Written by attorney James Edward Schroeder III

New Jersey Municipal Governments and Closed Executive Sessions

When can a New Jersey local governing body meet in closed or executive session? Attending a meeting of your local governing body is an interesting way to spend an evening. Maybe there is an issue you are interested in that is before the body, a friend is being recognized for their volunteer work or you or your child must attend a meeting to fulfill a civics class requirement. Sometimes the governing body removes itself to discuss an issue in private. One of the most frequently asked questions of municipal attorneys is, “why are they allowed to meet privately to discuss the public business?" Townships, cities, boroughs, towns, villages or commission led municipalities all must abide by New Jersey Statutes Annotated N.J.S.A. 10:4-6 which sets the rules for public meetings. One portion of that statute allows for governing bodies to meet privately in very clearly defined instances. Public bodies may meet in closed session when the matters under discussion (1) are considered confidential by federal law, state statute or court rule, (2) would jeopardize receipt of federal funds, (3) constitute an unwarranted invasion of individual privacy, (4) concern collective bargaining, (5) involve purchase, lease or investment using public funds, or concern the setting of banking rates, (6) concern investigations of violations or possible violations of the law, or techniques of protecting the safety and property of the public, where disclosure of such techniques could impair such protection, (7) are covered by the attorney-client privilege, (8) concern personnel, or (9) involve certain proceedings which could result in a civil penalty, suspension, or loss of license. The two most frequent uses of executive or closed session are to discuss issues of personnel or litigation or potential litigation against the municipality. The New Jersey Supreme Court's decision in South Jersey Publishing Company, Inc. v. New Jersey Expressway Authority, 124 N.J. 478 (1991) illuminated the issue of balancing public access to government and the need for discreet action in limited circumstances. This case held that a) the public needs information if it is properly fulfill its role of evaluating the wisdom of governmental action or a decision not to act, b) that New Jersey's strong public policy requires that a public body’s actions and decisions to not act be disclosed in the body's closed meeting minutes along with sufficient facts and information to permit the public to understand and appraise the reasonableness of the body's determination, and c) to the extent a cognizable privacy interest may be compromised by the required disclosure, the extent of disclosure may be modified through redactions of the minutes, provided the public interest in disclosure is not subverted. Members of the body must keep discussions held in executive session private so long as discretion is necessary to protect the municipal interest. For example, if the municipality were discussing purchasing property to relocate the public works yard or negotiating with a landowner they should not discuss the transaction until after the lease or purchase has been discussed in open public session of the body or announced publicly. Any person may file a lawsuit in New Jersey Superior Court for what they believe are violations of the open-meetings requirements. If successful in a lawsuit, you can obtain a court order requiring that a meeting or meetings be made open to the public in the future, or requiring that the governmental entity make public the minutes of an improperly closed meeting. You can also obtain a court order invalidating the actions of a municipality taken in violation of the Open Public Meetings Act, but to do so you must file a lawsuit within 45 days after the action you are challenging became known to the public.

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