Some members of the Princeton Council aren’t happy with the assignments they have been given on town boards and committees, and this week officials battled each other in public about the issue at the regular Princeton Council meeting.
The matter may seem petty. But some committees like police, finance, and personnel have greater authority over major town issues. Also, some officials want the council to consider the issue of conflict of interest for some of the positions.
Councilwoman Jenny Crumiller said at the council meeting Monday night that she did not think all the assignments were fair, and she wanted to discuss the appointments in a closed session. The mayor makes appointments, but the Council must vote to approve them. The mayor said she spoke with each council member individually about the appointments and thought people were satisfied with their assignments.
The mayor, Councilwoman Heather Howard, Council President Bernie Miller, and Councilman Lance Liverman, all argued that the issue is not appropriate for a closed session and would violate the Open Public Meetings Act. Lempert, Miller and Liverman previously served on the Princeton Township Committee together. Any discussion of appointments should be done in public to be transparent, they said. Crumiller and others argued there are some sensitive personnel issues regarding individual council members like potential conflicts of interest they did not want to debate in public.
Traditionally in the former Princeton Township, the township committee would get around the issue by holding a political caucus to discuss the appointments. Some governing body members suggested that the new governing body might adopt that practice.
Town Attorney Ed Schmierer, the longtime attorney in the former Township, agreed with Lempert that the Council appointments could not be discussed in closed session.
But Walter Luers, a lawyer and open government advocate who heads the New Jersey Foundation for Open Government, said he thinks discussions about committees and appointments can be discussed in closed session under the personnel exclusion.
“The personnel exception is not limited to `employees’,” Luers said. ” The Open Public Meetings Act exception also permits the public body to discuss the appointment of public officers. The Open Public Meetings Act also includes persons the public body appoints.”
“If the choice is between executive session and a political caucus, the much more transparent option is the executive session, because at least the law requires that minutes be kept of the executive session and that the minutes be released at an appropriate time,” Luers said. “A political caucus is simply a black hole of information.”
During the council meeting, Schmierer and Councilman Patrick Simon got into a debate about whether the Open Public Meetings Act covers elected officials. Schmierer argued it only applies to employees and is very narrow.
“I think the intent of the statute, when it talks about public officers or employees, it goes to the essence of the job they hold,” Schmierer said. “It is not meant to go down to the next level and talk about the organization.”
Simon said Schmierer used the exact opposite logic last summer after Lempert sought a legal opinion from him on her powers as mayor and her authority to make appointments. On that issue, he said Schmierer argued that council members are public officers.
“Here you are using the exact reverse logic,” Simon said. Schmierer disagreed with his statement.
Schmierer said the open public meetings personnel exception is only meant for the discussion of employees, who must receive notices called Rice notices if they are going to be discussed in closed session.
But Luers said other personnel issues can be discussed in closed session. “Not everyone who is discussed in executive session under the personnel exception is entitled to a Rice notice,” Luers said.
The law allows public bodies to go in to closed session to discuss, “Any matter involving the employment, appointment, termination of employment, terms and conditions of employment, evaluation of the performance, 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 individual employees or appointees whose rights could be adversely affected request in writing that such matter or matters be discussed at a public meeting.”
Crumiller, who argued the appointments should be allocated either by seniority or consensus, said she wanted Schmierer to research the closed session issue and give the council a written legal opinion.
Lempert said the council should not waste taxpayer money on the legal research. Councilwoman Jo Butler said she thought Crumiller was entitled to seek a legal opinion.
“Fundamentally we have a colleague who has asked for a conversation and a legal opinion,” she said. “I worry we are on a slippery slope. In the borough form of government we have, we are all entitled to go to the attorney for advice. No one is the gatekeeper. We are supposed to copy the administrator and make sure expense don’t go over the legal budget. It is not anyone’s place to say another person is not entitled to a legal opinion. This is a simple conversation to talk about workload. We should be able to act in a collegial manner.”