By Lev D. Zilbermints
Judge Alberto Rivas, of the Middlesex County Superior Court has issued a discovery order to the Rutgers Board of Governors demanding minutes and video for BOG meetings held in February, April and June 2021.
According to court papers, Hon. Alberto Rivas ordered on November 10, 2021 that both the defendant (Rutgers Board of Governors) and plaintiffs (Charles Kratovil and Troy Shinbrot) are to provide the court with materials relevant to the case. Defendants are to provide the court with minutes taken during the Board of Governors meetings for February 23, 2021, April 14, 2021, and June 22, 2021. Plaintiffs are to provide the court with complete tapes of the February 23, 2021 and April 14, 2021 Board of Governors meetings.
“Local Talk” was able to find video recordings of the February and April 2021 Board of Governors meetings on YouTube. These were uploaded on the New Brunswick Today video channel on YouTube.
Charles Kratovil, editor-in-chief of New Brunswick Today, and Troy Shinbrot, a Rutgers – New Brunswick professor and former University Senate representative to the BOG, filed a lawsuit on August 6, alleging violation of Open Public Meetings Act. As was previously reported by “Local Talk” in its July 22 and July 29, 2021 issues, the controversy began when Board Chair Mark Angelson muzzled Kratovil for asking questions. Angelson also banned Dr. Shinbrot from the meeting for standing up for Kratovil and asking questions.
Kratovil and Shinbrot’s Legal Arguments
In court papers filed November 5, 2021, plaintiffs Kratovil and Shinbrot make six key arguments. First, plaintiffs argue that the defendants (Board of Governors) seek to dismiss without having filed a proper motion. Second, defendants’ vague allegations are based on facts that are in dispute. Third, defendants have repeatedly attempted to enforce a non-existent rule against Plaintiffs that prevents the asking of questions, a recognized form of oratory. Fourth, defendants inappropriately silenced one of their own board members who was supposed to have “full voice” in these meetings and removed him. Fifth, defendants violated their own rules by refusing to explain their decisions. Sixth, defendants’ conduct constitutes viewpoint discrimination against plaintiffs.
Going into more detail, Kratovil and Shinbrot submitted videos of February 23 and April 14 Board meetings. In the February 23 video, Board of Governors Chair Mark Angelson is heard saying “read the rules, Charlie.” This happened when Kratovil was asking questions about what companies are involved in a $300 million financial arrangement by vote of the BOG. Kratovil, in and Shinbrot, per court papers, were cut off when they asked for open discussion of important financial and policy matters being adopted.
In the April 14, 2021 video, Kratovil is heard inquiring who is being appointed to the Rutgers Camden Board by vote of the Board of Governors. According to the video, Kratovil inquires whether it is William Tambussi who is being appointed. BOG Chair Angelson again cuts Kratovil off, and refuses to confirm or deny that the person being appointed is William Tambussi.
During the June 22, 2021 meeting, Kratovil asked questions as to what changes are made to the Rutgers Health Group bylaws by vote of the Board of Governors. It was at the infamous June 22, 2021 meeting that Kratovil was muzzled and Shinbrot was permanently removed from the meeting.
“Local Talk” previously covered the June 22 meeting in its July 22 and July 29, 2021 editions.
In court papers, plaintiffs Kratovil and Shinbrot state, “Defendants {BOG} claim, without any substantiating evidence or any specific dates, times or details, that “at meetings prior to June 22, 2021 both Shinbrot and Kratovil had been advised that their conduct was inappropriate.” Further, they allege that Shinbrot “was advised multiple times at each of these meetings that his conduct was out of order,” again without enumerating which meetings they are referring to. … However, because Defendants provide no specifics or evidence, we can only surmise that they are referring to the prior interactions between Plaintiffs and Defendants… The videos of those interactions, as referenced in the complaint, shows that the Plaintiffs were behaving in accordance with the Board’s rules, and that it was the Defendants, and in particular the Chair of the Board, who were improper in preventing open discussion of important matters at hand.”
