Friday, June 26, 2009

Level of "personnel" details in executive session resolutions

A question I received from a correspondent:

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

My response:

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

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

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

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

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

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

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

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

John Paff
Somerset, New Jersey

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