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Appellate Division Affirms Electronic Voting by BOE

On October 30, 2020, the New Jersey Appellate Division in Schwartz v. Princeton Board of Education issued an unpublished decision affirming that a board of education may utilize an electronic voting system so long as all of the other requirements of the Open Public Meetings Act (“OPMA”) are met. In other words, electronic voting by board of education members is not a per se violation of OPMA.

Plaintiffs, members of the public, filed a lawsuit against the Princeton Board of Education (“Board”) alleging that its vote on a specific agenda item at its June 12, 2018 public meeting violated OPMA. The agenda item involved whether to approve a send-receive agreement with a neighboring school district. Plaintiffs primarily argued that the Board’s electronic system of voting was a “secret ballot” and that they did not fully witness the Board’s decision making process.

The Appellate Division affirmed the trial court’s determination that OPMA was not violated. Plaintiffs and thirty other members of the public physically attended the June 12, 2018 Board meeting. The Board also live-streamed the meeting on YouTube for additional public access. The Board used a cloud-based electronic system called BoardDocs to take Board members’ votes on agenda items from their laptops. Once the vote on an agenda item was closed, the votes were saved and then projected on a screen for public viewing.

In their lawsuit, Plaintiffs claimed that that they were unable to hear or see the votes. However, Plaintiffs nor any member of the public complained at the June 12, 2018 meeting or thereafter that they were unable to see the results on the screen or asked that the results be read aloud. While the trial court acknowledged that the display screen was “difficult to read” and that it would have been “better for the public to know how each member voted at the time,” these issues did not rise to the level of an OPMA violation.

The Appellate Division agreed with the trial court that OPMA allows for flexibility in the manner in which public bodies conduct their meetings. Contrary to Plaintiffs’ arguments, OPMA does not require sequential or roll call voting for this kind of item. The Board’s meeting minutes also made clear how each Board member voted. Based on the totality of the circumstances, the Appellate Division affirmed that there was no secrecy in the Board’s voting process.

The Board, in this case, maintained the public’s right under N.J.S.A. 10:4-7 to be present at all public meetings and witness in full detail all phases of the deliberation, policy formulation, and decision making of the Board.

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Sanmathi (Sanu) Dev

About the Author

About the Author:

Sanmathi (Sanu) Dev, Esq. concentrates her practice on the representation of boards of education and charter schools in all areas of school law including: labor and employment, special education, Section 504, student discipline, FERPA, Anti-Bullying Bill of Rights Act, student residency, civil rights, tenure, OPRA, and OPMA. In connection with these representations, she is experienced in handling matters before State and Federal courts, including the Office of Administrative Law. Ms. Dev is an experienced special education litigator and defends school districts in due process hearings from inception through trial. In addition, she has handled matters before governmental agencies, including the U.S. Office for Civil Rights and New Jersey Division on Civil Rights. Ms. Dev routinely conducts training and seminars, drafts policies and manuals, and provides strategic advice to school administrators regarding school law issues. Ms. Dev was recently recognized as one of South Jersey’s Awesome Attorneys as published by South Jersey Magazine. She is licensed to practice law in New Jersey, the District Court for the District of New Jersey and Pennsylvania.

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