WHAT IS A BOARD OF EDUCATION
Rutgers - FEA
EDUCATION LAW AND POLICY INSTITUTE
Course Materials
CHAPTER 1
EDUCATION GOVERNANCE AND ADMINISTRATION
I. Education Governance and Policy Making
Richard S. Vacca and William C. Bosher, Jr., Law and Education: Contemporary Issues and Court Decisions (Matthew Bender & Company, Inc. 2003), Chapter 1, “Sources of Education Law,” pages 3 – 18 (copy attached)
Frances C. Fowler, Policy Studies for Educational Leaders: An Introduction (Prentice-Hall, Inc. 2000), Chapter 6, “The Major Education Policy Actors,” pages 141 – 157 (copy attached)
II. The New Jersey State Board of Education and the Commissioner
N.J.S.A. 18A:4-1. State department of education continued; composition. The state department of education is hereby continued as a principal department in the executive branch of the state government, and it shall consist of a state board of education, which shall be the head of the department, a commissioner of education, and such divisions, bureaus, branches, committees, officers and employees as are specifically referred to in this title and as may be constituted or employed by virtue of the authority conferred by this title and by any other law.
N.J.S.A. 18A:4-3. Membership; qualifications. The State Board of Education shall consist of 13 members who shall be citizens of the State who have resided therein for not less than five years immediately preceding their appointment, not less than three of whom shall be women and not more than one of whom shall be appointed from the residents of any one county.
N.J.S.A. 18A:4-10. General supervision of public education except higher education vested in state board. The general supervision and control of public education in this state, except higher education, and of the state department of education shall be vested in the state board, which shall formulate plans and make recommendations for the unified, continuous and efficient development of public education, other than higher education, of people of all ages within the state.
N.J.S.A. 18A:4-15. General rule-making power. The state board shall make and enforce, and may alter and repeal, rules for its own government and for implementing and carrying out the school laws of this state under which it has jurisdiction.
N.J.S.A. 18A:4-20. Annual report to legislature. The state board shall report annually to the legislature in regard to all matters committed to its care.
N.J.S.A. 18A:4-21. Appointment; term; qualifications; salary. The commissioner of education shall be appointed by the governor, without regard to residence within or without the state, with the advice and consent of the Senate, and shall serve at the pleasure of the Governor during the Governor's term of office and until his successor is appointed and qualified. He shall receive such annual salary as shall from time to time be fixed by law, which shall be payable as other state salaries are paid.
N.J.S.A.18A:4-22. Chief officer of the department. The commissioner shall be:
(a) The chief executive and administrative officer of the department having general charge and supervision of the work of the department;
(b) The official agent of the state board for all purposes;
(c) The budget request officer and the approval officer of the department, with power to delegate the duties of such officers as in this chapter provided;
(d) Authorized, subject to law, to designate one of the assistant commissioners to act in his place and stead, during his absence, and to assign duties to the assistant commissioners, to the directors of the special services, to the secretary of the state board of examiners and to the inspectors, assistants and employees of the department.
N.J.S.A.18A:4-24. Determining efficiency of schools; report to state board. The commissioner shall pursuant to rules and regulations of the State board, inquire into and ascertain the thoroughness and efficiency of operation of any of the schools of the public school system of the State and of any grades therein by such means as to him seem proper, and he shall report to the State board the results of such inquiries and such other information with regard thereto as the State board may require or as he shall deem proper, but nothing in this section shall affect the right of each district to prescribe its own rules for promotion.
N.J.S.A. 18A:4-25. Prescribing minimum courses of study for public schools; approval of courses of study. The commissioner may, with the approval of the state board, prescribe minimum courses of study for the public schools and require boards of education to submit to him for approval or disapproval courses of study adopted by them, whenever he deems it advisable so to do.
N.J.S.A. 18A:4-30. Annual report of comparative financial statistics of school districts. The commissioner shall compile and cause to be published for general distribution, and may make a reasonable charge therefore to cover the cost of printing thereof, an annual report of comparative financial statistics of all school districts showing the capital and current costs, the cost of principal services, the amount of debt and other pertinent data, for each school district.
III. The Board of Education
N.J.S.A. 18A:8-1. Municipalities as separate school districts; exceptions. Each municipality shall be a separate local school district . . . .
N.J.S.A. 18A:9-1. Classification of school districts. School districts shall be classified as type I and type II school districts, except that the State board may, by administrative order pursuant to its authority under section 15 of P.L. 1975, c. 212 (C. 18A:7A-15), create a State-operated school district.
Top of Form
[pic][pic][pic][pic][pic][pic][pic][pic][pic][pic][pic][pic][pic][pic][pic][pic][pic][pic][pic]
Bottom of Form
N.J.S.A. 18A:9-2. Districts included in type I districts. Type I districts shall include --
a. Every local school district hereafter established in a city, or in a municipality other than a city which shall become a city, except a municipality in which the provisions of section 18A:9-3 shall be accepted;
b. Every local school district which was governed, immediately preceding the effective date of this title, by chapter 6 of Title 18 of the Revised Statutes; and
c. Every local school district in which the provisions of this section shall be accepted;
and such district shall be subject to the provisions of this title relating to type I districts.
N.J.S.A. 18A:9-3. Districts included in type II districts. Type II school districts shall include --
a. Local school districts as follows:
1. Every local school district hereafter established in a municipality other than a city, or in a city which shall become a municipality other than a city, except a municipality in which the provisions of section 18A:9-2 shall be accepted;
2. Every local school district which was governed, immediately preceding the effective date of this title, by chapter 7 of Title 18 of the Revised Statutes;
3. Every local school district in which the provisions of this section shall be accepted; and
4. Every consolidated local school district.
b. Every regional school district;
and such district shall be subject to the provisions of this title relating to type II districts except as otherwise so provided in the case of regional districts.
N.J.S.A. 18A:9-4. Type I districts; reclassification; resolution or petition for submission; frequency. The question of the acceptance of section 18A:9-2 of this title, in any local school district governed by section 18A:9-3 of this title, except a consolidated school district, or of the acceptance of section 18A:9-3 of this title in any local school district governed by section 18A:9-2 of this title, shall be submitted to the legal voters of such district whenever the governing body of the municipality constituting such district or the board of education of any type I districts, shall by resolution so direct, or whenever a petition, signed by not less than 15% of the number of legally qualified voters who voted in such district at the last preceding general election held for the election of all of the members of the general assembly, shall be filed with the clerk of such municipality. No resolution may be adopted and no petition may be filed for the submission of the question of acceptance of N.J.S. 18A:9-2 or N.J.S. 18A:9-3, as the case may be, within four years after an election shall have been held pursuant to any resolution adopted, or petition filed, pursuant to this section or N.J.S. 18A:9-6.
N.J.S.A. 18A:10-1. Conduct of districts. The schools of each school district shall be conducted, by and under the supervision of a board of education, which shall be a body corporate and which shall be constituted and governed, as provided by this title, for a type I, type II or regional school district, as the case may be, but the State board pursuant to an administrative order issued by authority of section 15 of P.L. 1975, c. 212 (C. 18A:7A-15) may create a State-operated school district which shall be conducted by a State district superintendent.
N.J.S.A. 18A:10-6. Board meetings public; frequency; hours of commencement; adjournment, etc., for lack of quorum. All board meetings shall be public and each board shall hold a meeting at least once every two months during the period in which the schools in the district are in session.
All meetings shall be called to commence not later than eight P.M. of the designated day but, if a quorum be not present at the time for which the meeting is called, the member or members present may recess the meeting to a time not later than nine P.M. of said day and, if no quorum be present at that time, the member or members present may adjourn the meeting to commence not later than eight P.M. of another day, not more than seven days following the date for which the original meeting was called, but no further recess or adjournment of the meeting shall be made.
Public announcements of time and day to which any meeting is so recessed or adjourned shall be made at the time of the recess or adjournment.
N.J.A.C. 6A:32-3.1. Special meetings of district boards of education.
(a) The secretary of the district board of education shall call a special meeting of the district board of education whenever:
1. Requested by the president of the district board of education to do so; or
2. When presented with a petition signed by a majority of the full membership of the district board of education requesting the special meeting.
(b) Public notice of such special meeting shall be made pursuant to law and regulation. In accordance with N.J.S.A. 18A:10-6, the public notice shall include the date, time, location, and purpose(s) of the special meeting.
N.J.S.A. 18A:11-1. General mandatory powers and duties. The board shall --
a. Adopt an official seal;
b. Enforce the rules of the state board;
c. Make, amend and repeal rules, not inconsistent with this title or with the rules of the state board, for its own government and the transaction of its business and for the government and management of the public schools and public school property of the district and for the employment, regulation of conduct and discharge of its employees, subject, where applicable, to the provisions of Title 11, Civil Service, of the Revised Statutes; and
d. Perform all acts and do all things, consistent with law and the rules of the state board, necessary for the lawful and proper conduct, equipment and maintenance of the public schools of the district.
N.J.S.A. 18A:11-2. Power to sue and be sued; reports; census of school children. The board may----
a. Sue or be sued by its corporate name and likewise submit to arbitration and determination disputes and controversies in the manner provided by law;
b. Cause a report of the condition of the public schools and the public school property under its control and an itemized account of the condition of the finances of the district to be printed and published as soon as practicable after the close of each school year;
c. Cause an exact census to be taken annually of all children residing in the district between the ages of five and 18 years.
N.J.S.A. 18A:12-1. Qualifications. Each member of any board of education shall be a citizen and resident of the district, or of such constituent district of a consolidated or regional district as may be required by law, and shall have been such for at least one year immediately preceding his appointment or election, he shall be able to read and write, shall be registered to vote in the district, and, notwithstanding the provisions of N.J.S. 2C:51-1 or any other law to the contrary, he is not disqualified as a voter pursuant to R.S. 19:4-1.
N.J.S.A. 18A:12-1.1. Ineligibility for appointment to paid office or position filled by board. No member of a board of education shall, during the term for which he is elected or appointed, be eligible for appointment to any paid office or position required to be filled by the board unless he shall resign or cease to be a member at least 6 months prior to his appointment, except in cases where the office or position is by law required or permitted to be filled by a member of the board.
N.J.S.A. 18A:12-2. Inconsistent interests or office prohibited. No member of any board of education shall be interested directly or indirectly in any contract with or claim against the board, nor, in the case of local and regional school districts, shall he hold office as mayor or as a member of the governing body of a municipality, nor, in the case of county special services school districts and county vocational school districts, shall he hold office as a member of the governing body of a county.
