NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2520-13T3

DAVID W. OPDERBECK,

Plaintiff-Respondent,

v.

MIDLAND PARK BOARD OF EDUCATION,

Defendant-Appellant.

___________________________________

Argued December 17, 2014 – Decided

Before Judges Fuentes, Ashrafi, and O'Connor.

On appeal from Superior Court of New Jersey, 

Law Division, Bergen County, Docket No. 

L-8571-13.

Stephen R. Fogarty argued the cause for 

appellant (Fogarty & Hara, attorneys; Mr. 

Fogarty, of counsel and on the brief; Amy E. 

Canning, on the brief).

David W. Opderbeck, respondent, argued the 

cause pro se.

Carl Tanksley argued the cause for amicus 

curiae New Jersey School Boards Association 

(Cynthia J. Jahn, General Counsel, attorney; 

Ms. Jahn and John J. Burns, on the brief).

Paul E. Griggs argued the cause for amicus 

curiae New Jersey Association of School 

Business Officials (Sciarrillo, Cornell, 

Merlino, McKeever & Osborne, L.L.C., 

attorneys; Mr. Griggs, of counsel and on the 

brief; Blake C. Width, on the brief). 

APPROVED FOR PUBLICATION

August 18, 2015

APPELLATE DIVISION

August 18, 2015
2 A-2520-13T3

Emily B. Goldberg argued the cause for 

amicus curiae American Civil Liberties Union 

of New Jersey (McCarter & English, LLP, and 

American Civil Liberties Union of New Jersey 

Foundation, attorneys; Ms. Goldberg, of 

counsel and on the brief; Roktim Kaushik, on 

the brief). 

The opinion of the court was delivered by

FUENTES, P.J.A.D.

The Midland Park Board of Education (Board) appeals from 

the order of the Law Division permanently enjoining it to "make 

available to the public, by posting to its public website, no 

later than forty-eight (48) hours before all . . . meetings, the 

full agenda for such meetings, if such agenda is posted, 

including copies of any appendices, attachments, reports, and 

other documents referred to in the agenda[.]" (Emphasis added). 

The injunction exempts from this publication requirement 

documents the Board in good faith believes are "subject to an 

enumerated privilege, exemption, or the like" under the Open 

Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, the Open 

Public Meetings Act (OPMA), N.J.S.A. 10:4-6 to -21, or the 

common law right of access. 

Because the issues raised in this appeal involve only 

questions of law, our review of the Law Division's decision is 

de novo. Saccone v. Bd. of Trs. of the Police & Firemen's Ret. 

Sys., 219 N.J. 369, 380 (2014). After reviewing the record 
3 A-2520-13T3

presented by the parties, we reverse. The mandate imposed on 

the Board by the Law Division in this injunction is not 

supported by the "adequate notice" requirements imposed on 

public bodies by the OPMA. We hold the term "agenda," as used 

in N.J.S.A. 10:4-8(d), does not impose a legal obligation on 

public bodies to provide copies of any appendices, attachments, 

reports, or other documents referred to in their agendas.

Although the issue before us is purely a legal one, a brief 

recitation of the dominant facts of this case will help 

contextualize our analysis. 

I

Plaintiff David W. Opderbeck is a professor at Seton Hall 

University School of Law and a resident of the Borough of 

Midland Park. Over the last twelve years, at least one of his 

children has attended a public school in Midland Park. 

Plaintiff and his wife, Susan Opderbeck, attended the May 28, 

2013 meeting held by the Board to discuss certain school 

activities in which their children were involved. Mrs. 

Opderbeck had obtained the agenda of the meeting from the 

Board's official website.

The agenda for the May 28, 2013 meeting consisted of ten

pages. The first part of the agenda contained a statement 

claiming "adequate notice" of the meeting had been provided "as 
4 A-2520-13T3

specified in the Open Meeting Act[,]" and specifically mentioned

that notices had been sent to "the HERALD-NEWS, RECORD, 

RIDGEWOOD NEWS, and to the Midland Park Borough Clerk for the 

2013 elective year." After roll call of the members present, 

there were sections for the Board Secretary's Report and 

approval of the minutes for the meetings held on April 9, 2013 

and April 30, 2013. The last item of this part of the agenda 

was titled, "Superintendent's Report."

