MER-L-002241-18 12/19/2018 5:05:00 PM Pg 1 of 20 Trans ID ...
Transcript of MER-L-002241-18 12/19/2018 5:05:00 PM Pg 1 of 20 Trans ID ...
MER-L-002241-18 12/19/2018 5:05:00 PM Pg 1 of 20 Trans ID: LCV20182202220
Cherie Lee Adams Adam S. Herman
Dertys Maria Gutierrez Andrew B. Brown
Perry L. Lattiboudere Audra A. Pondish
Sandro Pottedri William J. Votonte
Jerrold J. Wohtgemuth Leslie F. Prentice
John E. Croot, Jr. David Katisky
THE LEGAL CENTER 1037 Raymond Blvd., Suite 900 Newark, NJ 07102 973.735.2742
MARLTON OFFICE 10000 Lincoln Drive East Suite 201 Marlton, NJ 08053 856.988.5488 December 19, 2018
VIA E-FILING Honorable Mary C. Jacobson, J.S.C. Mercer County Superior Court Civil Law Division New Criminal Courthouse 499 S Warren Street Trenton, NJ 08650
Re: John Paff v. Trenton Board of Education, et al. Docket No.: MER-L-2241-18
Dear Judge Jacobson:
This firm represents Defendants Trenton Board of Education ("Board"), Gene Bouie
("Board Member Bouie"), Gerald Truehart ("Board Member Truehart"), Addie Daniels-Lane
(Board Member Daniels-Lane), Fiah Kwesseu ("Board Member Kwesseu"), Heather Watson
("Board Member Watson"), Lucy Vandenberg ("Board Member Vanderberg"), and Yolanda
Morrero-Lopez ("Board Member Morrero-Lopez) (hereafter collectively referred to as "Board
Defendants") in the above-referenced matter. In lieu of a more formal brief, kindly accept the
instant letter brief on behalf of the Board Defendants in response to Plaintiff, John Paff s
("Plaintiff') Order to Show Cause and Verified Complaint. For the reasons set forth below, the
Board Defendants respectfully submit that Plaintiffs Order to Show Cause and Verified Petition
must be dismissed with prejudice.
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FACTS
The Board is a public corporate entity authorized to do business in the State of New Jersey
and vested with the power and authority to provide a thorough and efficient education for the
children of the City is School District under the auspices of the State of New Jersey in accordance
with the laws governing public schools found in N.J.S.A. 18A:1-1 et seq. Board Member Bouie,
Board Member Truehart, Board Member Daniels-Lane, Board Member Kwesseu, Board Member
Watson, Board Member Vanderberg and Board Member Morrero-Lopez serve as Board Members.
It is the Board's practice on the Friday before each regularly scheduled Board meeting to
post and make publicly available on its website the Agenda, along with various attachments,
recommendations and presentations. The attachments and recommendations include, among other
things, action items for the Business and Talent Acquisition and Development ("TAD")
departments, and comprise of Resolutions for Board action. All of the aforementioned documents
therefore constitute the Agenda for the respective Board meeting, which is made available to the
public at least forty-eight (48) hours before each meeting. (see certification of James Rolle, Jr.
Esq.)
The September 24, 2018 Board meeting was the first regularly scheduled Board meeting
since classes commenced for the 2018-19 school year. As such, the September 24, 2018 Agenda
included a significant amount of business and matters to be considered and voted upon by the
Board. (see certification of James Rolle, Jr. Esq.)
The September 24, 2018 Board meeting was held at the District's Administrative Building
at 108 North Clinton Avenue, where Board meetings are usually held. The auditorium, where the
public portion of the meeting commence, contains audio equipment which permit the public
FACTS
The Board is a public corporate entity authorized to do business in the State of New Jersey
and vested with the power and authority to provide a thorough and efficient education for the
children of the City is School District under the auspices of the State of New Jersey in accordance
with the laws governing public schools found in N.J.S.A. 18A:1-1 et seq. Board Member Bouie,
Board Member Truehart, Board Member Daniels-Lane, Board Member Kwesseu, Board Member
Watson, Board Member Vanderberg and Board Member Morrero-Lopez serve as Board Members.
It is the Board’s practice on the Friday before each regularly scheduled Board meeting to
post and make publicly available on its website the Agenda, along with various attachments,
recommendations and presentations. The attachments and recommendations include, among other
things, action items for the Business and Talent Acquisition and Development (“TAD”)
departments, and comprise of Resolutions for Board action. All of the aforementioned documents
therefore constitute the Agenda for the respective Board meeting, which is made available to the
public at least forty-eight (48) hours before each meeting. (see certification of James Rolle, Jr.
Esq.)
The September 24, 2018 Board meeting was the first regularly scheduled Board meeting
since classes commenced for the 2018-19 school year. As such, the September 24, 2018 Agenda
included a significant amount of business and matters to be considered and voted upon by the
Board. (see certification of James Rolle, Jr. Esq.)
The September 24, 2018 Board meeting was held at the District’s Administrative Building
at 108 North Clinton Avenue, where Board meetings are usually held. The auditorium, where the
public portion of the meeting commence, contains audio equipment which permit the public
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portion of the meetings held in the auditorium to be recorded. (see certification of James Rolle, Jr.
Esq.)
The Board Secretary records the written minutes of the Meeting. To the extent Board
Secretary is unavailable, the General Counsel then records the written minutes. (see certification
of James Rolle, Jr. Esq.)
As set forth in the Board's published meeting minutes, the September 24, 2018 Board
meeting began at 5:36 p.m. At the end of the New Business section of the meeting, the Board
considered and passed an Executive Session Resolution at 8:44 p.m. Specifically, the Board
passed the following Resolution:
WHEREAS, The Open Public Meetings Act, codified as N.J.S.A. § 10:4-6, et seq., permits the exclusion of the public from a meeting under certain circumstances; and,
WHEREAS, the Trenton Board of Education is of the opinion that such circumstances presently exist, indicated as follows:
Any pending or anticipated litigation or contract negotiations to which the Board is or may become a party, and any matter falling within the Attorney-Client Privilege, to the extent that confidentiality is required to preserve the Attorney-Client Privilege and allow the Attorney to exercise his/her ethical duties as a lawyer:
MATTERS/CAPTION:
Memorandum of Understanding with the Trenton Educational Secretaries Association
Legal Invoice: TEA v. TBOE, Health Insurance Waiver, Docket No. AR-2017- 334 Reimbursement $2,200.00 to Arbitrator Elizabeth McGoldrick
Personnel matters related to the employment, appointment, termination of employment, terms and conditions of employment, evaluation of the performance of, promotion, or disciplining of any specific prospective public officer or employee or current public officer or employee employed or appointed by the public body, unless all individuals who could be adversely affected request, in writing, that the matter be discussed at a public meeting:
portion of the meetings held in the auditorium to be recorded. (see certification of James Rolle, Jr.
Esq.)
The Board Secretary records the written minutes of the Meeting. To the extent Board
Secretary is unavailable, the General Counsel then records the written minutes. (see certification
of James Rolle, Jr. Esq.)
As set forth in the Board’s published meeting minutes, the September 24, 2018 Board
meeting began at 5:36 p.m. At the end of the New Business section of the meeting, the Board
considered and passed an Executive Session Resolution at 8:44 p.m. Specifically, the Board
passed the following Resolution:
WHEREAS, The Open Public Meetings Act, codified as N.J.S.A. § 10:4-6, et seq.,
permits the exclusion of the public from a meeting under certain circumstances;
and,
WHEREAS, the Trenton Board of Education is of the opinion that such
circumstances presently exist, indicated as follows:
Any pending or anticipated litigation or contract negotiations to which the Board is
or may become a party, and any matter falling within the Attorney-Client Privilege,
to the extent that confidentiality is required to preserve the Attorney-Client
Privilege and allow the Attorney to exercise his/her ethical duties as a lawyer:
MATTERS/CAPTION:
Memorandum of Understanding with the Trenton Educational Secretaries
Association
Legal Invoice: TEA v. TBOE, Health Insurance Waiver, Docket No. AR-2017-
334 Reimbursement $2,200.00 to Arbitrator Elizabeth McGoldrick
Personnel matters related to the employment, appointment, termination of
employment, terms and conditions of employment, evaluation of the performance
of, promotion, or disciplining of any specific prospective public officer or employee
or current public officer or employee employed or appointed by the public body,
unless all individuals who could be adversely affected request, in writing, that the
matter be discussed at a public meeting:
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DESCRIPTION OF MATTER(S): Fir for Duty, Revised Merit Goals submission form, Completed Merit Goals submission form, Tenure Charges, Board Goals
NOW THEREFORE, BE IT RESOLVED, by the Trenton Board of Education, County of Mercer, State of New Jersey that an Executive Session will be held on September 24, 2018 for the statutorily permissible purposes indicated in this resolution.
BE IT FURTHER RESOLVED that action may be taken by the Board when it reconvenes in Open Session.
BE IT FINALLY RESOLVED that the minutes of the Executive Session with regard to the above subject matter shall be disclosed to the public at a later date and to the extent that the same is not prejudicial to the interests of the parties involved, no longer adverse to the public interest, or does not endanger any individual's right to privacy.
The Executive Session Resolution passed unanimously. (see certification of James Rolle, Jr. Esq.)
As has been the Board's practice in conducting Executive Sessions for the past several
years, the Board conducted the first Executive Session in the Board Conference Room, which is
right next door to the auditorium. This is done in order to discuss the permitted exempted matters
with greater privacy. It is also the Board's practice to invite the public into the Board Conference
Room at the end of the Executive Session to reconvene the public portion of the meeting. (see
certification of James Rolle, Jr. Esq.)
