New Jersey's Open Public Meetings Act (OPMA)

NJASBO Academy Program

Board Basics for Newer (or not so new)

Business Administrators

The Open Public Meetings Act (OPMA)

April 5, 2022

Michael F. Kaelber, Esq.

NJASBO Education Law Consultant

LEGAL ONE Coordinator for Online Course Development

, 

,

Disclaimer

This presentation is intended as a summary of law

only, and is not meant as legal advice. Please consult

your attorney to obtain legal advice.

2

Sen. Byron M. Baer 

Open Public

Meetings Act (OPMA)

“The Sunshine Law”

Sen. Byron M. Baer Open Public

Meetings Act (“Sunshine Law”)

P.L. 1975 c. 231,  

N.J.S.A. 

10:4-6 et. seq.

•

Applies to meetings of boards of education, and other

government bodies

•

“ …it to be the public policy of this State to insure the

right of its citizens to have 

adequate advance notice 

of

and the 

right to attend 

all 

meetings of public bodies 

at

which any business affecting the public is discussed or

acted upon in any way…”

•

“…except only in those  circumstances where otherwise

the public interest would be clearly endangered or the

personal privacy or guaranteed rights of individuals

would be clearly in danger of unwarranted invasion.”

4

Sen. Byron M. Baer Open Public

Meetings Act (“Sunshine Law”)

P.L. 1975 c. 231,  

N.J.S.A. 

10:4-6 et. seq.

•

“…

right of the public to 

be present 

at all meetings

of public bodies, and to 

witness 

in full detail all

phases of the deliberation, policy formulation, and

decision making of public bodies, is vital to the

enhancement and proper functioning of the

democratic process;

•

that secrecy in public affairs undermines the faith

of the public in government and the public's

effectiveness in fulfilling its role in a democratic

society”

5

Sen. Byron M. Baer Open Public

Meetings Act (“Sunshine Law”)

P.L. 1975 c.231, 

N.J.S.A. 

10:4-6 et. seq.

•

Meeting – effective majority of the board (quorum)

present to discuss and act on public business;

exceptions

•

“…whether corporeal or by means of

communication equipment…”

•

Board policy - speakerphone, teleconference

•

P.L. 2020, c. 11, 34 – Virtual Meetings

6

Sen. Byron M. Baer Open Public

Meetings Act (“Sunshine Law”)

Exceptions to OPMA Meeting Requirements

•

Advisory bodies with no effective authority.

•

Committees with membership of less than a

quorum, with no authority to act.

•

Three (3) or more public bodies at a convention or

similar type gathering.

•

Chance encounters, social gatherings.

7

Sen. Byron M. Baer Open Public

Meetings Act (“Sunshine Law”)

OPMA, Meetings and Technology

Guidelines for Communicating Electronically

•

Avoid real time electronic communications of more than a

quorum; constitutes a meeting.

•

Avoid the “rolling” email; can constitute a quorum

•

One way emails to a quorum of the board, no reply;

generally OK.

•

County prosecutor memos – Gloucester County

•

Remember – electronic communications about board

business are government records regardless of the source.

8

Sen. Byron M. Baer Open Public

Meetings Act (“Sunshine Law”) - Quorum

Alfonso Mastrofilipo v. BOE of the Borough of

Lodi, Commissioner 11/29/2021

•

Former board member, who resigned from the BOE to run for a new three year

term, alleged his rights were violated when the board filled two vacancies

without interviewing him. Claimed Board lacked a quorum when it voted to fill

the two Board vacancies and further alleged BOE violated the New Jersey

Election Law by not interviewing him nor considering his application as a

candidate to fill vacancies.

•

Quorum 

– 

2 vacancies on 9 member board, 7 remaining members;

Commissioner concurred with ALJ, 4 present constituted a quorum.

•

Common law quorum rule “ a majority of a municipal governing body

constitutes a quorum ; and in the event of vacancy, a quorum consists of a

majority of the remaining members.” 

Citing 

M.J. Law Enf’t Comm’n v

Divincenzo

, 445 

N.J. Super 

187, 199 (App.Div. 2016) which quotes 

Ross v. Miller

,

115 

N.J. L. 

1935. As noted in 

Divincenzo, 

a vacant position “is not counted to

determine what the legal quorum is. Id. at 200. Absent an applicable statute to

the contrary, respondent argues, the common law quorum rule applies, citing

Bihilla v. Local Finance Bd

., 2016 W.L. 3408396 #2 (App. Div. 2016)”.