Kratovil and Shinbrot point out that the Board of Governors refused to make audio or video recordings of their meetings. Under the Roberts Rules of Order, which are even used in the United States Congress, a record of what was decided at the meeting must be made. Kratovil and Shinbrot point out that since Rutgers is a public university receiving public funds, the minutes of the Board of Governors must be publicly available.
“Because the Defendants have voluntarily chosen not to make audio or video recordings of their meetings (despite the fact that it id rather easy to record meetings conducted on Zoom software platform), the only recordings available to our knowledge are the ones Plaintiff Kratovil has made in his capacity as a reporter. Links to the relevant portions of these video recordings have already been shared with the Court, “state court papers.
Kratovil and Shinbrot argue that there is nothing wrong with asking questions at Board of Governors meetings. “It is a widely recognized oratorical strategy to launch questions to someone who can answer them, either to demonstrate their silence or to prompt an answer. This type of commentary is practiced at nearly every public governing body in the State of New Jersey, and indeed it has been successfully used for decades by members of the public when addressing the Rutgers BoG. This recognized method of oratory is not prohibited in any current policy in any part of the University governance structure, but instead it has only been prohibited in recent months and years at the whim of the current Chairman of the Board, who chooses to bully his critics rather than engage in dialogue …
Responding to the Board’s claim that Shinbrot could re-enter the meeting, plaintiffs write, in court papers, “According to the University Senate Handbook, the members who jointly serve on the Senate and BoG are supposed to serve “with full voice but without vote” on the BoG. However, Defendants admit to repeatedly silencing Plaintiff Shinbrot during the June 22, 2021 meeting of the BoG, and then cutting off his access to the meeting by “shutting off” the precise link that they sent him to participate in the meeting. Plaintiff Shinbrot tried to use the link again but was informed that his access to the meeting had been terminated and that he could not re-enter the meeting, and he was thus unable to witness the remainder of the meeting.”
Kratovil and Shinbrot argue that the Board of Governors violated its own rules by refusing to explain their decisions. In court papers, plaintiffs cite the Handbook of Members of the Governing Boards, published by Rutgers University. According to the Handbook, “Where action is the subject of concern or dispute, the Chair or the President shall explain the basis of such action”. According to court papers, “to date, defendants [Board of Governors] have not explained why they have repeatedly ruled Plaintiff Kratovil out of order for asking questions about items he had properly signed up to speak on. The Chair of the Board has been asked many times to explain himself, and has not identified any legal basis for his actions. Instead, he tells Plaintiffs to “read the rules,” something that he has not apparently done himself.”
Lastly, Kratovil and Shinbrot allege that the Board engages in viewpoint discrimination against the plaintiffs. According to court papers, “Because the decisions to silence both Plaintiffs were made in direct response to commentary that should have been allowed under the rules in place, and because Defendants have exercised their power to silence the Plaintiffs and stifle public discussion, and because they took the extreme action of removing one of the Plaintiffs from the June 22, 2021 meeting, the Defendants are clearly engaging in unconstitutional viewpoint-based discrimination rather than enforcing any legitimate rule or law.
For the foregoing reasons, the motionless request for dismissal with prejudice should be denied, and the relief sought should be granted.”
Board of Governors’ Legal Arguments
In court papers filed October 29, 2021, attorneys for Rutgers University argued that the Board of Governors did not violate of Open Public Meetings Act on June 22, 2021. According to court documents, “members of the public have no right to participate in the Board’s public meetings. Additionally, Shinbrot attended the meeting as a faculty representative to the Board: he was not at the meeting as a member of the public. And after he was removed from the Board table, he apparently made no effort to rejoin the meeting as a member of the public. Thus the Board’s actions as described in the complaint do not violate any law…”
The Board of Governors argued in court papers that it began to conduct remote meetings because of the COVID-19 pandemic. According to court papers, “the meetings are structured like online webinars where Board members, non-voting University Senate representatives, and administrators who sit on the Board table when in person, receive individualized links that are unique to each participant and each person has speaking ability – much like a remote webinar presenter would. Members of the public, on the other hand, attend the meeting through a general web link that is provided on the Board of Governors’ website. Members of the public are not able to speak through the remote system unless expressly granted speaking permission by the person running the virtual platform (usually Zoom).”