The doors to the Board Conference room open up directly to the hallway in front of the
auditorium. When the Board concluded its first Executive Session on September 24, 2018 at 10:46
p.m., it was announced that the public portion of the meeting was reconvening. A security guard
that is stationed outside the Board Conference Room opened the Board Conference Room doors
and any members of the public present were invited in. (see certification of James Rolle, Jr. Esq.)
During this public portion of the Board meeting, which reconvened at 10:46 p.m., the
Board voted on three Resolutions: Memorandum of Agreement (MOA) with Trenton Educational
Secretaries Association; Legal Invoice; and Fit for Duty. Since the Board desired to further discuss
DESCRIPTION OF MATTER(S): Fir for Duty, Revised Merit Goals
submission form, Completed Merit Goals submission form, Tenure Charges,
Board Goals
NOW THEREFORE, BE IT RESOLVED, by the Trenton Board of Education, County of
Mercer, State of New Jersey that an Executive Session will be held on September 24, 2018
for the statutorily permissible purposes indicated in this resolution.
BE IT FURTHER RESOLVED that action may be taken by the Board when it reconvenes
in Open Session.
BE IT FINALLY RESOLVED that the minutes of the Executive Session with regard to
the above subject matter shall be disclosed to the public at a later date and to the extent that
the same is not prejudicial to the interests of the parties involved, no longer adverse to the
public interest, or does not endanger any individual’s right to privacy.
The Executive Session Resolution passed unanimously. (see certification of James Rolle, Jr. Esq.)
As has been the Board’s practice in conducting Executive Sessions for the past several
years, the Board conducted the first Executive Session in the Board Conference Room, which is
right next door to the auditorium. This is done in order to discuss the permitted exempted matters
with greater privacy. It is also the Board’s practice to invite the public into the Board Conference
Room at the end of the Executive Session to reconvene the public portion of the meeting. (see
certification of James Rolle, Jr. Esq.)
The doors to the Board Conference room open up directly to the hallway in front of the
auditorium. When the Board concluded its first Executive Session on September 24, 2018 at 10:46
p.m., it was announced that the public portion of the meeting was reconvening. A security guard
that is stationed outside the Board Conference Room opened the Board Conference Room doors
and any members of the public present were invited in. (see certification of James Rolle, Jr. Esq.)
During this public portion of the Board meeting, which reconvened at 10:46 p.m., the
Board voted on three Resolutions: Memorandum of Agreement (MOA) with Trenton Educational
Secretaries Association; Legal Invoice; and Fit for Duty. Since the Board desired to further discuss
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the Superintendent's Revised Merit Goals Submission Form and the Completed Merit Goals
Submission Form, at 10:50 p.m., the Board passed another Resolution to conduct an another
Executive Session to discuss same. (see certification of James Rolle, Jr. Esq.)
Although the minutes utilize the word "adjourn," it was made clear at that time that the
Board was reconvening into Executive Session for the purpose of discussing the Superintendent's
Completed Merit Goals Submission Form and would then reconvene in public to take any action.
Indeed, no one announced that the meeting was concluded or over for the evening. (see
certification of James Rolle, Jr. Esq.)
Since the Board Secretary departed at 10:50 p.m., as the Executive Session discussion
was to involve a discussion regarding compensation for the individual she reports to, the Board's
General Counsel undertook the responsibility to record the written minutes. (see certification of
James Rolle, Jr. Esq.)
Any member of the public who remained in the Board Conference Room at 10:50 p.m. was
provided with the opportunity to observe the Board pass a motion to enter into the second
Executive Session. Any member of the public would have been asked to move to the hallway or
auditorium during the pendency of the second Executive Session. This second Executive Session
lasted approximately fifty-five (55) minutes. (see certification of James Rolle, Jr. Esq.)
At the conclusion of the second Executive Session, it was announced that the public portion
of the meeting was reconvening. A security guard that is stationed outside the Board Conference
Room opened the Board Conference Room doors and any members of the public present were
invited in. Any member of the public who remained in the hallway or auditorium would have been
invited back into the Board Conference Room at 11:45 p.m. to witness the Board's public vote.
(see certification of James Rolle, Jr. Esq.)
the Superintendent’s Revised Merit Goals Submission Form and the Completed Merit Goals
Submission Form, at 10:50 p.m., the Board passed another Resolution to conduct an another
Executive Session to discuss same. (see certification of James Rolle, Jr. Esq.)
Although the minutes utilize the word “adjourn,” it was made clear at that time that the
Board was reconvening into Executive Session for the purpose of discussing the Superintendent’s
Completed Merit Goals Submission Form and would then reconvene in public to take any action.
Indeed, no one announced that the meeting was concluded or over for the evening. (see
certification of James Rolle, Jr. Esq.)
Since the Board Secretary departed at 10:50 p.m., as the Executive Session discussion
was to involve a discussion regarding compensation for the individual she reports to, the Board’s
General Counsel undertook the responsibility to record the written minutes. (see certification of
James Rolle, Jr. Esq.)
Any member of the public who remained in the Board Conference Room at 10:50 p.m. was
provided with the opportunity to observe the Board pass a motion to enter into the second
Executive Session. Any member of the public would have been asked to move to the hallway or
auditorium during the pendency of the second Executive Session. This second Executive Session
lasted approximately fifty-five (55) minutes. (see certification of James Rolle, Jr. Esq.)
At the conclusion of the second Executive Session, it was announced that the public portion
of the meeting was reconvening. A security guard that is stationed outside the Board Conference
Room opened the Board Conference Room doors and any members of the public present were
invited in. Any member of the public who remained in the hallway or auditorium would have been
invited back into the Board Conference Room at 11:45 p.m. to witness the Board’s public vote.
(see certification of James Rolle, Jr. Esq.)
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After the public portion of the meeting was reopened, the Board voted to approve the
submission of the Superintendent's Completed Merit Goals to the County Office of the New Jersey
Department of Education. The September 24, 2018 Resolution to discuss personnel matters,
specifically the discussion of merit goals submission form, complies with the procedural
requirements of N.J.S.A. 10:4-13(a), as it gave the public sufficient information that it was to
consider the Superintendent's Completed Merit Goal form, which was a confidential personnel
matter. (see certification of James Rolle, Jr. Esq.)
Indeed, the public was well aware, as it was common knowledge, that the Board's
discussion of the Merit Goals Submission Form would specifically entail an evaluation of the
Superintendent's annual performance in consideration of granting a merit bonus, and that a vote
on the matter was possible after the Executive Session.'
Additionally, the meeting minutes and audio recording demonstrate that the Board
informed the public, as is required by N.J.S.A. 10:4-13(b), that action "may" be taken on any
subject matter discussed in the closed Executive Session, including the Merit Goals Submission
Form.
Consideration of the submission of the Superintendent's Completed Merit Goals to the
County Office of the New Jersey Department of Education is a personnel matter properly discussed
in Executive Session. The County Office of the New Jersey Department of Education is
responsible for reviewing and approving the Superintendent's Completed Merit Goals. Once
approved by the County Office of the New Jersey Department of Education, the Board can
1 At 2:05:25 of the audio recording of the meeting reflects that approximately forty-five (45) minutes prior to the Board passing the resolution, the public was specifically and repeatedly told by TEA President Twanda Taylor about how the Board was going to privately discuss whether or not to grant bonus payment to the Superintendent based on his ability to show that he achieved his required merit goals.
After the public portion of the meeting was reopened, the Board voted to approve the
submission of the Superintendent’s Completed Merit Goals to the County Office of the New Jersey
Department of Education. The September 24, 2018 Resolution to discuss personnel matters,
specifically the discussion of merit goals submission form, complies with the procedural
requirements of N.J.S.A. 10:4-13(a), as it gave the public sufficient information that it was to
consider the Superintendent’s Completed Merit Goal form, which was a confidential personnel
matter. (see certification of James Rolle, Jr. Esq.)
Indeed, the public was well aware, as it was common knowledge, that the Board’s
discussion of the Merit Goals Submission Form would specifically entail an evaluation of the
Superintendent’s annual performance in consideration of granting a merit bonus, and that a vote
on the matter was possible after the Executive Session.1
Additionally, the meeting minutes and audio recording demonstrate that the Board
informed the public, as is required by N.J.S.A. 10:4-13(b), that action “may” be taken on any
subject matter discussed in the closed Executive Session, including the Merit Goals Submission
Form.
Consideration of the submission of the Superintendent’s Completed Merit Goals to the
County Office of the New Jersey Department of Education is a personnel matter properly discussed
in Executive Session. The County Office of the New Jersey Department of Education is
responsible for reviewing and approving the Superintendent’s Completed Merit Goals. Once
approved by the County Office of the New Jersey Department of Education, the Board can
1 At 2:05:25 of the audio recording of the meeting reflects that approximately forty-five (45) minutes prior to the Board passing the resolution, the public was specifically and repeatedly told by TEA President Twanda Taylor about how the Board was going to privately discuss whether or not to grant bonus payment to the Superintendent based on his ability to show that he achieved his required merit goals.
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formally approve and process the respective merit goal payment to the Superintendent. (see
certification of James Rolle, Jr. Esq.)
The Board did not approve any payment to the Superintendent on September 24, 2018.
Rather, they only approved the Superintendent's Completed Merit Goals Submission Form. The
Form was subsequently transmitted to the County Office of the New Jersey Department of
Education, who is charged with reviewing and determining whether the goals have been met and
whether payment for obtaining the goals should be considered by the Board at another meeting.
For the reasons that follow, the Board Defendants respectfully submit that Plaintiffs Order
to Show Cause and Verified Petition must be dismissed with prejudice.
LEGAL ARGUMENT
I.