9

Sen. Byron M. Baer Open Public

Meetings Act (“Sunshine Law”) - Quorum

Alfonso Mastrofilipo v. BOE of the Borough of

Lodi, Commissioner 11/29/2021

•

But see, to the contrary, 

Attorney General Formal Opinion

No. 3 (1991), Beckhausen v. Rahway Bd. Of Ed. 1973 S.L.D.

167, 176, 

N.J.S.A. 

18A:12-15b., Ross v. Miller does not

apply to boards of education. 

9 member board, 5 member

quorum regardless of vacancies. 

•

Petitioner did not have a legal entitlement to be interviewed

for a vacancy on the Board; the Board did not violate any

law or otherwise abuse its discretion in declining to grant

petitioner an interview for one of the two vacancies;

•

Commissioner concurred with ALJ’s analysis and decision.

Matter dismissed.

10

Sen. Byron M. Baer Open Public

Meetings Act (“Sunshine Law”)

Meeting Notice - 

N.J.S.A. 

10:4-8,9

•

Regular – Time, Date, Location, Annually, 7 days

reorganization

•

Special – 48-hour advance notice of meeting,

including time, date, location and agenda to the

extent known, whether formal action will be taken

•

Emergency – Unforeseen, substantial harm to

public interest,  ¾ vote of members present

•

Sample Meeting Notices

11

Sen. Byron M. Baer Open Public

Meetings Act (“Sunshine Law”)

Meeting Notice - 

N.J.S.A. 

10:4-8,9

“Agenda to the Extent Known” – Case Law

•

Opderbeck v. Midland Park BOE, 

442 

N.J. Super. 

40

(

App. Div. 2015

) cert. den. (11/20/2015) – 

No

obligation for BOE to provide all attachments that

board members may receive OPMA 

does not impose

a legal obligation on public bodies, including BOEs, to

provide copies of any appendices, attachments,

reports, or other documents referred to in their

agendas. Agenda should be given its plain ordinary

meaning; a list or outline of things to be considered

or done.

•

Reversed Judge Doyne’s Law Division opinion which

required attachments. 

12

Sen. Byron M. Baer Open Public

Meetings Act (“Sunshine Law”)

Meeting Notice - 

N.J.S.A. 

10:4-8,9

“Agenda to the Extent Known” – Case Law

•

Syvertsen v Scotch Plains

, 

251 

N.J. Super. 

566 (App.

Div. 1991)

•

Case addressed the right of BOE to refuse to allow a

board member to attend closed session discussions

regarding litigation strategies involving a lawsuit he

brought against the BOE.

•

OPMA lawsuit against the BOE. Specificity of the

agenda to the extent known. Agenda said

superintendent’s contract, but did not mention an

annuity that was part of the compensation. Agenda

deemed insufficient by the trial court.

13

Sen. Byron M. Baer Open Public

Meetings Act (“Sunshine Law”)

Publication Requirements - 

N.J.S.A. 

10:4-8,9

•

Two newspapers capable of publication, greatest

likelihood of informing the public; must meet

newspaper requirements for content. 

N.J.S.A.

 35:1-1 

et.

seq.

•

Posted, filed with clerk, mailed to requestors

•

Electronic notice permitted – 

N.J.S.A. 

10:4-9.1, 9.2

•

See P.L. 2020, c. 11, 34, Virtual Meetings

14

Sen. Byron M. Baer Open Public

Meetings Act (“Sunshine Law”)

Publication Requirements, Electronic Notice -

N.J.S.A. 

10:4-9.1, 9.2

In addition to the notice requirements of the "Open Public

Meetings Act," P.L.1975, c.231 (C.10:4-6 et seq.), a public body

may provide electronic notice of any meeting of the public body

through the Internet.

   As used in this section, "

electronic notice

" means advance

notice available to the public via electronic transmission of at

least 48 hours, giving the time, date, location and, to the extent

known, the agenda of any regular, special or rescheduled

meeting, which notice shall accurately state whether formal

action may or may not be taken at such meeting.

15

Sen. Byron M. Baer Open Public

Meetings Act (“Sunshine Law”)

Public Participation - 

N.J.S.A. 

10:4-12a

•

Boards of education must set aside a portion of every

meeting for public comment on school district issues.

•

Not part of original Sunshine Law; DOE Monitoring

provision, pre-1990; board policy.

o

“Board shall provide for a period of public comment at all of its

regular meetings.”

•

Municipal governing bodies - 2002

•

Boards of education – 2008

•

Time, place, manner restrictions; may not restrict content of

speech; board policy; may advise public of staff privacy

rights and BOE inability to respond.

•

Besler v. West Windsor – Plainsboro BOE (1997 – 2010)

16

Sen. Byron M. Baer Open Public

Meetings Act(“Sunshine Law”)

Lewis-Gallagher v BOE of Twp. of Monroe

7/12/18

•

Board properly filled board member vacancy.