The next section was designated, "Open to the Public." 

This part of the agenda was separated into Sections A through L. 

The relevant sections here are Section A Personnel, Section B

Finance Committee, Section C Curriculum Committee, and Section I 

Personnel Committee. Only these four sections include 

references to "attachments" or "appendices" that were not made 

available to the public as part of the "agenda" posted on the 

Board's website.

Section A Personnel consists of twenty-seven enumerated 

items. Ten of these agenda items (37.04 percent) include either 

the phrase "as per the attached appendix" or "support material

attached." The following four items represent a sampling of the 

total seventeen items listed in Section A Personnel that do not

reference an "attachment" or "appendix":

3. Approve the reappointment of Dr. Everett 

Schlam, School Physician, for the 2013-2014 
5 A-2520-13T3

school year. His yearly rate will be 

$4,500.

4. Approve the non-tenured reappointment of 

Christopher Swank as the Buildings & Grounds 

Supervisor for the 2013-2014 school year

(salary to be determined).

5. Approve the non-tenured reappointment of 

Ristem Sela as the Computer Technician for 

the 2013-2014 school year (salary to be 

determined).

By contrast, Section A Personnel contains items requesting 

the Board's approval that refer to information undisclosed to 

the public and acknowledged only by the phrase, "as per the 

attached appendix." There are also items proposing that the 

Board undertake a certain course of action, followed by a 

reference to a document "which is attached as an appendix." As 

noted earlier, there are a total of ten agenda items in Section 

A Personnel that fall into this category. In lieu of listing 

all ten items, we have opted to list the following four specific 

items for illustrative purposes only:

9. Approve the tenured reappointment of all 

Clerks/Secretaries for the 2013-2014 school 

year, as per the attached appendix.

10. Approve the non-tenured reappointment of 

all Instructional Aides for the 2013-2014 

school year, as per the attached appendix.

11. Approve the reappointment of all nontenured full-time Custodial/Maintenance 

personnel for the 2013-2014 school year, as 

per the attached appendix.
6 A-2520-13T3

17. Approve the staff appointments for the 

Extended School Year Program, effective July 

1 - 31, 2013, which is attached as an 

appendix[.]

Section B Finance Committee contains thirteen individually 

numbered items. Only five items refer to "support material 

attached" or "an appendix." Two of these items are:

10. Approve the use and rental of the High 

School and Highland School gyms to Hoop 

Heaven, sponsored by Midland Park Continuing 

Education, for Basketball Tournaments to be 

held on Saturday, June 1, 2013 from 8:00 

a.m. – 9:00 p.m. (support material 

attached).

12. Approve the resolution for equipment 

financing with Global Strategic LLC, which 

is attached as an appendix.

Section C Curriculum Committee has a total of five 

enumerated items. Three items contain a reference to either an 

attached "appendix" or "support material":

1. Approve the following staff members 

requesting workshop attendance (support 

material attached)[.]

4. Approve the recommendation of the Interim 

Director of Special Services for the special 

education placements and transportation for 

the summer of 2013, which is attached as an 

appendix. 

5. Approve the proposed overnight trip for 

the high school Track Team to compete in the 

State Championship Meet in Egg Harbor, NJ 

from May 31 - June 1, 2013 (support material 

attached).
7 A-2520-13T3

Section D Policy Committee through Section H Public 

Relations Committee did not have anything to report.1 Section I 

Personnel Committee listed the following item for Board 

approval: "Approve the following job descriptions for Advisors 

to Activities and Clubs, which are attached as an appendix[.]" 