N.J.S.A. 18A:12-3. Cessation of membership. Whenever a member of a local or regional board of education shall cease to be a bona fide resident of the district, or of any constituent district of a consolidated or regional district which he represents, or shall become mayor or a member of the governing body of a municipality, his membership in the board shall immediately cease; and, any member who fails to attend three consecutive meetings of the board without good cause may be removed by it. Whenever a member of a county special service school district or a member of a county vocational school district shall cease to be a bona fide resident of the district, or shall hold office as a member of the governing body of a county, his membership on the board shall immediately cease.
Notwithstanding the provisions of N.J.S. 2C:51-1 or any other law to the contrary, whenever a member of a board of education is disqualified as a voter pursuant to R.S. 19:4-1, or is convicted of false swearing as provided in section 5 of P.L.1987, c. 328 (C. 18A:12-2.2), his membership on the board shall immediately cease.
N.J.S.A. 18A:12-4. Compensation of members. A member of a board of education shall receive no compensation for his services.
Top of Form
[pic][pic][pic][pic][pic][pic][pic][pic][pic][pic][pic][pic][pic][pic][pic][pic][pic][pic][pic]
Bottom of Form
N.J.S.A. 18A:12-6. Boards; number of members. The board of education of a Type I school district shall consist of 5 or 7 members as provided by ordinance of the municipal governing body, except that it shall consist of 9 members in districts in cities of the first class, and in districts in which it has been so determined by referendum held pursuant to law.
N.J.S.A. 18A:12-7. Boards; appointments; vacancies. The boards of education shall be appointed by the mayor or other chief executive officer of the municipality constituting the district.
N.J.S.A. 18A:12-9. Terms of members of boards. Of boards consisting of 5 members, one shall be appointed each year for a term of 5 years, of boards consisting of 9 members, 3 shall be appointed each year for terms of 3 years, and of boards consisting of 7 members, 3 shall be appointed in the first year and 2 shall be appointed in each of the 2 following years of each 3-year period, each for a term of 3 years, except the members of the first board of any such district, who shall be appointed for such terms, as shall, as soon as possible, result in all members of a 5-man board being appointed for terms of 5 years and the terms of one member expiring each year, or all members of a 9-man board being appointed for terms of 3 years and the terms of 3 members expiring each year, or all members of a 7-man board being appointed for terms of 3 years and the terms of either 3 or 2 members expiring in each 3-year period. All members shall serve after the expiration of their respective terms until the appointment and qualification of their successors.
N.J.S.A. 18A:12-11. Election and number of board members; terms. The board of education of a Type II school district shall consist of nine members, or it shall consist of three, five or seven members as, and if, it has been so determined pursuant to law or shall be so determined by referendum as provided in this chapter, who shall be elected at annual school elections in the district for terms of three years except as otherwise herein provided.
N.J.S.A. 18A:12-12. Increase or reduction in membership; resolution; submission of question. If the board of any district shall determine by resolution that it is for the best interest of the schools that the membership of the board shall be increased from whatever number of members then composes it to five, seven or nine members, or reduced from said number to seven, five or three members, the question of such increase or reduction shall be submitted to the voters of the district at the next annual school election and the question shall be stated in the notice of the election.
§ 18A:12-15. Filling vacancies. Vacancies in the membership of the board shall be filled as follows:
a. By the county superintendent, if the vacancy is caused by the absence of candidates for election to the school board or by the removal of a member because of lack of qualifications, or is not filled within 65 days following its occurrence;
b. By the county superintendent, to a number sufficient to make up a quorum of the board if, by reason of vacancies, a quorum is lacking;
c. By special election, if in the annual school election two or more candidates qualified by law for membership on the school board receive an equal number of votes. Such special election shall be held only upon recount and certification by the county board of elections of such election result, shall be restricted to such candidates, shall be held within 60 days of the annual school election, and shall be conducted in accordance with procedures for annual and special school elections set forth in Title 19 of the Revised Statutes. The vacancy shall be filled by the county superintendent if in such special election two or more candidates qualified by law for membership on the school board receive an equal number of votes;
d. By special election if there is a failure to elect a member at the annual school election due to improper election procedures. Such special election shall be restricted to those persons who were candidates at such annual school election, shall be held within 60 days of such annual school election, and shall be conducted in accordance with the procedures for annual and special school elections set forth in Title 19 of the Revised Statutes;
e. By the commissioner if there is a failure to elect a member at the annual school election due to improper campaign practices; or
f. By a majority vote of the remaining members of the board after the vacancy occurs in all other cases.
Each member so appointed shall serve until the organizational meeting following the next annual election unless he is appointed to fill a vacancy occurring within the 60 days immediately preceding such election to fill a term extending beyond such election, in which case he shall serve until the organizational meeting following the second annual election next succeeding the occurrence of the vacancy, and any vacancy for the remainder of the term shall be filled at the annual election or the second annual election next
succeeding the occurrence of the vacancy as the case may be.
Top of Form
[pic][pic][pic][pic][pic][pic][pic][pic][pic][pic][pic][pic][pic][pic][pic][pic][pic][pic][pic]
N.J.S.A. 18A:12-17. Appointments; terms; vacancies. In Type II school districts in towns with populations of more than 10,000, the mayor or other chief executive officer of the municipality shall, between April 1 and April 15 in each year, appoint one member of the board to serve for a term of 5 years beginning on May 15 next succeeding his appointment, to take the place of the member whose term shall expire in that year, and any vacancy occurring in the membership of the board shall be reported forthwith by the secretary of the board to the mayor or other chief executive officer of the municipality, who shall within 30 days thereafter appoint a qualified person to fill the vacancy for the unexpired term.
N.J.S.A. 18A:22-1. Number of members; appointments; vacancies. There shall be in each type I district a board of school estimate, which shall consist of two members of the board of education appointed by it, two members of the governing body of the municipality appointed by it, and the mayor or other chief executive officer of the municipality or if there be no chief executive officer then an additional member appointed by the governing body. Appointments shall be made annually in December, and vacancies shall be filled immediately by appointment as the original appointments were made for the unexpired terms.
N.J.S.A. 18A:22-4. Membership; terms; vacancies. The board of school estimate shall consist of the chief executive officer of the governing body of each municipality and the president of the board of education of the district ex officio, and two members of the governing body of each municipality, to be chosen by their respective governing bodies and one member of the board of education of the district, to be chosen by said board, all of whom shall be chosen during the month of January and shall serve for one year from February 1 and until their successors are chosen. Vacancies occurring in the board shall be filled in like manner for the unexpired terms.
A person who is not old enough to vote is not qualified to serve as a member of a board of education.
VITTORIA v. WEST ORANGE BD. OF ED.
Superior Court of New Jersey, Appellate Division
122 N.J.Super. 340, 300 A.2d 356 (App. Div. 1973)
PER CURIAM.
The board of education of the school district of West Orange had called an election to be held on February 13, 1973 at which there is to be elected one member of the school board. On November 17 last year plaintiff, who became 16 years of age in January 1973, and who is a member of the sophomore class in Mountain High School in the school district, sought to file with the board a petition to run as a candidate in that election. The secretary of the board rejected the petition because of his age. The Law Division upheld that determination and plaintiff appealed to this court. . . .
Plaintiff's position is that he has fulfilled all of the requirements of N.J.S.A. 18A:12-1, and is legally entitled to be a candidate. That section provides:
Each member of any board of education shall be a citizen and resident of the district, or of such constituent district of a consolidated or regional district as may be required by law, and shall have been such for at least two years immediately preceding his appointment or election, and he shall be able to read and write.
Plaintiff's argument is that since he is a citizen and resident of the district possessing the ability to read and write, and since there is no provision for a minimum age qualification for candidates, none can be enforced.
We view this argument as unsound. Pursued to its logical conclusion an infant of seven years residing in the district and meeting the literacy requirements of the statute could serve on a school board. The Legislature could not have contemplated such an absurd result so clearly contrary to the public interest.
We believe the Legislature intended that one not old enough to vote should not be qualified to occupy the office of board member. Such a conclusion is grounded in common sense. See In re Ray, 26 N.J.Misc. 56, 56 A.2d 761, 762 (Cir.Ct.1947). We need not consider the applicability of N.J.S.A. 10:1-1 which relates to civil rights. . . .
Affirmed.
A person is not disqualified from membership on a board of education by his employment by another board of education.
JONES v. KOLBECK
Superior Court of New Jersey, Appellate Division
119 N.J. Super. 299, 291 A.2d 378 (App. Div. 1978)
PER CURIAM.
There is neither constitutional nor statutory prohibition against an individual at one and the same time holding and exercising the office of member of the board of education of one public school district, and holding and performing the duties of the position or employment of teacher in the schools of a different public school district. Contrary to the suggestion of plaintiffs, the provisions of N.J.S.A. 18A:12-2 contain no such proscription, expressly or impliedly.
We are satisfied also that there is no inherent incompatibility between the two posts under the common law. No conflict or inconsistency exists in the functions of the two in the sense of one being "subordinate to another, or subject to its supervision or control, or the duties class" Reilly v. Ozzard, 33 N.J. 529, 543 (1960); Kobylarz v. Mercer, 130 N.J.L. 44 (E. & A. 1942). See, 3 McQuillin, Municipal Corporations, (3rd ed. rev'd 1963), § 12.67. Although it may be that there is a possibility that conflicts of interest may arise from time to time, this is not unique to the present situation. In any event, the test is "incompatibility in the functions or duties of office," rather than a mere possibility of a conflict of interests. Reilly v. Ozzard, supra, 33 N.J. at 549. Compare, Griggs v. Princeton Borough, 33 N.J. 207 (1960).
Nor does mere membership in the New Jersey Education Association disqualify a person from membership on a local board of education -- any more than membership in any other professional or labor organization constitutes a disqualification. While the law demands complete honesty and integrity in the exercise and performance of the duties of every public office, position or employment, that requisite does not necessitate or contemplate a severance of all ties and associations with persons and organizations that may espouse a particular philosophy or position on any one or more of the many facets of public affairs that the local agency of which the individual is a member is called upon to administer. . . .
Affirmed.
IV. The Superintendent
N.J.S.A. 18A:17-15. Appointment of superintendents; terms. The board of education of a Type I district and of any Type II district, now having or hereafter authorized to have a superintendent of schools, may, by contract appoint, for a term of not less than three nor more than five years and expiring July 1, a superintendent of schools by the recorded roll call majority vote of the full membership of the board. . . .
