By the NJSBA Legal Department
New Jersey School Boards Association staff regularly receives inquiries regarding the Open Public Meetings Act (OPMA) and the use of telephone conference calls, videoconferencing and email as a means of communication among board members and administration. Attempting to answer those questions continues to be challenging, primarily because the OPMA or Sunshine Law was enacted in 1975, long before the advent of widespread use of Internet technology. Therefore, it is often difficult to provide definitive answers.
However, cases from jurisdictions outside New Jersey have begun to provide us with some guidance. In addition, the spirit of the Sunshine Law has aided us in making certain generalizations that we can share with you and your having an understanding of the spirit of the law should assist you in making decisions regarding your own communication with other board members.
The Open Public Meetings Act
Understanding the parameters must begin with the Open Public Meetings Act itself, which was promulgated to protect the public’s right of access to governmental policy and decision making processes. In drafting New Jersey’s OPMA, which is similar to open public meeting laws in the other 49 states, the Legislature declared that trust in government is paramount. Therefore, the public must have the right to witness in full detail all phases of the deliberation, policy formation, and decision making of public bodies. In other words, the public is entitled to advance notice and the right to attend all meetings of public bodies where discussion and deliberation of public business take place.
The OPMA itself then assists us by defining a meeting as a gathering whether corporeal or by means of communication equipment which is attended by, or open to, all members of the public body to discuss or act as a unit upon specific public business. The OPMA also concludes that a meeting does not mean or include such a gathering attended by less than an effective majority of the members or attended by or open to all the members of three or more similar public bodies at a convention or similar gathering.
From this definition, we can conclude that whenever a quorum is discussing or acting upon public business, the OPMA applies. Therefore, it does not matter if your board calls such a gathering a retreat or a training session. If the gathering is open to a quorum of the board and you intend to discuss public business, then the OPMA applies and the public must be provided with notice and the right to attend.
Telephone Conference Calls and Speakerphones
As noted above, the OPMA applies to gatherings of a quorum, including those by means of communication equipment. Use of the telephone could then be an issue in two ways; 1) if a quorum of board members, each in their respective offices or homes, were to communicate via telephone conferencing and 2) if an absent member of the board wanted to participate in a public meeting via a speakerphone.
The first scenario, involving a quorum of the board communicating simultaneously by telephone conference, would most likely be a violation of the OPMA unless the public was provided with advance notice and an opportunity to witness such communication. Witnessing the meeting would of course present practical problems if there were no central location. However, as technology is advancing at such a rapid pace, it is not unlikely that in the very near future a board could schedule a public meeting where members are in attendance from remote locations with the public viewing the proceedings via a video screen. In that event, the board should absolutely comply with the notice and right to attend provisions of the OPMA.
The second scenario, involving an absent board member wishing to participate via speakerphone or videoconferencing, is much more likely to occur, and the answer is not as clear, due to the way in which different New Jersey courts have addressed this issue. In Hegarty and Romeo v. Old Bridge Board of Education, the Appellate Division affirmed a Superior Court Order that permitted two absent board members to participate in a board organization meeting via speakerphone. As this decision is unreported, it is not binding on any other court or jurisdiction. The decision is merely instructive that at least one court believes that such participation should be allowed. It is possible that the Court permitted speakerphone participation because the reorganization meeting is one that must be conducted within a statutory timeframe, making it impossible for the board to reschedule this particular meeting to a later date. However, whether this was taken into consideration is not clear from the Court’s written decision.
In a similar situation, Koch v. Bd. of Educ. of Jackson Twp., the Honorable Eugene D. Serpentelli refused to allow a board member to participate in the board organization meeting by speakerphone as it would be contrary to the purposes and intent of the Open Public Meetings Act. This declaration is particularly interesting as Judge Serpentelli was on a committee designated by the League of Municipalities in 1975 to assist the Legislature in drafting the original OPMA. However, the decision itself is devoid of Judge Serpentelli’s rationale for concluding that speakerphone participation would be contrary to the OPMA.
In an attempt to receive clarification on the issue of participation by speakerphone, an attorney who represents boards of education requested an opinion from the Office of the Attorney General of New Jersey. The Attorney General responded in a letter dated April 12, 2000.
The Attorney General began his response by noting that he is not authorized to render legal advice to boards of education, as they are not instrumentalities of state government. He did point out, however, that the Sunshine Law defines meeting to include gatherings by means of communications equipment. He further advised,
on a number of occasions members of State boards and public bodies subject to the Open Public Meetings Act and represented by this office have participated in public meetings by means of speaker telephones without first obtaining a court order. In those instances all of the other requirements of the OPMA were followed and appropriate measures were taken to ensure that members of the public attending the meeting had the opportunity to hear the member who was not physically present participate in and take action in connection with the public meeting.
