Do's Don'ts and D'Oh's of Board Meetings

Kean Federation of Teachers v. Morell, 233 N.J. 566
Supreme Court of New Jersey

January 17, 2018, Argued; June 21, 2018, Decided

*Plaintiffs alleged the Board of Trustees of Kean University violated
the Open Public Meetings Act (OPMA) by delaying 94 days and 58
days before releasing the minutes of two board meetings

*The trial court and appellate court found the Board violated the
“promptly available” standard under N.J.S.A. 10:4-14 of the OPMA.

*Plaintiffs also allege that the Board should not have taken action to
terminate an employee without first providing the employee with a
RICE notice.

*Here, the trial court ruled that absent any discussion of the
employees' status during closed session, or any stated intention to
engage in such discussion, the board is not required to send a Rice
notice to the affected employees.

*Appellate Division reversed and held that a public body is
required to send a Rice notice to all affected employees
any time it places on its agenda its intention to take
action affecting these employees' employment status.

Kean Continued

Supreme Court:

• We find that the procedural notice created in Rice should not be
stretched beyond its factual setting.

• Neither N.J.S.A. 10:4-12(b)(8) nor Rice supports the
interpretation that notice must be given to all potentially affected
employees, regardless of whether the employee is adversely
affected, whenever a personnel matter appears on a governing
body's public meeting agenda.

• We add only that once a public entity has committed to a public
discussion on a topic tangential to the personnel exception, if a
Board member sought during that public session to raise questions
or provoke a discussion that implicated a need to adjourn to
private session, then the discussion would have to halt. The Rice
notice practice would have to be employed for the employees
whose rights could be adversely affected. We express no opinion
on whether any or all questions about reappointment would
implicate either a privacy concern under N.J.S.A. 10:4-12(b)(3) or
a risk of litigation for the Board over reputational
harm to the employee.

Do’s, Don’ts and D’ohs
Public Comment by

CurrentStaff Members

Staff Member Public Comment….
Isn’t my Comment FREE SPEECH?

Yes… BUT…

If the person is speaking as a private citizen
on a matter of public concern, the speech is
entitled to protection that balances the
government’s (school/district) interest in
efficiently carrying out the public’s business
against the person’s interest in speaking out.

Garcetti v. Ceballos

547 U.S. 410 (2006)

• Plaintiff was a district attorney who claimed that he had been
passed up for a promotion for criticizing the legitimacy of a
warrant and articulated his position in a work memorandum.

• The Court ruled, in a 5-4 decision, that because his
statements were made pursuant to his position as a public
employee, rather than as a private citizen, his speech had no
First Amendment protection

• First Amendment protects a public employee’s right in certain
circumstances to speak as a citizen addressing matters of
public concern.

• The First Amendment does not prohibit managerial discipline
based on an employee’s expressions.

Did the governmental employee Yes.
speak "pursuant to his official Done.
No. duties"?

Is it a matter of public
concern?

No. Yes, then go to the balancing
Done. test.

Employee’s Favor = Employer’s Favor =
Speech is Done.
protected.

Was the employee's speech a No. Done.
"substantial factor or motivating factor
in a detrimental employment decision"? Yes...Would the employer
have made the same decision
anyway???

Board Member Comment

• Board Member use of social media
• Bey v. Brown, C#25-11
• A member of a board of education made a

number of statements on his Facebook page,
including a statement that read:

“Now if we could only do something about our
local terrorists that destroy dreams and burn
features,”•under which he posted a picture of
the district’s Superintendent.

Bey vs. Brown (cont’d)

• School Ethics Commission found a violation of the School
Ethics Act.

• Comparing the Superintendent to a terrorist, on a social
media outlet which allowed for access by many people, was
an intentionally confrontational act.

• Because Members of the community may assume that Board
members have insight that others do not have, when a
sitting Board member makes such a judgment proclamation,
it is likely to be credited far more than a statement
offered by an ordinary citizen.

• The statement may reasonably be considered as
undermining, opposing, compromising or harming the
Superintendent in the proper performance of her duties.

Vermilion Parish, Louisiana
January 8, 2018

• Vermilion Parish teacher Deyshia Hargrave
attended the board of education in the
school district where she is a teacher.

• During the public comment section of the
meeting she stood up and questioned
whether the school's superintendent
should receive a raise.

