William N. Sosis v. Township of Mansfield Committee ( 2024 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2661-21
WILLIAM N. SOSIS,
Plaintiff-Appellant,
v.
TOWNSHIP OF MANSFIELD
COMMITTEE and DENA
HREBENAK, in her official
capacity as Township Clerk for
the TOWNSHIP OF MANSFIELD,
Defendants-Respondents.
_____________________________
Submitted November 13, 2023 – Decided January 18, 2024
Before Judges Gilson, Berdote Byrne, and Bishop-
Thompson.
On appeal from the Superior Court of New Jersey, Law
Division, Warren County, Docket No. L-0298-21.
William N. Sosis, appellant pro se.
Florio Perrucci Steinhardt Cappelli Tipton & Taylor,
LLC, attorneys for respondents (Liam B. McManus, on
the brief).
PER CURIAM
William Sosis filed a complaint alleging that defendants, the Committee
and Clerk of the Township of Mansfield, violated the Open Public Meetings Act
(the OPMA), N.J.S.A. 10:4-6 to -21, by failing to timely publish the dates for
meetings, meeting agendas, meeting minutes, and changes to whether meetings
would be remotely accessible. Plaintiff sought a declaratory judgment and an
injunction requiring defendants to comply with the OPMA in the future.
The trial court entered an order granting summary judgment to defendants
and dismissing plaintiff's complaint with prejudice. Plaintiff appeals from that
order. Because the undisputed material facts establish that defendants did not
engage in a pattern of OPMA violations and no injunction was warranted, we
affirm.
I.
We discern the material facts from the record and view them in the light
most favorable to plaintiff, the non-moving party. See Memudu v. Gonzalez,
475 N.J. Super. 15, 18-19 (App. Div. 2023). In doing so, we note that the
material facts are not in dispute; rather, the parties differ in how they
characterize those undisputed facts.
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The Township of Mansfield (the Township) is a public body subject to the
OPMA. On January 1, 2020, the Township Committee (the Committee) held its
annual reorganization meeting. On February 7, 2020, Dena Hrebenak, the
Township Clerk (the Clerk), sent the Committee's 2020 meeting schedule to NJ
Advance Media for publication. The Star-Gazette published the Committee's
2020 meeting schedule on February 21, 2020.
In mid-March 2020, the Township released statements encouraging social
distancing and announced that its offices were closed to the public because of
the COVID-19 pandemic. At about the same time, the Governor declared a
public health emergency because of the COVID-19 pandemic. Exec. Order No.
103 (Mar. 9, 2020), 52 N.J.R. 549(a) (Apr. 6, 2020). Shortly thereafter, the
Legislature enacted, and the Governor signed, a law stating that public bodies
could satisfy the OPMA through virtual meetings during public emergencies. L.
2020, c. 11, § 1 (codified at N.J.S.A. 10:4-9.3).
Several months later, in September 2020, the New Jersey Department of
Community Affairs (DCA) issued rules governing local bodies' use of remote
meetings during a public emergency. 52 N.J.R. 1943(a) (Oct. 19, 2020). The
DCA rules concerning remote public meetings remained in effect until January
1, 2022. See Exec. Order No. 127 ¶ 1(f) (Apr. 14, 2020), 52 N.J.R. 969(a) (May
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4, 2020); Exec. Order No. 275 ¶ 6 (Nov. 23, 2021), 53 N.J.R. 2106(a) (Dec. 20,
2021); see also N.J.S.A. 26:13-32 to -36.
Beginning on March 25, 2020, the Committee conducted its meetings by
video conference using Zoom. The Committee continued conducting meetings
remotely or using a hybrid remote and in-person format for the rest of 2020.
On January 1, 2021, the Committee held its annual reorganization
meeting. Three days later, on January 4, 2021, the Clerk contacted NJ Advance
Media to publish several items, including the Committee's meeting schedule for
2021. On January 14, 2021, the New Jersey edition of The Express-Times
published a copy of the Committee's resolution establishing its 2021 meeting
dates. The resolution included a meeting to be held on July 14, 2021, at 7:30
p.m. at the Township's municipal building. The resolution did not di scuss
whether meetings would be conducted remotely.
From January through June 2021, the Committee conducted its meetings
either remotely or using a hybrid remote and in-person format. The meeting
conducted on June 23, 2021, allowed for remote access. In that regard, the
details of how to attend remotely were posted on the Township's website on the
day of the meeting. The next Committee meeting was scheduled for July 14,
2021.