THE SEPTEMBER 24, 2018 BOARD MEETING COMPLIED WITH THE REQUIREMENTS OF THE OPEN PUBLIC MEETINGS ACT AS THE BOARD
PROVIDED ADEQUATE NOTICE OF THE EXECUTIVE SESSION DISCUSSION TO DISCUSS A PERSONNEL MATTER.
The Open Public Meetings Act "OPMA", also referred to as the "Sunshine Law," was
enacted to ensure the public's right "to be present at all meetings of public bodies, and to witness
in full detail all phases of deliberation, policy formulation, and decision making of public bodies,"
in order to allow "the enhancement and proper functioning of the democratic process." N.J.S.A.
10:4-7. Under OPMA, the State of New Jersey requires that government agencies provide its
citizens "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..." Id.
According to N.J.S.A. 10:4-8(c) "Adequate notice" is defined as:
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, which notice shall accurately state whether formal action may or
formally approve and process the respective merit goal payment to the Superintendent. (see
certification of James Rolle, Jr. Esq.)
The Board did not approve any payment to the Superintendent on September 24, 2018.
Rather, they only approved the Superintendent’s Completed Merit Goals Submission Form. The
Form was subsequently transmitted to the County Office of the New Jersey Department of
Education, who is charged with reviewing and determining whether the goals have been met and
whether payment for obtaining the goals should be considered by the Board at another meeting.
For the reasons that follow, the Board Defendants respectfully submit that Plaintiff’s Order
to Show Cause and Verified Petition must be dismissed with prejudice.
LEGAL ARGUMENT
I.
THE SEPTEMBER 24, 2018 BOARD MEETING COMPLIED WITH THE
REQUIREMENTS OF THE OPEN PUBLIC MEETINGS ACT AS THE BOARD
PROVIDED ADEQUATE NOTICE OF THE EXECUTIVE SESSION DISCUSSION TO
DISCUSS A PERSONNEL MATTER.
The Open Public Meetings Act “OPMA”, also referred to as the “Sunshine Law,” was
enacted to ensure the public’s right “to be present at all meetings of public bodies, and to witness
in full detail all phases of deliberation, policy formulation, and decision making of public bodies,”
in order to allow “the enhancement and proper functioning of the democratic process.” N.J.S.A.
10:4-7. Under OPMA, the State of New Jersey requires that government agencies provide its
citizens “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…” Id.
According to N.J.S.A. 10:4-8(c) “Adequate notice” is defined as:
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, which notice shall accurately state whether formal action may or
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may not be taken and which shall be (1) prominently posted in at least one public place reserved for such or similar announcements, (2) mailed, telephoned, telegrammed, or hand delivered to at least two newspapers which newspapers shall be designated by the public body to receive such notices because they have the greatest likelihood of informing the public within the area of jurisdiction of the public body of such meetings, one of which shall be the official newspaper, where any such has been designated by the public body or if the public body has failed to so designate, where any has been designated by the governing body of the political subdivision whose geographic boundaries are coextensive with that of the public body and (3) filed with the clerk of the municipality when the public body's geographic boundaries are coextensive with that of a single municipality, with the clerk of the county when the public body's geographic boundaries are coextensive with that of a single county, and with the Secretary of State if the public body has Statewide jurisdiction.
Id. Indeed, no public body can hold a meeting "unless adequate notice thereof has been provided
to the public." N.J.S.A. 10:4-9(a).
OPMA provides that a public body "may exclude" the public from meetings under specific
circumstances, including portions of a meeting at which the public body discusses any:
matter involving the employment, appointment, termination of employment, terms and conditions of employment, evaluation of the performance of, promotion, or disciplining of any specific prospective public officer or employee or current public officer or employee employed or appointed by the public body, unless all the individual employees or appointees whose rights could be adversely affected request in writing that the matter or matters be discussed at a public meeting.
N.J.S.A. 10:4-12(b)(8). Before a public body can exclude the public from such personnel
discussions, it must first adopt a resolution during a public portion of the meeting:
a. Stating the general nature of the subject to be discussed; and b. Stating as precisely as possible, the time when and the circumstances
under which the discussion conducted in the closed session of the public body can be disclosed to the public.
N.J.S.A. 10:4-13.
The personnel decision exemption under N.J.S.A. 10:4-12(b)(8) "focuses on free and
uninhibited discussion about matters relating to the hiring, firing, performance, compensation, and
may not be taken and which shall be (1) prominently posted in at least one
public place reserved for such or similar announcements, (2) mailed,
telephoned, telegrammed, or hand delivered to at least two newspapers
which newspapers shall be designated by the public body to receive such
notices because they have the greatest likelihood of informing the public
within the area of jurisdiction of the public body of such meetings, one of
which shall be the official newspaper, where any such has been designated
by the public body or if the public body has failed to so designate, where
any has been designated by the governing body of the political subdivision
whose geographic boundaries are coextensive with that of the public body
and (3) filed with the clerk of the municipality when the public body's
geographic boundaries are coextensive with that of a single municipality,
with the clerk of the county when the public body's geographic boundaries
are coextensive with that of a single county, and with the Secretary of State
if the public body has Statewide jurisdiction.
Id. Indeed, no public body can hold a meeting “unless adequate notice thereof has been provided
to the public.” N.J.S.A. 10:4-9(a).
OPMA provides that a public body “may exclude” the public from meetings under specific
circumstances, including portions of a meeting at which the public body discusses any:
matter involving the employment, appointment, termination of
employment, terms and conditions of employment, evaluation of the
performance of, promotion, or disciplining of any specific prospective
public officer or employee or current public officer or employee employed
or appointed by the public body, unless all the individual employees or
appointees whose rights could be adversely affected request in writing
that the matter or matters be discussed at a public meeting.
N.J.S.A. 10:4-12(b)(8). Before a public body can exclude the public from such personnel
discussions, it must first adopt a resolution during a public portion of the meeting:
a. Stating the general nature of the subject to be discussed; and
b. Stating as precisely as possible, the time when and the circumstances
under which the discussion conducted in the closed session of the public
body can be disclosed to the public.
N.J.S.A. 10:4-13.
The personnel decision exemption under N.J.S.A. 10:4-12(b)(8) “focuses on free and
uninhibited discussion about matters relating to the hiring, firing, performance, compensation, and
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discipline of public employees. Such discussions necessarily involve subjective comments and
evaluations of employees by members of the public body, and their willingness to comment openly
and freely about such matters would obviously be inhibited if the discussion were to be conducted
publicly. The statutory exemption for personnel matters, recognizing the potentially-inhibiting
effect of public debate about the qualifications, performance, merit, and shortcomings of specific
employees, allows that debate to occur in executive session." S. Jersey Pub. Co. v. New Jersey
Expressway Auth., 124 N.J. 478, 493, (1991)(emphasis added); See also Burnett v. Gloucester
Cty. Bd. of Chosen Freeholders, 409 N.J. Super. 219 (App. Div. 2009).
The personnel decision exemption generally applies to policies that relate to a specific
individual employee, rather than policies that affect a group of employees. Burnett, supra at 239.2
When discussing matters that "concern[] the conduct of a public official that potentially affects the
expenditure of public funds" in a closed session, a public body must first pass a resolution before
the public stating the purpose of the closed session and "cannot withhold permanently the minutes"
from the public that recorded the resolution to hold the discussion in private. S. Jersey Pub. Supra,
at 494. When discussing matters that fall within the personnel decision exemption, the public need
only be provided "access to sufficient information to enable [it] to understand and evaluate the
reasonableness of the public body's action." Id. (emphasis added). Matters involving an individual
employee's promotion, termination, or granting of a bonus are not issues of public concern since
they do have an effect on the "overall level of educational services." Cole, supra at 409.
2 See Cole v. Woodcliff Lake Bd. of Ed., 155 N.J. Super. 398, (Law. Div. 1977), where the Court held that the school board's determination to discuss whether or not to renew an individual employee's "contract for another year, would touch on matters that, if aired publicly, might damage [her] reputation or her ability to secure other employment...Therefore, the holding of a private session by the [board] to evaluate [the employee's] job performance falls within N.J.S.A. 10:4-12(b)(8) and does not constitute a violation of the Sunshine Law." Id. at 404. Furthermore, the Court held that because the board's determination to renew the employee's contract "would in no way redound to other employees of the Woodcliff Lake school system...a request for a public hearing in this case would be inappropriate under this latter clause of N.J.S.A. 10:4-12(b)(8)." Id. at 405.
discipline of public employees. Such discussions necessarily involve subjective comments and
evaluations of employees by members of the public body, and their willingness to comment openly
and freely about such matters would obviously be inhibited if the discussion were to be conducted
publicly. The statutory exemption for personnel matters, recognizing the potentially-inhibiting
effect of public debate about the qualifications, performance, merit, and shortcomings of specific
employees, allows that debate to occur in executive session.” S. Jersey Pub. Co. v. New Jersey
Expressway Auth., 124 N.J. 478, 493, (1991)(emphasis added); See also Burnett v. Gloucester
Cty. Bd. of Chosen Freeholders, 409 N.J. Super. 219 (App. Div. 2009).
The personnel decision exemption generally applies to policies that relate to a specific
individual employee, rather than policies that affect a group of employees. Burnett, supra at 239.2
When discussing matters that “concern[] the conduct of a public official that potentially affects the
expenditure of public funds” in a closed session, a public body must first pass a resolution before
the public stating the purpose of the closed session and “cannot withhold permanently the minutes”
from the public that recorded the resolution to hold the discussion in private. S. Jersey Pub. Supra,
at 494. When discussing matters that fall within the personnel decision exemption, the public need
only be provided “access to sufficient information to enable [it] to understand and evaluate the
reasonableness of the public body's action.” Id. (emphasis added). Matters involving an individual
employee’s promotion, termination, or granting of a bonus are not issues of public concern since
they do have an effect on the “overall level of educational services.” Cole, supra at 409.
