Friday, February 7, 2014

Somerset County defends its executive session discussions.

Update:  In his February 19, 2014 letter, Mr. Cooper thanked me for my correspondence and promised that it will be "kept in mind" during future Freeholder executive sessions.
 In his February 7, 2014 letter, Somerset County Counsel William T. Cooper III defended the Somerset County Freeholder Board's decisions to conduct seven matters in nonpublic (i.e. closed or executive) session instead of publicly.  Cooper's letter is on-line here and the minutes of the executive meeting in question are on-line here.  (My letter of complaint about the executive session discussions is on-line here.)

With all due respect to Mr. Cooper, I believe that his position is flawed. 

As just one example, the minutes of the January 14, 2014 closed meeting state:
SMOKING POLICY

Mike Amorosa addressed concerns and complaints received about employees utilizing e-cigarettes indoors. The Board endorsed the inclusion of e-cigarettes to the policy.
Mr. Cooper defends the Board's private discussion of this matter by relying on N.J.S.A. 10:4-12(b)(8), which states:

Private session can be used to discuss "[a]ny 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 such matter or matters be discussed at a public meeting."  (Emphasis supplied.)

As the emphasized text shows, this exception to the general rule of discussing matters in public allows private discussion of specific, individual employees.  It does not, however, allow policy matters related to employees in general to be discussed privately.

Support for my interpretation of the law (and against Mr. Cooper's) can be found in the 2009 Appellate Division case of Burnett v. Gloucester County Board of Chosen Freeholders, 409 N.J. Super. 219 (App. Div. 2009). 

In the Burnett case, the trial judge had found that the matters the Gloucester Freeholders discussed on December 20, 2006, February 7, 2007 and March 7, 2007 were exempt because they involved “personnel matters.” 409 N.J. Super at 238.  The December 20, 2006 discussion dealt with "presenting a State ethics training seminar for department heads" and awarding a bonus to a lawyer who represented Gloucester County in a public records lawsuit.  The February 27, 2007 involved the "need to pay Harold Crass [ ] [$14,000] for legal work done relative to the matter at the Pitman Golf Course.”  At its March 7, 2007, the Board discussed "the proposed replacement member of the Board of Trustees for Gloucester County Community College, who would complete the term of a resigning member." Id at 229-30.

Citing an earlier New Jersey Supreme Court decision, the Appellate Division found that the Legislature allowed public bodies to discuss personnel matters in private because it "recogniz[ed] the potentially-inhibiting effect of public debate about the qualifications, performance, merit, and shortcomings of specific employees.” Id at 239.  In other words, the Legislature believed, and rightly so, that a discussion about, say, a particular employee's battle with alcoholism or constant tardiness, would be difficult, if not impossible, to conduct with the public--perhaps even the employee's family--watching and listening.  Privacy in such discussions is needed, the Legislature found, to foster "free and uninhibited discussion about matters relating to the hiring, firing, performance, compensation, and discipline of public employees.”

Against this standard, the Appellate Division judges wrote that they were "hard pressed" to agree with the trial judge on the applicability of the "personnel exception" to these three meetings.  Wrote the judges:
Two of the three sessions involved awarding a bonus or other remuneration to outside counsel. The remaining item arguably involves discussion on a possible appointment, which may fall within the exception, however, without more information it is unclear. Nevertheless, in respect of other sessions plaintiff focuses on, it appears the Board overstates the scope of the allowed exclusion and its position is transparently incorrect because the closed sessions adopted policies affecting county employees generally or the creation of new county positions, and did not relate to discussions regarding a specific employee. Neither of these areas are excepted. (Emphasis supplied). Id at 239.
As shown, the "personnel exception" is intended to allow public officials to meet in private so that observation by the public does not dissuade from speaking frankly about a particular employee's shortcomings.  The exception is not intended to cover policy decisions that may affect employees, such as whether or not they should be allowed to smoke electronic cigarettes in government buildings.

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