The needler in the haystack.

Tuesday, June 29, 2010

Corporation Counsel argues Council retreat is 'non-public'




Plainfield's City Council had scheduled the first of is two 'retreat' sessions for 1:00 PM Monday. Retrieving a forgotten notebook made me about ten minutes late. As I entered the room Corporation Counsel Dan Williamson was reading an opinion to the assembled officials (and Alan Goldstein of the Citizens Budget Advisory Commission, the one other member of the public in attendance) arguing that the meeting could be CLOSED TO THE PUBLIC on the condition that the governing body and the mayor and members of the administration 'may not discuss any topic relating to public business', but that the discussion could include such items as 'interpersonal relations', as the Administration proposed to discuss.

Since it appeared we were going to be 86'ed, I decided to quickly note the scene.

Behind the table was a newsprint pad on an easel with a presumed agenda written out in large bold print --

  • Team building
  • Long-range goals
  • Acceptable/Unacceptable (behaviors? speech? other?)
  • Written pledge
Councilors present included President Annie McWilliams, Committee of the Whole Chair Adrian Mapp, and Rashid Burney and Linda Carter. (Councilor Reid, I had been told, was out of the state; Councilors Storch and Rivers were presumably at work.)

Also present were Mayor Sharon Robinson-Briggs, City Administrator Bibi Taylor,
Corporation Counsel Dan Williamson, Public Safety Director Martin Hellwig, DPWUD Director David Brown, and IT manager Chris Payne.

Taken by surprise by the Corporation Counsel's opinion, a back-and-forth ensued between Council members and Mr. Williamson in an attempt to clarify what exactly could be discussed that would not be construed as 'public business', to which Mr. Williamson again referred to 'interpersonal relations' and '...issues of respect between the two factions ... if you will ... the Administration and the Council...'

Council President McWilliams referred to conversations she had had with Mayor Robinson-Briggs in planning the meeting in which the notion of excluding the public had not been broached.

With Mayor Robinson-Briggs and Corporation Counsel smilingly unbending,
Council President McWilliams acceded, on the condition that Wednesday's meeting be open to the public, to which Mr. Williamson replied, 'I think that's fair'.

Before we were escorted out, I asked Council President for clarification about whether the IT manager, Mr. Payne, was going to make a presentation (as I had inferred from her remarks at last Monday's Council meeting) during this meeting from which were being excluded.

Her response was that while the Council intended to discuss IT, he would be making a public presentation at another time.

(I am not entirely satisfied with this; discussing IT would be city business and therefore could not be conducted at the Monday meeting per the ground rules laid down by Corporation Counsel; also, if the Council wishes to discuss IT out of hearing of the public, it would have to be -- by my lights -- in EXECUTIVE SESSION, and the statutory exemptions prescribing the bases for those discussions not being public do not leave room for just having a private conversation.)

As Council President McWilliams escorted us out of the room, I asked if she would obtain a copy of Corporation Counsel's opinion, to which she said she would ask for it and probably post it on her blog.

(I am opining that since he read it aloud in its entirety in the presence of members of the public that it is a public document, and attorney-client privilege cannot be claimed.)

Mr. Goldstein and I left them to a lovely afternoon of team-building, but I couldn't help wondering what would be in a 'written pledge' between the two -- as Mr. Williamson styled them -- 'factions'.

Mark Spivey of the Courier arrived after we had been escorted out and was forbidden entry also, which he has written up in today's edition
(see here).

PS: Reprinted below is Mr.Goldstein's email to attendees expressing his point of view about the public's being excluded --

Dear Councilors McWilliams, Mapp, and Burney,
Notwithstanding Mr. Williamson’s opinion concerning the closing of today’s meeting to the public, if I had the time I would be back to lodge an official protest to be entered in the minutes.  (I presume that because the law requires minutes to be kept, there will in fact be minutes kept- NJSA 10:4-14).  Taking ‘action’ on public business is not a requirement.  But the topics were very much about public business (acceptable and non acceptable behavior, long-term goals, etc.).  Per 10:4-8, paragraph C-  "Public business" means and includes all matters which relate in any way, directly or indirectly, to the performance of the public body's functions or the conduct of its business.
When I returned home I looked up the Open Public Meetings Act (N.J.S.A. 10:4-6 to 10:4-21).  According to statute there are nine exceptions to the Open Meeting requirement.  I list them below because it seems that not one of them covers the topics planned for discussion today:
N.J.S.A.
10:4-12. Meetings open to public; exclusion of public; subject matter of discussion
a. Except as provided by subsection b. of this section all meetings of public bodies shall be open to the public at all times. Nothing in this act shall be construed to limit the discretion of a public body to permit, prohibit or regulate the active participation of the public at any meeting.
b. A public body may exclude the public only from that portion of a meeting at which the public body discusses:
(1) Any matter which, by express provision of Federal law or State statute or rule of court shall be rendered confidential or excluded from the provisions of subsection a. of this section.
(2) Any matter in which the release of information would impair a right to receive funds from the Government of the United States.
(3) Any material the disclosure of which constitutes an unwarranted invasion of individual privacy such as any records, data, reports, recommendations, or other personal material of any educational, training, social service, medical, health, custodial, child protection, rehabilitation, legal defense, welfare, housing, relocation, insurance and similar program or institution operated by a public body pertaining to any specific individual admitted to or served by such institution or program, including but not limited to information relative to the individual's personal and family circumstances, and any material pertaining to admission, discharge, treatment, progress or condition of any individual, unless the individual concerned (or, in the case of a minor or incompetent, his guardian) shall request in writing that the same be disclosed publicly.
(4) Any collective bargaining agreement, or the terms and conditions which are proposed for inclusion in any collective bargaining agreement, including the negotiation of the terms and conditions thereof with employees or representatives of employees of the public body.
(5) Any matter involving the purchase, lease or acquisition of real property with public funds, the setting of banking rates or investment of public funds, where it could adversely affect the public interest if discussion of such matters were disclosed.
(6) Any tactics and techniques utilized in protecting the safety and property of the public, provided that their disclosure could impair such protection. Any investigations of violations or possible violations of the law.
(7) Any pending or anticipated litigation or contract negotiation other than in subsection b. (4) herein in which the public body is, or may become a party.
Any matters falling within the attorney-client privilege, to the extent that confidentiality is required in order for the attorney to exercise his ethical duties as a lawyer.
(8) 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 such matter or matters be discussed at a public meeting.
(9) Any deliberations of a public body occurring after a public hearing that may result in the imposition of a specific civil penalty upon the responding party or the suspension or loss of a license or permit belonging to the responding party as a result of an act or omission for which the responding party bears responsibility.
Needless to say, I believe closing today’s meeting to the public was in violation of the Open Meeting Act.
Yours truly,
Alan Goldstein



