“You are My Sunshine, My Only Sunshine”

McGovern v. Rutgers, The State University, 418 N.J. Super. 458 (App. Div. 2011).  New Jersey’s Sunshine Law, also known as the Open Public Meetings Act, N.J.S.A. 10:4-6 to -21, is the focus of this opinion by Judge Baxter.  The Appellate Division concluded that Rutgers had failed to comply with the Sunshine Law in several respects, but sided with Rutgers on plaintiff’s other Sunshine Law arguments.  

The plaintiff, a Rutgers alumnus, alleged several Sunshine Law violations.  First, he contended that the public notice of a Rutgers Board of Governors meeting failed to provide adequate notice of the topics to be discussed.  In that regard, the notice stated that the Board would be meeting in executive session “to discuss matters falling within contract negotiation and attorney-client privilege,” two areas where executive sessions are permitted.  The Appellate Division agreed with plaintiff that this notice wrongfully “gave the public no idea of the topics to be discussed.”  Those subjects were an already-executed contract with Nelligan Sports Marketing and proposals for naming rights for Rutgers Stadium.  It “would not have disserved the public interest or invaded the privacy of particular individuals” for the notice to have specified that these topics were going to be discussed.  

Plaintiff’s second claim was that the Board was required to have discussed the Nelligan contract, the naming rights, and the University President’s “overview of policy recommendations” in public session rather than in executive session.  The Appellate Division rejected plaintiff’s arguments on the first two topics but agreed with him on the third issue.

As to the Nelligan contract, plaintiff contended that a Sunshine Law exception for “contract negotiation” did not apply because that contract had already been signed.  In response, the Board relied on the exception for “material covered by the attorney-client privilege.”  Judge Baxter agreed with Rutgers, observing that the University’s General Counsel had provided legal advice about “1) the manner in which the Nelligan contract was procured; and 2) the status of then-pending litigation in which The Star-Ledger was seeking access under the Open Public Records Act to documents concerning the Nelligan contract.”

The naming rights, the Appellate Division found, “were the subject of ongoing ‘contract negotiation.'”  Therefore, they fit squarely within the Sunshine Law’s exception for “contract negotiation” and did not have to be discussed in public session.  However, the President’s policy overview, and comments by the Board’s Chairman involving “the need for clear rules to be implemented across all facets of the University,” did not fall under any exception that allowed for executive session discussion only.  Accordingly, Judge Baxter agreed with plaintiff in that respect.

Plaintiff’s third claim related to the way the Board ran its meetings.  Meetings began with a five-minute public session, followed by an executive session that was scheduled to last for 90 minutes but could run longer, and then another public session.  Plaintiff asserted that this arrangement left the public with no way to know when important public business would be conducted, and resulted in the public giving up and leaving the meeting before the public session resumed.  The Appellate Division found that the Board’s practice violated the Sunshine Law’s requirement that the “time” of a meeting be disclosed, in that there was “such uncertainty about when the public session will actually resume as to impermissibly erode the reliability of the times specified in the public notices of the Board’s meetings.”  The decision required the Board to complete its open session before going into closed session.

Finally, the Appellate Division rebuffed plaintiff’s claim that the Board had wrongly failed to set aside time for public comment.  Judge Baxter observed that N.J.S.A. 10:4-12(a) limits the requirement for public comment time to governing bodies and boards of education.  After a careful statutory analysis, she concluded that the Rutgers Board is not a “board of education.”  Therefore, it had no duty to afford a public comment period.

Update:  The Supreme Court of New Jersey has granted review of this decision.  Stay tuned.