Executive session resolution information and Court Rulings

To: EdgewaterPark Reporter <edgewaterparkreporter@yahoo.com>
Sent: Saturday, June 27, 2009 10:46:27 AM
Subject: FW: Level of "personnel" details in executive session resolutions
From: John Paff <paff@pobox.com>
Date: Fri, 26 Jun 2009 17:13:25 -0400
To: <paff@pobox.com>
Subject: Level of "personnel" details in executive session resolutions

A question I received from a correspondent:

When a public body goes into executive session to privately discuss a
"personnel" issue, how much detail on the personnel issue being
discussed needs to appear in the resolution that authorizes the
executive session? For example, it is permissible for the resolution
to simply say that "personnel issues" are going to be discussed, or
should it say something more, such as "personnel issues regarding a
public works employee" or even "disciplinary issues regarding Mary
Smith, a public works employee" are being discussed?

My response:

I have never seen a court decide this question, but I have convinced
several municipalities, in consent judgments, to adopt the following
rule on how to decide this thorny question: The governing body shall,
in the normal case, disclose as much information in its executive
session resolution about a personnel matter that the body's attorney
predicts will be publicly disclosed about the same personnel matter
when the executive session minutes are later released.

I base this rule on the New Jersey Supreme Court's decision in South
Jersey Publishing Company, Inc. v. New Jersey Expressway Authority,
124 N.J. 478 (1991). This case held that a) the public needs
information if it is properly fulfill its role of evaluating the
wisdom of governmental action or a decision not to act, b) that New
Jersey's strong public policy requires that a public body's actions
and decisions to not act be disclosed in the body's closed meeting
minutes along with sufficient facts and information to permit the
public to understand and appraise the reasonableness of the body's
determination, and c) to the extent a cognizable privacy interest may
be compromised by the required disclosure, the extent of disclosure
may be modified through redactions of the minutes, provided the
public interest in disclosure is not subverted

Accordingly, my position is that if the public body is going to
publicly identify the name of the employee under discussion and the
reason why he or she was being discussed in the body's executive
meeting minutes, when the nonexempt portions of those meeting minutes
are released (perhaps thirty days after the meeting), there is no
compelling need withhold the same information from the public when
the meeting is held.

For example, suppose that a Borough Council goes into closed session
on July 1, 2009 to discuss whether Mary Smith, a public works
employee, ought to be disciplined for repeatedly arriving late to
work. If the nonexempt portions of the executive meeting's minutes,
which will be "promptly" disclosed on or before August 1, 2008, are
going to inform the public that the Council decided to discipline (or
not discipline) Mary Smith for habitual lateness, it doesn't seem to
serve any legitimate public purpose to tell the public, in the July
1, 2009 executive resolution, only that a "personnel" matter is going
to be discussed.

It seems to me that if the public is going to know who was being
privately discussed and why they were being privately discussed in a
month's time, there's no compelling reason for depriving the public
from knowing the name of the employee and the nature of the
discussion before the discussion takes place. While I'm certain that
Mary Smith isn't going to be thrilled that everyone in town will know
that discipline is being considered because of her habitually
lateness to work, it's not going to be substantially less
embarrassing for her if the public knows this information on August
1st instead of July 1st.

I'm not arguing that an employee can never have a legitimate privacy
interest in issues touching upon his or her employment. If, suppose,
a municipal council wanted to discuss giving employee John Doe an
extended leave of absence because he has dread disease, his interest
in keeping his disease private would appear to easily exceed the
public's interest in knowing this very personal
information. Further, I'm not even arguing that the public's
interest in knowing about every routine disciplinary case, such as
Mary Smith being dunned for habitual lateness, will always exceed the
employee's right to privacy.

Rather, all I am saying is that a skilled municipal attorney who is
aware that a certain personnel matter is going to be privately
discussed, ought to be able to apply the South Jersey Publishing
case's standard to that personnel matter and fairly accurately
predict the level of detail that the private meeting minutes will
disclose when the nonexempt parts of those minutes are released the
following month.

If the attorney predicts that the employee's identity and the nature
of discussion will be publicly identified in the upcoming minutes,
then I assert that in the normal case, the public's interest in
knowing that information now, instead of a month from now, is greater
than the employee's interest in keeping that information under wraps
for another month. Conversely, if the attorney predicts that the
employee's privacy interests warrant less information to appear in
the minutes, then less information ought to also appear in the
corresponding executive resolution.

