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Legal Hotline - Recent Questions


CAUTION: Because the law is constantly evolving, it is important before relying upon any opinion on this website that you check with the hotline counsel to ascertain whether or not there has been any subsequent change or supplementation to the law since the date of the opinion.

Answers provided by NJPA's Legal Counsel.

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.

 

The Hotline is operated by NJPA's General Counsel, Tom Cafferty of Gibbons P.C. He has served in this capacity for more than 30 years and has extensive First Amendment and communication law expertise. The Hotline is available to all publications that are active members of the New Jersey Press Association.

To reach the Hotline:

Call (973) 596-4863 The regular hours are 9 a.m. to 5 p.m. Monday through Friday, but callers may leave a recorded message 24 hours per day on a dedicated voice-mail line. The Hotline attorneys will return all calls as soon as possible.
Fax: (973) 639-6267
Write: NJPA Legal Hotline, c/o Gibbons P.C., One Gateway Center, Newark, NJ 07102-5310

E-mail: tcafferty@gibbonslaw.com

- Recent Questions - Legal Newspaper Qualifications
- Access to Public Records - Miscellaneous
- Advertising - Open Public Meetings Act
- Defamation - Public Notice
- Cameras in the Courtroom - Shield Law
- Invasion of Privacy  


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