18A:17-16. Appointment and removal of assistant superintendents. The board or boards of education of any school district or school districts having a superintendent of schools may, upon nomination of the superintendent, by a recorded roll call majority vote of the full membership, of the board or of each of such boards, appoint assistant superintendents of schools. They may be removed by a like vote of the members of the board or of each board employing them, subject to the provisions of chapter 28 of this title.
18A:17-17. Certificate required. No person shall be appointed, or act as, or perform the duties of, superintendent or assistant superintendent of schools, unless he holds an appropriate certificate as prescribed by the state board.
N.J.S.A. 18A:17-18. Full time required of superintendents; when. The superintendent of schools shall, when so required by the board or boards of education of the district or districts employing him, devote himself exclusively to the duties of his office.
N.J.S.A. 18A:17-20. Superintendent; general powers and duties.
a. Any superintendent of schools, who has acquired tenure in the position of superintendent as of the effective date of P.L.1991, c.267 (C.18A:17-20.1 et al.), shall have general supervision over the schools of the district or districts under rules and regulations prescribed by the State board and shall keep himself informed as to their condition and progress and shall report thereon, from time to time, to, and as directed by, the board and he shall have such other powers and perform such other duties as may be prescribed by the board or boards employing him. He shall have a seat on the board or boards of education employing him and the right to speak on all educational matters at meetings of the board or boards but shall have no vote.
b. Any superintendent of schools who has not acquired tenure in the position of superintendent as of the effective date of P.L.1991, c.267 (C.18A:17-20.1 et al.) but who holds tenure during the term of his employment contract pursuant to section 5 of P.L.1991, c.267 (C.18A:17-20.2), shall be the chief executive and administrative officer of the board or boards of education employing him and shall have general supervision over all aspects, including the fiscal operations and instructional programs, of the schools of the district or districts under rules and regulations prescribed by the State board and shall keep himself informed as to their condition and progress and shall report thereon, from time to time, to, and as directed by, the board and he shall have such other powers and perform such other duties as may be prescribed by the board or boards employing him. He shall have a seat on the board or boards of education employing him and the right to speak on all matters at meetings of the board or boards but shall have no vote.
N.J.S.A. 18A:17-20.1. Reappointment of superintendent. At the conclusion of the term of the initial contract or of any subsequent contract as hereinafter provided, the superintendent shall be deemed reappointed for another contracted term of the same duration as the previous contract unless either: a. the board by contract reappoints him for a different term which term shall be not less than three nor more than five years, in which event reappointments thereafter shall be deemed for the new term unless a different term is again specified; or b. at least one year prior to the expiration of the first or any subsequent contract the board shall notify the superintendent in writing that he will not be reappointed at the end of the current term, in which event his employment shall cease at the expiration of that term.
N.J.S.A. 18A:17-20.2. Dismissal of superintendent. During the term of any employment contract with the board, a superintendent shall not be dismissed or reduced in compensation except for inefficiency, incapacity, or conduct unbecoming a superintendent or other just cause and then only in the manner prescribed by subarticle B of article 2 of chapter 6 of Title 18A of the New Jersey Statutes.
N.J.S.A. 18A:17-20.3. Evaluation of superintendent's performance.
a. Every local board of education having a superintendent shall evaluate the performance of the superintendent at least once a year. Each evaluation shall be in writing, a copy shall be provided to the superintendent and the superintendent and the board shall meet to discuss the findings. The evaluations shall be based upon the goals and objectives of the district, the responsibilities of the superintendent and such other criteria as the State Board of Education shall by regulation prescribe. Any contract entered into pursuant to N.J.S. 18A:17-15 shall provide for an evaluation pursuant to this section and may provide for additional evaluation criteria or procedures which shall not be inconsistent with the regulations of the State board.
b. The New Jersey School Boards Association shall establish a training program for local school board members on the evaluation of superintendents pursuant to subsection a. of this section. Every newly appointed or elected school board member shall complete the training program within six months of commencement of his term of office.
N.J.S.A. 18A:17-20.4. Tenure rights not affected. Nothing in this section or in this act shall affect any tenure rights which shall have already accrued to any superintendent prior to the effective date of this amendatory and supplementary act. A superintendent of schools promoted from within a district shall retain all tenure rights accrued in any position which was previously held by the superintendent in the district.
N.J.S.A. 18A:17-21. Annual report to commissioner. Each superintendent of schools shall render to the commissioner and to the county superintendent of schools having jurisdiction over the district a report of such matters relating to the schools, under his supervision as shall be required by the commissioner, and in the manner and form prescribed by him, on or before August 1 of each year.
V. The Board Secretary / School Business Administrator / Treasurer of School Moneys
N.J.S.A. 18A:17-5. Appointment of a secretary of board of education; terms; compensation; vacancy. Each secretary shall be appointed by the board, by a recorded roll call majority vote of its full membership, for a term to expire not later than June 30 of the calendar year next succeeding that in which the board shall have been organized, but he shall continue to serve after the expiration of his term until his successor is appointed and qualified. The secretary may be appointed from among the members of the board and, subject to the provisions of this Title and any other law, the board shall fix his compensation; provided, however, that the secretary shall not receive compensation from the board for any period during which he is an elected or appointed member of the board.
In case of a vacancy in the office of secretary, the vacancy shall be filled by the board within 60 days after the vacancy occurs and if the board does not make such appointment within such time the county superintendent shall appoint a secretary who shall receive the same compensation as his predecessor in office received and shall serve until a secretary is appointed by the board.
N.J.S.A. 18A:17-6. Bond of secretary. The secretary shall, before entering upon the duties of his office, give bond to the board, not less than $ 2,000.00, in an amount and with surety to be approved by the board, conditioned for the faithful performance of the duties of his office. The board may accept as surety a corporation authorized to be surety under the laws of this state and may pay the annual premiums or fee upon said bond as a current expense of the board.
N.J.S.A. 18A:17-7. Notices, minutes, special meetings. The secretary shall give notice of all regular or special meetings of the board to the members thereof and record the minutes of all proceedings of the board and the results of any annual or special school election in suitable minute books.
N.J.S.A. 18A:17-8. Secretary; collection of tuition and auditing of accounts. The secretary shall be the general accountant of the board and he shall:
a. Collect tuition fees and other moneys due to the board not payable directly to the custodian of school moneys of the district and transmit the same to such custodian;
b. Examine and audit all accounts and demands against the board and present the same to the board for its approval in open meeting, and when payment thereof shall be ordered by the board, he shall indicate the board's approval upon the same in writing with the president of the board and present the same to the district comptroller, or to the custodian of school moneys of the district; and
c. Keep and maintain such accounts of the financial transactions of the district as shall be prescribed by the state board in accordance with the uniform system of bookkeeping presented by the state board including a correct detailed account of all the expenditures of school moneys in the district.
N.J.S.A. 18A:17-9. Secretary; report of appropriations, etc.; custodial duties, etc. The secretary shall:
a. Report to the board, at each regular meeting, but not oftener than once each month, the amount of total appropriations and the cash receipts for each account, and the amount for which warrants have been drawn against each account and the amounts of orders or contractual obligations incurred and chargeable against each account since the date of his last report;
b. Keep and maintain in his office all contracts, records and documents belonging to the board, except such as shall be kept by the treasurer of school moneys pursuant to law, under such conditions as the board shall prescribe;
c. Perform any other duties prescribed by law.
N.J.S.A. 18A:17-10. Secretary; annual report. The secretary shall, at the close of each fiscal year, present to the board a detailed report of its financial transactions during such year and file such copies thereof with the county superintendent as shall be required by the commissioner and he shall also make report on or before August 1 of each year of such matters, in such manner and form, as shall be prescribed by the commissioner.
N.J.S.A. 18A:17-12. Secretary; annual financial report to commissioner. The secretary shall, on or before August 1 of each year, report to the commissioner the amount of interest bearing school debt, if any, of the municipality or the district then remaining unpaid, together with the rate of interest payable thereon, the date or dates on which the bonds or other evidences of indebtedness were issued and the date or dates upon which they will fall due, which information shall be furnished to the secretary, upon demand, by the clerk of each municipality within the district as to any such obligation outstanding.
N.J.S.A. 18A:17-14.1. Appointment of school business administrator; duties; subcontracting; tenure acquisition. A board or the boards of two or more districts may, under rules and regulations prescribed by the State board, appoint a school business administrator by a majority vote of all the members of the board, define his duties, which may include serving as secretary of one of the boards, and fix his salary, whenever the necessity for such appointment shall have been agreed to by the county superintendent of schools or the county superintendents of schools of the counties in which the districts are situate and approved by the commissioner and the state board. A school business administrator shall be appointed in the manner provided in this section , however when the boards of education of two or more school districts determine to share a school business administrator, the appointment shall comply with the provisions of section 4 of P.L.1996, c.111 (C.18A:17-24.1).
N.J.S.A. 18A:17-31. Treasurers of school moneys; who to act. The treasurer of school moneys of each school district which does not contain more than one municipality shall be the custodian of the moneys of the municipality unless the board of education shall designate the tax collector of the municipality; provided, however, that if both the custodian of moneys of the municipality and the tax collector of the municipality submit written notifications to the board that they do not wish to serve as treasurer of school moneys, the board shall appoint any other suitable person except a member or employee of the board, with a term of office fixed by the board as such treasurer. If the school district contains more than one municipality, the person designated by law as the custodian of the moneys of the constituent municipality having the largest amount of taxable property shall be treasurer of the school moneys of the district unless and until the board shall appoint any other suitable person except a member or employee of the board and fix his term of office. Any municipal officer acting or designated as treasurer of school moneys who ceases to be such officer shall thereupon cease to be such treasurer.
Nothing in P.L.1996, c.111 (C.18A:17-24.1 et al.) shall prohibit a school district from subcontracting its school business administrator to another school district pursuant to the provisions of P.L.1973, c.208 (C.40:8A-1 et seq.) , in which case credit toward tenure acquisition shall accrue only in the primary district of employment. The provisions of P.L.1996, c.111 (C.18A:17-24.1 et al.) concerning the arrangement to share a school business administrator by two or more school districts shall not apply when a school district subcontracts its school business administrator to another school district.
N.J.S.A. 18A:17-27. Attendance upon meetings of the board. The business manager shall have a seat on the board and the right to speak on all matters relating to his department but he shall not have the right to vote.
