Question:
Does a public body
have to keep minutes of executive sessions? When are those minutes made
public? Who can file a Complaint for a violation of OPMA? What is the
penalty for a violation of OPMA? What information must be included in
meeting minutes?
Answer:
Yes. A public body
must keep minutes of executive sessions and those minutes must be
promptly made available to the public. N.J.S.A. 10:4-14 provides:
Each public body shall keep reasonably
comprehensible minutes of all its meetings showing the time and place,
the members present, the subjects considered, the actions taken, the
vote of each member, and any other information required to be shown in
the minutes by law, which shall be promptly available to the public to
the extent that making such matters public shall not be inconsistent
with section 7 of this act.
Any member of the
public can file a complaint for a violation of OPMA. The penalty
provision is contained in N.J.S.A. 10:4-17, which provides:
Any person who knowingly violates any of
the foregoing sections of this act shall be fined $ 100.00 for the first
offense and no less than $ 100.00 nor more than $ 500.00 for any
subsequent offense, recoverable by the State by a summary proceeding
under “the penalty enforcement law” (N.J.S. 2A:58-1 et seq.). The
Superior Court shall have jurisdiction to enforce said penalty upon
complaint of the Attorney General or the county prosecutor. Whenever a
member of a public body believes that a meeting of such body is being
held in violation of the provisions of this act, he shall immediately
state this at the meeting together with specific reasons for his belief
which shall be recorded in the minutes of that meeting. Whenever such a
member’s objections to the holding of such meeting are overruled by the
majority of those present, such a member may continue to participate at
such meeting without penalty provided he has complied with the duties
imposed upon him by this section.
Finally, meeting
minutes must disclose any official decision or action taken by a public
body and must contain sufficient facts and information to permit the
public to understand and appraise the reasonableness of the public
body’s determination.
Question:
Is the below
referenced item on Township Committee agenda adequate under the Open
Public Meetings Act, or does it need to be more specific? Is the
Township required to disclose exactly what “matters dealing with
attorney-client privilege” are involved and exactly what litigation
Township is seeking legal advice on?
“A motion is in order to enter into closed
executive session as allowed under the Open Public Meetings Act, for
matters dealing with Attorney Client Privilege for potential legal
action by the Township to address repeated, frivolous OPRA requests; and
legal advice regarding ongoing litigation.”
Answer:
There is a
distinction in the Open Public Meetings Act (OPMA) between the required
contents of the notice of a meeting and the required
contents of the resolution that must be adopted prior to
going into executive session, excluding the public. OPMA defines
adequate notice [of a meeting] as “written advance notice of at least 48
hours, giving the time, date, location and, to the extent known, the
agenda of any regular, special or rescheduled meeting, which notice
shall accurately state whether formal action may or may not be taken…”
(see N.J.S.A. 10:4-8). That same statutory section, further
indicates that where a meeting is listed on the annual notice of
meetings, no further notice of that meeting is required. The document
you provided is the Agenda of the meeting. The section of the agenda
that you are concerned with states: “A motion is in order to enter into
closed executive session as allowed under the Open Public Meetings Act,
for matters dealing with Attorney Client Privilege for potential legal
action by the Township to address repeated, frivolous OPRA requests; and
legal advice regarding ongoing litigation.”
You have asked
whether the Township is “required to disclose exactly what matters
dealing with attorney client privilege are involved and exactly what
litigation they are seeking legal advice on.” As you can see from the
definition of “adequate notice,” the Township is required to give “to
the extent known, the agenda,” but only in the case of a special
meeting. In other words, in the case of a regularly scheduled meeting,
appearing on the annual notice of meetings, there is no requirement that
the Township provide an agenda for such a meeting. Clearly an agenda was
provided, the question then relates to the adequacy of the description
of the agenda items. On the one hand, if this was a regularly scheduled
meeting, because there is no requirement to provide an agenda, the
voluntary provision of an agenda cannot support a claim of a violation.
In that scenario, the public body, even in a regularly scheduled
meeting, must, prior to going to going into closed session to discuss an
item, first adopt a resolution stating, among other items, “the general
nature of the subject to be discussed,” N.J.S.A. 10:4-13(a). The
question you pose can only arise at the time of and in connection with
the adoption of such a resolution authorizing a closed session.
Consequently, we will assume that such a resolution authorizing a closed
session will mirror the language contained in the agenda and, thus, we
address the adequacy of such language.
On the other hand, if
this was, in fact, a special meeting, then the issue posed is whether
the information provided to you satisfies the requirement to provide “to
the extent known, the agenda.” In this instance, we think there is no
doubt that it suffices.
Therefore, the real
question you raise is, regardless of whether this is a special or
regularly scheduled meeting, if the public body goes into closed
session to discuss the two items listed on the agenda, will the adoption
of a resolution mirroring the language noted on the agenda be
sufficient. With regard to the first item you raise (attorney client
privilege), the Township has described the matter dealing with the
attorney client privilege as relating to “potential legal action by the
Township to address repeated, frivolous OPRA requests,”
and we believe this description is adequate. With regard to the second
item (ongoing litigation), there could be an argument that the Township
should be providing in the resolution the names/captions of the cases
for which there is pending litigation as records regarding pending
litigation are public records and there is no interest in
confidentiality. You may wish to raise this prior to the Township
adopting a resolution to go into closed session. However, the Township
may disagree that the description is not adequate and may decide not to
include this additional case information in the resolution (as noted,
the requirement for a resolution is that the resolution is to state the
“general nature of the subject to be discussed.”) Also,
you should be aware that, even if the Township had violated OPMA, if no
action is taken by Committee, OPMA affords no remedy for the violation
(as there is no action to be voided). An exception would be if there is
a pattern of noncompliance or of a knowing violation.
Question:
Should paper run an
ad placed by a by private citizen accusing owner of beach property of
“price gouging” and otherwise expressing displeasure with property owner
for overcharging and then canceling summer rental?
Answer:
No. The ad accuses
property owner of price gouging, which is a violation of the law, and
newspaper would be responsible for republication of the defamatory
material within the ad. The newspaper would then be put in the position
of having to defend any lawsuit filed by the property owner by proving
that the owner was, in fact, price gouging or that another defense
exists.
