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.



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



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:



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


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.)






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


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


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


Indeed, no one announced that the meeting was concluded or over for the evening. (see



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.)





lasted approximately fifty-five (55) minutes. (see certification of James Rolle, Jr. Esq.)





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.)



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


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


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


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.



formally approve and process the respective merit goal payment to the Superintendent. (see


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


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



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



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.



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



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



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



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.




the Superintendent's Revised Merit Goals Submission Form and the Completed Merit Goals


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


Indeed, no one announced that the meeting was concluded or over for the evening.


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.




the Superintendent’s Revised Merit Goals Submission Form and the Completed Merit Goals


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


Indeed, no one announced that the meeting was concluded or over for the evening.




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.





lasted approximately fifty-five (55) minutes.





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.





lasted approximately fifty-five (55) minutes.





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



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



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



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.



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



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.



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.



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



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


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


consider the Superintendent's Completed Merit Goal form

29. Indeed, the public was well aware, as it was common knowledge, that the Board's


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


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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