VI. Other Employees
N.J.S.A. 18A:1-1. Words and phrases defined.
. . . "Employee" includes the holder of any position or employment;
"Employment" includes employment in a position;
"Teaching staff member" means a member of the professional staff of any district or regional board of education, or any board of education of a county vocational school, holding office, position or employment of such character that the qualifications, for such office, position or employment, require him to hold a valid and effective standard, provisional or emergency certificate, appropriate to his office, position or employment, issued by the State Board of Examiners and includes a school nurse and a school athletic trainer.
N.J.S.A. 18A:16-1. Officers and employees in general. Each board of education, subject to the provisions of this title and of any other law, shall employ and may dismiss a secretary or a school business administrator to act as secretary and may employ and dismiss a superintendent of schools, a treasurer of school moneys, when and as provided by section 18A:13-14 or 18A:17-31, and such principals, teachers, janitors and other officers and employees, as it shall determine, and fix and alter their compensation and the length of their terms of employment.
N.J.S.A. 18A:16-1.1. May appoint temporary officers and employees. In each district the board of education may designate some person to act in place of any officer or employee during the absence, disability or disqualification of any such officer or employee subject to the provisions of section 18A:17-13.
The act of any person so designated shall in all cases be legal and binding as if done and performed by the officer or employee for whom such designated person is acting but no person so acting shall acquire tenure in the office or employment in which he acts pursuant to this section when so acting.
N.J.S.A. 18A:27-1. Appointment of teaching staff members; vote required. No teaching staff member shall be appointed, except by a recorded roll call majority vote of the full membership of the board of education appointing him.
N.J.S.A. 18A:27-2. Employment without certificate prohibited. Any contract or engagement of any teaching staff member, shall cease and determine whenever the employing board of education shall ascertain by written notice received from the county or city superintendent of schools, or in any other manner, that such person is not, or has ceased to be, the holder of an appropriate certificate required by this title for such employment, notwithstanding that the term of such employment shall not then have expired.
N.J.S.A. 18A:27-3. Employment for school year. Teaching staff members may be employed and their salaries fixed and determined, under contracts, by a board of education for the period from July 1 of the year in which such board shall organize to the succeeding June 30, notwithstanding that the fiscal year of the district or of the municipality in which it is located is the calendar year.
N.J.S.A. 18A:27-4. Power of boards of education to make rules governing employment of teacher, etc.; employment thereunder. Each board of education may make rules, not inconsistent with the provisions of this title, governing the employment, terms and tenure of employment, promotion and dismissal, and salaries and time and mode of payment thereof of teaching staff members for the district, and may from time to time change, amend or repeal the same, and the employment of any person in any such capacity and his rights and duties with respect to such employment shall be dependent upon and governed by the rules in force with reference thereto.
N.J.S.A. 18A:29-5. Minimum salary; full-time teacher in school district or educational services commission. The minimum salary of a full-time teaching staff member in any school district or educational services commission who is certified by the local board of education or the board of directors of the educational services commission as performing his duties in an acceptable manner for the previous academic year pursuant to N.J.A.C. 6:3-1.19 and 6:3-1.21 and who is not employed as a substitute on a day-to-day basis shall be $18,500.00 for an academic year and a proportionate amount for less than an academic year. . . .
N.J.A.C. 6A:32-4.1. Employment of teaching staff.
(a) This section applies to district boards of education or private agencies which provide educational services by means of public funds.
(b) Each district board of education shall determine the types of background experiences and personal qualities, if any, that the school district requires or prefers successful candidates for specific positions to possess in addition to appropriate State certification. Such local requirements shall be based upon a careful review of the position in question, and the requirements shall emphasize the nature of experience and the quality of individual achievement desired, rather than only the amount of experience.
(c) No teaching staff member shall be employed by any district board of education unless he or she is the holder of a valid certificate (see N.J.S.A. 18A:26-2). In addition, district boards of education should exercise their right and responsibility to require job candidates to present other, more detailed documentation of their competency. Such documentation includes resumes, references, records of past experiences, college transcripts, certification test scores, assessment reports, internship evaluations, and other documentation of competency relevant to the specific position.
(d) District boards of education shall assign to administrative positions those functions that are consistent with the individual qualifications of the position occupant, and shall support the establishment of structures for making instructional decisions that take administrator qualifications into account.
(e) Teaching staff members shall be employed by the district board of education based upon the specific instructional needs of students of the school district and each school within the district. Pursuant to N.J.A.C. 6A:9, Professional Licensure and Standards, the district board of education shall provide certified personnel needed to implement a thorough and efficient system of free public schools.
(f) Each school shall be assigned the services of a full-time non-teaching principal to be responsible for administration and supervision of the school.
1. When a full-time non-teaching principal is not assigned to a school, the district board of education, upon advice of the chief school administrator, shall submit to the Commissioner for approval a plan that ensures adequate supervision of students and staff.
N.J.A.C. 6A:32-4.2. Full-time employment of teachers.
(a) The district board of education shall prescribe the period of time in each day required for full-time employment of teachers that shall not be less than four clock hours.
(b) Any full-time teacher employed in both a morning and an afternoon session shall be entitled to a duty-free lunch period during the hours normally used for lunch periods in the school. The duty-free lunch period shall not be less than 30 minutes except in a school where the lunch period for students is less than 30 minutes. In such cases, the duty-free lunch period shall not be less than the lunch period time allowed to students.
N.J.A.C. 6A:32-4.7. Approval of paraprofessional staff.
(a) The county superintendent shall annually approve school aides and/or classroom aides who assist in the supervision of student activities under the direction of a principal, teacher or other designated certified professional personnel.
(b) In order to employ a paraprofessional, the district board of education shall develop a job description and standards for each appointment. The description and standards shall be based on the school district's needs and shall include:
1. The duties to be performed;
2. The types of proficiencies needed;
3. The academic and/or experience qualifications;
4. The arrangement for supervision of the aide; and
5. The compensation.
(c) The chief school administrator shall submit the job description and standards in (b) above to the county superintendent for approval. The county superintendent shall review the description and standards proposed for classroom aide positions. If, after review of the description and standards, the county superintendent determines that the school district requires the paraprofessional position, he or she shall approve the school district's use of the position and notify the district board of education in writing of the approval.
N.J.A.C. 6A:32-4.8. Support residencies for regularly-certified, inexperienced first-year
principals.
(a) Each school district employing a regularly-certified, inexperienced first-year principal shall enter into an agreement to provide a principal residency program pursuant to N.J.A.C. 6A:9-12.5, including a pre-residency experience, except that:
1. Entry requirements in N.J.A.C. 6A:9-12.5 shall not apply to regularly-certified, inexperienced first-year principals;
2. Special certification evaluations as described in N.J.A.C. 6A:9-12.5 shall not be conducted for regularly-certified, inexperienced first-year principals, and no evaluations or recommendations concerning their certification shall be presented to the Department of Education; and
3. As part of the support residency, the school district shall require the new principal to undergo an assessment of performance at a State-approved center during the pre-residency phase. The sole purpose of this assessment shall be to provide a diagnosis of strengths and weaknesses as a basis for designing continuing education and support exercises.
(b) The Department of Education shall monitor school districts to determine compliance with this section.
VII. School Ethics Act
Bottom of Form
N.J.S.A. 18A:12-22. Findings, declarations. The Legislature find and declares:
a. In our representative form of government it is essential that the conduct of members of local boards of education and local school administrators hold the respect and confidence of the people. These board members and administrators must avoid conduct which is in violation of their public trust or which creates a justifiable impression among the public that such trust is being violated.
b. To ensure and preserve public confidence, school board members and local school administrators should have the benefit of specific standards to guide their conduct and of some disciplinary mechanism to ensure the uniform maintenance of those standards among them.
N.J.S.A. 18A:12-23. Definitions. For the purposes of this act, unless the context clearly requires a different meaning:
Bottom of Form
"Administrator" means any officer, other than a board member, or employee of a local school district who (i) holds a position which requires a certificate that authorizes the holder to serve as school administrator, principal, or school business administrator; or (ii) holds a position which does not require that the person hold any type of certificate but is responsible for making recommendations regarding hiring or the purchase or acquisition of any property or services by the local school district; or (iii) holds a position which requires a certificate that authorizes the holder to serve as supervisor and who is responsible for making recommendations regarding hiring or the purchase or acquisition of any property or services by the local school district;
"Board member" means any person holding membership, whether by election or appointment, on any board of education other than the State Board of Education;
. . . "School official" means a board member, an employee or officer of the New Jersey School Boards Association, but not including any member of the secretarial, clerical or maintenance staff of the association, or an administrator . . . .
N.J.S.A. 18A:12-24. Conflicts of interest.
a. No school official or member of his immediate family shall have an interest in a business organization or engage in any business, transaction, or professional activity, which is in substantial conflict with the proper discharge of his duties in the public interest;
b. No school official shall use or attempt to use his official position to secure unwarranted privileges, advantages or employment for himself, members of his immediate family or others;
c. No school official shall act in his official capacity in any matter where he, a member of his immediate family, or a business organization in which he has an interest, has a direct or indirect financial involvement that might reasonably be expected to impair his objectivity or independence of judgment. No school official shall act in his official capacity in any matter where he or a member of his immediate family has a personal involvement that is or creates some benefit to the school official or member of his immediate family;
d. No school official shall undertake any employment or service, whether compensated or not, which might reasonably be expected to prejudice his independence of judgment in the exercise of his official duties;
e. No school official, or member of his immediate family, or business organization in which he has an interest, shall solicit or accept any gift, favor, loan, political contribution, service, promise of future employment, or other thing of value based upon an understanding that the gift, favor, loan, contribution, service, promise, or other thing of value was given or offered for the purpose of influencing him, directly or indirectly, in the discharge of his official duties. This provision shall not apply to the solicitation or acceptance of contributions to the campaign of an announced candidate for elective public office, if the school official has no knowledge or reason to believe that the campaign contribution, if accepted, was given with the intent to influence the school official in the discharge of his official duties;
f. No school official shall use, or allow to be used, his public office or employment, or any information, not generally available to the members of the public, which he receives or acquires in the course of and by reason of his office or employment, for the purpose of securing financial gain for himself, any member of his immediate family, or any business organization with which he is associated;
g. No school official or business organization in which he has an interest shall represent any person or party other than the school board or school district in connection with any cause, proceeding, application or other matter pending before the school district in which he serves or in any proceeding involving the school district in which he serves or, for officers or employees of the New Jersey School Boards Association, any school district. This provision shall not be deemed to prohibit representation within the context of official labor union or similar representational responsibilities;
h. No school official shall be deemed in conflict with these provisions if, by reason of his participation in any matter required to be voted upon, no material or monetary gain accrues to him as a member of any business, profession, occupation or group, to any greater extent than any gain could reasonably be expected to accrue to any other member of that business, profession, occupation or group;
i. No elected member shall be prohibited from making an inquiry for information on behalf of a constituent, if no fee, reward or other thing of value is promised to, given to or accepted by the member or a member of his immediate family, whether directly or indirectly, in return therefor;
j. Nothing shall prohibit any school official, or members of his immediate family, from representing himself, or themselves, in negotiations or proceedings concerning his, or their, own interests . . . .