•

Failure to advertise in two newspapers for special

meeting did not invalidate the appointment as no action

was taken at the meeting; question on level of vote.

•

8-0 appointment vote occurred at next properly

advertised regular meeting.

Sen. Byron M. Baer Open Public

Meetings Act (“Sunshine Law”)

Minutes - 

N.J.S.A. 

10:4-14

•

Required for all meetings – open and closed

•

“Reasonably comprehensible”

•

Time/place, members present, subjects considered,

actions taken, vote of each member

•

Statement of compliance

•

“Promptly available” – two weeks or by the next

BOE meeting; QSAC, 

Matawan – Aberdeen

, 212 

N.J.

Super. 

328 (Law Div. 1968)

•

Sample Minutes

18

Open Public Records Act (OPRA)

N.J.S.A. 

47:1A-1 et. seq.

Libertarians for Transparent Government v.

Government Records Council (GRC) – 1/26/18

•

Appellate Division holds that draft minutes of GRC meeting

were “advisory, consultative, deliberative material” not subject

to disclosure under OPRA as a government record.

•

Draft minutes were “pre-decisional” and “deliberative”; subject

to revision and recommendation and require deliberation

before approval.

•

Cites to 

Kean Federation of Teachers v. Morell 

– N.J. Supreme

Court - timeliness of releasing 

approved

 minutes

; “promptly

available” -  App. Div. 45 days, went beyond the OPMA

•

Consider 

Matawan Aberdeen App. Div

. and QSAC – two weeks

or by the next meeting, whichever is first

19

Sen. Byron M. Baer Open Public

Meetings Act (“Sunshine Law”)

Closed Session Topics

N.J.S.A. 

10:4-12

•

Matters confidential by law

•

Matters which could impair right to receive federal funds

•

Matters of individual privacy

•

Collective bargaining

•

Lease/purchase of property, bank rates, if public interest

could be adversely affected

20

Sen. Byron M. Baer Open Public

Meetings Act (“Sunshine Law”)

Closed Session Topics

N.J.S.A. 

10:4-12

•

Tactics and techniques for protecting safety and property of

the public

•

Contract negotiation other than collective bargaining

•

Pending/anticipated litigation; attorney – client privilege

•

Deliberations of public body after a public hearing

21

Sen. Byron M. Baer Open Public

Meetings Act (“Sunshine Law”)

Closed Session - 

N.J.S.A. 

10:4-12

•

McGovern v. Rutgers 

211

 N.J. 

94 (2012)

•

Board need not hold public session and then closed

session in sequential order. 

Public body afforded discretion

in determining most advantageous and efficacious method

of proceeding through agenda. Absent proof of bad motive,

courts should be loathe to intervene in such a highly

individualized decision and to impose rigid mandates that

could prove unworkable.

22

Sen. Byron M. Baer Open Public

Meetings Act (“Sunshine Law”)

Closed Session Resolution

N.J.S.A. 

10:4-13

•

Prior to entering closed session, the board must adopt a

resolution indicating the general nature of the subject, the time

and circumstances under which the discussion can be disclosed

to the public.

•

Simply reiterating the exceptions is not enough; must be some

specificity.

•

See Trenton State Bd. of Trustees, McGovern v. Rutgers, New

Jersey Foundation for Local Government v. Island Heights BOE

•

Sample resolutions to go into closed session

23

Sen. Byron M. Baer Open Public

Meetings Act (“Sunshine Law”)

Closed Session - 

N.J.S.A. 

10:4-12

McGovern v. Rutgers University

, Superior Court of NJ, Appellate Division,

February 11, 2011

Closed session resolution stated discussion of matters falling within

contract negotiations and attorney-client privilege…”  Included in Board

discussion was a contract with a sports marketing group and proposals for

naming rights to new stadium.

Court ruled that the notice “

should contain as much information as is

consistent with full public knowledge without doing any harm to the

public interest

.”  Based on this particular situation it was ruled that the

two contracts should have been identified in the notice.

New Jersey Foundation for Open Government v. Island Heights BOE

,

Superior Court of NJ, August 26, 2014

Closed session resolutions stated that the Board would discuss

“confidential student information, personnel matters, and contracts/

litigation.”  Court found that this leaves the public to guess which of these

topics the Board would discuss because they give three different

possibilities.

24

Sen. Byron M. Baer Open Public

Meetings Act (“Sunshine Law”)

Closed Session Topics

N.J.S.A. 