2 See Cole v. Woodcliff Lake Bd. of Ed., 155 N.J. Super. 398, (Law. Div. 1977), where the Court held that the school
board’s determination to discuss whether or not to renew an individual employee’s “contract for another year, would
touch on matters that, if aired publicly, might damage [her] reputation or her ability to secure other
employment…Therefore, the holding of a private session by the [board] to evaluate [the employee’s] job performance
falls within N.J.S.A. 10:4-12(b)(8) and does not constitute a violation of the Sunshine Law.” Id. at 404. Furthermore,
the Court held that because the board’s determination to renew the employee’s contract “would in no way redound to
other employees of the Woodcliff Lake school system…a request for a public hearing in this case would be
inappropriate under this latter clause of N.J.S.A. 10:4-12(b)(8).” Id. at 405.
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Therefore, a board of education stating that it will "review the performance of individual
personnel" at a board meeting is considered sufficient information for minor personnel decisions
if it is told to the public prior to entering the closed session. Id. Under OPMA, information is
considered sufficient as long as the information provided by the public body to the public does not
"merely recite[] the litany of exceptions which would allow it to proceed in closed session." Paff
v. Monroe Twp. Bd. of Educ., No. L-11146-99, 2007 WL 191984, at *4 (N.J. Super. Ct. Law Div.
Jan. 22, 2007). In other words, if a public body informs those attending a public meeting that an
executive session is about to be held and then lists all the possible topics that are permitted by law
to be discussed in executive sessions, instead of providing information that delineates in general
terms which particular exempted topics will discussed, such information is deemed insufficient.
Id. As long as the public body is not using the personnel exemption as "an excuse for excluding
the public from the entire process" of such determinations, then it will be in compliance with
OPMA. Gannett Satellite Info. Network, Inc. v. Bd. of Educ. of Borough of Manville, 201 N.J.
Super. 65, 69, (Law. Div. 1984)
Citing the opinion of the Attorney General, who concluded that based on N.J.S.A. 10:4-
9(a)'s provision that adequate notice is not required for any meeting limited only to consideration
of issues listed in section 12(b), the Court in Cole qualified the Attorney General's opinion holding
that OPMA "does not require a public body to provide 'adequate notice' of a closed session
provided that the public body, at a prior meeting, has passed a resolution stating the specific items
to be discussed in closed session. If the public body has not passed a resolution at a prior public
meeting, then it must give 'adequate notice' of the meeting to be held and, prior to going into
closed session at that meeting it must pass the required resolution." Id. at 406-407. (emphasis
added). Thus, a board of education simply passing a resolution in a public meeting stating that it
Therefore, a board of education stating that it will “review the performance of individual
personnel” at a board meeting is considered sufficient information for minor personnel decisions
if it is told to the public prior to entering the closed session. Id. Under OPMA, information is
considered sufficient as long as the information provided by the public body to the public does not
“merely recite[] the litany of exceptions which would allow it to proceed in closed session.” Paff
v. Monroe Twp. Bd. of Educ., No. L-11146-99, 2007 WL 191984, at *4 (N.J. Super. Ct. Law Div.
Jan. 22, 2007). In other words, if a public body informs those attending a public meeting that an
executive session is about to be held and then lists all the possible topics that are permitted by law
to be discussed in executive sessions, instead of providing information that delineates in general
terms which particular exempted topics will discussed, such information is deemed insufficient.
Id. As long as the public body is not using the personnel exemption as “an excuse for excluding
the public from the entire process” of such determinations, then it will be in compliance with
OPMA. Gannett Satellite Info. Network, Inc. v. Bd. of Educ. of Borough of Manville, 201 N.J.
Super. 65, 69, (Law. Div. 1984)
Citing the opinion of the Attorney General, who concluded that based on N.J.S.A. 10:4-
9(a)’s provision that adequate notice is not required for any meeting limited only to consideration
of issues listed in section 12(b), the Court in Cole qualified the Attorney General’s opinion holding
that OPMA “does not require a public body to provide ‘adequate notice’ of a closed session
provided that the public body, at a prior meeting, has passed a resolution stating the specific items
to be discussed in closed session. If the public body has not passed a resolution at a prior public
meeting, then it must give ‘adequate notice’ of the meeting to be held and, prior to going into
closed session at that meeting it must pass the required resolution.” Id. at 406-407. (emphasis
added). Thus, a board of education simply passing a resolution in a public meeting stating that it
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is going to "review the performance of individual personnel" in a closed session prior to entering
that closed session and stating approximately when the private matter would be disclosed would
meet the requirements of N.J.S.A. 10:4-13. Id. at 407.
The Board Defendants announced in its regular agenda for the September 24, 2018 meeting
that it would convene in an Executive or Closed Session and then reopen the public meeting.
During the public meeting the Board passed a resolution that it would enter into an executive
session for the purpose of discussing pending or anticipated litigation and/or "personnel matters
related to. _terms and conditions of employment, evaluation of the performance of...any...current
public officer or employee employed or appointed by the public body." Under its description of
personnel matters to be discussed in closed session, the resolution listed the following: Fit for
Duty, Revised Merit Goals submission form, Completed Merit Goals submission form, Tenure
Charges, Board Goals. Furthermore the resolution stated "that the minutes of the Executive Session
with regard to the above subject matter shall be disclosed to the public at a later date and to the
extent that the same is not prejudicial to the interests of the parties involved, no longer adverse to
the public interest, or does not endanger any individual's right to privacy."
In his brief, Plaintiff correctly points out that OPMA permits the exclusion of certain topics
from public discussion and, therefore, does not require the public body to provide adequate notice
that said topics will be discussed in closed session. However, Plaintiff is incorrect in stating that
the Board Defendants' discussion of the Superintendent's completed "Merit Goals Submission
Form" does not constitute one those exempted topics permitted to be discussed in closed session.
Clearly, the Board Defendants' discussion of the Superintendent's submission of the completed
merit goals form would be covered by the personnel decision exemption, as it would involve Board
members reviewing the Superintendent's performance as an employee and discussing whether or
is going to “review the performance of individual personnel” in a closed session prior to entering
that closed session and stating approximately when the private matter would be disclosed would
meet the requirements of N.J.S.A. 10:4-13. Id. at 407.
The Board Defendants announced in its regular agenda for the September 24, 2018 meeting
that it would convene in an Executive or Closed Session and then reopen the public meeting.
During the public meeting the Board passed a resolution that it would enter into an executive
session for the purpose of discussing pending or anticipated litigation and/or “personnel matters
related to…terms and conditions of employment, evaluation of the performance of…any…current
public officer or employee employed or appointed by the public body.” Under its description of
personnel matters to be discussed in closed session, the resolution listed the following: Fit for
Duty, Revised Merit Goals submission form, Completed Merit Goals submission form, Tenure
Charges, Board Goals. Furthermore the resolution stated “that the minutes of the Executive Session
with regard to the above subject matter shall be disclosed to the public at a later date and to the
extent that the same is not prejudicial to the interests of the parties involved, no longer adverse to
the public interest, or does not endanger any individual’s right to privacy.”
In his brief, Plaintiff correctly points out that OPMA permits the exclusion of certain topics
from public discussion and, therefore, does not require the public body to provide adequate notice
that said topics will be discussed in closed session. However, Plaintiff is incorrect in stating that
the Board Defendants’ discussion of the Superintendent’s completed “Merit Goals Submission
Form” does not constitute one those exempted topics permitted to be discussed in closed session.
Clearly, the Board Defendants’ discussion of the Superintendent’s submission of the completed
merit goals form would be covered by the personnel decision exemption, as it would involve Board
members reviewing the Superintendent’s performance as an employee and discussing whether or
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not he met contractual goals and would then qualify for bonus/merit compensation based on said
performance, subject to approval by the Executive County Superintendent and the Board at a
subsequent meeting. As such, the closed session meeting constituted a meeting limited only to
consideration of issues listed in section 12(b). Therefore, along with all the other closed session
topics of discussion, the Board was only required to provide the public access to information
sufficient enough to understand and evaluate the reasonableness of the its approval.
In accordance with N.J.A.C., 6A:23A-3.1(e)10iv, a board of education must submit a
resolution to the Executive County Superintendent certifying that a quantitative or qualitative merit
criterion has been satisfied. The Executive County Superintendent must then provide the board of
education with confirmation that the criterion has been satisfied prior to payment of any merit
bonus. Id.
Any assertion by Plaintiff that the discussion of the Superintendent's merit goals form in
closed session is not permitted by OPMA's personnel exemptions, or that the Board's resolution
to discuss the matter was only a list of topics that constituted a mere recitation of the litany of
exceptions that are allowed to be discussed in closed sessions, is plainly incorrect. The issue of
merit goals is clearly covered by personnel exemptions as it specifically relates to the Board
members conducting an evaluation of the superintendent's performance during the school year and
whether that performance merits additional compensation; all issues specifically mentioned in
N.J.S.A. 10:4-12(b)(8).
Additionally Plaintiffs claim that "the public would not and could not" know that a
discussion of completed merit goal submission forms "would encompass the discussion of a bonus
payment to the Superintendent" is false, as the audio recording of the meeting reflects that the
public was specifically and repeatedly told so by TEA President Twanda Taylor approximately
not he met contractual goals and would then qualify for bonus/merit compensation based on said
performance, subject to approval by the Executive County Superintendent and the Board at a
subsequent meeting. As such, the closed session meeting constituted a meeting limited only to
consideration of issues listed in section 12(b). Therefore, along with all the other closed session
topics of discussion, the Board was only required to provide the public access to information
sufficient enough to understand and evaluate the reasonableness of the its approval.
