On August 12, 2021, Superior Court Judge Kerry E. Higgins signed a Consent Judgment that resolved my May 2021 pro se (i.e., I represented myself) lawsuit against a school district in Monmouth County. I filed the suit because the school board did not abide by the Open Public Meetings Act (OPMA). Specifically, it did not keep “reasonably comprehensible” closed meeting minutes, did not adequately inform the public of the topics of its closed meetings, and did not notify two newspapers of its public meeting schedule.
The defendant in my lawsuit was the Upper Freehold Regional Board of Education which oversees Allentown High School, Stone Bridge Middle School and Newell Elementary School. The Board serves students from Allentown Borough and Upper Freehold Township and its high school also receives students from Millstone Township.
The Consent Judgment consists of two parts: the body with an included memorandum of understanding and a model resolution that I suggested the board use to authorize future closed meetings. What follows is how the Consent Judgment amended the board’s OPMA procedure:
CLOSED MEETING MINUTES.
The OPMA (N.J.S.A. 10:4-14) requires all public bodies (municipal governing bodies, school boards, sewerage authorities, etc.) to keep “reasonably comprehensible” minutes of all its meetings, both those that the public is permitted to attend and those from which the public is excluded. (Meetings from which the public is excluded are commonly called “closed” or “executive” meetings or sessions.)
When I submitted an Open Public Records Act (OPRA) request for the board’s nonpublic meeting minutes, I found them to be so terse and vague that the public was deprived of knowing anything about what the school board privately discussed. For example, the minutes of the board’s March 3, 2021 closed meeting, which was nearly an hour and half in duration, informed the public only that “a legal matter update” was discussed with no further context or explanation. My lawsuit gave ten additional, similar examples of incomprehensible closed meeting minutes.
Under the Consent Judgment, the board agreed to a permanent injunction requiring all future closed meeting minutes to “contain sufficient detail to enable the reader to understand each topic . . . discussed, the nature of that discussion . . . and a fair summary of the comments made, and the positions taken by each participant who spoke regarding the matter at hand.” The Consent Judgment allows the board to redact (i.e., black out) its closed meeting minutes “to the extent that a personal privacy interest or legitimate governmental interest in confidentiality exceeds the public’s right to know.” But at least comprehensible closed meeting minutes will exist so that future board members, judges and other authorized persons can learn what occurred at the board’s private meetings. And, when governmental confidentiality interests lessen or are eliminated (e.g., after a lawsuit settles or negotiations are completed), the board will be able to disclose previously redacted elements of its closed minutes so that the public can glean more information on the board’s deliberations and decisions.
CLOSED MEETING RESOLUTIONS.
The OPMA (N.J.S.A. 10:4-13) requires all public bodies to pass resolutions in public before going into closed session that give the public a good sense of the topics the body is going to privately discuss. The board’s April 7, 2021 public meeting minutes, for example, disclosed only that “a student/legal matter” would be privately discussed. This vague description gave no specifics and left the public to wonder whether the Board intended to privately discuss a “student matter” or a “legal matter” and, if the latter, whether the “legal matter” related to a lawsuit, contract, or something else.
Under the Consent Judgment, the board agreed to a permanent injunction requiring that the public be given “as much information about the topic(s) to be privately discussed that can be disclosed without undermining the [OPMA] exception that authorized topic(s) to be discussed in private.” For example, instead of telling the public that a “legal matter” will be privately discussed, the Consent Judgment requires the board to give the public a much more detailed description such as “the board will discuss a settlement offer received from the plaintiff in the slip and fall negligence suit known as Jones v. Upper Freehold Regional Board of Education, Docket No. MON-L-012345-21, in which the plaintiff offers to settle the suit in exchange for the board paying him $70,000.” This way, the public is given the maximum amount information about the topics to be discussed while the board can still discuss its confidential negotiations in private.
INFORMING TWO NEWSPAPERS OF UPCOMING MEETINGS.
The OPMA (N.J.S.A. 10:4-8(d) and N.J.S.A. 10:4-18) requires public bodies to inform two newspapers of its special meetings and its annual schedule of regular meetings and to name those two newspapers in its public meeting minutes. Yet, the minutes of every public meeting (see the April 7, 2021 minutes for an example) inform the public that only the Trenton Times was notified. Under the Consent Judgment, the board, going forward, will notify two newspapers of all its upcoming meetings and identify those two papers in its public meeting minutes.
Unfortunately, there is no readily available mechanism to enforce the OPMA. While N.J.S.A. 10:4-17 empowers county prosecutors and the New Jersey Attorney General to seek penalties for willful OPMA violations, those offices rarely do so. The only way for citizens and taxpayers to enforce the OPMA is through private civil lawsuits (see N.J.S.A. 10:4-15 and N.J.S.A. 10:4-16).
Fortunately, “any person” can bring such a lawsuit (I have standing to have brought this lawsuit even though I don’t live in the board’s jurisdiction–actually, I reside in Florida). Unfortunately, there is no way a successful suitor can recover his or her attorney fees from a public body found to be out of compliance with the OPMA.
Since most people of normal means can’t afford to pay a lawyer to bring OPMA lawsuits, enforcement is generally left to citizens and taxpayers who are able to bring such suits without a lawyer. And, while a successful plaintiff cannot recover attorney fees, he or she can recover out of pocket court costs. Paragraph 9 of the Consent Judgment requires the Board to reimburse me the $250 filing fee I paid to the court. Therefore, all this suit cost me was my time.
The lack of a meaningful enforcement method is the reason why so many public bodies are out of compliance with the OPMA. Simply stated, some (perhaps many) public bodies are out of compliance, are fully aware of it and refuse to correct it because they recognize that citizens and taxpayers rarely will bring enforcement lawsuits. (Fortunately, in this instance, the Upper Freehold Regional Board of Education and its attorney, Robert D. Lorfink of the Fair Lawn firm of Fogarty & Hara, took my lawsuit seriously and were very genuine in their efforts to bring it to a prompt and fair conclusion.)
I have brought several similar lawsuits in the past (click here for my 2008 OPMA lawsuit against seventeen Atlantic County municipalities) and I plan, time permitting, on bringing similar lawsuits in the future. I urge others to teach themselves how to bring these lawsuits because this seems to be the only realistic way to enforce the OPMA. (Disclaimer: I am not an attorney and do not offer anything here as legal advice.)