Executive Session Minutes - Overview

Presented by Victor J. Medina, Esq.Medina Law Group, LLC

Prepared for New Jersey Association of School Business Officials

OPEN PUBLIC MEETINGS ACT

Open Public Meetings Act• The Legislature finds and declares that the right of the public 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, is vital to the enhancement and proper functioning of the democratic process that secrecy in public affairs undermines the faith of the public in government and the public’s effectiveness in fulfilling its role in a democratic society, and hereby declares it to be the public policy of this state to insure the right of its citizens to have 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 in any way except only those circumstances where otherwise the public interest would be clearly endangered or the personal privacy or guaranteed rights of individuals would be clearly in danger of unwarranted invasion.

Access to Public Records/Minutes

– Right to Know Law (OPRA)

– Litigant’s Right Under Discovery

– Assert Common Law Right to Inspect Public Records

Confidentiality & disclosure

Right to disclosure dependent upon how compelling the reasons are for insuring confidentiality.

Statutory Exceptions for Public Meetings

1. Any matter rendered confidential by Federal law or State statute or rule of court.2. Any matter the disclosure of which constitutes an unwarranted invasion of

individual privacy.3. Any collective bargaining agreement, including the negotiation of the terms and

conditions thereof. 4. Any matter involving the purchase, lease, or acquisition of real property, setting of

banking rates or investment of public funds.5. Any tactics and techniques utilized in protecting the safety and property of the

public. Any investigation of violation or possible violations of the law.6. Any pending or anticipated litigation or contract negotiation. Any matters falling

within the attorney-client privilege.7. Any matter involving the employment, appointment, termination of employment,

etc.

Key Items for Resolutions

Standard is “as much information as is consistent with full public knowledge without doing any harm to the public interest.”

– Student Discipline – Inappropriate even to identify the student involved.

– Labor Negotiations – appropriate to give public notice that the topic is being discussed

– Litigation – board can announce that the specific litigation is being discussed, unless the mere fact of an entity’s discussion of specific litigation could aversely affect its litigation strategy or disclose confidential information.

Focus on Litigation Except

– Subject under discussion must be the pending or anticipated litigation itself

– Public body must be discussing its strategy in the litigation

– The position it will take– The strengths & weaknesses of that position– Possible settlements or– Some other facet of the litigation itself

Focus on Personnel Exception

• Keyport case highlights the following:

– Minutes are intended to recite and disclose any official discussion or action taken by a public body, and necessarily must contain sufficient facts and information to permit the public to understand and appraise the reasonableness of the determination

– Purpose of the personnel exemption is to facilitate the process by which the public body makes personnel-type decisions permitting the debate and deliberation to be conducted w/o public scrutiny or participation

– But the exemption is designed to enable the public body to determine the appropriate action to be taken, not to withhold from the public either the determination or the reasons on which its determination was based.

Board Secretary’s Responsibility Defined

“reasonably comprehensible minutes”

• Time and place

• Members present

• Subjects considered

• Actions taken

• Vote of each member

• Any other information required by law

Timing on Approval & Release

Minutes “shall be promptly available to the public?

Minutes & OPMA

– Enables those attending a meeting to know what occurred at prior meetings.

– Providing all persons with the opportunity to take action prior to the next meeting of the public body.

– Informing persons, who might be aggrieved by actions of the public body and enabling them to take appropriate and timely steps to appeal or otherwise respond.

Case Law Guidance

– “Does not mean word for word recitation of every event or a verbatim detailing of every public comment or objection.”

– “Minutes are intended to recite and disclose any official decision or action taken by a public body, and necessarily must contain sufficient facts and information to permit the public to understand and appraise the reasonableness of the public body’s determination.”

– Does not mean the public body must reveal the reasons why it took the legislative action that it did.

MCGOVERN V. RUTGER BD. GOVERNORS

Thank You – Questions?

Presented by Victor J. Medina, Esq.Medina Law Group, LLC

Prepared for New Jersey Association of School Business Officials