MIDLAND PARK – An appellate court on Tuesday, Aug. 18, reversed a lower court’s ruling requiring the Board of Education to provide or publicize appendices of materials cited on its meeting agendas.
The appeal, David W. Opderbeck versus Midland Park Board of Education, was considered by a three-member panel, state Superior Court Judges Victor Ashrafi, Amy O’Connor and Jose L. Fuentes, with Fuentes delivering the opinion.
The panel focused its decision on the meaning of “agenda,” stating in its decision that “the mandate imposed on the board by the Law Division in this injunction is not supported by the ‘adequate notice’ requirements imposed on public bodies by the OPMA” – Open Public Meetings Act.
“We hold the term ‘agenda,’ as used in N.J.S.A. 10:4-8(d), 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.”
Opderbeck, a resident and law professor, had claimed the district had violated the Open Public Meetings Act and Open Public Records Act (OPRA) by not providing to the public appendices or additional documents listed on meeting agendas.
On Dec. 24, state Superior Court Judge Peter Doyne had ordered the board to “make available to the public, by posting to its public website, no later than 48 hours before any regular or special board 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, except to the extent defendant has a good faith belief that such documents are subject to an enumerated privilege, exemption, or the like under the Open Public Records Act, Open Public Meetings Act, or common law right to information.”
The board appealed his decision in January.
“We are pleased by the Superior Court of New Jersey Appellate Division’s decision to grant the district’s appeal with regard to the posting of appendices to the Board of Education meeting agenda on the district website prior to each meeting,” schools Superintendent Dr. Marie Cirsella said in a statement. “Throughout this process, we remained confident in the legality of our position under OPMA and are grateful for the excellent advisement received by board counsel Stephen Fogarty. We look forward to continuing to provide the public with documentation as required by legislation and remain committed to compliance with OPMA in its current form.”
Opderbeck said he was “disappointed” with the decision but understood the basis.
“I continue to believe that the legislature left this term [agenda] more open to developing circumstances,” said Opderbeck. “The legislature said in the statute it should be interpreted widely by the courts.”
Fogarty, of Fogarty & Hara, Fair Lawn, argued that the court should construe the term “agenda” by its ordinary meaning.
The New Jersey legislature adopted OPMA in 1975 and Fogarty cited the 1975 Webster’s New Collegiate Dictionary definition of “agenda” as “a list, outline, or plan of things to be considered” and Black’s Law Dictionary 58 (4th rev. ed. 1968), which defines agenda as a “memoranda of things to be done, as items of business or discussion to be brought up at a meeting; a program consisting of such items.”
The panel stated that “the provisions in OPMA that define ‘adequate notice’ are tethered to a world where daily newspapers were presumed to be the most reliable and efficacious means of providing the public with notice of the time, date, location and to the extent known, the agenda of any regular, special or rescheduled meeting.”
However, the court acknowledged “in construing the term ‘agenda’ in our modern technological age, it is tempting to define ‘agenda’ to include attachments, appendices, and other forms of supplemental material because, practically, it merely requires adding an electronic ‘link’ to the noard’s agenda, which is already posted on its official website.”
The Appellate Court did not entirely disagree with the lower courts decision.
“The information technology revolution has transformed our lives in profound and irrevocable ways since the adoption of the OPMA over 40 years ago. Thus, there may be no technologically sound reason to disagree with the facially sensible approach adopted by the Law Division here.”
The court’s decision means the board need not post corresponding attachments with meeting agendas.
Opderbeck said he sent an email to the board’s attorney seeking a meeting with board members to “continue the practice” of making available to the public attachments and appendices.
“I would like this to be a matter of policy,” he said.