• "I have a serious issue with a superintendent or any person
in a position of leadership getting any type of raise," she
said calmly. . . .It's absurd that we're even considering
giving someone a raise when these teachers are working this
hard and not getting a dime."

Vermilion Parish
(cont.)

• The board then voted to approve the raise
for the superintendent, reportedly moving
his salary from around $110,000 to more
than $140,000.

• At that point, Hargrave addressed the
room again.

– "How are you even going to take a raise? It's
basically taking our money.“

• A deputy city marshal paid by the school
board, approached Hargrave and asked her
to leave the meeting. "You're going to
leave or I'm going to remove you. Take
your things and go.”

Vermilion Parish
(cont.)

• Hargrave asked whether it was
against policy to stand as she spoke
and pointed out that the board was
directly addressing her.

– She then complied with the officer's
request and walked out of the room.

• The “viral” video shows Hargrave
being escorted by the deputy.

– Hargrave was booked into jail.

Do’s, Don’ts and D’ohs
Public Comment Board

Members

Public Comment about BOE

Members?

• What can the public say?

– A member of the public can state
that the BOE is not making sound
decisions, and can question the
decisions of an individual BOE
Member but they should not
engage in in personal attacks
against an individual BOE member.

Public Comment about BOE

Members?

• What can a BOE Member say
about fellow BOE Members?

– BOE can challenge fellow BOE
members to foster genuine
debate, but should not engage
in individual attacks.

In the News: Resignation Over Social Media

• Mt. Ephraim school board member resigns over lewd
and offensive posts made on certain Facebook pages.

• The posts included profanity, homophobic slurs,
sexually-graphic language and references to racial
stereotypes.

• Member claimed he did not know the posts were public.

• Mt. Ephraim’s board code of conduct requires that
members refrain from inappropriate conduct when
making public statements, including “refraining from
any disparagement of [] fellow board members or
others on a personal, social, racial or religious basis.”

• https://www.nj.com/camden/index.ssf/2017/02/nj_school_board_member_under_fir
e_for_offensive_fa.html

Do’s, Don’ts and D’ohs
Public Comment
Recording/Video
Taping?

Public Rights Under the OPMA

• Public is allowed to tape board
meetings.

– Taurus v. Borough of Pine Hill, 189
N.J. 497 (2007)

• Even if you have a policy saying the
public can’t record.

Do’s, Don’ts and D’ohs
Public Comment
Minutes

Minutes

• Each public body shall keep reasonably
comprehensible minutes of all its meetings
showing the time and place, the members present,
the subjects considered, the actions taken, the
vote of each member, and any other information
required to be shown in the minutes by law, which
shall be promptly available to the public to the
extent that making such matters public shall not
be inconsistent with [N.J.S.A. 10:4-12].

– N.J.S.A. 10:4-14. Minutes of meetings;
availability to public

Minutes..

• Public Comment Section

– Does Not Have to be Verbatim

Pop Quiz!

@BoardMembers #1

A Board Member is also a parent and
posted a negative comment about a
district program on a closed parents'
Facebook group. Someone in the group
shared the Board Member's comment
and discussed during public comment.

What happens Now?

@BoardMembers #2

A citizen during public comment uses
some content that may be viewed as
vulgar, or inflammatory or
discriminatory?

• Viewpoint?

• Censorship?

@BoardMembers #3

Board member extensively comments
about a public comment made during
the Board meeting from an individual
who is controversial in the community.
People in the audience ask to respond
when Board Member is finishing
talking?

What happens Now?

@BoardMembers #4

Public commenter during public
comment period plays recording at
meeting of conversation between
commenter and Board Member about
anotherBoard Member?

What happens Now?

Rules to Live By

• When in doubt let a member of the public speak.

– Unpopular does not equal inappropriate.

• Discuss whether to have local police department
at meetings that are anticipated to be hostile.

– What message are you sending?
– What disruption do you anticipate?

• As a BOE member watch what you say at meetings
• Seek assistance from your Board Solicitor
• Remember! You are being recorded at all times!
• No Comment Works!!

Rules to Live By

• “Wind Your Watch”
• When in doubt~ Don’t
• Nothing is Private!
• And it lasts Forever. . .
• Everything Awesome until it is not
• If you’re in the middle you’re probably in

trouble…
• You are Responsible for your Actions

Questions ???