The following list constitutes a representative cross-section of 

the over forty different clubs and activities listed:

7th & 8th Grade Class Advisor

9th & 10th Grade Class Advisor

11th & 12th Grade Class Advisor

Art Club Advisor

Biology Club Advisor

Biology Team Advisor

Chemistry Team Advisor

Chess Club Advisor

Choral Advisor – Madrigals

Drama Advisor

Drama Producer

French Club Advisor

Gay-Straight Alliance Advisor

High School Newspaper – Panthers' Pause

Because the Board makes its agendas available to the public

by posting them on its official website, Mrs. Opderbeck 

contacted the Board's Secretary's Office to request that the 

attachments and appendices referred to therein be equally 

electronically available on the Board's website. She was 

advised, however, that the attachments and appendices indicated 

 

1 The remaining Sections which also did not have anything to 

report were Section E Legislative Committee, Section F Buildings 

& Grounds Committee, Section G Negotiations Committee, Section J 

Liaison Committee, and Section K Old Business.
8 A-2520-13T3

in the agenda would not be made available to the public until 

after the meeting. She was further informed that the only means 

to obtain these documents was to file a formal written request 

under OPRA. Mrs. Opderbeck requested that a representative of 

the Board respond to her concerns via email.

On May 29, 2013, Dr. Marie Cirasella, the Midland Park 

Superintendent of Schools, wrote an email to Mr. and Mrs. 

Opderbeck in response to the questions raised by Mrs. Opderbeck

"at last night's Board of Education meeting" concerning 

"overnight field trip proposals for the Syracuse and California 

band trips." The Superintendent noted that pursuant to Board 

regulation, overnight field trips "should not be approved until 

the school calendar has been struck." Due to a number of 

factors, the Board was unable to finalize the school calendar 

until April 30, 2013.

Addressing the concerns raised in the public session of the 

May 28, 2013 Board meeting, the Superintendent informed Mrs.

Opderbeck that "[t]he Board cannot and should not rely on 

information provided by [B]oard meeting attendees during open 

session – it is the school administration's responsibility and 

charge to do so." Superintendent Cirasella ended the email by 

reminding Mrs. Opderbeck that the trip proposals were again 

placed on the agenda for curriculum committee discussion and 
9 A-2520-13T3

would be brought before the Board for final approval at its 

meeting scheduled for June 4, 2013.

By email dated May 30, 2013, plaintiff responded to 

Superintendent Cirasella concerning the Board's refusal to 

provide the appendices and attachments noted in the agenda as 

supplementary material to specific items. Citing Board Bylaw 

0164,2 plaintiff advised the Superintendent as follows:

By withholding from public scrutiny the 

"reports and supplementary materials" that 

are part of the "agenda" as defined by BOE 

By-Law 0164, the Board is not providing 

notice of the agenda "to the extent known"

to the Board, in violation of the Sunshine 

Law [(OPMA)]. It is a matter of grave 

concern that the Board would withhold such 

information from the public absent the 

limited exceptional procedures specified in 

[the] Sunshine Law. See N.J.S.A. 10:4-9b. 

Please confirm that the full agenda,

including attachments provided to the Board, 

hereafter will be supplied to the public in 

advance of Board meetings.

By letter dated June 3, 2013, the Board's General Counsel

informed plaintiff that the Board would not provide agenda 

attachments to the public prior to the meetings. Relying on an 

advisory opinion of the New Jersey Attorney General, counsel 

 

2 Bylaw 0164 is titled, "CONDUCT OF BOARD MEETINGS." The 

relevant section, denoted "Agenda," states: "The Superintendent 

shall prepare an agenda of items of business to come before the 

Board at each meeting. The agenda shall be delivered to each 

Board member no later than Friday before the meeting and shall 

include such reports and supplementary materials as are 

appropriate and available." (Emphasis added).
10 A-2520-13T3

informed plaintiff "the word agenda refers solely to the list of 

items to be discussed or acted upon at the meeting." The record 

shows plaintiff and the Board's counsel attempted to reach a 

compromised position without success. 