10:4-12 (b) (8)

Personnel Exception – Rice Notice

Any matter involving the employment, appointment,

termination of employment, terms and conditions of

employment, evaluation of the performance of, promotion, or

disciplining of any specific prospective public officer or

employee or current public officer or employee employed or

appointed by the public body, unless all the individual

employees or appointees whose rights could be adversely

affected request in writing that the matter or matters be

discussed at a public meeting;

25

Sen. Byron M. Baer Open Public

Meetings Act (“Sunshine Law”)

Closed Session Topics

N.J.S.A. 

10:4-12 (b) (8)

Personnel Exception – Rice Notice

•

48 Hours in advance of meeting

•

Right to request that closed session discussion be moved to

public session

•

No right to attend closed session; if invited by the board,

right to bring representation

•

Regina Rice v. Union County Regional Board of Education

,

1977 Appellate Division decision

•

Sample Rice notices

26

Sen. Byron M. Baer Open Public

Meetings Act (“Sunshine Law”)

Persi v. Woska

 - 

App. Div. 3/10/17

•

Board member violated the School Ethics Act when

he unilaterally issued a Rice notice to the

superintendent without the consent of the Board

President or the rest of the board. Only the Board

P

resident or a majority of the board may Rice the

superintendent. Private action that could

compromise the board. Reprimand.

•

See 

N.J.A.C. 

6A:32-3.1 Special Meeting

27

Sen. Byron M. Baer Open Public

Meetings Act (“Sunshine Law”)

Cheng v. Rodas – Commissioner, 1/10/17

•

Board president violated the School Ethics Act when he

unilaterally issued a Rice notice to the school business

administrator. Reliance on legal opinion from board

attorney does not insulate the board member from

sanction. Only the superintendent may issue a Rice

notice to an employee such as the school business

administrator. Private action that could compromise

the board. Reprimand.

•

See 

N.J.A.C. 

6A:32-3.1 Special Meeting

28

Sen. Byron M. Baer Open Public

Meetings Act (“Sunshine Law”)

Kean Federation of Teachers v. Morrell

448 

N.J. Super. 

520  (App. Div. Feb. 8, 2017)

•

Holding – Board is required to send out 

Rice

 notice any

time any matter is on the agenda involving the

employment, appointment, termination, evaluation,

promotion, or disciplining of an employee.

–

Court further held that, absent extraordinary circumstances,

minutes need to be made available w/in 45 days.

•

Result - Vote to not reappoint is null and void.  Required

45 day time limit for minutes release, absent

extraordinary circumstances.

29

Sen. Byron M. Baer Open Public

Meetings Act (“Sunshine Law”)

Kean Federation of Teachers v. Morrell

448 

N.J. Super. 

520  (App. Div. Feb. 8, 2017)

Key Quotes

:

•

“When a public body acts on a personnel matter without prior

discussion of any kind, the unexplained vote … reduces the event

to a perfunctory exercise, devoid of both substance and meaning

…”

•

“It is clear to us that the Board uses this approach to avoid

sending a 

Rice

 notice… A silent unexplained vote … gives the

impression that the Board colluded to circumvent the OPMA’s

requirements.”

30

Sen. Byron M. Baer Open Public

Meetings Act (“Sunshine Law”)

Kean Federation of Teachers v. Morrell

New Jersey Supreme Court, Dkt. No. A-84-16

Decided  June 21, 2018

•

Holding

– Appellate Division reversed – Rice notices need

not be given to all potentially affected employees

whenever a personnel matter appears on the 

public

meeting agenda.

•

Procedural notice required in Rice should not be extended

beyond its factual setting; would add to the OPMA

requirements not imposed by the Legislature.

•

Minutes should be approved regularly and released in a

timely manner.

31

Sen. Byron M. Baer Open Public

Meetings Act (“Sunshine Law”)

Centrella v. Prospect Park BOE – App. Div.

5/17/19

•

App. Div. affirmed Law Division holding that BOE did not

violate the OPMA when it failed to discuss resolution to

RIF tenured speech therapist (economic reasons) and

did not permit her to comment on resolution before

voting.

•

Speech therapist properly received RICE notice and

requested the matter be moved to open session.

•

Citing 

Kean, N.J.S.A. 

10:4-12(b)(8) does not require that

a public entity engage in any particular level of

discussion at a public meeting. Right to move discussion

from closed to open session.

32

Simadiris v. Paterson BOE, App. Div. 1/21/2021

•

App. Div. determined that

Tenured Employees Hearing Law section, 

N.J.S.A.

18A:6-11, which prohibits discussion of personnel matters involving tenured

employees in public, took precedence over Open Public Meetings Act section

granting affected public employees the right to demand a public hearing, 

N.J.S.A.

10:4-12 (b) (8), through the receipt of a “Rice notice” giving the employee the

opportunity to move the discussion to public. No entitlement to Rice notice.