In accordance with N.J.A.C., 6A:23A-3.1(e)10iv, a board of education must submit a
resolution to the Executive County Superintendent certifying that a quantitative or qualitative merit
criterion has been satisfied. The Executive County Superintendent must then provide the board of
education with confirmation that the criterion has been satisfied prior to payment of any merit
bonus. Id.
Any assertion by Plaintiff that the discussion of the Superintendent’s merit goals form in
closed session is not permitted by OPMA’s personnel exemptions, or that the Board’s resolution
to discuss the matter was only a list of topics that constituted a mere recitation of the litany of
exceptions that are allowed to be discussed in closed sessions, is plainly incorrect. The issue of
merit goals is clearly covered by personnel exemptions as it specifically relates to the Board
members conducting an evaluation of the superintendent’s performance during the school year and
whether that performance merits additional compensation; all issues specifically mentioned in
N.J.S.A. 10:4-12(b)(8).
Additionally Plaintiff’s claim that “the public would not and could not” know that a
discussion of completed merit goal submission forms “would encompass the discussion of a bonus
payment to the Superintendent” is false, as the audio recording of the meeting reflects that the
public was specifically and repeatedly told so by TEA President Twanda Taylor approximately
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forty-five (45) minutes before the Board passed the resolution and entered the first closed session.
(See audio recording starting at 2:05:25).
Plaintiffs exhibits cite to a news article which quotes TEA representative Naomi Johnson-
Lafleur claiming that some teachers' union people "remained at the meeting until around 11:00
p.m." and that "people left the meeting because they believed it was over." However, Plaintiff is
unable to provide either direct or circumstantial evidence indicating which union members Ms.
Lafleur is referring to. Without any proof stating otherwise, the only evidence that provides a
reliable account of the Board meeting and its handling of the closed sessions are the meeting
minutes and audio recording of the meeting. The audio recording and minutes clearly proves that
the Board did pass a proper resolution to discuss the Superintendent's merit goals in closed session
and that those at the public meeting were made aware of what such a discussion would encompass.
During this public portion of the Board meeting, which reconvened at 10:46 p.m., the
Board voted on three Resolutions: Memorandum of Agreement (MOA) with Trenton Educational
Secretaries Association; Legal Invoice; and Fit for Duty. Since the Board desired to further discuss
the Superintendent's Revised Merit Goals Submission Form and the Completed Merit Goals
Submission Form, at 10:50 p.m., the Board passed another Resolution to conduct an another
Executive Session to discuss same.
Although the minutes utilize the word "adjourn," it was made clear at that time that the
Board was reconvening into Executive Session for the purpose of discussing the Superintendent's
Completed Merit Goals Submission Form and would then reconvene in public to take any action.
Indeed, no one announced that the meeting was concluded or over for the evening.
Since the Board Secretary departed at 10:50 p.m., as the Executive Session discussion
forty-five (45) minutes before the Board passed the resolution and entered the first closed session.
(See audio recording starting at 2:05:25).
Plaintiff’s exhibits cite to a news article which quotes TEA representative Naomi Johnson-
Lafleur claiming that some teachers’ union people “remained at the meeting until around 11:00
p.m.” and that “people left the meeting because they believed it was over.” However, Plaintiff is
unable to provide either direct or circumstantial evidence indicating which union members Ms.
Lafleur is referring to. Without any proof stating otherwise, the only evidence that provides a
reliable account of the Board meeting and its handling of the closed sessions are the meeting
minutes and audio recording of the meeting. The audio recording and minutes clearly proves that
the Board did pass a proper resolution to discuss the Superintendent’s merit goals in closed session
and that those at the public meeting were made aware of what such a discussion would encompass.
During this public portion of the Board meeting, which reconvened at 10:46 p.m., the
Board voted on three Resolutions: Memorandum of Agreement (MOA) with Trenton Educational
Secretaries Association; Legal Invoice; and Fit for Duty. Since the Board desired to further discuss
the Superintendent’s Revised Merit Goals Submission Form and the Completed Merit Goals
Submission Form, at 10:50 p.m., the Board passed another Resolution to conduct an another
Executive Session to discuss same.
Although the minutes utilize the word “adjourn,” it was made clear at that time that the
Board was reconvening into Executive Session for the purpose of discussing the Superintendent’s
Completed Merit Goals Submission Form and would then reconvene in public to take any action.
Indeed, no one announced that the meeting was concluded or over for the evening.
Since the Board Secretary departed at 10:50 p.m., as the Executive Session discussion
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was to involve a discussion regarding compensation for the individual she reports to, the Board's
General Counsel undertook the responsibility to record the written minutes.
Any member of the public who remained in the Board Conference Room at 10:50 p.m. was
provided with the opportunity to observe the Board pass a motion to enter into the second
Executive Session. Any member of the public would have been asked to move to the hallway or
auditorium during the pendency of the second Executive Session. This second Executive Session
lasted approximately fifty-five (55) minutes.
At the conclusion of the second Executive Session, it was announced that the public portion
of the meeting was reconvening. A security guard that is stationed outside the Board Conference
Room opened the Board Conference Room doors and any members of the public present were
invited in. Any member of the public who remained in the hallway or auditorium would have been
invited back into the Board Conference Room at 11:45 p.m. to witness the Board's public vote.
After the public portion of the meeting was reopened, the Board voted to approve the submission
of the Superintendent's Completed Merit Goals to the County Office of the New Jersey
Department of Education.
Thus, based on the foregoing, it is clear that the Board did not violate OPMA on September
24, 2018. As such, the Board Defendants respectfully submit that Plaintiffs Order to Show Cause
and Verified Petition must be dismissed with prejudice.
II.
PLAINTIFF IS NOT ENTITLED TO ANY RELIEF IN THE INSTANT MATTER.
The OPMA provides three forms of remedy for an alleged OPMA violation: a prerogative
writs action seeking to void any action taken at a meeting that did not meet OPMA' s requirements,
N.J.S.A. 10:4-15; injunctive relief to assure future compliance, N.J. S.A. 10:4-16; and the
was to involve a discussion regarding compensation for the individual she reports to, the Board’s
General Counsel undertook the responsibility to record the written minutes.
Any member of the public who remained in the Board Conference Room at 10:50 p.m. was
provided with the opportunity to observe the Board pass a motion to enter into the second
Executive Session. Any member of the public would have been asked to move to the hallway or
auditorium during the pendency of the second Executive Session. This second Executive Session
lasted approximately fifty-five (55) minutes.
At the conclusion of the second Executive Session, it was announced that the public portion
of the meeting was reconvening. A security guard that is stationed outside the Board Conference
Room opened the Board Conference Room doors and any members of the public present were
invited in. Any member of the public who remained in the hallway or auditorium would have been
invited back into the Board Conference Room at 11:45 p.m. to witness the Board’s public vote.
After the public portion of the meeting was reopened, the Board voted to approve the submission
of the Superintendent’s Completed Merit Goals to the County Office of the New Jersey
Department of Education.
Thus, based on the foregoing, it is clear that the Board did not violate OPMA on September
24, 2018. As such, the Board Defendants respectfully submit that Plaintiff’s Order to Show Cause
and Verified Petition must be dismissed with prejudice.
II.
PLAINTIFF IS NOT ENTITLED TO ANY RELIEF IN THE INSTANT MATTER.
The OPMA provides three forms of remedy for an alleged OPMA violation: a prerogative
writs action seeking to void any action taken at a meeting that did not meet OPMA’s requirements,
N.J.S.A. 10:4-15; injunctive relief to assure future compliance, N.J.S.A. 10:4-16; and the
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imposition of fines. Plaintiff's verified complaint seeks the voiding of actions and enjoinment of
any future OPMA violations. For the reasons that follow, the relief sought by Plaintiff must not
be granted even if the Court finds that the Board violated OPMA in the instant matter.
A. PLAINTIFF MAY NOT SEEK TO VOID ANY ACTION BY THE BOARD ON SEPTEMBER 24, 2018 AS HE DID NOT FILE A COMPLAINT IN LIEU OF A PREROGATIVE WRITs IN ACCORDANCE WITH RULE 4:69.
Rule 4:69 is entitled "Actions in Lieu of Prerogative Writs." Rule 6:69-1, which is entitled
"Actions in Superior Court, Law Division," provides that "[r]eview, hearing and relief heretofore
available by prerogative writs . . . shall be afforded by an action in the Law Division, Civil Part,
of the Superior Court." Additionally, said rule requires that "[t]he complaint shall bear the
designation "In Lieu of Prerogative Writs." Id.
Plaintiffs pleading in the instant matter is only entitled "Verified Complaint." The
Verified Complaint is void of any reference to Rule 4:69 and makes no reference to an action "In
Lieu of Prerogative Writs." Indeed, the introduction section of the Verified Complaint, Count One
and Count Two all failed to identify the matter as an action "In Lieu of Prerogative Writs."
As Plaintiff has not complied with Rule 4:69, the instant matter cannot be deemed to be an
action "In Lieu of Prerogative Writs." Therefore, Plaintiff is not legally entitled to an order voiding
any action from the subject Board meeting.
