newjerseynewsroom.com

BY JOE TYRRELL

NEWJERSEYNEWSROOM.COM

Rutgers officials committed multiple violations of the state Sunshine Law when they met in closed session to discuss embarrassing questions about the football program, a state appellate court has ruled.

The three-judge panel's key finding affects the numerous government bodies around the state that begin meetings in public only to go into closed sessions of indeterminate length.

Ruling in a suit brought by Rutgers alumnus and donor Francis J. McGovern Jr., the court found the practice violates the state Open Public Meetings Act and "subverts the very purposes the 'Sunshine Law' was designed to achieve."

The procedures of the Rutgers Board of Governors force the public to guess whether action will be taken during a five-minute opening session, or at times wait well beyond the schedule for public discussion to resume.

John Paff, head of the Libertarian Party's open government efforts in New Jersey, called that an important finding for the public.

"The court found that such sequencing forces citizens to wait a considerable period of time while the body is in closed session and provides them no guarantee when the open session will resume," Paff said.

"Such uncertainty will inevitably cause some members of the public to leave the meeting," said the decision, written by Judge Linda G. Baxter and joined by her judicial colleagues Ellen L. Koblitz and Edith K. Payne.

The three judges reinstated portions of the 2009 suit by McGovern, a lawyer who attended board meetings and challenged the limited information available in public notices.

The decision found University President Richard McCormick and M. William Howard Jr., then the board's chairman, violated the law when they discussed policy recommendations behind closed doors at the Sept. 10, 2008.

But the judges upheld the board's private discussion of a controversial contract with Nelligan Sports Marketing, as well as naming rights to the university's expanded football stadium.

The matters, and cost overruns on the stadium expansion, were the subject of pointed media inquiries and an Open Public Records Act lawsuit by The Star-Ledger, which was investigating spending and contract terms.

In both instances, the university's general counsel, Jonathan Alger, presented enough legal advice during the closed session to cover it under exceptions to open-meeting requirements, the court found.

The judges' also rejected McGovern's contention that the board should set aside a public comment period at every meeting. They ruled the Governors are not a board of education, and so not required to provide even the highly limited opportunity for public comment offered at most meetings.

But the judges faulted the board's terse notices of closed meetings, saying the law requires government bodies to do more than list the legal exceptions that allow them to move meetings behind closed doors.

"Unquestionably, the board could have specified that in closed session it intended to discuss the Nelligan contract and proposals for naming rights to the stadium," Baxter wrote.

The appellate court also rejected the university's contention that no harm to the public occurred, because ultimately the board took no votes during the meeting. The decision notes that the Sunshine Law specifically allows the public to witness "discussion," not just formal action.

In a brief statement, a Rutgers spokesman said merely that the decision is "under review."

Joe Tyrrell may be reached at This e-mail address is being protected from spambots. You need JavaScript enabled to view it