John Paff
Somerset, New Jersey

------ End of Forwarded Message

From: John Paff <paff@pobox.com>
Date: Sat, 27 Jun 2009 20:46:00 -0400
To: <paff@pobox.com>
Subject: Favorable settlement in OPMA/OPRA case against Howell Township

In August 2008, I filed a five count pro se lawsuit against Howell
Township in Monmouth County. On June 27, 2009, I received in the
mail a signed Consent Judgment that resolved the first three counts
of the complaint. The other two counts are still pending.

My Amended Complaint and the Settlement Agreement are on-line at
http://ogtf.lpcnj.org/2009177A1//HowellOPMA.pdf

Following is a summary:

FIRST COUNT

I complained that the Township Council's closed session resolutions
were too vaguely worded. For example, the June 10, 2008 resolution
stated that the Council was going to privately discuss "Litigation,
Personnel, Attorney Client Privilege." In the Consent Order, the
Township, without admitting wrongdoing, agreed, going forward, to
"set forth [within its executive resolutions] as much information
about the topic(s) to be privately discussed that can be disclosed
without undermining the N.J.S.A. 10:4-12(b) exception that authorized
the topic(s) to be discussed in private."

SECOND COUNT

I complained that the Council, during its May 20, 2008 executive
session, discussed an issue that ought to have been discussed in
public--the formation of a COAH Advisory Board. In the Consent
Order, the Township, without admitting wrongdoing, agreed, going
forward "to carefully separate those issues that are eligible for
nonpublic discussion in accordance with N.J.S.A. 10:4-12(b) from
those that are not, and that in making this separation, the Council
shall strictly construe the N.J.S.A. 10:4-12(b) exceptions against
closure and in favor of openness in accordance with the decisions of
the Superior Court regarding this issue."

THIRD COUNT

I complained that the Clerk, when explaining why certain matters were
redacted, didn't explain the redactions in enough detail to make is
possible for me to determine whether or not the redactions were
properly applied. For example, the Clerk might explain why a large
block of text was redacted by simply stating "Attorney Client
Privilege." In the Consent Order, the Clerk, without admitting
wrongdoing, agreed, going forward, "to provide a requestor of
government records that are exempted and or redacted, in whole or in
part, with a exemption/redaction index that provides: a) the legal
basis for each suppression or redaction together with b) additional
information to enable the requestor to understand the nature of the
suppressed or redacted material and why it was redacted."

John Paff
Somerset, New Jersey

Dear Blog Readers,

The information provided above is to help you to know what information is to be provided to the public when the Township Committee goes into an Executive meeting (Closed Session). This must be stated in the Closed Session Resolution, according to NJ law.

If you have any questions about the laws in NJ on what information is to be made available to the public and what record access the public is entitled to, you can ask John Paff via his email address John Paff .

John Paff has many court victories against municipalities who have tried to keep the public in the dark about their actions much like the Edgewater Park Township Committee, Administrator/Clerk and Solicitor are doing.

If you want open government in Edgewater Park, you need to help by requesting budget information, minutes of executive meetings and correspondence and if the Clerk/Administrator rejects your request, make sure you get the rejection in writing and pass it on to John Paff. He will respond to you and if the reasons for rejection by the Clerk/Administrator are egregious enough he may get involved in the case.

Many of the past actions and practices of the Administrator/Clerk, Township Committee and Mayor have been to bully anyone requesting information or to have their question answered. Have you ever been to a Township Public Meeting and witnessed a resident ask a question and no one will answer it. This goes on all the time and is not right.

We will be providing a link to a list of questions you may want to ask at the Public Budget Hearing next month. You can send your questions in writing to the Clerk/Administrator prior to the meeting requesting that they be read at the meeting and that you receive an answer to your questions in writing if you are unable to attend the meeting.

It helps if you have your questions written down when you ask them at a public meeting.

You should address any general questions to the Mayor first then ask each Committeeman the same question so that you have a record of all five Committee Members answers to your question.

The Mayor will try and limit you're speaking time (usually 3 min.) then try and use your time with speaking and not answering your question directly. That is why it is a good idea to hand out five copies of your questions to the Clerk, asking that they be given to the five members of committee prior to you're asking the questions publicly. This should keep the record straight about what you are requesting committee to answer. Most times the committee will direct one of the professionals or township officials to answer your questions.

To be continued,

The Edgewater Park Reporter