Two Members Boycott Closed Session To Fill Board Vacancy

Reprinted from AMBOY BEACON,

Wednesday, Aug. 4, 2010

PERTH AMBOY — Despite warnings by resident Alan Silber of potential legal
repercussions, the Board of Education — minus two of its members, who
remained at the meeting-table — retired into closed-door executive session last
week to discuss the seating of a new member to fill the vacant seat of former
Board President Kenneth Gonzalez, now a City Council member.
The question of secrecy was raised by member Mark Carvajal, who was elected
in April. “Why not have it out-in-the-open?” he asked after Board
President Samuel Lebreault suggested a recess into closed-session would be taken.
“We cannot discuss the pros-and-cons of prospective Board members without
embarrassing certain people,” Lebreault replied. Longtime city school activist Milady Tejeda, who was appointed by the Board in June to fill the vacancy created by the resignation of former Board
President Austin Gumbs, moved to go into closed session to discuss whether to
appoint Janelle Rodriguez, a freelance translator, or Armando Tamargo, a
solar-power contractor, both of whom were interviewed in-public earlier that
evening by Board Attorney Victor Medina. Her motion was seconded by Kurt Rebovich Jr., who was elected in April, and was adopted by a vote of 6-2, with “no” votes by Carvajal, who was elected
with Rebovich, and Israel Varela, who was elected in April after being appointed last July to the Board vacancy created after Raymond Geneske, indicted on federal and state corruption charges, resigned his Board seat. When the six other Board members returned from their private meeting, Varela moved and Carvajal seconded the appointment of Tamargo, which was approved 8-0.
This was the second time that Rodriguez, interviewed before Tejeda was appointed, was rejected by the Board. Tamargo was interviewed last year before Varela’s appointment. Silber, a frequent speaker at both Board and Council meetings, stood-up and raised a point-of-order before striding to the podium.

“I’d like to make a formal complaint before you go-into closed-session,”Silber stated, issuing a challenge to the criteria used by the Board in determining that the subject-matter was valid to meet the exceptions that are
listed in the state Open Public Meetings Act, commonly-known as the “Sunshine Law,” to conducting business in-public. Medina said he was “advising the Board” that the subject-matter was “a deliberative matter” that could be discussed in-private. Silber noted that “deliberative matters” are not an enumerated exception in the law before insisting-upon being granted the opportunity to speak on
the matter as an “agenda-item” under the Board’s rules. “I think I have the right to speak as a citizen of Perth Amboy on the narrow issue of why you want to go-into closed-session to discuss the appointment of an elected official, not a personnel issue,” Silber stated. He also pointed-out that “we don’t even know who submitted the questions, although we do know that the persons being interviewed got the questions
in-advance.” Silber went-on to describe how the Gloucester County Superior Court Assignment Judge recently decided to place that county’s Board of Freeholders under his watch for six months to keep it from improperly conducting public business behind closed doors. Assignment Judge Francis Orlando Jr. will appoint an independent monitor to observe the Freeholders’ meetings and report on whether they are complying with the “Sunshine Law.” Last summer, an Appellate Division panel suggested that the Judge consider corrective action, saying that while it “found no authority” for this type
of review, such a review might be warranted if “a pattern of wrongful
conduct” was found. The Freeholders had been accused of violating the Open Public
Meetings Act, commonly-known as the “Sunshine Law,” more than 50 times in
recent years. Although attorneys on both sides of the case said they had never heard of a
state monitor being charged with overseeing an elected Board this
way, Orlando said the Freeholders had failed to offer any reason as to why they voted
in private to create public positions, establish officials’ salaries, make
special payments to lawyers, adopt policies, and authorize payment of legal
settlements. Orlando said the Freeholders should have followed the intent of the law,
which is to be transparent and “to err on the side of openness,” instead of
citing questionable exemptions to the law. He pointed to the Appellate
panel’s finding that “secrecy undermines the public faith in open government”
before ordering lawyers on both sides to come-up with suggestions of retired
Judges who might be suitable as monitors.“We should know who’s asking what questions, not a charade with the lawyer asking questions that were given to the candidates ahead-of-time,” Silber
said. “That’s part pf the right of the public to be-aware of the deliberative process and policy formulation. Secrecy undermines the faith of the public in elected officials.”
As for the closed-session, he said, “I hope you took good minutes because I
think you made a big mistake.” “The position being-filled today is going to represent the people,”
Carvajal said. “The selection should be transparent, shoul;d be open.
“I will sit here, and I will not be going inttto closed-session,” he stated.
“I’m going to stay in my seat also, because I do not want to
break-the-law,” Varela declared.Challenged almost-inaudably by someone-else at the Board table because he,too, had been appointed to a Board vacancy, Varela responded, “As a Board
member, my job is also to learn.“Inside me, I feel I may be breaking-the-law, and I won’t do it,” he added.
“I, personally, am conflicted,” another Board member, Obdulia “Obi”
Gonzalez, said. “I’ve voted to appoint three indivuals in my tenure as a Board
member, and I expect to have some level of confidence in what Mr. Medina
says.” This time, Medina said, “The Board has the right, but not the obligation,
to go into closed-session.“The subject of what’s debated is best-served by going tinto
closed-session,” he continued. “There are privacy rights involved here. As a practical
matter, the public has the right to investigate right-after the new Board
member is seated when confidentiality is no-longer needed.”
No Appellate Division rulings could be found as to whether elected public
bodies must fill their vacancies in-public — which would be binding statewide
— although much case-law at the Law Division level has found this to be so.
However, public entities on the losing side have not filed appeals, thereby
restricting application of such decisions to the county at-hand.
The enforcement authority under the “Sunshine Law” would be the Middlesex
County Prosecutor’s Office, and Carvajal, Varela or Silber would have
standing to file formal charges against the six Board members. A finding of
violation could bring a personal fine of up-to $1,000 for each of those members.