N.J.S.A. 18A:12-24.1. Code of Ethics for school board members. A school board member shall abide by the following Code of Ethics for School Board Members:
a. I will uphold and enforce all laws, rules and regulations of the State Board of Education, and court orders pertaining to schools. Desired changes shall be brought about only through legal and ethical procedures.
b. I will make decisions in terms of the educational welfare of children and will seek to develop and maintain public schools that meet the individual needs of all children regardless of their ability, race, creed, sex, or social standing.
c. I will confine my board action to policy making, planning, and appraisal, and I will help to frame policies and plans only after the board has consulted those who will be affected by them.
d. I will carry out my responsibility, not to administer the schools, but, together with my fellow board members, to see that they are well run.
e. I will recognize that authority rests with the board of education and will make no personal promises nor take any private action that may compromise the board.
f. I will refuse to surrender my independent judgment to special interest or partisan political groups or to use the schools for personal gain or for the gain of friends.
g. I will hold confidential all matters pertaining to the schools which, if disclosed, would needlessly injure individuals or the schools. In all other matters, I will provide accurate information and, in concert with my fellow board members, interpret to the staff the aspirations of the community for its school.
h. I will vote to appoint the best qualified personnel available after consideration of the recommendation of the chief administrative officer.
i. I will support and protect school personnel in proper performance of their duties.
j. I will refer all complaints to the chief administrative officer and will act on the complaints at public meetings only after failure of an administrative solution.
N.J.S.A. 18A:12-25. Disclosure statements of employment, contracts or business with schools.
a. On a form to be prescribed by the commission and to be filed annually with the commission, each school official shall state:
(1) whether any relative of the school official or any other person related to the school official by marriage is employed by the school district with which the school official holds office or employment or, for officers or employees of the New Jersey School Boards Association, any school district, and, if so, the name and position of each such relative;
(2) whether the school official or a relative is a party to a contract with the school district with which the school official holds office or employment or, for officers or employees of the New Jersey School Boards Association, any school district, and, if so, the nature of the contract; and
(3) whether the school official or a relative is employed by, receives compensation from, or has an interest in any business which is a party to a contract with the school district with which the school official holds office or employment or, for officers or employees of the New Jersey School Boards Association, any school district, and, if so, the name of each such business.
b. Each statement shall be signed by the school official filing it, and the school official's signature shall constitute a representation of the accuracy of the contents of the statement.
c. A school official who fails to file a statement or who files a statement containing information which the school official knows to be false shall be subject to reprimand, censure, suspension, or removal pursuant to the procedures established in section 9 of P.L.1991, c.393 (C.18A:12-29). Nothing in this subsection shall be construed to prevent or limit criminal prosecution.
d. All statements filed pursuant to this section shall be retained by the commission as public records.
N.J.S.A. 18A:12-26. Financial disclosure statement.
a. Each school official shall annually file a financial disclosure statement with the School Ethics Commission. All financial disclosure statements filed pursuant to this act shall include the following information which shall specify, where applicable, the name and address of each source and the school official's position:
(1) Each source of income, earned or unearned, exceeding $ 2,000 received by the school official or a member of his immediate family during the preceding calendar year. Individual client fees, customer receipts or commissions on transactions received through a business organization need not be separately reported as sources of income. If a publicly traded security or interest derived from a financial institution is the source of income, the security or interest derived from a financial institution need not be reported unless the school official or member of his immediate family has an interest in the business organization or financial institution;
(2) Each source of fees and honorariums having an aggregate amount exceeding $ 250 from any single source for personal appearances, speeches or writings received by the school official or a member of his immediate family during the preceding calendar year;
(3) Each source of gifts, reimbursements or prepaid expenses having an aggregate value exceeding $ 250 from any single source, excluding relatives, received by the school official or a member of his immediate family during the preceding calendar year; and
(4) The name and address of all business organizations in which the school official or a member of his immediate family had an interest during the preceding calendar year. . . .
c. All financial disclosure statements filed shall be public records.
N.J.A.C. 6A:32-3.2. Requirements for the code of ethics for district board of education members
and charter school board of trustees members.
(a) Each district board of education and charter school board of trustees shall:
1. Discuss the School Ethics Act and the Code of Ethics for School Board Members, pursuant to N.J.S.A. 18A:12-21 et seq., at a regularly scheduled public meeting annually;
2. Adopt policies and procedures regarding the training of district board of education and charter school board of trustees members in understanding the Code of Ethics; and
3. Provide documentation pursuant to (b) below that each member of the district board of education or board of trustees has received and reviewed the Code of Ethics.
(b) Each member of the district board of education or charter school board of trustees shall sign an acknowledgement of receipt of the Code of Ethics for School Board Members contained within N.J.S.A. 18A:12-21 et seq. This acknowledgement of receipt requires each district board of education member and charter schools board of trustees member to read and become familiar with the Code of Ethics.
N.J.S.A. 18A:12-27. School Ethics Commission.
a. There is hereby established in the State Department of Education a commission to be known as the "School Ethics Commission." The commission shall consist of nine members, not more than five of whom shall be from the same political party: two shall be board members; two shall be school administrators; and five shall be persons who are not school officials. All members shall be appointed by the Governor and shall serve at the pleasure of the Governor. . . .
N.J.S.A. 18A:12-28. Staff appointments; duties; powers.
. . . b. In order to carry out the provisions of this act, the commission shall have the power to issue advisory opinions, receive complaints filed pursuant to section 9 of this act, receive and retain disclosure statements filed pursuant to sections 5 and 6 of this act, conduct investigations, hold hearings, and compel the attendance of witnesses and the production of documents as it may deem necessary and relevant to such matter under investigation. . . .
c. Upon completion of the hearing, the commission, by majority vote, shall determine whether the conduct complained of constitutes a violation of . . . this act or the code of ethics, or whether the complaint should be dismissed. If a violation is found, the commission shall, by majority vote, recommend to the commissioner the reprimand, censure, suspension, or removal of the school official found to have violated . . . this act or the code of ethics. The commission shall state in writing its findings of fact and conclusions of law. The commissioner shall then act on the commission's recommendation regarding the sanction.
d. Any appeal of the commission's determination regarding a violation of this act, or in the case of a board member, this act or the code of ethics, and of the commissioner's decision regarding the sanction shall be to the State Board of Education in accordance with Title 18A of the New Jersey Statutes.
e. If prior to the hearing the commission determines, by majority vote, that the complaint is frivolous, the commission may impose on the complainant a fine not to exceed $ 500. . . .
N.J.S.A. 18A:12-31. Advisory opinions. A school official may request and obtain from the commission an advisory opinion as to whether any proposed activity or conduct would in its opinion constitute a violation of the provisions of this act. Advisory opinions of the commission shall not be made public, except when the commission, by a vote of at least six members, directs that the opinion be made public. Public advisory opinions shall not disclose the name of the school official. . . .
A board member in a district where the union is an NJEA affiliate, whose spouse is a teacher in another district that has a contract with an NJEA affiliate, may not serve on the board’s negotiations committee.
SCHOOL ETHICS COMMISSION ADVISORY OPINION A02-00
New Jersey School Ethics Commission
Docket No. A02-00 (March 28, 2000)
(copy attached)
A board member violated the School Ethics Act when he called a board employee at home in the evening, argued with her and yelled at her for failing to send him reports he had requested.
IN RE CHARLES FISCHER, EATONTOWN BOARD OF EDUCATION
New Jersey School Ethics Commission
Docket No. C30-03 (February 24, 2004)
New Jersey Commissioner of Education
Agency Dkt. No. 82-2/04 (April 12, 2004)
(copy attached)
VIII. Open Public Meetings Act
N.J.S.A. 10:4-7. Legislative findings and declaration
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 the 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 in 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.
The Legislature further declares it to be the public policy of this State to insure that the aforesaid rights are implemented pursuant to the provisions of this act so that no confusion, misconstructions or misinterpretations may thwart the purposes hereof.
The Legislature, therefore, declares that it is the understanding and the intention of the Legislature that in order to be covered by the provisions of this act a public body must be organized by law and be collectively empowered as a multi-member voting body to spend public funds or affect persons' rights; that, therefore, informal or purely advisory bodies with no effective authority are not covered, nor are groupings composed of a public official with subordinates or advisors, who are not empowered to act by vote such as a mayor or the Governor meeting with department heads or cabinet members, that specific exemptions are provided for the Judiciary, parole bodies, the State Commission of Investigation, the Apportionment Commission and political party organization; that to be covered by the provisions of this act a meeting must be open to all the public body's members, and the members present must intend to discuss or act on the public body's business; and therefore, typical partisan caucus meetings and chance encounters of members of public bodies are neither covered by the provisions of this act, nor are they intended to be so covered.
N.J.S.A. 10:4-8. Definitions. As used in this act:
a. "Public body" means a commission, authority, board, council, committee or any other group of two or more persons organized under the laws of this State, and collectively empowered as a voting body to perform a public governmental function affecting the rights, duties, obligations, privileges, benefits, or other legal relations of any person, or collectively authorized to spend public funds including the Legislature, but does not mean or include the judicial branch of the government, any grand or petit jury, any parole board or any agency or body acting in a parole capacity, the State Commission of Investigation, the Apportionment Commission established under Article IV, Section III, of the Constitution, or any political party committee organized under Title 19 of the Revised Statutes.
b. "Meeting" means and includes any gathering whether corporeal or by means of communication equipment, which is attended by, or open to, all of the members of a public body, held with the intent, on the part of the members of the body present, to discuss or act as a unit upon the specific public business of that body. Meeting does not mean or include any such gathering (1) attended by less than an effective majority of the members of a public body, or (2) attended by or open to all the members of three or more similar public bodies at a convention or similar gathering.
