BOE Ordered To Provide Agenda Attachments
By Rebecca K. Abma
A Superior Court judge in Hackensack has ordered the Midland Park Board of Education to supply agenda attachments online in advance of public meetings following a lawsuit filed by a parent. On Dec. 24, the Honorable Peter E. Doyne ruled in favor of resident and Seton Hall Law Professor David Opderbeck in a landmark Open Public Records Act (OPRA) and Open Public Meetings Act (OPMA) case filed in November against the school board.
“There exists a significant public interest in ensuring the open, transparent, and public review of matters discussed by the Board consistent with the legislative intent pursuant to OPRA, OPMA, and the common law right of access,” Doyne writes in his ruling. “To the extent the Board does not claim an exemption, privilege, or some particularized reasons why it cannot produce the documents, all attachments shall be uploaded with the agenda pursuant to the requirements of OPMA.”
Previously, attachments and supplemental documents to school board meeting agendas were available only by OPRA request after the meetings, which Opderbeck argued “renders the agendas virtually meaningless.”
Surrounding school districts, Ridgewood, Waldwick, and Wyckoff, all provide attachments to their Board meeting agendas on their respective websites, he noted.
“The attachments in this case are not simply supplemental; they are an integral element necessary to understand the agenda,” Opderbeck argued.
The district and its attorney, however, disagree.
“In rendering his decision, Judge Doyne chose to ignore a formal interpretive opinion of the Attorney General along with case law regarding agendas under the Open Public Meetings Act,” School Board President Bill Sullivan told Midland Park Press in an email. “It should be noted that countless school boards and municipal governing bodies across the state, as well as the Bergen County Freeholders and NJ State Board of Education, share the Midland Park Board of Education’s procedure for the release of supplemental material. The Board should not be held to a different standard and the State Legislature, and not the Judiciary should be the branch that makes changes to the Open Public Meetings Act.”
In September, the board's policy committee proposed a measure to post agenda appendix items and supplemental materials on the district website, along with the agendas prior to meetings. After much discussion, the governing body first opted to amend the proposed change to just include items referenced as appendices on the agenda, and on Oct. 15, withdrew the proposed changes in favor of maintaining the status quo.
“[The] defendant has been unable to articulate any persuasive reasoning why the attachments should not be posted with the agendas prior to a Board meetings,” Doyne concluded. “The only justification offered is the lack of relevant case law and a prior opinion of the Attorney General. These attachments are already produced in electronic form for the Board members and are necessary to for the public to understand the agenda. The public cannot be ‘overloaded’ with information concerning the workings of their governmental and municipal entities.”
The school board will determine its next steps in closed session at its Jan. 7 meeting.
The full decision is available here.
Here is the Midland Park Board of Education’s official response to the ruling, from Board President Bill Sullivan:
In rendering his decision, Judge Doyne chose to ignore a formal interpretive opinion of the Attorney General along with case law regarding agendas under the Open Public Meetings Act. In spite of this fact, his decision will have only a limited effect on how supplemental documents are handled by The Board.
Items that are exempt according to statute are still not required, and will continue to be excluded when the agenda is posted. Personnel items, and anything that is considered "deliberative and consultative", such as draft policies and job descriptions, are examples of items that remain unaffected by the Judge's decision.
The Board can only act as a collective majority and recommendations by individual members and committees are not public records and do not become official actions until adopted by The Board as a whole.
The Board actually considered changing it's procedure to release some supplemental material but Professor Opderbeck's insistence that all material be released with the agenda gave us no choice but to defend ourselves in court. Particularly disturbing is Professor Opderbeck's claim that The Board reneged on some sort of agreement to release all supplemental material with the agenda. That agreement never existed and is a complete fabrication on his part.
It should be noted that countless School Boards and Municipal Governing Bodies across the state as well as the Bergen County Freeholders and NJ State Board of Education share the Midland Park Board of Education’s procedure for the release of supplemental material. The Board should not be held to a different standard and the State Legislature, and not the Judiciary should be the branch that makes changes to the Open Public Meetings Act.
We're confident that the NJ School Boards Association will be quite interested in this decision and we look forward to hearing their thoughts. The Board will meet again on January 7 to further discuss our options along with the process for appeal and standards of review.