•

App. Div

. reversed Law Division determination that 

board

of

education’s

resolution certifying tenure charges against tenured board employee after a

closed session was void due to lack of a Rice notice to employee to allow

movement of the closed session discussion to public session.

•

OPMA provides 

general rule favoring open public meetings except when other

legislation created an exception. Tenured Employees Hearing Law is one such

exception.  First time the App. Div. 

has addressed this issue.

•

See 

Cirangle v. Maywood 

Board

of

Education

, 164 N.J. Super. 595 (Law Div. 1979)

•

See 

Rice v. Union County Regional High School 

Board

of

Education

, 155 N.J.

Super. 64 (App. Div. 1977)

Sen. Byron M. Baer Open Public

Meetings Act (“Sunshine Law”)

Sen. Byron M. Baer Open Public

Meetings Act (“Sunshine Law”)

Noncompliance, Penalties

N.J.S.A. 

10:4-15, 16, 17

•

Actions may be voidable.

•

Corrective action may be taken. Relates back to the date of

the initial action.

•

Superior Court – 45 days; Commissioner – 90 days

•

Knowing Violations - $ 100, $ 500

•

No board member liability if objection stated on the record.

34

Sen. Byron M. Baer Open Public

Meetings Act (“Sunshine Law”)

Coyle v. Jersey City Board of Education

 Commissioner 12/3/2019

•

Resident alleged that Board violated the School Ethics Act,

N.J.S.A. 

18A:12-21 et seq., during negotiations of a CBA

between the board and the Jersey City Education Association

(JCEA).

•

Allegations involved alleged various board member conflicts

and invocation of the Doctrine of Necessity.

•

ALJ found that the Commissioner had no jurisdiction over

the petition. Commissioner’s jurisdiction is limited to

matters that arise under the school laws, N.J.S.A. 18A:6-9. All

allegations related to the School Ethics Act, over which the

School Ethics Commission has jurisdiction. 

No incidental

jurisdiction pursuant to the Open Public Meetings Act as

claimed by petitioner.

•

ALJ dismissed the petition, Commissioner concurred.

35

Sen. Byron M. Baer Open Public

Meetings Act (“Sunshine Law”)

Greene v. Burch Charter School of Excellence

Commissioner  2/4/2020

•

Commissioner determined that bd. of ed. non-renewal of a

non-tenured vice principal was not arbitrary, capricious or

unreasonable. Vice principal argued that board’s handling of

a grievance filed against her and her subsequent non-

renewal were improper and discriminatory.

•

Board’s decision to require petitioner to attend cultural

sensitivity training as a result of the grievance was void.

Board failed to issue a Rice notice to petitioner for the

meeting during which appeal of the Board’s decision to

require sensitivity training was discussed in closed session.

36

Sen. Byron M. Baer Open Public

Meetings Act (“Sunshine Law”)

Greene v. Burch Charter School of Excellence

Commissioner  2/4/2020

•

Board has fulfilled its OPMA obligations by providing her

with the required Rice notices for these meetings and giving

her the opportunity to be heard in public. OPMA does not

contain any requirement about the robustness of the

discussion that must take place on a topic. See Kean

•

Board has virtually unlimited discretion in non-renewing

non-tenured teaching staff members absent constitutional

constraints or legislatively conferred rights. No such

violations alleged by vice principal.

37

Paff v. Trenton Board of Education Law Div. 7/12/19,

aff’d App. Div. 11/13/2020

•

Trial court judge denied request for attorney fees under the NJCRA

for a violation of the OPMA. Trial court judge noted that the only

relief being sought under the NJCRA was for attorney’s fees. OPMA’s

specific remedies did not include the award of attorney’s fees to the

prevailing parties.

B

y its enactment of the NJCRA, the Legislature

did not intend to supplement the remedies available under the

OPMA and allow for the award of attorney’s fees. 

•

Trial court had found that the BOE had violated the OPMA when it

failed to provide the public with adequate notice, in the manner

prescribed by 

N.J.S.A. 10:4-8(d)

, that it would be discussing the

payment of a merit bonus to the Superintendent at the September

24, 2018 meeting.

Sen. Byron M. Baer Open Public

Meetings Act (“Sunshine Law”)

Paff v. Trenton Board of Education Law Div. 7/12/19,

aff’d App. Div. 11/13/2020

•

App. Div

. affirmed and opined that t

he limited remedies available

under the OPMA indicate that the Legislature intended to foster

compliance with the open meeting and public notice requirements

without unduly burdening public bodies and their members with

unlimited monetary penalties and awards of attorney’s fees and

costs. Applying the remedies under the NJCRA to violations of the

OPMA would not complement the OPMA. It would substantially

alter a comprehensive legislative scheme. The trial court correctly

determined that the Legislature did not intend such a result when it

enacted the NJCRA.

