N.J. school district did not violate Sunshine Law, judge says

The Appellate Division on August 18 reversed a lower court ruling that required the Midland Park School Board to provide more documentation with its meeting agendas.  The upper court said the outdated OPMA law did not require it but called for modernization of the OPMA to coincide with today’s simplified means of communication and document sharing. -NJFOG

By Laura Herzog
NJ Advance Media for NJ.com
August 25, 2015
(Full article here and below.)

MIDLAND PARK — An appellate panel has ruled that the Midland Park Board of Education didn’t violate the law governing public meetings, also known as the Sunshine Law, by not providing detailed agendas before public meetings.

The Aug. 18 appellate ruling overturned a 2013 court decision that required the district to post more detailed agendas, including “copies of any appendices, attachments, reports, and other documents referred to in the agenda,” before its meetings, to better inform the public.

“We hold the term ‘agenda’… does not impose a legal obligation on public bodies to provide copies of any appendices, attachments, reports, or other documents referred to in their agendas,” wrote Judge Jose Fuentes on behalf of the three-judge panel.

“The (Open Public Meetings Act, or Sunshine Law) is intended to insure the right of citizens ‘to have adequate advance notice of and the right to attend all meetings of public bodies,'” he stated.

The suit was brought by Midland Park resident David Opderbeck, a law professor at Seton Hall University, who argued his own case. His interest was sparked after his wife asked the board’s office on May 28, 2013 for “the attachments and appendices indicated” in an agenda for a May 29 meeting. She was told that she would have to file a public records request to obtain that information before the meeting, according to the court.

The school board, however, argued that “there is nothing contained in the OPMA to suggest the Legislature intended to apply anything other than the plain, dictionary meaning to the term agenda.”

Following the Aug. 18 decision, he is now considering further legal action, but is also interested in speaking with the district to see how they can “work together.”

“I’m disappointed by the appellate division’s decision but I understand the basis of it. I am gratified that the court did recognize the importance of the issues and recognized the common sense behind a having a local board like this provide this information,” he said on Tuesday.

Midland Park’s superintendent and lawyer have not yet responded to NJ Advance Media inquiries.

Representatives of the New Jersey Association of School Business Officials and New Jersey School Boards Association — which were not parties to the suit, but which filed briefs supporting Midland Park — praised the outcome.

NJSBA Director of Communications Frank Belluscio called the the Appellate Division’s decision “a sound interpretation” of OPMA requirements. “The earlier determination by the trial court exceeded what the law requires. We agree with the Appellate Division that expansion of the OPMA definition of ‘agenda’ would require legislative action,” he said.

Both the NJSBA and the NJASBO indicated that they felt the lower court’s decision would have placed an unfair “administrative burden” on districts.

NJASBO Executive Director John Donahue said additional time would be necessary if an “agenda’s” definition was expanded to mean more than a list of items to be discussed. The expanded definition could be “costly,” too, he said, if a lawyer needed to review potentially privileged documents before a meeting.

“I think (this decision) is in the public’s best interest,” he said. “(Citizens) are entitled to public documents, but having them available prior to that given meeting will slow the governance process for the Board of Education.”

The American Civil Liberties Union of New Jersey also filed a brief, but in support of Opderbeck’s stance.

The ACLU-NJ’s Deputy Legal Director Jeanne LoCicero saw the bright side of the decision, noting that the appellate court “called on the Legislature to act.”

“For years the ACLU of New Jersey and other advocates have been calling on the Legislature to update and modernize the Open Public Meetings Act. It’s 40 years old. It comes from a time of typewriters,” she said. “We would hope that the legislature would look to provide more access and transparency about the workings of government.”

According to Opderbeck, this issue became so important to him, as a father of three in the district, because “the purpose of the Open Public Meetings Act is to encourage and facilitate public participation in government at every level.”

“Especially at these very local levels of government, it’s all about the ordinary person. It’s our government,” he said. “Aside from issues of privilege, which are understandable, really, the workings of the government should be open and transparent to the public.”