II

A

The Board argues "there is nothing contained in the OPMA to 

suggest the Legislature intended to apply anything other than 

the plain, dictionary meaning to the term agenda." Absent any 

clear direction from the Legislature, the Board argues we should 

construe the term "agenda" in N.J.S.A. 10:4-8(d) by its ordinary 

meaning. Harking back to 1975, the year the Legislature adopted 

the OPMA, the Board cites the 1975 Webster's New Collegiate 

Dictionary, which defines "agenda" as "a list, outline, or plan 

of things to be considered." The Board also cites Black's Law 

Dictionary 58 (4th rev. ed. 1968), which defines agenda as 

"memoranda of things to be done, as items of business or 

discussion to be brought up at a meeting; a program consisting 

of such items."

Following this approach, the Board urges us to reverse the 

Law Division's expansive definition of "agenda," and vacate the 

burdensome injunction which imposes obligations to post on its 

website supplementary materials never intended to be included 
11 A-2520-13T3

within the definition of "adequate notice" in N.J.S.A. 10:4-

8(d).3

Plaintiff argues that citing "a number of dictionary 

definitions" in an attempt to ascertain the plain meaning of the 

term "agenda" "at best beg[s] the question whether a document 

incorporated by reference into a 'list, outline, or plan' is, in 

fact, part of the 'list, outline, or plan.'" Citing a number of 

cases discussing and applying the contract law doctrine of 

"incorporation by reference,"

4 plaintiff argues the documents

 

3 The Board also argues its position before us is supported by 

the Supreme Court's decision in Witt v. Gloucester County Board

of Chosen Freeholders, 94 N.J. 422 (1983), and our decision in 

Crifasi v. Governing Body of Oakland, 156 N.J. Super. 182 (App. 

Div. 1978). We disagree. Neither one of these opinions 

addressed the scope or content of an "agenda" under N.J.S.A.

10:4-8(d). In Witt, supra, 94 N.J. at 432, the Supreme Court 

determined that "a public body that has complied with the annual 

notice requirements of N.J.S.A. 10:4-18 [need not] also comply 

with the forty-eight-hour notice requirements of N.J.S.A. 10:4-

8(d)." In Crifasi, supra, 156 N.J. Super. at 185-86, we 

approved the appointment of a replacement member to the Borough 

Council at a regularly scheduled meeting, despite the fact that

the topic had not been included in the meeting's agenda.

4 By way of example, plaintiff cites Alpert, Goldberg, Butler, 

Norton & Weiss, P.C. v. Quinn, 410 N.J. Super. 510 (App. Div.

2009), certif. denied, 203 N.J. 93 (2010), in support of his 

argument to apply the contract law doctrine of "incorporation by 

reference" to the question of statutory construction we confront 

here. Quinn involves a dispute between an attorney and a client 

over the terms of a retainer agreement. Id. at 518. As 

explained by our colleague Judge Lyons, "[u]nder New Jersey law, 

two or more writings may constitute a single contract even 

though they do not refer to each other. Whether two writings are 

to be construed as a single contract, however, depends on the 

(continued)
12 A-2520-13T3

attached by the Board to an agenda "highlights an ambiguity in 

the statutory language" that should be resolved by this court 

"liberally" in favor of disclosure under N.J.S.A. 10:4-21. 

Amici New Jersey School Boards Association (NJSBA) and New 

Jersey Association of School Business Officials (NJASBO) both 

urge us to reverse the Law Division's ruling and adopt the 

definition of agenda contained in Formal Opinion No. 19-1976, 

prepared by Deputy Attorney General (DAG) Mary Ann Burgess on 

June 22, 1976, in response to four specific questions asked by 

the State Commissioner of Education concerning the then recently 

adopted OPMA. In question number four, the Commissioner asked:

"What is the scope of the term 'agenda' as used in the Open

Public Meetings Act?" DAG Burgess noted the Commissioner 

"specifically ask[ed] whether the term [agenda] may be construed 

to mean the several sheets of paper which enumerate the items 

for consideration by the [State] Board, or whether the term must 

be defined to include all the pages of descriptive materials 

provided to members of the Board."