Sen. Byron M. Baer Open Public

Meetings Act (“Sunshine Law”)

Questions?

40

Sen. Byron M. Baer 

Open Public Meetings

Act (OPMA) - “The Sunshine Law”

Remote Board of Education Meetings During

a Period of Emergency – Statutes and New

DCA Regulations

Remote BOE Meetings During

Emergency

•

P.L. 2020, c. 11 (3/20/2020), 

N.J.S.A. 

10:4-9.3 - 

During

a State of Emergency, Public Health Emergency, or State

of Local Disaster Emergency, a public body shall be

permitted, by means of communication or other

electronic equipment, to:

–

Conduct a meeting and any public business to be conducted

thereat,

–

Cause a meeting to be open to the public,

–

Vote, or

–

Receive public comment.

Executive Order 292 (3/4/22) 

lifts COVID 19 Public Health

Emergency; 

Executive Order 103 

State of Emergency Remains in

Effect

42

Remote BOE Meetings During Emergency

•

During such periods of emergency, a public body may

elect to provide electronic notice pursuant to N.J.S.A.

10:4-9.1 in lieu of the standard adequate notice

required under the OPMA

•

To the extent practicable, a public body providing 

only

electronic notice of a meeting 

during the period of

emergency shall limit public business discussed or

effectuated thereat to matters necessary for the

continuing operation of government and which relate

to the applicable emergency declaration.

•

DCA, State Board of Education adopt regulations; 18

months, then APA; c.34 – Dir. DLGS in DCA regs; public

body def. less than county, notice, public input

43

Remote BOE Meetings During Emergency

NJDOE Recommendations on Virtual Meetings

•

Boards of education should provide guidance to the public

for remotely accessing and providing comment at the

meeting. 

•

Boards of education should still have an advertised meeting

place, which, is connected to the meeting through

communications equipment, unless otherwise directed by

state or local emergency management or health officials,

consistent with Executive Order 103 (Murphy 3/9/2020). 

•

Boards of education are reminded that they are required to

provide a means of public comment even if a meeting is held

remotely.

44

Remote BOE Meetings During Emergency

NJDOE Recommendations on Virtual Meetings

•

Boards of education which currently record the audio or

video of their meetings, should continue to record a

remote meeting.

•

If a board of education meeting remotely requires an

executive or closed session, the board must use a

mechanism that ensures the confidentiality of closed

session. A board of education may consider using a

separate, non-public, dial-in mechanism for the

executive or closed portion of the meeting. 

•

Boards are encouraged to consult with local counsel and

OEM

45

Other Sources of Recommendations on

Remote Board of Education Meetings

•

New Jersey Department of Education – Business

Operations

–

Guiding the Education Community Through the COVID-19

Pandemic

•

Department of Community Affairs (DCA)

–

https://www.nj.gov/govconnect/news/general/#1

•

New Jersey School Boards Association (NJSBA)

–

Open Public Meetings Act and Technology: New

Information

46

Remote BOE Meetings During Emergency

•

P.L. 2020, c.34 (5/15/2020) 

- Allows extension of certain

local government timeframes; allows local governments to

accept certain payments; allows local governments to

conduct certain meetings remotely; adjusts certain

property tax distribution and notice requirements

•

Section 1 - Once the Director of DLGS gives permission to

extend the tax payment collection date, each governing

body can delay payments to school districts in a timeline

equal to the grace period given taxpayers; Director of

DLGS then gets to determine how much must be paid

over to the schools on the regular due date.

47

Remote BOE Meetings During Emergency

P.L. 2020, c.34 (5/15/2020)  - Section 8

•

When a public health emergency, a state of

emergency, or both, or a state of local disaster

emergency has been declared by the Governor and is

in effect, a local public body may conduct a public

meeting remotely by electronic means, provided that

reasonable public notice and provision for public

input is made under the circumstances.

•

Director DLGS in the DCA shall adopt rules and

regulations concerning the conduct of remote

public meetings; emergency regulations.

48

Remote BOE Meetings During Emergency

P.L. 2020, c.34 (5/15/2020)  - Section 8

•

Regulations shall  include minimum procedures to be

followed to provide reasonable public notice and

allowance for public input.

•

"Local public body" means any "public body," as that

term is defined in 

N.J.S.A

. 10:4-8, with territorial

jurisdiction equal to or less than a county.

•

"Public meeting" means that same as that term is

defined in 

N.J.S.A

. 10:4-8

49

DCA/DLGS Emergency OPMA Regulations

Emergency Remote Meeting Protocol for Local Public

Bodies – 

N.J.A.C. 