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At approximately 12:35 p.m. on July 14, 2021, plaintiff emailed members
of the Committee, stating that the required agenda for the meeting had not yet
been posted. According to plaintiff, the agenda was posted approximately ten
minutes later. The July 14, 2021, Committee meeting did not provide for remote
access; instead, it was conducted in person at the Township's municipal building.
Thereafter, Committee meetings were conducted in person without remote
access. The record does not indicate that either the Committee or the Clerk
formally announced that meetings on or after July 14, 2021, would no longer be
remotely accessible. In that regard, the Committee minutes for the July 14,
2021, meeting did not discuss the issue of remote access for future Committee
meetings.
On July 30, 2021, plaintiff filed a complaint against defendants, alleging
four violations of the OPMA. In count one, plaintiff asserted that defendants
had failed to timely post or publish schedules of regular meetings for 2020 and
2021 in accordance with N.J.S.A. 10:4-18. In count two, plaintiff contended
that defendants failed to make meeting minutes "promptly available" in
accordance with N.J.S.A. 10:4-14. Specifically, plaintiff contended that minutes
were posted four or more weeks after a meeting. In count three, plaintiff alleged
that defendants failed or refused to timely post meeting agendas within forty -
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eight hours of the meeting in accordance with N.J.S.A. 10:4-9. Finally, in count
four, plaintiff contended that defendants failed or refused to revise the meeting
schedule in accordance with N.J.S.A. 10:4-18, particularly with regard to the
July 14, 2021, meeting. Plaintiff sought three forms of relief: (1) a declaratory
judgment pronouncing defendants' actions unlawful; (2) an injunction requiring
defendants to comply with the OPMA; and (3) an award of costs of suit.
Defendants filed an answer with affirmative defenses. The parties then
conducted and completed discovery. Thereafter, defendants moved for
summary judgment. The trial court heard argument and, on May 3, 2022, issued
a written opinion and order granting summary judgment to defendants and
dismissing plaintiff's complaint with prejudice. Plaintiff now appeals from that
order.
II.
On appeal, plaintiff makes five main arguments. In three of his
arguments, plaintiff contends that the trial court erred in granting summary
judgment to defendants, arguing that the law and facts do not support summary
judgment. In another argument, plaintiff urges us to adopt a rule establishing
that public bodies violate the OPMA when they have "actual or readily
ascertainable" knowledge that notice cannot be timely published. Finally,
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plaintiff contends that the trial court "abused its discretion by providing
equitable relief to defendants." Having reviewed these arguments, along with
the record and the law, we reject them and affirm.
We review a grant or denial of summary judgment de novo, "applying the
same standard used by the trial court." Samolyk v. Berthe, 251 N.J. 73, 78
(2022). That standard requires us to "determine whether 'the pleadings,
depositions, answers to interrogatories and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact
challenged and that the moving party is entitled to a judgment or order as a
matter of law.'" Branch v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021)
(quoting R. 4:46-2(c)). "Summary judgment should be granted . . . 'against a
party who fails to make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that party will bear the
burden of proof at trial.'" Friedman v. Martinez, 242 N.J. 449, 472 (2020)
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). We do not defer
to the trial court's legal analysis or statutory interpretation. RSI Bank v.
Providence Mut. Fire Ins. Co., 234 N.J. 459, 472 (2018); Perez v. Zagami, LLC,
218 N.J. 202, 209 (2014).
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A. The OPMA.
The Legislature passed the OPMA with the goal of ensuring the public
access to meetings of public bodies. N.J.S.A. 10:4-7. In that regard, the
Legislature declared:
[T]he right of the public to be present at all meetings of
public bodies, and to witness in full detail all phases of
deliberation, policy formulation, and decision making
of public bodies, is vital to the enhancement and proper
functioning of the democratic process; . . . [it is] 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 . . . .
[Ibid.]
The OPMA establishes requirements for publication of an annual schedule
of regular meetings, N.J.S.A. 10:4-18; notice of meetings, N.J.S.A. 10:4-9; and
the keeping and public release of minutes, N.J.S.A. 10:4-14. While narrow
exceptions exist where "the public interest" or "the personal privacy or
guaranteed rights of individuals" would be imperiled, the OPMA is otherwise to
be "liberally construed" to advance openness and transparency. N.J.S.A. 10:4 -
7, -21; see also Kean Fed'n of Tchrs. v. Morell, 233 N.J. 566, 571 (2018).