DAG Burgess began her analysis by acknowledging "[t]here is 

no definition of 'agenda' within the [OPMA]." After citing to 

 

(continued)

intent of the parties." Id. at 533 (citation omitted). These 

principles of contract law are not useful or relevant to the 

question of statutory construction raised in this appeal. 
13 A-2520-13T3

the meaning of "agenda" in Black's Law Dictionary (4th ed.) and 

the Webster's Third New International Dictionary (1965), and 

reviewing the then most recent decisions from this court 

discussing the canons of statutory interpretation, DAG Burgess 

concluded there was no indication in the OPMA that the term 

"agenda" should be accorded any "special meaning." Building on 

this conclusion, she opined that "[t]he notice required by 

N.J.S.A. 10:4-8(d) . . . need only contain a listing of the 

items which will be before the Board at the meeting and need not 

include the supportive or explanatory materials and reports

relative to such items." 

Amicus the American Civil Liberties Union of New Jersey 

(ACLU-NJ) begins its argument by emphasizing our State's long 

commitment to protecting and strengthening the public's right to 

access public information. The ACLU-NJ quotes the testimony of 

Assemblyman Byron M. Baer before the Assembly Judiciary 

Committee. Assemblyman Baer was the sponsor of the bill that 

would become the OPMA, and is indisputably recognized as the key 

voice in the Legislature who advocated for the passage of the 

legislation officially known as the "Senator Byron M. Baer Open 

Public Meetings Act." N.J.S.A. 10:4-6.

Assemblyman Baer personally championed the public policies

of transparency and access embodied in the OPMA. Despite the 
14 A-2520-13T3

provisions in the statute intended to protect these egalitarian 

values, the ACLU-NJ claims vague agendas and insufficient notice 

remain a persistent problem nearly forty years after the

enactment of the OPMA. The ACLU-NJ thus urges us to affirm the 

Law Division's expansive view of "agenda" as a means of 

fulfilling the OPMA's promise of requiring transparency in the 

way public bodies transact the public's business.

B

We begin our analysis by acknowledging that the overarching 

public policy that drives the OPMA is "'the right of [a]

citizen[] 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.'" 

McGovern v. Rutgers, 211 N.J. 94, 99 (2012) (quoting N.J.S.A.

10:4-7). Our State's commitment to transparency in the conduct 

of governmental affairs has deep roots. As noted by Justice 

Pashman in Polillo v. Deane, 74 N.J. 562, 570 (1977),

"[a]lthough state legislation in this area has proliferated only 

in the last decade, the common law origins of this important 

policy may be traced to English law dating back to the first 

half of the 18th century." We are thus bound to construe the 

provisions of the OPMA "liberally . . . in order to accomplish 
15 A-2520-13T3

its purpose and the public policy of this State[.]" N.J.S.A.

10:4-21. 

The Board is a "public body" as defined in N.J.S.A. 10:4-

8(a). As such, absent the existence of two specifically 

codified exceptions5 that are not relevant here, the Board is not 

permitted to meet to conduct official business without having 

provided "adequate notice" to the public. N.J.S.A. 10:4-9(a). 

The OPMA provides two separate, yet related, means for public 

bodies to provide the notice required by N.J.S.A. 10:4-9(a). 

Read in pari materia with the requirements of N.J.S.A. 10:4-

8(d), N.J.S.A. 10:4-18 requires the Board to publish, "[a]t 

least once each year," notice giving the time, date, location 

and, to the extent known, the agenda of any Board meetings 

scheduled for that year. This annual notice must be published 

in "at least two newspapers . . . designated by the public body 

to receive such notices[.]" N.J.S.A. 10:4-8(d). The two 

newspapers designated by the Board must have "the greatest 

likelihood of informing the public[.]" Ibid. 

