Saturday, February 8, 2014

Somerset County's further defense of its executive session discussions

Update: Somerset County lawyer apologizes for e-mail.

I received this today from Somerset County Council William T. Cooper, III.
-----------------------
John:

I apologize as that email was not intended to be forwarded to you. It was unnecessary and as you point out unfair.

Please also be advised that we were planning on placing your  correspondence  of 1/31/14 on the 2/11/14 executive meeting for discussion. At this point that letter, my response, as well as your counter response will be provided to the Board for their consideration.

Very Truly Yours

Bill  

Somerset County Counsel William T. Cooper, III took exception to my criticism of the Somerset County Freeholder's executive sessions.  (For background click here.)

Here is Mr. Cooper's correspondence followed by my response:
From: cooper@co.somerset.nj.us

Feb 7, 2014

I take solace in the fact he is only attacking the e cigarets. One point he fails to grasp is the impact one employee using an ecig has on another. By focusing on the user he loses sight of all the other employees negatively impacted.

My mistake was believing Mr Paff wanted an honest discourse on the OPMA. What he really wanted fodder for his web site.

My final note is this; am I crazy or was it ironic that he asked Kathy to forward it to all five freeholders?

Bill
My Response
February 8, 2014

Dear Bill:

The personnel exception, which is the exception you cited in your letter justifying the e-cig conversation, allows private discussion concerning specific employees.  In other words, a Freeholder discussion about: "Employee John Doe refused to turn off his e-cig after being asked to by his supervisor" would be permissibly discussed in private session because it deals with a specific employee--John Doe.  This is different than a general policy discussion about whether e-cigarettes should be allowed in the work place.

Also, I'm disappointed that you had to resort to an ad hominem attack on me--that I do not want "an honest discourse on the OPMA" but I "really wanted fodder for [my] web site."  My web site, actually a blog, is intended to educate the public, as well as government agencies, about the OPMA and OPRA.  And, yes, Somerset County's non-compliance with OPMA is of interest to my blog's readers.

And, I'm always interested in an honest exchange about OPMA or OPRA.  If an honest exchange is what you really want, why don't we start by you articulating how the e-cig discussion related to a "specific prospective public officer or employee or current public officer or employee" within the meaning of N.J.S.A. 10:4-12(b)(8)?

Finally, I could have challenged all of the points in your January 31, 2014 letter, but chose only the e-cig discussion in the interest of time and because it was your most glaring error.

As another example, you justify the November 26, 2013 discussion about the Green Brook levee as being "pending or anticipated litigation" under N.J.S.A. 10:4-12(b)(7).  The private discussion at issue, as recorded in the minutes, follows:
GREEN BROOK FLOOD CONTROL PROJECT LEVEE — PUBLIC ACCESS
Bill Cooper advised the Board on this issue. It was noted that the levee in Bound Brook was not designed for pedestrian use. It was further noted that the public was accessing the levee and using it as a pathway. The Board discussed ways to curb this use and protect the County's interest in this matter.
In sum, the county discussed curbing pedestrian usage of the levee so to keep it from getting sued if someone fell.  But, the "pending or anticipated litigation" exception is directed toward litigation, not risk management:

"To invoke this exception, the public body must either be or expect to become a party to the litigation it wishes to discuss and the discussion must be limited to the the pending or anticipated litigation."
Attorney General's Formal Opinion 30-1976, 100 N.J.L.J. 31.

Since there is no litigation, either pending or reasonably anticipated, the discussion should have been held in public session.  You can't stretch the exception so far as to cover a risk management discussion, because the Freeholders must construe the exception strictly against closure and liberally in favor of openness.  Lakewood Citizens for Integrity in Gov't, Inc. v. Lakewood Tp. Comm., 306 N.J. Super. 500, 505 (Law Div. 1997).

Very truly yours,

John Paff



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