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.
d. "Adequate notice" means written advance notice of at least 48 hours, giving the time, date, location and, to the extent known, the agenda of any regular, special or rescheduled meeting, which notice shall accurately state whether formal action may or may not be taken and which shall be (1) prominently posted in at least one public place reserved for such or similar announcements, (2) mailed, telephoned, telegrammed, or hand delivered to at least two newspapers which newspapers shall be designated by the public body to receive such notices because they have the greatest likelihood of informing the public within the area of jurisdiction of the public body of such meetings, one of which shall be the official newspaper, where any such has been designated by the public body or if the public body has failed to so designate, where any has been designated by the governing body of the political subdivision whose geographic boundaries are coextensive with that of the public body and (3) filed with the clerk of the municipality when the public body's geographic boundaries are coextensive with that of a single municipality, with the clerk of the county when the public body's geographic boundaries are coextensive with that of a single county, and with the Secretary of State if the public body has Statewide jurisdiction.
. . . Where annual notice or revisions thereof . . . set forth the location of any meeting, no further notice shall be required for such meeting.
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, except that a municipal governing body shall be required to set aside a portion of every meeting of the municipal governing body, the length of the portion to be determined by the municipal governing body, for public comment on any governmental issue that a member of the public feels may be of concern to the residents of the municipality.
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.
N.J.S.A. 10:4-14. Minutes of meetings; availability to public. 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 section 7 of this act.
N.J.S.A. 10:4-16. Injunctive orders or other remedies to insure compliance. Any person, including a member of the public, may apply to the Superior Court for injunctive orders or other remedies to insure compliance with the provisions of this act, and the court shall issue such orders and provide such remedies as shall be necessary to insure compliance with the provisions of this act.
N.J.S.A. 10:4-21. Liberal construction
This act shall be liberally construed in order to accomplish its purpose and the public policy of this State as set forth in section 2 [N.J.S.A. 10:4-7].
Employees whose rights could be adversely affected by matters discussed in closed session are entitled to advance notice that such discussion will take place, and may request that such discussion be conducted in public.
RICE v. UNION COUNTY REGIONAL HIGH SCHOOL BOARD OF EDUCATION
Superior Court of New Jersey, Appellate Division
155 N.J. Super. 64 382 A.2d 386 (App. Div. 1977)
The opinion of the Court was delivered by BISCHOFF, J.A.D.
This appeal presents issues relating to the Open Public Meetings Act, N.J.S.A. 10:4-6 et seq., which became effective January 19, 1976, and the exception pertaining to personnel matters contained therein. N.J.S.A. 10:4-12 b(8). Defendant Union County Regional High School Board of Education (hereafter board), being a regional board of education, was required by N.J.S.A. 18A:13-10 and N.J.S.A. 18A:13-17 to submit a proposed budget for the 1976-1977 term to the voters of the regional district at the annual school election to be held on the first Tuesday in March. The proposed budget was prepared during nine sessions of closed meetings of the board held between November 11, 1975 and January 13, 1976. During these meetings it was determined that, for reasons of economy, it was necessary to reduce the employment staff of the board by 20 positions. A tentative school budget, dated January 13, 1976, which had been agreed upon at the meeting held that date and which reflected the decision to eliminate the 20 positions, was adopted January 20, 1976.
Between February 9 and March 1 representatives of the board attended 17 meetings of various groups such as PTA, service clubs and parents' committees, as well as one meeting of the municipal governing body, at which meeting the budget was explained. A public hearing on the budget was held at a regular meeting of the board on February 23, 1976, following which the budget was formally adopted in final form for submission to the voters. The budget so adopted by the board was defeated at the school election on March 2, 1976. The constituent municipalities after meeting with the board on March 15, 1976 certified a budget $250,000 less than the one which the voters had failed to approve, thus requiring the board to consider further reductions in its employment staff.
About April 2, 1976 the board's administrative staff mailed to each board member a list of names of specific employees recommended for termination. No action was taken by the board with respect to such recommendations until an adjourned regular meeting, held on April 20, 1976. At that meeting, at the conclusion of a portion which was open for public discussion, the minutes disclose that the following occurred:
Mr. Vitale, President, called for a resolution to be offered for the Board of Education to meet in Executive Session.
He announced that privileged personnel items would be discussed in Executive Session. He further stated that any decisions reached during Executive Session would be made known to the public when action is formally taken by the Board.
Mr. Vitale announced that the Board would return to regular public session following the conclusion of the Executive Session.
Following the adoption of the requested resolution and the holding of the executive session, the regular public meeting was resumed and several resolutions relative to personnel matters were adopted. One of the resolutions so adopted provided that "the named personnel in the positions set forth next to their names, in the list attached hereto and made a part hereof, will be terminated from their employment . . . The names of 17 employees were on the list. Seven of them were nontenured teachers. The termination of these 17 employees is the reason for this appeal.
The board gave all the nontenured teachers affected by the resolution the notice required by N.J.S.A. 18A:27-10 prior to April 30, 1976, and they were all afforded an opportunity for a hearing pursuant to the rule of Donaldson v. North Wildwood Bd. of Ed., 65 N.J. 236 (1974).
Plaintiffs Regina Rice and the Union County Regional High School Teachers Association, Inc. (Association) on June 4, 1976 instituted this action . . . seeking "an order holding the personnel action set forth in defendant's resolution of April 20, 1976 null and void" because of the failure of the board to comply with the Open Public Meetings Act. The matter was submitted for determination on affidavits and oral argument, and the trial judge, by letter opinion, held the action of the board constituted substantial compliance with the statute and judgment was entered dismissing the complaint. . . .
The statute in question contains a detailed statement of both the purpose and the public policy to be served by it. N.J.S.A. 10:4-7. The history of this type of legislation and the reasons for it are traced in the case of Polillo v. Deane, 74 N.J. 562, 570-72, 379 A.2d 211 (1977). It is sufficient for our present purposes to note that such legislation is in keeping with strong present-day policies "favoring public involvement in almost every aspect of government." This legislation is to be liberally construed, N.J.S.A. 10:4-21, and "strict adherence to the letter of the law is required in considering whether a violation of the act has occurred." It necessarily follows that any exception from the full public disclosure mandated by the statute is to be strictly construed. . . .
Plaintiffs contend that (1) the resolution adopted April 20, 1976, calling for an executive session to discuss personnel matters, was in violation of N.J.S.A. 10:4-13 and (2) the board failed to comply with N.J.S.A. 10:4-12(b)(8) by not giving the 17 terminated employees notice of the meeting so they could exercise their right to request in writing a public discussion of the matter.
The two sections of the statute thus implicated are:
N.J.S.A. 10:4-12b. A public body may exclude the public only from that portion of a meeting at which the public body discusses:
(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.
and
N.J.S.A. 10:4-13. No public body shall exclude the public from any meeting to discuss any matter described in subsection 7.b. (Section 10:4-12.b.) until the public body shall first adopt a resolution, at a meeting to which the public shall be admitted:
a. Stating the general nature of the subject to be discussed; and b. Stating as precisely as possible, the time when and the circumstances under which the discussion conducted in closed session of the public body can be disclosed to the public.
The stated purpose of the executive session requested by the president of the board was clearly within the exception to the Open Public Meetings Act, N.J.S.A. 10:4-12(b)(8), which permits a closed session to discuss the termination of employment of employees. As a result of events that preceded the adoption of the resolution for an executive session, the public there assembled were fully aware of the nature of the personnel matters to be discussed in the executive session. The necessity for a reduction in the number of employees was a matter of common knowledge as a result of the meetings and discussions that had occurred over the preceding weeks in various public meetings.
It was announced to the public at the time the resolution was adopted that any decision reached during the executive session would be made known to the public when action was formally taken on it. The decisions reached at the executive session were revealed the same evening with the adoption of the resolution terminating the personnel named on a list incorporated into the resolution. There was full compliance by the board with N.J.S.A. 10:4-13 in the adoption of the resolution in question and in proceeding to hold the closed meeting.
It is argued that the procedure used did not comply with the statutes because the reasons for the termination of the 17 employees was not disclosed. We disagree.
The reasons for the decision to terminate these specific employees need not be revealed or stated. To do so would circumvent the very purpose for permitting personnel matters to be discussed in closed sessions. The public policy behind the personnel exception to the Open Public Meetings Act is clearly stated in N.J.S.A. 10:4-7 and indicates a concern for “personal privacy or guaranteed rights of individuals (which) would be clearly in danger of unwarranted invasion” if these matters were to be discussed in public. We hold that, under the circumstances presented here, the board complied with N.J.S.A. 10:4-13 in the adoption of the resolution calling for the executive or closed session of April 20, 1976.
Plaintiffs next argue that the board failed to comply with the Open Public Meetings Act by failing to give the 17 terminated employees advance notice of the meeting so they could exercise their right to request, in writing, a public discussion of the matter.
The trial judge held that (1) advance notice to the terminated employees was not required because the only notice required by the act is “adequate notice of a meeting,” as defined in N.J.S.A. 10:4-8(d), and that since adequate notice of the meeting under that section of the statute had been given, no further notice was required; (2) nontenured employees were chargeable with knowledge that their contracts might not be renewed and (3) in any event, under N.H.S.A. 10:4-15(a) any action for which notice is required is not voidable for failure to conform with any notice required by the act. He therefore held that any action for which notice might be required by implication only cannot be voided.
This reasoning of the trial judge, in effect, renders useless and inoperative the statutory right granted an employee to have a public discussion of his or her personnel matter. It is clear that the sole purpose for the personnel exception is to protect individual privacy. The statute provides a method by which the individual may forego this personal privacy and have a public discussion on the matter. We must presume that the Legislature knew what it was doing and did not intend to establish a useless procedure. *73 Gabin v. Skyline Cabana Club, 54 N.J. 550, 555, 258 A.2d 6 (1969); Jones v. East Windsor Reg'l Bd. of Ed., 143 N.J.Super. 182, 191, 362 A.2d 1228 (Law Div.1976).
