In the Dark: Furor Over Brick School Board Keeping Documents From Public

Board of Education members debate at the Jan. 7, 2016 meeting. (Photo: Daniel Nee)

Numerous Brick residents and at least two school board members are furious over a decision by the Brick Township Board of Education to deny access to contracts and other documentation up for votes until after the votes take place, leading many to question the motivation for the change.

The school board, for years, published agendas for its meetings which included links to PDF files for contracts, agreements and other supporting documentation for what was being voted on. The documents contained the agreements up for consideration, the price taxpayers would pay for goods or services, and other information. This week, without notice, the policy changed, and the agenda did not contain links to the supporting documents for a slew of votes. Instead, the agenda items said the documents were “on file in the Office of the Business Administrator.”

“We’re voting on it tonight, and this is a public meeting,” said a furious board member Karyn Cusanelli. “We represent the public.”

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“Why can’t the public see what our elected representatives are voting on?” asked Normandy Drive resident Larry Reid. “You’re cutting the public out of what can be on the agenda and what has been on the agenda for years. I think it’s totally wrong and I think the board members should be embarassed to do this.”

Another resident who said he was planning to speak on the issue left in frustration after the board decided to meet in closed session to speak about an employee prescription contract that many believed should have been discussed in public.

Documentation for numerous items did not appear on an agenda for Thursday’s board meeting. Items ranged from a new appeal process for employee prescription denials to a contract with a DJ for the ROTC balls at the district’s two high schools.

Agenda items for the Dec. 22, 2016 BOE meeting.

Business Administrator James Edwards said he did not know when the policy changed, but it stemmed from a complaint from a vendor about their contract appearing in full on an agenda. In the past, when personnel contracts had been left off the agenda, Edwards said he received advice last year from Paul Kalac, the district’s labor counsel, to do so. Video from a meeting in 2015, however, shows that Kalac was speaking of a unique situation relevant to the 2015 meeting known as the “doctrine of necessity,” which no longer applies to a reshaped board.

Board Attorney Nicholas Montenegro, who also said he did not know when the decision was finally made to restrict supporting documentation, indicated his reasoning for the change stems from a state Appellate Division decision in 2015 in the Opderbeck v. Midland Park Board of Education case, in which the panel of judges ruled supporting documentation is not required to be posted with meeting agendas.

“That ruling, however, did not say that it was illegal to post agenda attachments, only that the Open Public Meetings Act did not require it to,” said John Paff, an open government advocate who has filed numerous lawsuits over public transparency.

“There are items of confidentiality that may exist in certain agreements,” said Montenegro, opining that documents that appear on agendas are not technically public.

“They’re not official board documents until they’re approved by the board,” Montenegro said. “If the board this evening, or at any meetings, approves and adopts a contract, then it becomes available for the public to review.”

Still, Paff said, there is nothing preventing the district from allowing the documents to appear on the agenda.

“As for giving the public access to the documents after the vote, it is much more useful for the public to have those documents prior to the vote so that the public can give the board cogent comments during the public portion of the meeting at which they are voted upon,” he said.

The current board majority, which ran as the Clean Slate Team in the 2015 school board election, had promised during their campaign to bring more transparency to the board. But in the months that followed, controversy ensued as the group approved numerous “no-bid” contracts for various district services. Cusanelli, a strong critic of the moves made by the new majority, chose not to run for re-election over her disagreements with the group. Thursday night’s meeting was the last of her term.

“I’m very confused, and very concerned for the transparency of the public,” she said at Thursday’s meeting.

The move was panned by Paff.

“Instead of depriving the public of these documents wholesale, the board ought to suppress only those documents where a  real and present danger exists in premature disclosure,” he said. “Such would allow disclosure to be the rule and suppression to be the exception.”