In a recent unpublished opinion, the Appellate Division of the Superior Court determined that a local municipality did not violate the Open Public Meetings Act (OPMA), when it failed to include a specific resolution on the published agenda.

Feld v. City of Orange Twp.  involved an ongoing dispute with an attorney who described himself, according to court records, as a “zealous gadfly” and a “radical barrister” who believed that he had to oversee the actions of government officials in the City of Orange Township, more commonly known as Orange.

The litigation centered on the redevelopment of a business district in Orange and the construction of affordable housing by a private developer. In this matter, Feld objected to the City Council’s adoption of a resolution approving a settlement of long outstanding water and sewer bills for two Housing Authority properties. The complaint alleged that the City Council did not comply with OPMA in approving the resolution because it did not give notice or an opportunity for the public to be heard on the resolution and did not list or include it in its agenda packet prior to the meeting. Feld also alleged that he was not allowed to address the City Council about the resolution because it was added “after the close of citizens’ and [C]ouncil comments.” He claimed the “walk-on” resolution was “ultra vires” and demanded an injunction barring its implementation.

In the opinion, the Appellate Division relied on the recent case of Kean Fed. of Teachers v. Morell for the proposition that OPMA made “explicit the legislative intent to ensure the public’s right to be present at public meetings and to witness government in action.” However, the court further noted this “legislative intent is balanced by an express recognition that public bodies must be allowed to exercise discretion in determining how to perform their tasks….” Turning to the definition of “adequate notice” in the statute itself, the court indicated that the act requires publication of the agenda “to the extent known.” The court further explained that not every action taken at a public meeting that was not listed on an agenda was per se void. The court explained, “[o]nly where it can be shown that the governing body published an agenda calculated to mislead the public or otherwise intentionally omitted items from the agenda which it knew would be acted upon, should the action be voided.” In the court’s opinion, because there was no evidence that the City Council attempted to mislead the public or intentionally omitted the resolution from the agenda when it knew it would be acted upon, there was no violation of the act. In support of this conclusion, the court turned to the factual record, which demonstrated that at least one council member did not support the resolution because he did not have the opportunity to review the information. In addition, the business administrator told the City Council he had only completed the supporting memorandum “last week” and then gave it to his secretary to type. Therefore, the Appellate Division held that the City Council did not violate the act when it adopted the resolution.

With regard to Feld’s complaint that he was precluded from speaking about the resolution due to its late introduction at the meeting, the court noted that plaintiff was provided with 10 minutes to speak on issues before the City Council according to its internal procedures and noted accordingly, that public bodies are given discretion in how to conduct their meetings.

For more information on this topic, board members are encouraged to speak to the board attorney or call the NJSBA Legal and Labor Relations Department at (609) 695-7600.