When a public body violates the OPMA, several sanctions are available,
including the invalidation of any actions taken at a non-compliant meeting, the
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issuance of prospective injunctions, and the assessment of monetary penalties
for knowing violations. N.J.S.A. 10:4-15 to -17; see also McGovern v. Rutgers,
211 N.J. 94, 112 (2012). "Any person, including a member of the public, may
apply to the Superior Court for injunctive orders or other remedies to ensure
compliance with the provisions" of the OPMA and "the court shall issue such
orders and provide such remedies as shall be necessary to ensure compliance ."
N.J.S.A. 10:4-16.
Courts, however, have conditioned injunctive relief on a showing of "a
pattern of non-compliance." McGovern, 211 N.J. at 112 (quoting Burnett v.
Gloucester Cnty. Bd. of Chosen Freeholders, 409 N.J. Super. 219, 246 (App.
Div. 2009)). In Burnett, we explained that injunctive relief under the OPMA
may be appropriate if "a pattern of non-compliance has been demonstrated." 409
N.J. Super. at 246. In other words, one non-compliant notice or failure to timely
issue minutes will not necessarily warrant an injunction under N.J.S.A. 10:4-16.
B. Plaintiff's Claims.
1. Count One.
In count one of his complaint, plaintiff alleged that defendants violated
N.J.S.A. 10:4-18 by not timely publishing the lists of annual Committee
meetings for 2020 and 2021. N.J.S.A. 10:4-18 provides:
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At least once each year, within [seven] days following
the annual organization or reorganization meeting of a
public body, or if there be no such organization or
reorganization meeting in the year, then by not later
than January 10 of such year, every public body shall
. . . mail to the newspapers described in [N.J.S.A. 10:4-
8(d)] . . . for the purpose of public inspection a schedule
of the regular meetings of the public body to be held
during the succeeding year. Such schedule shall
contain the location of each meeting to the extent it is
known, and the time and date of each meeting.
Plaintiff argues that defendants failed to comply with that notice
requirement in 2020 because the annual reorganization meeting was held on
January 1, 2020, the Clerk mailed the notice on February 7, 2020, and the
schedule of meetings was published in a newspaper on February 21, 2020.
Concerning 2021, plaintiff contends that while the annual reorganization
meeting was held on January 1, 2021, and the Clerk mailed the resolution listing
the dates for meetings on January 4, 2021, the newspaper did not publish the
resolution until January 14, 2021.
First, we address a statutory interpretation question. Plaintiff argues that
the public body is responsible for sending the notice and ensuring that it is
published within seven days. We reject that argument as inconsistent with the
plain language of the OPMA. The provision governing the notice for annual
meetings requires public bodies to "mail to the newspapers . . . a schedule of the
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regular meetings of the public body to be held during the succeeding year."
N.J.S.A. 10:4-18. In short, the public body's obligation is to mail the list to
newspapers for publication. Provided that the public body does not direct the
newspaper to unduly delay the publication of the list, the body is not responsible
for a short delay in the actual publication of the list of meetings. Thus, there
was no violation in 2021.
Regarding 2020, plaintiff argues that defendants violated the seven-day
requirement in 2020 because the reorganization meeting that year was held on
January 1, but the list was not mailed to the newspaper until February 7, 2020.
That delay was a violation of N.J.S.A. 10:4-18. Nevertheless, a one-time
violation does not warrant injunctive relief because plaintiff has not established
a pattern and practice of non-compliance. See McGovern, 211 N.J. at 112;
Burnett, 409 N.J. Super. at 246.
In making his arguments concerning the timeliness of meeting
notifications, plaintiff asks us to adopt a rule requiring advanced notice of at
least forty-eight hours before a public meeting will be held, with public bodies
having "actual or readily ascertainable" knowledge that notice cannot be
published timely considered non-compliant. As part of that position, plaintiff
cites Worts v. Mayor & Council, 176 N.J. Super. 78 (Ch. Div. 1980). Worts,
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however, addressed a notice provision in N.J.S.A. 10:4-8(d), not the notice
provision in N.J.S.A. 10:4-18, which governs the publication of a list of the
annual meetings. Id. at 80. Moreover, Worts involved a public body sending a
meeting notice to four newspapers for publication knowing or being able to
easily determine that three of the four newspapers could not publish the notice
more than forty-eight hours ahead of the meeting due to their publication
schedules. Id. at 81-82. Here, there is no evidence suggesting that defendants
knew or should have known that the newspapers would unduly delay the
publication of the annual meetings list.