Here, the Board admitted before the Law Division that in 

October 2013, the Board's Secretary/School Administrator

 

5 The two exceptions permitting a public body to meet without 

having provided "adequate notice" are codified in N.J.S.A. 10:4-

9(b) and N.J.S.A. 10:4-12(b). See McGovern, supra, 211 N.J. at 

101.
16 A-2520-13T3

discovered the annual notice of the Board's meetings for the 

school year 2013-2014 had been published in only one newspaper. 

The Secretary/School Administrator certified that the Board 

elected "to voluntarily publish agendas for each meeting, which 

set forth, to the extent known, the order of business of the 

upcoming meeting. These agendas are published within fortyeight (48) hours of the meeting."

Although the Board decided to also post its agenda on its 

official website, it had no obligation under the OPMA to do so. 

The OPMA does not require public bodies to post on its public 

website, no later than forty-eight (48) hours before all 

meetings, the full agenda for such meetings. N.J.S.A. 10:4-9.1, 

which was adopted by the Legislature effective November 4, 2002, 

provides:

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.

As used in this section, "Internet" means 

the international computer network of both 
17 A-2520-13T3

federal and non-federal interoperable packet 

switched data networks. 

[N.J.S.A. 10:4-9.1 (emphasis added).]

Thus, as N.J.S.A. 10:4-9.2 makes clear, "no electronic notice 

issued pursuant to this act shall be deemed to substitute for, 

or be considered in lieu of, [the] adequate notice [in N.J.S.A.

10:4-8(d)]." See also McGovern, supra, 211 N.J. at 100-01.

With this statutory framework as backdrop, we now turn to 

the discrete issue before us - what the meaning of "agenda" is

in the context of the "adequate notice" requirement in N.J.S.A.

10:4-8(d). As we have shown, the legislative history of the 

OPMA includes comments exalting the laudable goals of the 

drafters of this landmark legislation and the democratic values

they hoped to promote by its passage. The record also shows the

executive branch was equally committed to taking public bodies 

out of the shadows and compelling them to conduct the public's 

business in the "sunshine."

On October 21, 1975, Governor Brendan Byrne declared he 

expected the statute would "significantly alter the process of 

government in New Jersey . . . [a] process [that] has long 

demanded alteration." The Governor noted the OPMA "is based on 

the fundamental premise that government should be open to public 

scrutiny, and accountable to the public it serves."
18 A-2520-13T3

The final version of this legislation contains a clear

declaration of public policy favoring transparency in the 

conduct of public bodies and encouraging citizen participation 

in the democratic process. The following relevant section of 

this declaration illustrates the point:

The Legislature finds and declares that the 

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, 

and hereby declares 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.

The Legislature further declares it to be 

the public policy of this State to insure 

that the aforesaid rights are implemented 

pursuant to the provisions of this act so 

that no confusion, misconstructions or 

misinterpretations may thwart the purposes 

hereof. 

[N.J.S.A. 10:4-7 (emphasis added).]
19 A-2520-13T3

Governor Byrne made transparency of governmental affairs a 

central part of his official statement:

On balance, I believe that the idea of open 

government deserves a chance in New Jersey. 

The public's business can and should be 

carried out in public. Public agencies 

exist for the public's convenience, not 

their own. I have always pledged myself to 

that goal. This bill will be critical in 

achieving that objective. It establishes in 

the statute books the public's right to know 

how, why and by whom the public trust in 

public bodies is effectuated in governmental 

decisions. 