B. PLAINTIFF IS NOT ENTITLED TO ANY INJUNCTIVE RELIEF AS HE HAS NOT DEMONSTRATED A PATTERN OF NON-COMPLIANCE.
In Burnett, supra, it was held that injunctive relief may be appropriate if "a pattern of non-
compliance has been demonstrated." Id. While Plaintiff asserts that all the Board does with regard
to its Agenda is list "New Business" and "Adjourn to Executive Session," Plaintiff's assertion is
completely erroneous. As discussed above, it is the Board's practice on the Friday before each
imposition of fines. Plaintiff’s verified complaint seeks the voiding of actions and enjoinment of
any future OPMA violations. For the reasons that follow, the relief sought by Plaintiff must not
be granted even if the Court finds that the Board violated OPMA in the instant matter.
A. PLAINTIFF MAY NOT SEEK TO VOID ANY ACTION BY THE BOARD
ON SEPTEMBER 24, 2018 AS HE DID NOT FILE A COMPLAINT IN LIEU
OF A PREROGATIVE WRITs IN ACCORDANCE WITH RULE 4:69.
Rule 4:69 is entitled “Actions in Lieu of Prerogative Writs.” Rule 6:69-1, which is entitled
“Actions in Superior Court, Law Division,” provides that “[r]eview, hearing and relief heretofore
available by prerogative writs . . . shall be afforded by an action in the Law Division, Civil Part,
of the Superior Court.” Additionally, said rule requires that “[t]he complaint shall bear the
designation “In Lieu of Prerogative Writs.” Id.
Plaintiff’s pleading in the instant matter is only entitled “Verified Complaint.” The
Verified Complaint is void of any reference to Rule 4:69 and makes no reference to an action “In
Lieu of Prerogative Writs.” Indeed, the introduction section of the Verified Complaint, Count One
and Count Two all failed to identify the matter as an action “In Lieu of Prerogative Writs.”
As Plaintiff has not complied with Rule 4:69, the instant matter cannot be deemed to be an
action “In Lieu of Prerogative Writs.” Therefore, Plaintiff is not legally entitled to an order voiding
any action from the subject Board meeting.
B. PLAINTIFF IS NOT ENTITLED TO ANY INJUNCTIVE RELIEF AS HE
HAS NOT DEMONSTRATED A PATTERN OF NON-COMPLIANCE.
In Burnett, supra, it was held that injunctive relief may be appropriate if “a pattern of non-
compliance has been demonstrated.” Id. While Plaintiff asserts that all the Board does with regard
to its Agenda is list “New Business” and “Adjourn to Executive Session,” Plaintiff’s assertion is
completely erroneous. As discussed above, it is the Board’s practice on the Friday before each
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regularly scheduled Board meeting to post and make publicly available on its website the Agenda,
along with various attachments, recommendations and presentations. The attachments and
recommendations include, among other things, action items for the Business and Talent
Acquisition and Development ("TAD") departments, and comprise of Resolutions for Board
action. All of the aforementioned documents therefore constitute the Agenda for the respective
Board meeting, which is made available to the public at least forty-eight (48) hours before each
meeting. Since the Board publishes a comprehensive Agenda with attachments, which are made
available at least forty-eight (48) hours before each regularly scheduled meeting, Plaintiff's
assertion that the Board somehow has established a "pattern and practice" is frivolous and without
merit. Plaintiff simply decided to select certain Board documents for attachments to his Verified
Complaint. His selection of only certain Board meeting documents, as opposed to complete set of
documents made available to the public, cannot lead to the conclusion that the Board has been
violation of OPMA.
Therefore, in the instant matter, it is clear that the Plaintiff has failed to demonstrate that
that the Board has engaged in a repeated pattern of OPMA violations.
COUNT TWO OF PLAINTIFF'S COMPLAINT MUST BE DISMISSED AS HE HAS NOT IDENTIFIED ANY SPECIFIC CLAIM OR FACT THAT IS RELEVANT TO THE
FACTUAL PLEADINGS; NOR HAS HE IDENTIFIED PRECISELY WHICH CONSTITUTIONAL RIGHT OF HIS WAS ACTUALLY VIOLATED.
The CRA makes it unlawful for any person "acting under color of law" to "deprive[ ]" any
person of "substantive due process or equal protection rights, privileges or immunities secured by
the Constitution or laws of the United States, or any substantive rights, privileges or immunities
secured by the Constitution or laws of this State[.]" N.J. S.A. 10:6-2c. "[A] person may bring a
civil action under the [CRA] in two circumstances: (1) when he's deprived of a right, or (2) when
regularly scheduled Board meeting to post and make publicly available on its website the Agenda,
along with various attachments, recommendations and presentations. The attachments and
recommendations include, among other things, action items for the Business and Talent
Acquisition and Development (“TAD”) departments, and comprise of Resolutions for Board
action. All of the aforementioned documents therefore constitute the Agenda for the respective
Board meeting, which is made available to the public at least forty-eight (48) hours before each
meeting. Since the Board publishes a comprehensive Agenda with attachments, which are made
available at least forty-eight (48) hours before each regularly scheduled meeting, Plaintiff’s
assertion that the Board somehow has established a “pattern and practice” is frivolous and without
merit. Plaintiff simply decided to select certain Board documents for attachments to his Verified
Complaint. His selection of only certain Board meeting documents, as opposed to complete set of
documents made available to the public, cannot lead to the conclusion that the Board has been
violation of OPMA.
Therefore, in the instant matter, it is clear that the Plaintiff has failed to demonstrate that
that the Board has engaged in a repeated pattern of OPMA violations.
III.
COUNT TWO OF PLAINTIFF’S COMPLAINT MUST BE DISMISSED AS HE HAS
NOT IDENTIFIED ANY SPECIFIC CLAIM OR FACT THAT IS RELEVANT TO THE
FACTUAL PLEADINGS; NOR HAS HE IDENTIFIED PRECISELY WHICH
CONSTITUTIONAL RIGHT OF HIS WAS ACTUALLY VIOLATED.
The CRA makes it unlawful for any person “acting under color of law” to “deprive[ ]” any
person of “substantive due process or equal protection rights, privileges or immunities secured by
the Constitution or laws of the United States, or any substantive rights, privileges or immunities
secured by the Constitution or laws of this State[.]” N.J.S.A. 10:6-2c. “‘[A] person may bring a
civil action under the [CRA] in two circumstances: (1) when he's deprived of a right, or (2) when
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his rights are interfered with by threats, intimidation, coercion or force.' "Hurdleston v. New
Century Financial Corp., 629 F.Supp. 2d 434, 443 (D.N.J. 2009)(quoting Felicioni v. Admin.
Office of Courts, 404 N.J. Super. 382 (App.Div. 2008), certif. denied, 203 N.J. Super. 440 (2010).
The Act, then, is essentially a "State analog to the federal civil rights act codified at 42 U.S.C.A.
1983" that is "enforceable in New Jersey state courts." Statement of Gov. James E. McGreevey
dated September 10, 2004. See also Owens v. Feigin, 194 N.J. 607, 611-612 (2008).
Not only does Plaintiff's Complaint fail to state a specific claim, fact or even which
constitutional right was actually violated by the Board Defendants that would be relevant to a CRA
claim; he also fails to make any effort to even mention the operative language of what would
constitute a violation under the statute. Rather, the Complaint's second count repeats the
allegations of its first count against the Board Defendant of violating OPMA, and then concludes
by merely stating "the conduct of Defendants in violating OPMA is also a violation of the Civil
Rights Act" without stating a basis as to why.
Plaintiff has not stated any facts that suggest that the Board has in any way restricted his
or anyone else's right to substantive due process, equal protection, privileges or immunities that
are secured by the United States Constitution or by the Constitution of New Jersey. By formulating
his civil rights complaint in such a vague and incomplete manner, Plaintiff deprives the Board the
opportunity to address and prepare a defense against any variety of potential claims under the
CRA.
Plaintiff has also failed to cite to any case whereby a Court found that an OPMA violation
also constitutes a CRA violation.
As such, Count Two of Plaintiffs Verified Complaint must be dismissed.
his rights are interfered with by threats, intimidation, coercion or force.’ ”Hurdleston v. New
Century Financial Corp., 629 F.Supp. 2d 434, 443 (D.N.J. 2009)(quoting Felicioni v. Admin.
Office of Courts, 404 N.J. Super. 382 (App.Div. 2008), certif. denied, 203 N.J. Super. 440 (2010).
The Act, then, is essentially a “State analog to the federal civil rights act codified at 42 U.S.C.A.
1983” that is “enforceable in New Jersey state courts.” Statement of Gov. James E. McGreevey
dated September 10, 2004. See also Owens v. Feigin, 194 N.J. 607, 611-612 (2008).
Not only does Plaintiff’s Complaint fail to state a specific claim, fact or even which
constitutional right was actually violated by the Board Defendants that would be relevant to a CRA
claim; he also fails to make any effort to even mention the operative language of what would
constitute a violation under the statute. Rather, the Complaint’s second count repeats the
allegations of its first count against the Board Defendant of violating OPMA, and then concludes
by merely stating "the conduct of Defendants in violating OPMA is also a violation of the Civil
Rights Act" without stating a basis as to why.
Plaintiff has not stated any facts that suggest that the Board has in any way restricted his
or anyone else’s right to substantive due process, equal protection, privileges or immunities that
are secured by the United States Constitution or by the Constitution of New Jersey. By formulating
his civil rights complaint in such a vague and incomplete manner, Plaintiff deprives the Board the
opportunity to address and prepare a defense against any variety of potential claims under the
CRA.
Plaintiff has also failed to cite to any case whereby a Court found that an OPMA violation
also constitutes a CRA violation.
As such, Count Two of Plaintiff’s Verified Complaint must be dismissed.
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IV.
EVEN IF PLAINTIFF COULD DEMONSTRATE THAT THE BOARD VIOLATED OPMA, THERE IS NO STATUTORY BASIS ON WHICH TO AWARD PLAINTIFF
COUNSEL FEES.