Finally, we address an issue that plaintiff raised only in his reply brief.
Plaintiff asserts there was an additional violation because the notices w ere not
published in two newspapers. N.J.S.A. 10:4-8(d)(2) requires that notice of
meetings be "mailed, telephoned, telegrammed, or hand delivered to at least two
newspapers which newspapers shall be designated by the public body to receive
such notices because they have the greatest likelihood of informing the public
within the area of jurisdiction of the public body of such meetings." Plaintiff
did not raise this issue before the trial court, and we decline to consider this
issue because it was first raised in his reply brief. See Fuhrman v. Mailander,
466 N.J. Super. 572, 599 (App. Div. 2021). Indeed, we hesitate to consider the
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issue of whether there was a need for publication in two newspapers for the first
time without a fully developed record. There may be areas in this State where
two newspapers no longer operate or provide coverage. Moreover, since the
adoption of the OPMA, there are now other methods of providing public notice,
including websites maintained by public bodies. Consequently, we believe the
two-newspaper publication issue is not appropriate for consideration on this
record.
2. Count Two.
In count two of his complaint, plaintiff contended that defendants failed
to make meeting minutes "promptly available" as required by the OPMA.
N.J.S.A. 10:4-14 directs that "[e]ach public body shall keep reasonably
comprehensible minutes of all its meetings" and that the minutes "shall be
promptly available to the public to the extent that making such matters public
shall not be inconsistent with [N.J.S.A. 10:4-12]." The OPMA does not define
"promptly available." Kean, 233 N.J. at 573-74 (citing N.J.S.A. 10:4-8 (setting
forth definitions for the OPMA, but not defining "promptly available" )). The
New Jersey Supreme Court has, therefore, used a "fact-sensitive, case-by-case
approach" in evaluating the timeliness of the publication of minutes of meetings.
Id. at 592. The Court has explained "that the release of minutes must be
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considered a priority, an obligation, and not a nuisance to be addressed when
convenient." Ibid. Nevertheless, the Court has refused to adopt a hard-and-fast
deadline, and instead has directed that minutes should be prepared within a
reasonable time and "should be released within days of their approval, unless
truly extraordinary circumstances prevent their availability." Id. at 592-93.
Plaintiff complains that defendants waited four or more weeks to post
minutes of meetings online. Defendants respond that meeting minutes were
available to the public online after approval by the Committee or by request to
the Clerk. Significantly, plaintiff presented no evidence that defendants
engaged in a pattern and practice of delaying the availability of minute meetings.
He presented evidence that the minutes for the June 23, 2021, meeting were
posted thirty-five days after the meeting. One event, however, does not establish
a pattern and practice. Moreover, defendants point out that in 2021, the
transition back to in-person meetings from virtual and hybrid meetings was a
unique event that disrupted their normal practices. Therefore, plaintiff again
failed to show that he was entitled to injunctive relief.
3. Count Three.
In count three, plaintiff alleged that defendants failed to post agendas for
Committee meetings forty-eight hours before the meetings. As an example, he
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cites to the posting of the agenda for the July 14, 2021, meeting. That agenda
was posted on the day of the meeting at 12:46 p.m., less than seven hours before
the 7:30 p.m. meeting. He conducted a metadata analysis that showed the
agenda had been prepared on July 8, 2021, and no changes had been made
thereafter. Thus, he argues that the six-day delay in posting the agenda was
inexcusable and a violation of N.J.S.A. 10:4-9.
N.J.S.A. 10:4-9 states "no public body shall hold a meeting unless
adequate notice thereof has been provided to the public." "Adequate notice" is
defined as "written advance notice of at least [forty-eight] hours, giving the time,
date, location and to the extent known, the agenda" of the meeting. N.J.S.A.
10:4-8(d). The notice should be submitted to "at least two newspapers." Ibid.The statute also provides, however, "[w]here annual notice or revisions thereof
in compliance with [N.J.S.A. 10:4-18] set forth the location of any meeting, no
further notice shall be required for such meeting." Ibid. In addition to
conventional printed notice, the public body "may provide electronic notice,"
which is "advance notice available to the public via electronic transmission of
at least [forty-eight] hours, giving the time, date, location and, to the extent
known, the agenda" of any covered meeting. N.J.S.A. 10:4-9.1.
