Wednesday, May 13, 2009

Disclosure of Executive Session minutes dealing with "personnel" matters.

One area of the Sen. Byron M. Baer Open Public Meetings Act (OPMA) that is often misunderstood by government officials is the "personnel" exception to public meetings embodied within N.J.S.A. 10:4-12(b)(8). This exception allows government bodies to privately discuss matters involving a particular employee. The exception does not, however, excuse the public body from a) taking "reasonably comprehensible" minutes of those private discussions and b) making those minutes "promptly available to the public" unless some overriding privacy interest dictates otherwise.

In order to illustrate the issues, I've uploaded four pages here. This file contains a) two redacted pages from Keyport Borough's (Monmouth County) executive session minutes from 2006 and b) the same two pages that were produced by Keyport after Judge Lawrence M. Lawson decided my lawsuit against the Borough.

Keyport's Clerk or Borough Attorney, like many in New Jersey, were operating under the assumption that the names of any employees discussed during closed session could, as a matter of course, be redacted from the closed session minutes.

But, as I argued in my lawsuit, the New Jersey Supreme Court has held (see South Jersey Publishing Co. v. New Jersey Expressway Authority, 124 N.J. 478 (1991)) that unlike the other exceptions to open public meetings, the purpose of the "personnel exception" is to allow public officials to let their hair down and freely discuss issues such as hiring, firing, and disciplining public employees. The Legislature felt that members of a public body would be inhibited from speaking plainly and frankly about an employee's shortcomings if the employee or his or her friends and family were in the audience observing the conversation.

But, just because the law permits personnel matters to be discussed and debated in closed session doesn't mean that the public isn't entitled to know, by reading the minutes, any official decision made or action taken by a public body along with sufficient facts and information to permit the public to understand and appraise the reasonableness of the public body's decision or action. In sum, since the public is theoretically in charge of the whole governmental process, it's important that closed session minutes reveal enough information about what a pubic body decided regarding a personnel matter and why it decided as it did.

But, there's an exception to this rule. Sometimes a public body's discussion of a personnel matter involve facts that are intensely personal and private. For example, suppose a town council discusses an employee's request for an extended leave of absence so that she can tend to a family member who attempted suicide through a drug overdose. In such a case, the court has held that when a privacy interest would be violated by full disclosure in the minutes, the minutes may be appropriately redacted provided the public interest in know what the government is doing and why is not subverted. But absent special privacy concerns, the public--at the very least--is allowed to know the names of the employees under discussion during a closed session.

For example, Keyport's September 19, 2006 minutes, in the version issued after the lawsuit, inform citizens that Keyport's Police Chief recommended that Police Sergeant Anthony Gallo be suspended and that after the Borough Council reviewed the facts, it agreed to support the Chief's decision. In the earlier version of those minutes, Sergeant Gallo's name was redacted.

By checking newspaper databases and Gannett's Data Universe, a member of the public can see that Gallo was promoted to lieutenant (see Asbury Park Press, January 15, 2008) and made $100,868 in 2008. This raises a legitimate question as to why he was promoted so soon after he was recommended for suspension.

While the decision to promote may have been good or bad, without having been informed that it was Sergeant Gallo who was being privately discussed on September 19, 2006, the public had no way of even questioning the promotion decision.

Since the government is composed of and acts through its officials and employees, citizens need to know--absent exceptional reasons--which of those officials and employees are being disciplined and why. Otherwise, citizens cannot fulfill their role of keeping a watchful eye on government.

John Paff
Somerset, New Jersey

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