Competing for legislative attention alongside these high 

ideals were also the concerns expressed by those who would be 

directly affected by the legal and practical obligations imposed 

by this statute. Governor Byrne articulated one of these 

concerns in the following prescient question: "Will the courts 

find it impossible to apply definitions of essential terms in 

particular contexts?" Although the question before us does not 

present us with an "impossible" task, it is, at the very least, 

a daunting one. We are asked to construe forty-year-old 

statutory terms rooted in the concept that notice requires some 

form of paper publication, in the context of our modern 

electronic age, where hand-held wireless devices are as 

ubiquitous and seemingly indispensable as newspapers were in 

1975.
20 A-2520-13T3

Specifically, we are asked to construe the term "agenda" as 

used in N.J.S.A. 10:4-8(d). It seems clear to us that the 

drafters of the OPMA wanted to compel public bodies in this 

State to conduct the public's business in the light of day, 

hence its unofficial moniker, "the Sunshine Law." The OPMA 

protects the 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." N.J.S.A. 10:4-7. Toward that end, the OPMA 

obligates public bodies to provide "written advance notice of at 

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

extent known, the agenda of any regular, special or rescheduled 

meeting[.]" N.J.S.A. 10:4-8(d) (emphasis added). 

The OPMA does not define the term "agenda." The Law 

Division construed the term "agenda" to include the attachments 

and supplemental documents mentioned therein principally because 

the Board has been unable to articulate any persuasive reasoning 

why the attachments should not be posted with the agendas prior 

to Board meetings. Once the Board undertook the voluntary step 

of posting the agenda on its website, the Law Division found no 

practical reason to withhold the supplemental materials 

mentioned therein. Under this line of reasoning, the Law 
21 A-2520-13T3

Division filled this void of statutory authority by judicial 

fiat.

The provisions in the OPMA that define "adequate notice"

are tethered to a world where daily newspapers were presumed to 

be the most reliable and efficacious means of providing the 

public with notice of "the time, date, location and, to the 

extent known, the agenda of any regular, special or rescheduled 

meeting[.]" N.J.S.A. 10:4-8(d). In construing the term 

"agenda" in our modern technological age, it is tempting to 

define "agenda" to include attachments, appendices, and other 

forms of supplemental material because, practically, it merely 

requires adding an electronic "link" to the Board's agenda, 

which is already posted on its official website. Considering 

the public policy goals of the statute, it is nearly impossible 

to imagine this approach would have been rejected by Assemblyman 

Baer if it had been available in 1975.

However, our role as judges in our tripartite system of 

government is to construe statutes by using well-settled

principles of legislative interpretation, not to amend statutes 

using our own notion of what is in the public's best interest. 

Our Supreme Court has recently reaffirmed what this approach 

entails:

In statutory interpretation, a court's role 

is to determine and effectuate the 
22 A-2520-13T3

Legislature's intent. The first step toward 

that end is to consider the plain language 

of the statute. Statutory language should 

be given its ordinary meaning and be 

construed in a common-sense manner. 

Further, when construing the Legislature's 

words, every effort should be made to avoid 

rendering any part of the statute 

superfluous. 

In sum, our overriding goal is to discern 

and effectuate the legislative intent 

underlying the statutory provision at issue. 

Our role is not to rewrite a plainly-written 

enactment of the Legislature []or [to]

presume that the Legislature intended 

something other than that expressed by way 

of the plain language. Where the language 

is unclear or ambiguous, or if the 

Legislature's intention is otherwise 

uncertain, resort may be had to extrinsic 

aids to assist us in our understanding of 

the Legislature's will.

[State in the Interest of K.O., 217 N.J. 83, 

91-92 (2014) (alteration in original) 

(citations omitted) (internal quotation 

marks omitted).]

Applying these principles of statutory construction, we 

construe "agenda" by giving it its plain, ordinary meaning: "a 

list or outline of things to be considered or done."

6 The 

"adequate notice" requirement in N.J.S.A. 10:4-8(d), including 

the reference to "agenda," has not been amended since the OPMA 

was adopted in 1975. Although Advisory Opinions issued by 

 

6 Merriam-Webster, Full Definition of Agenda,

http://www.merriam-webster.com/dictionary/agenda (last visited 

Aug. 9, 2015).
23 A-2520-13T3

Attorneys General are not binding on the judiciary, a formal 

opinion of the Attorney General on an issue of law is binding on 

State agencies. See In re Town of Harrison, 440 N.J. Super.

