February 12, 2014
William J. Brennan, First Assistant
Salem County Prosecutor’s Office
87 Market Street
Salem, NJ 08079
via e-mail only to [email protected]
Dear Mr. Brennan:
On behalf of the New Jersey Libertarian Party’s Open Government Advocacy Project, I wish to report some issues I have with whether the manner in which the Penns Grove-Carneys Point Regional Board of Education authorizes and records minutes of its nonpublic (i.e. closed or executive) meetings comports with the Senator Byron M. Baer Open Public Meetings Act.
Today I received copies of some recent Board non-public meeting minutes and authorizing resolutions and have put them on the Internet here. I have several concerns regarding these resolutions and minutes. Chief among them are:
a) the Board appears to use the same, general, boiler-plate language to authorize each of its closed sessions (see pages 7, 11 and 17 of the PDF at the above link.) The language describes the topics in a such a general way (i.e. “matters of personal confidentiality rights, including but not limited to, staff and/or student discipline matters [and] matters which, if publicly disclosed, would constitute an unwarranted invasion of individual privacy”) that the public has no real sense of what topics are discussed.
Compare the Board’s resolution language to that considered by the Supreme Court in McGovern v. Rutgers, 211 N.J. 94, 111 (2012). In McGovern, Rutgers’ resolution informed the public that “matters involving contract negotiations for sports marketing, naming rights of athletics facilities and stadium construction; employment of personnel and terms and conditions of employment; and pending litigation, investigations, and matters falling within the attorney-client privilege with respect to these subjects” would be discussed.
Unlike the public who observed the Penns Grove-Carneys Point Board meetings, those attending the Rutgers Board meetings would at least know that specific topics, such as “sport marketing” and “naming rights” of facilities would be discussed. The Penns Grove-Carneys Point Board, in order to comply with N.J.S.A. 10:4-13, should include a similar amount of detail in its N.J.S.A. 10:4-13 resolutions.
b) the Board’s December 2, 2013 closed meeting agenda includes a “Board Procedures/Open Forum” at its (see page 20 of the PDF at the above link) and that topic heading was followed by a redacted sentence beginning with “Ms. Cobina informed the Board [REDACTED].”
The exceptions to the Meetings Act’s mandate that openness and transparency should be the norm and that the Act should be strictly construed against closure of meetings calls into question the legitimacy of a “Board Procedures/Open Forum” item on the closed session agenda where, presumably, all manner of topics can be discussed.
c) At 8:20 p.m. on November 18, 2013 (see page 15 of the PDF at the above link), four members (i.e. a quorum) of the Board members present “left the [closed] meeting” to have “private conversations.” The practice of nesting private conversations within an executive session should be labeled improper by your office because this practice allows Board members to discuss public business without having their comments captured in the minutes.
d) There are several other topics of discussion that don’t appear to fall within any of the N.J.S.A. 10:4-12(b) exceptions. Among them are:
1) On page 9, a discussion related to “new hiring guidelines.” (If the “personnel exception” (N.J.S.A. 10:4-12(b)(8)) is the rationale, it doesn’t appear that specific employees were discussed, but that a general matter of policy was discussed.)
2) On page 13, requests to attend a New Orleans conference and the Comprehensive Maintenance Plan were privately discussed. I don’t see why such a discussion could not have been held in public.
N.J.S.A. 10:4-17 authorizes your office to assess civil penalties against officials who “knowingly violate” the Meetings Act. I have no evidence that any of the conduct about which I complain was done “knowingly,” but some county prosecutors have issued guidelines and recommendations to help public bodies within their jurisdictions better comply with the Meetings Act’s provisions. See, e.g. the Gloucester County Prosecutor’s action here.
Would you please, after reviewing the matters raised in this letter, reach out to the Penns Grove-Carneys Point Board with some advice on how they can better comply with the Meetings Act.
Thank you for your attention to this matter.
Very truly yours,
John Paff, Chairman
New Jersey Libertarian Party’s
Open Government Advocacy Project
P.O. Box 5424
Somerset, NJ 08875
e-mail: [email protected]
cc. Penns Grove – Carneys Point Regional Board members
via e-mail to [email protected]