5:39-1 

et. seq.

•

Issued 9/24, effective immediately; concurrently

proposed for permanent adoption in the 10/19 N.J.

Register. Public comment period until November 18.

•

Regulations apply to remote public meetings during a

declared state of emergency, but not to remote public

meetings otherwise permitted by the OPMA. Nothing in

the regulations prohibits a remote public meeting

otherwise permitted by the OPMA.

•

Regulation highlights

50

Emergency Remote Meeting Protocol for Local Public

Bodies – 

N.J.A.C. 

5:39-1 

et. seq.

Remote Public Meetings Held During a Declared

Emergency - 

N.J.A.C. 

5:39-1.3 Highlights

•

Remote meetings permissible if emergency 

reasonably

prevents a local public body from safely conducting

public business at a physical location with members of

the public present.

•

If social distancing guidelines create inadequate capacity

for  in-person meeting; alternate site, in-person/remote

hybrid. 

No in-person meeting shall proceed if the room

capacity does not permit any member of the public to

attend.

51

Emergency Remote Meeting Protocol for Local Public

Bodies – 

N.J.A.C. 

5:39-1 

et. seq.

Technological and Procedural Matters – 

N.J.A.C. 

5:39-1.4

Highlights

•

Remote meetings – use an electronic communications

technology routinely used in academic, business and

professional settings; 

accessed by the public at no cost

.

•

Participant capacity on the platform shall be consistent

with the expectations for meetings of the type being held;

no fewer than 50 public participants

.

•

May use audio-only teleconferencing, electronic

communications platforms with video and audio, and

Internet accessible technology such as live-streaming.

52

Emergency Remote Meeting Protocol for Local Public

Bodies – 

N.J.A.C. 

5:39-1 

et. seq.

Technological and Procedural Matters – 

N.J.A.C. 

5:39-1.4

Highlights

•

Remote public meeting held by audio and video; public

shall also have the opportunity to participate in the

meeting in both audio and video capacities.

•

Must also provide telephonic conference line.

•

Provide public same access to remote public meeting as

members and staff of the local public body.

53

Emergency Remote Meeting Protocol for Local Public

Bodies – 

N.J.A.C. 

5:39-1 

et. seq.

Technological and Procedural Matters –

N.J.A.C. 

5:39-1.4 Highlights

•

Presentations or documents viewed or made available to

members of the public physically attending a local public

body meeting shall be made visible on a video broadcast

of the remote meeting or on the public body’s Internet

website or webpage.

•

If a document would be made available to individual

members of the public in hard copy while physically

attending the meeting, the document shall be made

available in advance of the meeting for download.

54

Emergency Remote Meeting Protocol for Local Public

Bodies – 

N.J.A.C. 

5:39-1 

et. seq.

Technological and Procedural Matters – 

N.J.A.C. 

5:39-1.4

Public Comment Highlights

•

A local public body may require members of the public

to state

, prior to providing public comment, whether

they wish to speak and to identify themselves prior to

speaking.

•

Public may make public comment by audio, or audio and

video, remote public meeting held over audio and video.

•

Public comments may be submitted before the remote

meeting to the agenda creating official by electronic mail

and/or written letter form by reasonable deadline.

55

Emergency Remote Meeting Protocol for Local Public

Bodies – 

N.J.A.C. 

5:39-1 

et. seq.

Technological and Procedural Matters – 

N.J.A.C. 

5:39-1.4

Public Comment Highlights

•

The local public body has the discretion to accept text-

based public comment received during a remote public

meeting held through an electronic communications

platform or Internet-accessible technology.

•

Public comments submitted before the remote public

meeting through 

electronic mail or by written letter shall

be read aloud and addressed during the remote public

meeting in a manner audible to all meeting participants

and the public.

56

Emergency Remote Meeting Protocol for Local Public

Bodies – 

N.J.A.C. 

5:39-1 

et. seq.

Technological and Procedural Matters – 

N.J.A.C. 

5:39-1.4

Public Comment Highlights

•

If the local public body imposes a reasonable time limit on public

comments, where permitted by law, the 

same limits can be placed

on the reading of written comments. 

Each comment shall be read

from the beginning, until the time limit is reached.

•

A local public body may pass over duplicate written comments;

however, each duplicate comment shall be noted for the record with

the content summarized.

•

Consistent approach to summarized duplicative comments; 

must

not summarize certain duplicative comments while reading other

duplicative comments individually.

57

Emergency Remote Meeting Protocol for Local Public

Bodies – 

N.J.A.C. 

5:39-1 

et. seq.

Technological and Procedural Matters – 

N.J.A.C. 