Background at Board Meetings from February 23 to June 22, 2021
In court papers, the Board of Governors (BOG) argued that “at meetings prior to June 22, 2021, both Shinbrot and Kratovil had been advised that their conduct was inappropriate.” These would be the February 23 and April 14, 2021 Board of Governors meetings.
The BOG alleges that Shinbrot was being disruptive at the June 22 meeting by speaking out of turn. “As a result of these disruptions, Shinbrot’s microphone was muted. He repeatedly unmuted himself, continuing to speak out of turn and disrupt the meetings.”
The Board’s argument is that neither Shinbrot nor Kratovil understand the rules by which Board of Governors meetings are held. This, says the Board is true even for Shinbrot, who is a tenured professor.
“Upon Kratovil’s microphone being muted [at the June 22 meeting], Shinbrot again unmuted himself and continued the line of questions and accusations begun by Kratovil with respect to Board transparency, and he appears to claim that, as a faculty representative to the Board, he had a right to speak and when he pleased.
Because he had already disrupted the meeting multiple times and was again disrupting the meeting by continuing the inquiry started by Kratovil, Shinbrot was removed from the virtual Baod table by way of shutting off his connection link. Shinbrot did not contact the Office of the Secretary with a request to be readmitted to the Board table. Nor did he rejoin the meeting through the public access readily available on the Office of the Secretary’s webpage, although he could have done so on his own, “court papers state.
In court papers, the Board of Governors argues that it did not violate the Open Public Meetings Act. “Because the Board has no legal obligation to permit public comment, and because plaintiff Kratovil, a member of the public, does not have a legal right to participate in Board meetings, his inability to speak for a full two minutes did not violate OPMA. The Board’s decision to go above and beyond OPMA’s requirement should not expose it to plaintiffs’ legal attack, state court papers.
The Board argues that Kratovil could only “comment” or “present” or speak “only on the agenda item for which he is registered.” By questioning the Board about matters that were not on the Board’s agenda and demanding answers to his questions, Kratovil exceeded the limits on his participation,” state court papers.
“Neither the Bylaws [of the Board] nor the Secretary’s email indicates that Kratovil or any member of the public, would be permitted to engage in a question-and-answer session with the Board or would be able to address a topic other than the specified agenda item,” the Board’s lawyers wrote in court papers.
University Senate slow to act against Board of Governors
Asked about the response of the University Senate to the Board of Governors’ apparent disrespect of a Senate member, Shinbrot said the Senate was very slow. In an email to “Local Talk” dated October 27, Shinbrot wrote, “The Senate is moving typically glacially: the Structure & Governance Committee (Peter Gillette chair, Perry Dane cochair) took up a charge on how relations between the Senate and the Board could be improved. Eventually there will be a recommendation; by that time probably there will be a new chair of the BoG anyway.”
Neither Dr. Sam Rabinowitz, Shinbrot’s successor as University Senate representative to the Board of Governors, nor Jon Oliver, the president of the Senate, responded to “Local Talk’s” previous emails for comment. Oliver referred to matter to University Media Relations, which did not respond.
According to court papers, minutes and video of the Board of Governors meetings are to be submitted by both plaintiff and defendants no later than 5:00 p.m. November 19, 2021. All parties are ordered to appear via telephone conference in New Brunswick on November 30, 2021 at 9:30 a.m.
“Local Talk” will keep its readers updated as to the progress of the Kratovil and Shinbrot v. Rutgers Board of Governors lawsuit.