All states have now enacted some form of Open Public Meetings law. Polillo v. Deane, supra 74 N.J. at 570, n.4, 379 A.2d 211. Approximately half of the statutes contain exceptions shielding personnel matters from public discussion, but they provide for public discussion of the personnel matter if a request is made by the employee of the public body for that purpose. The reasons for such exceptions are stated in an article entitled, “Open Meeting Statutes: The Press Fights for the Right to Know,” 75 Harv. L.Rev. 1199 (1962), in the following terms:
In several states the legislature has explicitly set forth the various subjects that may be discussed behind closed doors. Most commonly listed is the appointment or discharge of, or the investigation of charges against, government employees. * * * When possible disciplinary action or dismissal is being considered, premature publicity can cause great and often unjustified damage to personal reputations. To be sure, secrecy in such matters may increase the likelihood or irresponsible character assassination or political favoritism, but a number of statutes afford the employee some protection by granting him an option to demand a public hearing. (At 1208.)
The plain implication of the personnel exception to the New Jersey Open Public Meetings Act is that if all employees whose rights could be adversely affected decide to request a public hearing, they can only exercise that statutory right and request a public hearing if they have reasonable advance notice so as to enable them to (1) make a decision on whether they desire a public discussion and (2) prepare and present an appropriate request in writing.
Here the members of the board were furnished about April 2, 1976 with a list of those to be considered for termination. The record discloses that there was a regular meeting of the board on April 6, 1976. Admittedly, all the members of the board had the list at that meeting and the issue was not discussed then. No reason is advanced for failing to give notice to those who were potential targets for termination of the proposed discussion on April 20, 1976.
We accordingly hold that the 17 terminated employees were entitled to reasonable notice of the intention of the board to consider personnel matters related to them.
We finally consider the remedy, if any, to be afforded in light of our conclusion that the statute was violated. Plaintiffs are (1) Regina Rice, who identifies herself as “a person and member of the public within the meaning of the Open Public Meetings Act.”N.J.S.A. 10:4-15. She is president of the Union County Regional High School Teachers Association but was not one of the teachers terminated; (2) Union County Regional High School Teachers Association. Both argue that they are proper party plaintiffs empowered and authorized to maintain this action by reason of N.J.S.A. 10:4-15(a) and (b). . . . Moreover, the Association argues that as the duly elected representative of the employees of the board, it has standing to institute and maintain proceedings to enforce and protect employees rights under the school law, Title 18A, either with or without the express authorization of the individuals whose rights may be adversely affected, citing Winston v. South Plainfield Bd. of Ed., 125 N.J.Super. 131, 140-42, 309 A.2d 89 (App.Div.1973), aff'd64 N.J. 582, 586, 319 A.2d 226 (1974).
Assuming arguendo such broad statements have validity and applicability, that is not the answer to the issue presented here. We are not faced with an issue of standing, but with a potential waiver of a right of personal privacy incorporated in this statute as an exception. This exception was specifically created to protect the individuals from having such private rights subjected to unwarranted invasion. The exercise of the right to this protection or to waive it and request a public hearing involves a personal decision on whether the individual desires his or her private personnel matters to be discussed in public. Further, under the statute, in order for a waiver to be effective, all who could be adversely affected by the discussion must agree to a waiver and request in writing that the matters be discussed in public. This statutory privilege cannot be transferred to a third party by implication. It is conferred personally on individuals who could be adversely affected by the action of the Board.
It is significant that the record does not contain any affidavits or statements from any of the 17 terminated employees indicating that (a) plaintiffs, or either of them, are authorized or empowered to request a public hearing for any one or all of the adversely affected employees; and (b) if given the opportunity to request a public hearing on their personnel matter, they would do so.
It is thus clear that while plaintiffs may institute and maintain a suit to challenge any action taken by a public body as violative of the Open Public Meetings Act, N.J.S.A. 10:4-15, the record before us does not demonstrate any authority on their part to request a public hearing on the private personnel matters of any or all of the "adversely affected" employees. In the absence of any indication in the record that this right has been validly transferred to or conferred on the plaintiffs, there is no warrant for our directing any further proceedings on the issues.
The judgment of the trial court dismissing the complaint is therefore, for this reason, affirmed.
Notwithstanding the requirements of the Open Public Meetings Act, board action on certification of tenure charges shall not take place at a public meeting because of the specific provision of the Tenure Employees Hearing Law requiring such action to be taken in closed session.
CIRANGLE v. MAYWOOD BOARD OF EDUCATION
Superior Court of New Jersey, Law Division
164 N.J.Super. 595, 397 A.2d 400 (1979)
SMITH, J. S. C.
Plaintiff Louis Cirangle is a tenured superintendent of schools employed by defendant Maywood Board of Education. In the fall of 1977 certain alleged irregularities in the disbursement of public funds administered by Cirangle were brought to the attention of the board. An investigation followed and other apparent infractions were discovered. When confronted with these charges, plaintiff demanded in writing that they be aired in public. The board refused to comply with his request and proceeded to evaluate the evidence against him at a series of closed meetings. On June 6, 1978 the board forwarded a number of charges against him to the Commissioner of Education for determination on the merits in accordance with the Tenure Employees Hearing Law, N.J.S.A. 18A:6-10 et seq. Plaintiff then instituted this suit to have the board's action declared void on the basis that it was taken during the course of a meeting which did not conform to the provisions of the Open Public Meetings Act, N.J.S.A. 10:4-15. The Commissioner has voluntarily stayed proceedings pending the outcome of this litigation.
The problem in this case arises out of legislative enactment of two flatly contradictory statutory provisions. On the one hand, the Open Public Meetings Act requires that consideration of the charges against Cirangle be conducted at an open public meeting. On the other hand, the Tenure Employees Hearing Law prohibits consideration and action by the board in public. Since the statutes cannot be reconciled, the ultimate outcome of this controversy is dependent solely upon application of the rules of judicial construction in an attempt to fathom the legislative intent.
The Open Public Meetings Act basically provides that meetings of public bodies such as defendant must be open to the public at all times, N.J.S.A. 10:4- 12(a). One of the exceptions to this requirement permits exclusion of the public during discussion of
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. (N.J.S.A. 10:4-12(b)(8); emphasis supplied)
Plaintiff asserts that the sole purpose for the personnel exception is to prevent unwarranted invasion of an individual's right to privacy. Exercise or waiver involves a personal decision as to whether the employee desires to have his private personal matters discussed in public. Since Cirangle waived this statutory right, the board was required to consider the charges against him in public. See Rice v. Union City Reg'l High School Bd. of Ed., 155 N.J.Super. 64, 382 A.2d 386 (App.Div.1977). . . .
Defendant claims that it was unequivocally prohibited from acting on the charges against Cirangle during public meetings by the Tenure Employees Hearing Law, N.J.S.A. 18A:6-11. That measure details the procedure involved when charges are made against a tenured board of education employee. Under such circumstances, the board's role is limited to making findings as to whether there is probable cause to credit the evidence in support of the charges. If the board finds that probable cause exists, then it merely forwards such written charges to the Commissioner of Education for further determination on the merits. It is at this stage of the proceedings where public hearings must be held and the charged employee is granted the full panoply of his rights to due process. Unlike the Open Public Meetings Act, the Tenure Employees Hearing Law does not contain a provision which gives the employee the right to request that charges against him be heard in public. Instead, it specifically provides that:
Any charge made against any employee of a board of education under tenure during good behavior and efficiency shall be filed with the secretary of the board in writing, and a written statement of evidence under oath to support such charge shall be presented to the board * * * After consideration of the charge, statement of position and statements of evidence presented to it, the board shall determine by majority vote of its full membership whether there is probable cause to credit the evidence in support of the charge and whether such charge, if credited, is sufficient to warrant a dismissal or reduction of salary. * * * The consideration and actions of the board as to any charge shall not take place at a public meeting. (N.J.S.A. 18A:6-11; emphasis supplied)
Judicial interpretation of contradictory legislative directives should commence with an examination of their statutory histories to uncover any signs of legislative intent. U. S. v. Eureka Pipeline Co., 401 F.Supp. 934 (N.D.W.Va.1975); 2A Sutherland, Statutory Construction (4 ed. 1973), s 48.01. Even the most basic principles of statutory construction must yield to clearly contrary evidence of legislative intent when contained in the legislative history. National R. Passenger Corp. v. National Ass'n of R. Passengers, 414 U.S. 453, 94 S.Ct. 690, 38 L.Ed.2d 646 (1974). Resolution of the present controversy is based upon information gleaned from the historical development of the Tenure Employees Hearing Law.
Prior to 1960 tenured employees of boards of education were subject to removal and discipline under a variety of procedures, dependent on the nature of the employment. . . . Local school boards conducted hearings in each case and made the initial decision. Pursuant to his general power to decide all controversies arising under school laws (N.J.S.A. 18:3- 14), the Commissioner of Education acted as a reviewing authority. The original Tenure Employees Hearing Law (L.1960, c. 136) replaced the then existing maze of statutory regulations by transferring original jurisdiction from local school boards to the Commissioner of Education. The Legislature intended to accomplish two goals by its enactment. One was to terminate the impropriety of having the board act as investigator, prosecutor and judge at the same time: “. . . The second and no less important purpose was to remove the trial of such cases from the publicity attendant on the local hearing which "tears the community apart" and "disrupts the orderly conduct of local school affairs." . . . (In re Fulcomer, 93 N.J.Super. 404, 414, 226 A.2d 30, 36 (App.Div.1967); emphasis supplied)
The specific and limited scope of N.J.S.A. 18A:6-11 must be measured against the sweeping application of the Open Public Meetings Act. When general and specific acts are In pari materia they should be construed together and harmonized if possible. However, if there is any conflict, the more detailed act will prevail even if it was passed prior to the more general statute unless it is apparent that the Legislature intended to make the general act controlling. Where the special statute is passed subsequent to the more general one, it will be regarded either as an exception to or qualification of the prior general law. 2A Sutherland, Statutory Construction (4 ed. 1973), s 51.05. Not only is the Tenure Employees Hearing Law more narrow in scope than the Open Public Meetings Act but it is also subsequent in time of adoption. Despite the fact that neither measure refers to or mentions the other, both were considered by the same Legislature and became effective within 19 days of each other.[FN2]
FN2. The Open Public Meetings Act was approved by the Legislature on October 21, 1975,
to take effect on January 19, 1976, 90 days after its enactment. The Tenure Employees
Hearing Law was amended on February 7, 1976 and signed into law by Governor Byrne
on the following day.