268, 298-99 (App. Div. 2015) (citing Gladden v. Bd. of Trs. of 

the PERS, 171 N.J. Super. 363 (App. Div. 1979)).

The Attorney General's Advisory Opinion No. 19-1976 was 

issued shortly after the Legislature adopted the OPMA and has 

guided public bodies on the meaning of "agenda," as used in 

N.J.S.A. 10:4-8(d), for nearly forty years. The approach the 

Attorney General used to construe the term "agenda" in Advisory 

Opinion No. 19-1976 tracks the methodology for statutory 

construction our Supreme Court reaffirmed in K.O. We discern no 

rational or legal basis to deviate from the definition of 

"agenda" the Attorney General endorsed in Advisory Opinion No.

19-1976. 

Furthermore, by enjoining the Board to post attachments in 

an agenda unless it "has a good faith belief that such documents 

are subject to an enumerated privilege, exemption, or the like"

under OPRA, the OPMA, or the common law right of access, the Law 

Division improperly conflated three legally distinct sources of 

authority. Although all three promote a public policy of 

transparency in governmental affairs, they each serve a 
24 A-2520-13T3

different purpose and have different and independent procedural 

and substantive standards for obtaining judicial relief.

The OPMA is intended to insure the right of citizens "to 

have adequate advance notice of and the right to attend all 

meetings of public bodies[.]" N.J.S.A. 10:4-7. "The 

Legislature adopted OPRA to maximize public knowledge about 

public affairs in order to ensure an informed citizenry and to 

minimize the evils inherent in a secluded process." O'Boyle v. 

Borough of Longport, 218 N.J. 168, 184 (2014) (citations 

omitted) (internal quotation marks omitted). The common law 

right of access is an independent source of legal authority for 

the public to gain access to public records and defines "a 

public record" more broadly than the definition of "government 

record" contained in OPRA. Bergen Cnty. Improvement Auth. v. N. 

Jersey Media Grp., Inc., 370 N.J. Super. 504, 509-10 (App.

Div.), certif. denied, 182 N.J. 143 (2004).

We conclude our analysis by noting that changes in the law 

often do not occur parallel with technological or scientific 

advancements. In 2002, the Legislature adopted N.J.S.A. 10:4-

9.1, giving public bodies the option to "provide electronic 

notice of any meeting of the public body through the 

Internet[,]" but only as an addition to the traditional 

newspaper notice required by N.J.S.A. 10:4-8(d), not as a 
25 A-2520-13T3

substitute. See N.J.S.A. 10:4-9.2. With the exception of this 

notable "internet"-related amendment, the OPMA remains firmly 

rooted in 1975.

The information technology revolution has transformed our 

lives in profound and irrevocable ways since the adoption of the 

OPMA over forty years ago. Thus, there may be no

technologically sound reason to disagree with the facially 

sensible approach adopted by the Law Division here. However, 

"[t]he wisdom of a statute is not for the courts." Harrison, 

supra, 440 N.J. Super. at 301 (quoting Dacunzo v. Edgye, 19 N.J.

443, 454 (1955)). As Justice LaVecchia recently reminded us 

writing on behalf of a unanimous Supreme Court, "[i]t is not our 

job to engraft requirements [on a statute] that the Legislature 

did not include. It is our role to enforce the legislative 

intent as expressed through the words used by the Legislature." 

Lippman v. Ethicon, Inc., ____ N.J. ____, ____ (2015) (slip op. 

at 46-47).

We thus respectfully suggest that the other branches of our 

tripartite system of government heed Governor Byrne's admonition

included in his statement endorsing the passage of the OPMA in 

1975: "The Legislature should systematically monitor the 

experience of government at all levels in living with this new 

law and analyze the need for amendment on the basis of that 
26 A-2520-13T3

experience." In the meantime, our duty is to uphold the OPMA in 

its current form. 

Reversed.