflected in the Board’s corresponding closed session resolutions.

I have sent a link to this blog article to the members of the school board and Board Attorney Jeff Caccese.

Chairman of the New Jersey Libertarian Party's Open Government Advocacy Project. Please send all comments to [email protected]