What Must a Board Meeting Agenda Include toProvide Adequate Notice Under the OPMA?
The question of whether agenda attachments need to be provided prior to a meeting is one that is frequently raised under the Open Public Meeting’s Act (OPMA). A recent Appellate Division decision settled this question. On August 18, 2015, the Appellate Division reversed a Law Division order requiring the Midland Park Board of Education to “make available to the public, by posting to its public website, no later than forty-eight (48) hours before all ... meetings, the full agenda for such meetings, if such agenda is posted including copies of any appendices, attachments, reports, and other documents referred to in the agenda[.]” (Emphasis added). Opderback v. Midland Park Board of Education, Dkt. #A-2520-13T3 (App. Div. 2015). In Opderback, the plaintiff, a professor at Seton Hall University School of Law, was a resident of Midland Park, and for the past 12 years, has had at least one child in the public schools. His wife attended the May 28, 2013 board meeting and, prior to the meeting, she downloaded a copy of the agenda from the district web site. Like most agendas, it contained items which referenced various attachments, but the district website posting did not include the attachments.
Mrs. Operbeck contacted the board secretary’s office to request that the attachments be made available on the district’s website. She was advised that the attachments are not made available until after the board meeting. She was also informed that in order to obtain copies of the documents, she would have to file a formal written request under the Open Public Records Act (“OPRA”). The district superintendent responded to some of Mrs. Operbeck’s questions by email concerning some proposals for overnight field trips. The superintendent explained that such trips should not be approved until the school calendar was finalized. The superintendent explained that the trip proposals would go back to the curriculum committee for further discussion and would be placed on the June 4th board agenda.
Mrs. Operbeck responded stating that the supplementary materials must be part of the agenda and that the district was violating the OPMA. The board attorney responded to Mrs. Operbeck indicating that the board would continue its practice of not providing the agenda attachments until after the meeting, and referenced an Attorney General Opinion which stated that “agenda” meant solely the list of items to be discussed or acted upon at the meeting.
In reversing the Law Division’s order, the Appellate Division acknowledged the public policy to give citizens adequate notice of and right to attend meetings of public bodies. Id. at 14. The Court noted that public bodies are required to give “adequate notice” under N.J.S.A.10:4-9(a). This section, read in together with N.J.S.A. 10:4-8(d); requires that a one-year notice giving the time, date and location and the agenda to the extent known of public meetings be published in at least two newspapers designated by the public body to receive such notices. The designated papers must have the “greatest likelihood of informing the public.” During the course of the litigation, the board admitted that it only published in one newspaper, but has also decided to post the agendas on the district website. The Court noted that the OPMA does not obligate boards to post agendas on their website.
The Court then focused its analysis on the primary issue of the meaning of “agenda” in the context of the requisite “adequate notice.” Once again, the Court noted that the OPMA was certainly intended to promote transparency and to encourage public participation. However, it was also understood that this policy needed to be balanced by the practical obligations that would be imposed upon public entities. The Court further noted that it was construing a statute that was 45 years old in the context of our modern electronic age where handheld wireless devices are ubiquitous. The OPMA does not define the term “agenda” and so the Court determined that we are left with giving the term its plain, ordinary meaning which is “a list or outline of things to be considered or done.” Id. at 22. The Court, although recognizing that Attorney General Opinions are not binding, noted that Attorney General Advisory Opinion No. 19-1976 was issued shortly after the adoption of the OPMA. This opinion concluded that the term “agenda” should not be accorded any “special meaning.” Id. at 13. The Court closed by lamenting that changes in the law do not occur parallel with changes in technology or science. Electronic notification is an option but it is not required. Thus, although the Court seemed to be suggesting that the means of notification may need to be reconsidered, the term “agenda” is to be given its plain meaning unless the Legislature reconsiders it in the future.
Districts are frequently presented with requests for documents and other materials under the OPMA, when a request presents an issue that is counter to previous district practice, it is always best to consult the board attorney in a timely manner.
1 N.J.S.A. 10:4-8(d)
2 N.J.S.A. 47:1A-1 et seq.