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The New Jersey Supreme Court has clarified that "'notice of at least [forty-
eight] hours' in compliance with N.J.S.A. [10:4-8(d)] is required only in those
situations where the public body has failed to provide annual notice that sets
forth the location of the meeting and is otherwise in compliance" with the
OPMA. Witt v. Gloucester Cnty. Bd. of Chosen Freeholders, 94 N.J. 422, 432
(1983) (quoting N.J.S.A. 10:4-8(d)). In that regard, the Court has explained
"[p]ublication of an agenda . . . is required only in those instances where no
annual notice has been provided in accordance with N.J.S.A. 10:4-18." Id. at
433.
As we have already discussed, defendants published their lists of annual
meetings for 2020 and 2021. The list for 2021 included a meeting for July 14,
2021, to be held at the Township's municipal building. Accordingly, defendants
did not need to post an agenda for the July 14, 2021, meeting and their posting
of an agenda on the day of the meeting did not violate the OPMA. Therefore,
defendants were entitled to summary judgment on count three.
4. Count Four.
Finally, plaintiff contended that defendants failed to revise the 2021
annual meeting list to disclose that the Committee would no longer provide
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remote access to meetings starting on July 14, 2021. Here again, plaintiff
alleged that failure violated N.J.S.A. 10:4-18.
N.J.S.A. 10:4-18 provides, in relevant part, that "[i]n the event that [the
annual] schedule is thereafter revised, the public body, within [seven] days
following such revision, shall post, mail and submit such revision" in the same
manner as the initial notice. Relevant to public meetings conducted during the
COVID-19 pandemic, N.J.A.C. 5:39-1.5(e) (2020) provided more specific
direction:
If the local public body expects to conduct remote
public meetings for a series of regularly scheduled
meetings advertised in its annual notice, the annual
notice shall be revised at least seven days prior to the
next regularly scheduled meeting, indicating which
meeting(s) will be held as a remote public meeting and
shall contain clear and concise instructions for access[].
The revised notice was required to be published in accordance with N.J.S.A.
10:4-18, as well as posted on the public body's website. Ibid. If a revision was
not timely made, additional notice requirements applied. See N.J.A.C. 5:39-
1.5(f) (2020).
The 2020 and 2021 annual notices of Committee meetings stated that
Committee meetings would take place at the municipal building. They did not
indicate that the meetings would be conducted remotely. Defendants began
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conducting Committee meetings remotely in March 2020 and continued that
practice through the first half of 2021. Defendants provided notice of those
remote meetings by posting agendas before the meetings and giving instructions
on how to access the meetings remotely. Plaintiff does not complain about the
notice of when meetings would be conducted remotely. Instead, his contention
involves the cessation of remote meetings and the return to in-person meetings.
The record reflects that no clear notice of the end of remote meetings was
given. Instead, defendants rely on the fact that their annual notice for 2021
identified that all meetings, including the July 14, 2021, meeting, would take
place at the municipal building, and the July 14, 2021, meeting and subsequent
meetings were conducted at the municipal building. While it would have been
a better practice for defendants to have provided clearer notice, even viewing
the facts in the light most favorable to plaintiff, the lack of a notice concerning
the end of remote access to meetings does not demonstrate a pattern or practice
warranting declaratory or injunctive relief under the OPMA. Accordingly, we
discern no error in the trial court's decision to grant summary judgment on count
four as well.
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C. Plaintiff's Equitable Relief Argument.
In challenging the order granting summary judgment to defendants,
plaintiff argues that the trial court improperly accorded defendants equitable
relief. The trial court did not accord defendants equitable relief. Instead, the
trial court analyzed and rejected plaintiff's contentions because they were not
supported by evidence, and the undisputed material facts established that
defendants were entitled to summary judgment.
D. Conclusion.
In summary, a review of the record establishes that plaintiff did not submit
evidence demonstrating a pattern or practice of violations of the OPMA.
Therefore, defendants were entitled to summary judgment dismissing plaintiff's
complaint. That said, plaintiff did point out instances where defendants failed
to exercise good practices concerning timely notice of changes in how meetings
would be conducted and in posting agendas and minutes of meetings.
Defendants should, therefore, be mindful of the Court's admonition that
compliance with the OPMA should be viewed as an important obligation and
that release of minutes "must be considered a priority, an obligation, and not a
nuisance to be addressed when convenient." Kean, 233 N.J. at 592.
Affirmed.
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