5:39-1.4

Public Comment Highlights

•

The electronic communications technology must have a

function that allows the local public body to mute the

audio of all members of the public as well as allow

members of the public to mute themselves.

•

The electronic communications technology 

shall also

allow the local public body to regulate participation by

individual members of the public

. A telephonic audio

conference call line must have a queueing or similar

function for regulating public comment.

58

Emergency Remote Meeting Protocol for Local Public

Bodies – 

N.J.A.C. 

5:39-1 

et. seq.

Technological and Procedural Matters – 

N.J.A.C. 

5:39-1.4

Public Comment Highlights

•

The local public body shall adopt by resolution standard

procedures and requirements for public comment made

during a remote public meeting as well as for public

comments submitted in writing ahead of the remote

public meeting 

including standards of conduct to be

followed by members of the public when making

comment 

which shall be announced at the beginning of

the remote meeting.

59

Emergency Remote Meeting Protocol for Local Public

Bodies – 

N.J.A.C. 

5:39-1 

et. seq.

Technological and Procedural Matters – 

N.J.A.C. 

5:39-1.4

Public Comment Highlights

The following procedures shall be incorporated into the

public comment procedures:

•

1. The local public body 

shall facilitate a dialogue with

the commenter 

to the extent permitted by the electronic

communications technology.

•

2

. If a member of the public becomes disruptive 

during

a remote public meeting, including during any period for

public comment, the member of the local public body

charged with running the remote public meeting shall…

60

Emergency Remote Meeting Protocol for Local Public

Bodies – 

N.J.A.C. 

5:39-1 

et. seq.

Technological and Procedural Matters – 

N.J.A.C. 

5:39-1.4

Public Comment Highlights

•

…

mute or continue muting

, or direct appropriate staff to

mute or continue muting, 

the disruptive member of the

public 

and warn that continued disruption may result in

their being prevented from speaking during the remote

public meeting or removed from the remote public

meeting. 

Disruptive conduct includes sustained

inappropriate behaviors such as, but not necessarily

limited to, shouting, interruption, and use of profanity.

61

Emergency Remote Meeting Protocol for Local Public

Bodies – 

N.J.A.C. 

5:39-1 

et. seq.

Technological and Procedural Matters – 

N.J.A.C. 

5:39-1.4

Public Comment Highlights

•

3. 

A member of the public who continues to act in a disruptive

manner after receiving an initial warning may be muted 

while

other members of the public are allowed to proceed with their

questions or comments. 

If time permits

, the disruptive individual

shall be allowed to speak after all other members of the public have

been given the opportunity to make comment. 

Should the person

remain disruptive, the individual may be muted or kept on mute

for the remainder of the remote public meeting, or removed from

the remote public meeting

.

62

Emergency Remote Meeting Protocol for Local Public

Bodies – 

N.J.A.C. 

5:39-1 

et. seq.

Notice of Remote Public Meetings; Statement in the

Minutes – 

N.J.A.C. 

5:39-1.5 Highlights

•

Adequate notice 

of a remote public meeting must include, in

addition to 

N.J.S.A. 

10:4-8 content, 

clear and concise instructions

for accessing the remote public meeting, means for making public

comment, and where relevant documents, if any, will be made

available.

•

A local public body 

shall also provide electronic notice 

of a

remote public meeting, 

posted on the internet website 

and on the

main access door of the building 

where the public would routinely

attend. Must be viewable from the outside.

63

Emergency Remote Meeting Protocol for Local Public

Bodies – 

N.J.A.C. 

5:39-1 

et. seq.

Notice of Remote Public Meetings; Statement in the

Minutes – 

N.J.A.C. 

5:39-1.5 Highlights

•

Revise annual meeting notice, if necessary, for series of

remote public meetings; 

clear and concise instructions for

accessing those remote public meetings, the means for

making public comment, 

and where relevant documents,

if any, will be made available. 

Posted on local public body

website, main public entrance of building.

64

Emergency Remote Meeting Protocol for Local Public

Bodies – 

N.J.A.C. 

5:39-1 

et. seq.

Notice of Remote Public Meetings; Statement in the

Minutes – 

N.J.A.C. 

5:39-1.5 Highlights

•

Where a local public body is required by law to provide a meeting

agenda, or 

otherwise provides a meeting agenda by practice at its

regularly scheduled meetings

,

 prior to the commencement of the

remote public meeting the local public body shall also make a copy

of the agenda available to the public for download through an

internet link appearing either on the meeting notice, or near the

posting of the meeting notice on the website

. The notice shall also

be posted at the building where the meeting would otherwise be

held prior to the commencement of the remote public meeting

65

Questions?

66