In his Complaint, Plaintiff seeks to recover attorney's fees from the Board as a remedy
available under OPMA and the New Jersey Civil Rights Act ("CRA"). However, Plaintiff's
request for attorney's fees must be denied as there is no statutory or legal basis for attorney's fees
under OPMA.
A. OPMA DOES NOT PERMIT A REMEDY OF ATTORNEY'S FEES.
OPMA provides for three forms of remedy for violation of its statute: "a prerogative writs
action seeking to void any action taken at a meeting that did not meet OPMA's requirements,
N.J.S.A. 10:4-15; injunctive relief to assure future compliance, N.J.S.A. 10:4-16; and imposition
of fines, N.J.S.A. 10:4-17." Kelley v. Rockaway Twp., No. A-5902-11T3, 2013 WL 3940978, at
*3 (N.J. Super. Ct. App. Div. Aug. 1, 2013). Our Courts have consistently held, however, that
"under OPMA alone," a "plaintiff is not entitled to an award of counsel fees pursuant to N.J.S.A.
47:1A-6" O'Toole v. Klingen, No. CV 14-6333, 2017 WL 132840, at *8 (D.N.J. Jan. 13, 2017).
Furthermore, our Courts have also held that in OPMA cases where violations of other
statutes are also being claimed by the plaintiff, that any non-OPMA charge that was clearly only
made for the purpose of seeking remedies which are unavailable under OPMA, must be dismissed.
Id. (Where the court did not "find that plaintiffs suit under OPRA was the "catalyst" to spark the
generation of the minutes and their eventual disclosure; rather, it was plaintiffs suit under OPMA,
in which he ultimately prevailed, that provided for the creation and availability of the
minutes... [A]bsent here is any causal connection between plaintiffs OPRA claims and the
production of the minutes by the Township."). In other words, when a plaintiff's claim of violation
of OPMA is the catalyst that spurred them into action, and all the relief that could be granted would
IV.
EVEN IF PLAINTIFF COULD DEMONSTRATE THAT THE BOARD VIOLATED
OPMA, THERE IS NO STATUTORY BASIS ON WHICH TO AWARD PLAINTIFF
COUNSEL FEES.
In his Complaint, Plaintiff seeks to recover attorney’s fees from the Board as a remedy
available under OPMA and the New Jersey Civil Rights Act (“CRA”). However, Plaintiff’s
request for attorney’s fees must be denied as there is no statutory or legal basis for attorney’s fees
under OPMA.
A. OPMA DOES NOT PERMIT A REMEDY OF ATTORNEY’S FEES.
OPMA provides for three forms of remedy for violation of its statute: “a prerogative writs
action seeking to void any action taken at a meeting that did not meet OPMA's requirements,
N.J.S.A. 10:4–15; injunctive relief to assure future compliance, N.J.S.A. 10:4–16; and imposition
of fines, N.J.S.A. 10:4–17.” Kelley v. Rockaway Twp., No. A-5902-11T3, 2013 WL 3940978, at
*3 (N.J. Super. Ct. App. Div. Aug. 1, 2013). Our Courts have consistently held, however, that
“under OPMA alone,” a “plaintiff is not entitled to an award of counsel fees pursuant to N.J.S.A.
47:1A–6” O'Toole v. Klingen, No. CV 14-6333, 2017 WL 132840, at *8 (D.N.J. Jan. 13, 2017).
Furthermore, our Courts have also held that in OPMA cases where violations of other
statutes are also being claimed by the plaintiff, that any non-OPMA charge that was clearly only
made for the purpose of seeking remedies which are unavailable under OPMA, must be dismissed.
Id. (Where the court did not “find that plaintiff's suit under OPRA was the “catalyst” to spark the
generation of the minutes and their eventual disclosure; rather, it was plaintiff's suit under OPMA,
in which he ultimately prevailed, that provided for the creation and availability of the
minutes…[A]bsent here is any causal connection between plaintiff's OPRA claims and the
production of the minutes by the Township.”). In other words, when a plaintiff’s claim of violation
of OPMA is the catalyst that spurred them into action, and all the relief that could be granted would
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be done so under OPMA; then all the other remaining charges must be dismissed since they would
lack a connection to the relief that was awarded under OPMA and because there would no longer
be any more relevant facts that remain to assert.
B. THE CRA DOES NOT PERMIT A REMEDY A OF ATTORNEY'S FEED FOR AN OPMA VIOLATION.
While attorney's fees are available as a possible remedy to a plaintiff who can prove that the
defendant violated the CRA, a plaintiff must first be able to allege how the defendant violated
the statute.
Here, based on the asserted facts, Plaintiffs sought after remedies, including an order
declaring the Board's actions at the September 24, 2018 meeting void, and that the Court grant
injunctive relief to assure future compliance by the Board, are unmistakably remedies that would
only be granted if a violation of OPMA was found by this Court. None of the facts alleged by
Plaintiff are in any way connected to a CRA claim, which include: the Board providing improper
notice for its regularly held meetings; the Board failing to adequately inform the public of the
content of its closed sessions; and the Board conducting a closed session without the public being
made aware. Such allegations would squarely constitute violations of the OPMA if found to be
true.
It should also be noted that Plaintiff does not cite to any case whereby a Court extended
the attorney fee provision under the CRA to an OPMA case. Clearly, Tumpson v. Farina, 218 N.J.
450 (2014) is distinguishable and inapplicable as it did not involve an OPMA matter.
As such, it is respectfully submitted that the Court dismiss Plaintiffs CRA claim, as well
as his request for attorney's fees.
be done so under OPMA; then all the other remaining charges must be dismissed since they would
lack a connection to the relief that was awarded under OPMA and because there would no longer
be any more relevant facts that remain to assert.
B. THE CRA DOES NOT PERMIT A REMEDY A OF ATTORNEY’S FEED
FOR AN OPMA VIOLATION.
While attorney’s fees are available as a possible remedy to a plaintiff who can prove that the
defendant violated the CRA, a plaintiff must first be able to allege how the defendant violated
the statute.
Here, based on the asserted facts, Plaintiff’s sought after remedies, including an order
declaring the Board’s actions at the September 24, 2018 meeting void, and that the Court grant
injunctive relief to assure future compliance by the Board, are unmistakably remedies that would
only be granted if a violation of OPMA was found by this Court. None of the facts alleged by
Plaintiff are in any way connected to a CRA claim, which include: the Board providing improper
notice for its regularly held meetings; the Board failing to adequately inform the public of the
content of its closed sessions; and the Board conducting a closed session without the public being
made aware. Such allegations would squarely constitute violations of the OPMA if found to be
true.
It should also be noted that Plaintiff does not cite to any case whereby a Court extended
the attorney fee provision under the CRA to an OPMA case. Clearly, Tumpson v. Farina, 218 N.J.
450 (2014) is distinguishable and inapplicable as it did not involve an OPMA matter.
As such, it is respectfully submitted that the Court dismiss Plaintiff’s CRA claim, as well
as his request for attorney’s fees.
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CONCLUSION
OPMA requires that members of the public are provided the opportunity to witness the
Board's public vote on personnel decisions such as performance evaluations, so that "they have a
base of information on which they can express views to...the Board regarding the adequacy, or
inadequacy, of the discussion of Board business. But the robustness of a debate on a particular
item discussed in public session is not a topic addressed in the OPMA. It is beyond the existing
requirements of the OPMA. If a discussion of a certain length or quality is to be mandated, the
OPMA requires amendment by the Legislature, not by the courts." Kean Fed'n of Teachers v.
Morell, 233 N.J. 566, 588, 166 (2018).
The facts fully demonstrate that the Board acted properly and that the public was properly
provided an opportunity to witness the Board publicly voting on the personnel decision approving
a form relating to the Superintendent's evaluation of his performance towards merit goals. The
fact that no one from the public may have remained at the meeting long enough to witness the
Board's vote is of no consequence. Plaintiff cannot rely on a partial record and a news article to
support his claim that the Board violated OPMA.
As such, the Board Defendants respectfully request that Plaintiffs Order to Show Cause
and Verified Complaint be dismissed.
Respectfully submitted,
/k/ A ckwvS. ft orwww.
ADAM S. HERMAN, ESQ.
CONCLUSION
OPMA requires that members of the public are provided the opportunity to witness the
Board's public vote on personnel decisions such as performance evaluations, so that “they have a
base of information on which they can express views to…the Board regarding the adequacy, or
inadequacy, of the discussion of Board business. But the robustness of a debate on a particular
item discussed in public session is not a topic addressed in the OPMA. It is beyond the existing
requirements of the OPMA. If a discussion of a certain length or quality is to be mandated, the
OPMA requires amendment by the Legislature, not by the courts.” Kean Fed'n of Teachers v.
Morell, 233 N.J. 566, 588, 166 (2018).
The facts fully demonstrate that the Board acted properly and that the public was properly
provided an opportunity to witness the Board publicly voting on the personnel decision approving
a form relating to the Superintendent’s evaluation of his performance towards merit goals. The
fact that no one from the public may have remained at the meeting long enough to witness the
Board’s vote is of no consequence. Plaintiff cannot rely on a partial record and a news article to
support his claim that the Board violated OPMA.
As such, the Board Defendants respectfully request that Plaintiff’s Order to Show Cause
and Verified Complaint be dismissed.
Respectfully submitted,
/s/ Adam S. Herman
ADAM S. HERMAN, ESQ.
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ADAMS GUTIERREZ & LATTIBOUDERE, LLC The Legal Center 1037 Raymond Boulevard, Suite 900 Newark, New Jersey 07102 Attorneys for Defendant, Trenton Board of Education,
JOHN PAFF
Plaintiff, v.