-- Dan Damon [follow]

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8 comments:

Anonymous said...

Well Dan and Alan, all I have to say is: "So freaking what?" Do you think that a single day's private conversation will destroy democracy as we know it? Do you really think that Wiliamson is cleverer than the state supreme court and that he'll create his own unassailable precedent for closing meetings? Are you afraid of some unspecified but terrifyingly facistic slippery slope? Give me a break. Let them have some private, adult time to try to come up with a way out of their feuding. Maybe it will lead to actually getting something done in the future.

Dan said...

@ 7:59: They can have all the touchy-feely time they need, but if it's going to involve discussing city business, I defer to Mr Williamson -- the public must be allowed.

Now, what was your point again?

Anonymous said...

I do believe that all teams need to have a forum to privately discuss issues of intra-team effectiveness such as interpersonal relationships. This said, when Atty Williamson offered the opinion to exclude the public, did his opinion cite specific precedence (laws, ordinances, statutes, etc.)? If yes, my following comments are moot. If not, backlash and questioning should be expected because the attitude 'because I said so' doesn't cut it in this situation. For example, I could see an argument for public exclusion under N.J.S.A 10:4-12 (b)(8):

"........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 such matter or matters be discussed at a public meeting."

Since the Mayor and Council members are Public Officers and how they interact with each other (interpersonal relations), in the performance of their respective duties, is a normal and integral part of any group or individual performance review; invoking N.J.S.A 10:4-12 (b)(8) would make sense, i.e., I can see the argument that the proposed meeting is an "internal performance review". However, I also question the addition of an IT (business?) discussion. Unless the discussion is in regards to Mr. Payne's performance, an IT business discussion would need to be public if my understanding of N.J.S.A 10:4-12 is correct.

Anon

Anonymous said...

Why would a team building session proceed with 3 Council members absent? If improving team interpersonal relations is the objective, how can this be achieved unless all, who have an impact on team interactions, are present?

Anon

Dan said...

@ 10:20: I do not (yet) have a copy of Willliamson's opinion to answer the first part of your question;

Your citation of the statute refers to closed or executive sessions of the GOVERNING BODY and the so-called Rice notice for employees facing discipline or termination.

As to invoking it as an 'internal performance review', while the mayor (and administration) and the Council need to find ways to work together, they are not a 'team' as that word is normally construed.

In fact, quite the opposite -- the genius of the American inflection of the ideas of governance we inherited from England can be summed up in the explicit separation of powers. The mayor and the Council are the local embodiments of those two legs of the 3-legged stool. The tension between them is quite real, and quite intentional.

It's part of what makes American democracy American and democratic.

Dan said...

@10:46 AM: Good point.

Suppose you had originally planned the meeting for, say, a weekend, when Councilors who have day jobs can be present.

And let's just suppose that the Mayor insisted that the meeting needed to be on a weekday if her administrative team were to be there.

Now, what would YOU do?

Anonymous said...

Maybe Wednesday's agenda will include those things that all can work toward: a common vision of the city and how to achieve it.

In any event, I think getting the council and admin to talk together without having to censor themselves because of the public is a great idea and long overdue.

Alan Goldstein said...

For Anon 10:24- The pertinent clause is a public officer or employee "employed or appointed by the public body".

Council members and the Mayor are neither employed or appointed by the public body, as would be the case were it an evaluation of a commissioner, a police officer, or an administrative assistant. And even if this were the case, only that portion of the meeting that dealt with a specific employee or employees would be off limits.

As for Anonymous who wants a break and thinks the Council and Administration deserve some "private, adult time to try to come up with a way out of their feuding", fine, the Mayor can discuss interpersonal relations with any Council member any day, any time. They can sit down over tea or coffee and discuss all day and night if they choose. Let's hope they do. It just shouldn't be done at a group meeting of the Administration and the Council, nor do I see 'private, adult time' as a legal reason to exclude the public.

There is a vast difference between discussing legitimate confidential information and wanting to maintain confidentiality. That's the reason for the law's existence in the first place. City government is not a private affair. How it operates is very much the public business.

And yes, I do think Counselor Williamson attempted to be cleverer by degrees simply to keep any unfavorable commentary from public earshot. But if elected public officials can't handle public criticism (or praise) they shouldn't run for public office.