The Attorney General opinion, while providing information to boards of education, is not to be construed as legal advice to districts. Also, as neither of the court decisions is binding precedent and because each decision comes to a completely different conclusion, NJSBA has taken the position that a board wishing to use speakerphone or videoconferencing for off-site board of education members, should, after consultation with its board attorney, establish a policy by which such participation could occur. The policy should set forth the practices and procedures by which members of the public could hear and/or see the board members who were not physically present participate in and take action in connection with the public meeting. Similarly, the off-site board of education members should be able to hear and/or see the full discussions and deliberations of the public body. This would protect any action taken at that meeting from legal challenge. Of course, contacting your own board attorney regarding this issue is critical.
Based upon the above understanding of the OPMA, we can assume that having a one way flow of information via email is unlikely to create a violation of the OPMA. This electronic dissemination of information could be analogized to information packets sent to board members prior to the meeting. Using technology in such a way could be an effective mechanism for delivering up to date information. It would also seem to be appropriate for individual board members to email requests for supplemental materials.
On the other hand, if a quorum of the board engaged in a real-time chat, email exchange, instant messaging or texting, this would appear to qualify as a meeting by electronic communication equipment, requiring the board to comply with the notice and right to attend provisions of the sunshine law. This scenario would raise a problem regarding the public’s right of access in two ways. First, the lack of a central location for witnessing the deliberations would create the same difficulty referenced above in the discussion of telephone conferencing. Second, and more importantly, even if the public were provided notice that a meeting would take place on-line at a given time, not every member of the community has access to a computer, either desktop or hand held, raising the question of whether this is truly providing the public the right to attend. Without New Jersey case law to guide us, it is difficult to predict with any certainty how a court would view an on-line meeting if a community member chose to challenge such a meeting. For each of those reasons, NJSBA recommends that board members not engage in email discussions or communication with a quorum of its membership.
Whether an exchange of email among less than a quorum of the board would violate the OPMA is a more difficult question. This type of dialogue could be analogized to a committee meeting, which is exempt from the OPMA as it involves less than a quorum of the board. And, to the extent that such email communication were strictly limited to prevent a quorum from participating, it probably would not be a violation of the sunshine law for a committee of less than a quorum to communicate with each other in this way.
However, board members should be aware that at least one state has reviewed the interplay between email and its Open Public Meetings Act to conclude that two-way communication between board members via email could be a violation of its sunshine law. In Opinion 98-28 the Attorney General of Florida concluded that if one board member emails another board member a report to be discussed at an upcoming meeting, the Florida sunshine law has not been violated. If that same board member were to email the report and invite comments from other board members, a violation would have occurred. Although this case is not binding in New Jersey, and there are subtle differences between the two states laws, it is instructive that at least one state has concluded that email communication could violate the law.
Additionally, at least two county prosecutors’ offices (Burlington and Gloucester) have issued guidelines on the use of email by public officials. The guidelines include:
- Email communications should, as far as practicable, not include an effective majority of the governing body where discussion of information related to the business of the municipality is involved.
- Where email communications do include an effective majority of the governing body, such communications should not include any request for a response. This includes emails sent by municipal employees to members of the governing body. The providing of information to the entire governing body should specifically indicate that there should be no email replay or other communication contrary to the OPMA.
- In the rare instance when a response to an email is necessary, such response must not involve any decision making or deliberative function of the governing body or otherwise address public business as contemplated by the OPMA. Further, the response shall not be made to the entire list of email addresses to avoid even the appearance of impropriety. Utilizing a third part, such as the Clerk, does not change the requirement of the OPMA.
- “Rolling” email conversations must also be avoided. A “rolling” email occurs when one (1) member of the governing body or a third party contacts other members via email individually to successively discuss or gain opinions on an item of Township business. This would apply to other forms of electronic communications as well. However, communications between less than an effective majority of the governing body do not violate the OPMA provided the dialogue does not become a “rolling” discussion that ends up including an effective majority of the governing body.
As a guiding principle, therefore, board members should be aware that once members begin to engage in two-way communication, or a string of communication involving additional board members, each step brings the board closer to the possibility that the board’s action could be challenged as a violation of the Sunshine Law. In addition, having a written memorial of such discussion raises issues regarding the public’s right of access to the email as a public record.
This article first appeared in School Leader in 1998. It was updated in December 2014 and July 2016.