TRENTON BOARD OF EDUCATION, GENE BOUIE, GERALD TRUEHART, ADDIE DANIELS-LANE, FIAH WESSEU, HEATHER WATSON, LUCY VANDENBERG, and YOLANDA MORRERO-LOPEZ
Defendants.
SUPERIOR COURT OF NEW JERSEY LAW DIVISION: MERCER COUNTY
Docket No. MER-L-2241-18
CIVIL ACTION
CERTIFICATION OF JAMES ROLLE JR., ESQ.
I, JAMES ROLLE JR., ESQ., do hereby certify and say:
I am a member of the bar of the State of New Jersey and am General Counsel to Defendant
Trenton Board of Education (hereinafter referred to as "Board"). I make this Certification on
behalf of the Board, Gene Bouie ("Board Member Bouie"), Gerald Truehart ("Board Member
Truehart"), Addie Daniels-Lane ("Board Member Daniels-Lane), Fiah Wesseu ("Board Member
Wesseu"), Heather Watson ("Board Member Watson"), Lucy Vanderberg ("Board Member
Vanderberg") and Yolanda Marrero-Lopez ("Board Member Marrero-Lopez") (herein collectively
referred to as "Board Defendants"), in opposition to Plaintiff, John Paff s ("Plaintiff) Order to
Show Cause and Verified Complaint.
1. It is important for the Court to understand the process by which the Board posts its
Agenda and related items for the public. It is the Board's practice that on the Friday before the
scheduled Board meeting, it posts and makes available on its website the Agenda, along with
various attachments, recommendations and presentations. The attachments and recommendations
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include, among other things, Business and Talent Acquisition and Development ("TAD")
Resolutions for Board action.
2. All of the aforementioned documents therefore constitute the Agenda for the respective
Board meeting. For example, see Exhibit "A."
3. With regard to the Board meeting on September 24, 2018, I was in attendance for the
entire meeting.
4. Both the regularly scheduled meeting and Executive sessions conducted on
September 24, 2018 were conducted in accordance with the regular practices of the Board at that
time.
5. The September 24, 2018 Board meeting was the first Board meeting since classes
commenced for the 2018-19 school year. As such, the September 24, 2018 Agenda included a
significant amount of business and matters to be considered and voted upon.
6. The September 24, 2018 Board meeting was held at the District's Administrative
Building at 108 North Clinton Avenue where Board meetings are usually held.
7. The auditorium, where the public portion of the meeting commence, contains audio
equipment which permit the public portion of the meetings held in the auditorium to be recorded.
8. Unless the Board Secretary is unavailable, she records the written minutes of the
Meeting. To the extent Board Secretary is unavailable, the General Counsel typically records the
written minutes.
9. As will be set forth herein, the September 24, 2018 meeting included three Public
Sessions and two Executive Sessions.
10. As set forth in the published meeting minutes, the September 24, 2018 Board meeting
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began at 5:36 p.m. At the end of the New Business section, the Board considered and passed an
Executive Session Resolution at 8:44 p.m.
11. Specifically, the Board passed the following Resolution:
WHEREAS, The Open Public Meetings Act, codified as N.J.S.A. § 10:4-6, et seq., permits the exclusion of the public from a meeting under certain circumstances; and,
WHEREAS, the Trenton Board of Education is of the opinion that such circumstances presently exist, indicated as follows:
Any pending or anticipated litigation or contract negotiations to which the Board is or may become a party, and any matter falling within the Attorney-Client Privilege, to the extent that confidentiality is required to preserve the Attorney-Client Privilege and allow the Attorney to exercise his/her ethical duties as a lawyer:
MATTERS/CAPTION:
Memorandum of Understanding with the Trenton Educational Secretaries Association
Legal Invoice: TEA v. TBOE, Health Insurance Waiver, Docket No. AR-2017-334 Reimbursement $2,200.00 to Arbitrator Elizabeth McGoldrick
Personnel matters related to the employment, appointment, termination of employment, terms and conditions of employment, evaluation of the performance of, promotion, or disciplining of any specific prospective public officer or employee or current public officer or employee employed or appointed by the public body, unless all individuals who could be adversely affected request, in writing, that the matter be discussed at a public meeting:
DESCRIPTION OF MATTER(S): Fir for Duty, Revised Merit Goals submission form, Completed Merit Goals submission form, Tenure Charges, Board Goals
NOW THEREFORE, BE IT RESOLVED, by the Trenton Board of Education, County of Mercer, State of New Jersey that an Executive Session will be held on September 24, 2018 for the statutorily permissible purposes indicated in this resolution.
BE IT FURTHER RESOLVED that action may be taken by the Board when it reconvenes in Open Session.
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BE IT FINALLY RESOLVED that the minutes of the Executive Session with regard to the above subject matter shall be disclosed to the public at a later date and to the extent that the same is not prejudicial to the interests of the parties involved, no longer adverse to the public interest, or does not endanger any individual's right to privacy.
12. The Executive Session Resolution passed unanimously.
13. As has been the Board's practice in conducting Executive Sessions for the past
several years, the Board conducted the first Executive Session in the Board Conference Room,
which is right next door to the auditorium. This is done in order to discuss the permitted exempted
matters with greater privacy.
14. It is also the Board's practice to invite the public into the Board Conference Room at
end of an Executive Session to reconvene the public portion of the meeting.
15. The doors to the Board Conference room open up directly to the hallway in front of
the auditorium.
16. When the Board concluded its first Executive Session on September 24, 2018 at
10:46 p.m., it was announced that the public portion of the meeting was reconvening. A security
guard that is stationed outside the Board Conference Room opened the Board Conference Room
doors and the public was invited in.
17. No audio recording of this portion of the meeting was made because the audio
recording equipment remained in the auditorium.
18. During this public portion of the Board meeting, which reconvened at 10:46 p.m., the
Board voted on three Resolutions: Memorandum of Agreement (MOA) with Trenton Educational
Secretaries Association; Legal Invoice; and Fit For Duty.
19. Since the Board desired to further discuss the Superintendent's Revised Merit Goals
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submission form and the Completed Merit Goals submission form, at 10:50 p.m., the Board passed
another Resolution to conduct an Executive Session to discuss same.
20. Executive session meetings are capable of being long; generally somewhere between
one (1) and two (2) hours. Therefore it is common practice to adjourn Executive Sessions when
the board members may have only deliberated, or agreed on, only some of the issues which its
earlier resolution notified the public would be covered. Indeed, there can be no guarantee that a
Board will conclude deliberating all matters listed in the resolution, let alone a guarantee that the
Board will reach a consensus on all those matters.
21. Although the minutes utilize the word "adjourn," it was made clear at that time that
the Board was reconvening into Executive Session for the purpose of discussing the
Superintendent's Completed Merit Goals submission form and would then reconvene in public to
take any action. Indeed, no one announced that the meeting was concluded or over for the evening.
22. Since the Board Secretary departed at 10:50 p.m., as the Executive Session discussion
was to involve a discussion regarding compensation for the individual she reports to, I undertook
the responsibility to record the written minutes.
23. Any member of the public who remained in the Board Conference Room at 10:30
p.m. had the opportunity to observe the Board pass a motion to enter into the second Executive
Session. Any member of the public would have been asked to move to the hallway or auditorium
during the pendency of the Executive Session.
24. This second Executive Session lasted fifty-five (55) minutes.
25. At the conclusion of the second Executive Session, it was announced that the public
portion of the meeting was reconvening. A security guard stationed outside the Board Conference
Room opened the Board Conference Room doors and the public was invited in.
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26. Any member of the public who remained in the hallway or auditorium would have
been invited back into the Board Conference Room at 11:45 p.m. to witnessed the Board's public
vote.
27. After the public portion of the meeting was reopened, the Board voted to approve the
28. submission of the Superintendent's Completed Merit Goals to the County Office of the
New Jersey Department of Education. The September 24, 2018 Resolution to discuss personnel
matters, specifically the discussion of merit goals submission form, complies with the procedural
requirements of N.J.S.A. 10:4-13(a), as it gave the public sufficient information that it was to
consider the Superintendent's Completed Merit Goal form
29. Indeed, the public was well aware, as it was common knowledge, that the Board's
discussion of the Merit Goals Submission Form would specifically entail an evaluation of the
Superintendent's annual performance in consideration of granting a merit bonus, and that a vote
on the matter was possible after the Executive Session.'
30. Additionally, the meeting minutes and audio recording demonstrated that the Board
informed the public, as is required by N.J.S.A. 10:4-13(b), that action "may" be taken on any
subject matter discussed in the closed Executive Session, including the Merit Goals Submission
Form, would be disclosed to the public at a later date when it would no longer be prejudicial to the
interests of the parties involved, no longer adverse to the public interest, or does not endanger any
individual's right to privacy.
31. Consideration of the submission of the Superintendent's Completed Merit Goals to
At 2:05:25 of the audio recording of the meeting reflects that approximately forty-five (45) minutes prior to the Board passing the resolution, the public was specifically and repeatedly told by TEA President Twanda Taylor about how the Board was going to privately discuss whether or not to grant bonus payment to the Superintendent based on his ability to show that he achieved his required merit goals.
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the County Office of the New Jersey Department of Education is a personnel matter properly
discussed in Executive Session.
32. The County Office of the New Jersey Department of Education is responsible for
reviewing and approving the Superintendent's Completed Merit Goals. Once approved by the
County Office of the New Jersey Department of Education, the Board can formally approve and
process the respective payment to the Superintendent.
I hereby certify that the facts set forth in this Certification are true. I am aware that if any
of the facts set forth herein are knowingly false, I am subject to punishment.
Dated: December 18, 2018
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