The new government leading the consolidated Princeton needs to be more transparent when it comes to the closed sessions of the mayor and council, an open public meetings expert says.
Under state law, agendas for closed sessions must list the matter that will be discussed when possible, so that the public is informed about what will be discussed. Agendas for public agencies in New Jersey are not supposed to simply list general topics that are subject to closed session like “litigation”, “personnel” or “negotiations.” This is the generic way the agendas for the new Princeton governing body currently and consistently list what will be discussed in closed session.
The specific litigation, personnel issue or negotiation item should be listed if it is known. The mayor and Council held a special meeting Monday to discuss “personnel and negotiations.” Clearly they knew which employees and which negotiations they were going to discuss, because a special meeting was called for a specific purpose.
Police chief David Dudeck was discussed at the meeting, yet the notice did not list that he would be a topic of discussion. An employee is sent a Rice notice when the employee will be discussed, and the employee has the right to have the discussion take place in public or in closed session.
“A lot of people are interested what is going to happen to the chief. People might want to go to the meeting and make public comments before the governing body moves in to closed session,” said Walter Luers, a lawyer who specializes in open public meeting and open public records issues and heads the New Jersey Foundation for Open Government.
“The law says agendas must list the topics to be discussed to the extent known,” Luers said. “For personnel, you know the specific individuals or group you are going to discuss. You are not going to discuss the entire municipal staff.”
Luers said not listing specific topics deters residents from being engaged in the process.
“If you only list generic descriptions, people are less likely to show up to the public portion of the meeting and comment,” Luers said. “That is exactly the whole point here, to reduce the likelihood of members of the public showing up or commenting.”
Luers said the only exceptions for not listing the topics discussed are when someone has a reasonable expectation of privacy, or there is a specific interest of public body that would be harmed by disclosure. Those exceptions are very narrow, he said.
“In the case of the meeting Monday as described to me, it does not fit the criteria,” he said.
Luers also pointed out that the notice for the special meeting was misleading, because the meeting was advertised strictly as a closed session. The governing body convened in open session and then went in to closed session, but there was no public comment period.
“Every meeting of a public body must start in open session,” Luers said. ” There is no such thing has having only a closed session. And there must be at least one public comment period in an open session. Again, the way the meeting is advertised and the lack of a public comment period discourages residents from being involved in the process.”
Last year the New Jersey Supreme Court affirmed that it is the duty of public bodies to list specific closed session agenda items.
The court ruled that the Rutgers University Board of Governors violated the state’s Open Public Meetings Act by failing to inform the public of issues it planned to discuss in a closed session at a meeting, and said the board also violated the act by improperly discussing public matters about the athletics program in closed session.
The court’s decision made it clear that government bodies must provide the public with an agenda that describes issues to be discussed to the extent known, rather than merely making generic references about what might be discussed.
At issue was a September 2008 meeting of the Rutgers Board of Governors. As required by law, the board placed advance notice of the Sept. 10, 2008 meeting in newspapers. The notice stated the board would convene immediately in executive session to discuss contract negotiations and attorney-client matters, but the notice did not offer any other details. There was no mention of the Rutgers athletic department, a controversial stadium project, or naming rights for the stadium, even though the board knew these items would come up for discussion.
The court took issue with Rutgers’ actions, noting, “clearly that by the time this notice was prepared and published, more was known about the extent of the proposed agenda than what was conveyed by the generic references to ‘contract negotiation and attorney-client privilege’…The Board had an obligation to include as part of the notice of the meeting of September 10 the agenda of that meeting to the extent it was known.”
The court also rejected the board’s contention that its discussion of policies and guidelines could be done behind closed doors because it “indirectly relates” to subjects that could properly be the subject of a closed meeting. The court said such an ability would“eviscerate the (Sunshine Law) and runs counter to our mandate to construe the statue in such a manner as to maximize public participation.”