Historically, the Tenure Employees Hearing Law never dealt with the issue of whether disciplinary matters should be heard in public or private. Clear and specific language prohibiting consideration and action at public meetings was inserted for the first time in the latest amendment promulgated shortly after adoption of the Open Public Meetings Law. Bearing in mind the legislative intent to remove hearings of this nature from local school boards because of the disruptive effect upon the community, it becomes apparent that the failure to specifically afford accused employees the right to demand a public hearing cannot be chalked up to legislative oversight. The Legislature has manifested its intention to exclude the public even in the face of a demand for an open meeting by the affected tenured employee.
Plaintiff will receive a public hearing on the merits before the Commissioner of Education. Judgment will be entered in favor of defendant.
Technical violations of the Open Public Meetings Act which do not result from bad faith motives and which do not undermine the fundamental purposes of the Act do not necessarily require invalidation of the board action.
LIEBESKIND v. THE MAYOR AND MUNICIPAL COUNCIL OF BAYONNE
Superior Court of New Jersey, Appellate Division
265 N.J. Super. 389, 627 A.2d 677 (App. Div. 1993)
The opinion of the court was delivered by LONG, J.A.D.
. . . Plaintiff, Marc Liebeskind, alleges that the trial judge erred in formulating remedies for violations of the Open Public Meetings Act ("O.P.M.A."), N.J.S.A. 10:4-6 to -21, by the Municipal Council of Bayonne on June 13, July 1, July 11 and July 25, 1990. Plaintiff contended at trial that the challenged meetings violated the Act either because they were inadequately noticed, inadequately and tardily documented, or inconveniently timed. He demanded invalidation of an ordinance passed on June 13 which retroactively raised the salaries of certain city officials, including council members, and of all actions taken at the July 1 reorganization meeting. In addition, he demanded that future meetings, including caucuses, be adequately publicized by annual schedule or 48-hour notice, that minutes of future meetings be adequately recorded and timely made available to the public, and that no meetings be held on weekday afternoons.
The trial judge, Judge Dowden, ruled that the meeting of July 1 failed to comply with the O.P.M.A. because there was no 48-hour notice of the revised annual meeting schedule, contrary to N.J.S.A. 10:4-8d, and that the June 13 meeting violated the O.P.M.A. because publication of the minutes was delayed by two months, contrary to N.J.S.A. 10:4-14. He also found that there was inadequate notice of the July 11 and July 25 meetings with respect to which plaintiff did not seek to invalidate any action. He concluded that afternoon meetings are permissible and that caucuses do not qualify as public meetings. He declined to invalidate any council actions based on his finding that there was no bad faith, but only technical noncompliance. He ordered that the council conform in the future to the 48-hour notice requirement by timely submission of meeting notices to newspapers and that copies of final meeting minutes be made available for inspection within two weeks after each meeting and at least three business days before the next meeting. On appeal, plaintiff contends that the trial judge erred in not voiding the nonconforming actions complained of; in not requiring publication of meeting notices, copies of meeting minutes, and an end to weekday afternoon meetings; and in not allowing plaintiff to amend his complaint. Defendants filed a cross-appeal, arguing that the trial judge erred in ruling that the complaint was timely; and in not relaxing the two-week maximum during the summer months when meetings are monthly rather than fortnightly.
We have carefully reviewed this record in light of these contentions and have concluded that there is no warrant for our intervention. To be sure, the mandates of the O.P.M.A. must be followed by governmental bodies engaging in their public functions. Willful violations of the Act require swift and strong remediation. However, invalidation of public action is an extreme remedy which should be reserved for violations of the basic purposes underlying the Act. AQN Assocs., Inc. v. Township of Florence, 248 N.J.Super. 597, 614-15, 591 A.2d 995 (App. Div.), certif. den.126 N.J. 385, 599 A.2d 162 (1991). Polillo v. Deane, 74 N.J. 562, 379 A.2d 211 (1977), expressly permits discretion in the fashioning of remedies for technical violations of the Act which do not result from bad faith motives and which do not undermine the fundamental purposes of the O.P.M.A. Here, the trial judge specifically found that the defendants' failure to comply with the Act by inadequate notice and late publication of minutes was not a result of "chicanery" but oversight. Under the circumstances, he was empowered by Polillo to formulate a remedy short of invalidation. The remedy chosen was a thoughtful, carefully crafted response to the problems presented by this record and was calculated to eliminate future O.P.M.A. violations. As such, it is authorized under Polillo and fully supported by the record. . . .
Affirmed.
IX. Open Public Records Act
N.J.S.A. 47:1A-1. Legislative findings and declarations. The Legislature finds and declares it to be the public policy of this State that:
government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions, for the protection of the public interest, and any limitations on the right of access accorded by the former “Right to Know Law”, shall be construed in favor of the public's right of access;
all government records shall be subject to public access unless exempt from such access by: the former “Right to Know Law as amended and supplemented; any other statute; resolution of either or both houses of the Legislature; regulation promulgated under the authority of any statute or Executive Order of the Governor; Executive Order of the Governor; Rules of Court; any federal law, federal regulation, or federal order;
a public agency has a responsibility and an obligation to safeguard from public access a citizen's personal information with which it has been entrusted when disclosure thereof would violate the citizen's reasonable expectation of privacy; and nothing contained in the former “Right to Know Law, shall be construed as affecting in any way the common law right of access to any record, including but not limited to criminal investigatory records of a law enforcement agency.
N.J.S.A. 47:1A-1.1. Definitions.
"Custodian of a government record" or "custodian" means in the case of a municipality, the municipal clerk and in the case of any other public agency, the officer officially designated by formal action of that agency's director or governing body, as the case may be .
"Government record" or "record" means any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by sound-recording or in a similar device, or any copy thereof, that has been made, maintained or kept on file in the course of his or its official business by any officer, commission, agency or authority of the State or of any political subdivision thereof, including subordinate boards thereof, or that has been received in the course of his or its official business by any such officer, commission, agency, or authority of the State or of any political subdivision thereof, including subordinate boards thereof. The terms shall not include inter-agency or intra-agency advisory, consultative, or deliberative material.
A government record shall not include the following information which is deemed to be confidential for the purposes of P.L. 1963, c. 73 (C. 47:1A-1 et seq.) as amended and supplemented:
. . . criminal investigatory records;
victims' records, except that a victim of a crime shall have access to the victim's own records;
trade secrets and proprietary commercial or financial information obtained from any source. For the purposes of this paragraph, trade secrets shall include data processing software obtained by a public body under a licensing agreement which prohibits its disclosure;
any record within the attorney-client privilege. This paragraph shall not be construed as exempting from access attorney or consultant bills or invoices except that such bills or invoices may be redacted to remove any information protected by the attorney-client privilege;
administrative or technical information regarding computer hardware, software and networks which, if disclosed, would jeopardize computer security;
emergency or security information or procedures for any buildings or facility which, if disclosed, would jeopardize security of the building or facility or persons therein;
security measures and surveillance techniques which, if disclosed, would create a risk to the safety of persons, property, electronic data or software;
information which, if disclosed, would give an advantage to competitors or bidders;
information generated by or on behalf of public employers or public employees in connection with any sexual harassment complaint filed with a public employer or with any grievance filed by or against an individual or in connection with collective negotiations, including documents and statements of strategy or negotiating position;
information which is a communication between a public agency and its insurance carrier, administrative service organization or risk management office;
information which is to be kept confidential pursuant to court order; and
that portion of any document which discloses the social security number, credit card number, unlisted telephone number or driver license number of any person; except for use by any government agency, including any court or law enforcement agency, in carrying out its functions, or any private person or entity acting on behalf thereof, or any private person or entity seeking to enforce payment of court-ordered child support; except with respect to the disclosure of driver information by the Division of Motor Vehicles as permitted by section 2 of P.L. 1997, c. 188 (C. 39:2-3.4); and except that a social security number contained in a record required by law to be made, maintained or kept on file by a public agency shall be disclosed when access to the document or disclosure of that information is not otherwise prohibited by State or federal law, regulation or order or by State statute, resolution of either or both houses of the Legislature, Executive Order of the Governor, rule of court or regulation promulgated under the authority of any statute or executive order of the Governor.
A government record shall not include, with regard to any public institution of higher education, the following information which is deemed to be privileged and confidential:
pedagogical, scholarly and/or academic research records and/or the specific details of any research project conducted under the auspices of a public higher education institution in New Jersey, including, but not limited to research, development information, testing procedures, or information regarding test participants, related to the development or testing of any pharmaceutical or pharmaceutical delivery system, except that a custodian may not deny inspection of a government record or part thereof that gives the name, title, expenditures, source and amounts of funding and date when the final project summary of any research will be available;
test questions, scoring keys and other examination data pertaining to the administration of an examination for employment or academic examination;
records of pursuit of charitable contributions or records containing the identity of a donor of a gift if the donor requires non-disclosure of the donor's identity as a condition of making the gift provided that the donor has not received any benefits of or from the institution of higher education in connection with such gift other than a request for memorialization or dedication;
valuable or rare collections of books and/or documents obtained by gift, grant, bequest or devise conditioned upon limited public access;
information contained on individual admission applications; and
information concerning student records or grievance or disciplinary proceedings against a student to the extent disclosure would reveal the identity of the student.
"Public agency" or "agency" means any of the principal departments in the Executive Branch of State Government, and any division, board, bureau, office, commission or other instrumentality within or created by such department; the Legislature of the State and any office, board, bureau or commission within or created by the Legislative Branch; and any independent State authority, commission, instrumentality or agency. The terms also mean any political subdivision of the State or combination of political subdivisions, and any division, board, bureau, office, commission or other instrumentality within or created by a political subdivision of the State or combination of political subdivisions, and any independent authority, commission, instrumentality or agency created by a political subdivision or combination of political subdivisions. . . .
N.J.S.A. 47:1A-5. Times during which records may be inspected, examined, copied; access; and copy fees.
a. The custodian of a government record shall permit the record to be inspected, examined, and copied by any person during regular business hours; or in the case of a municipality having a population of 5,000 or fewer according to the most recent federal decennial census, a board of education having a total district enrollment of 500 or fewer, or a public authority having less than $ 10 million in assets, during not less than six regular business hours over not less than three business days per week or the entity's regularly-scheduled business hours, whichever is less; unless a government record is exempt from public access by: P.L. 1963, c. 73 (C. 47:1A-1 et seq.) as amended and supplemented; any other statute; resolution of either or both houses of the Legislature; regulation promulgated under the authority of any statute or Executive Order of the Governor; Executive Order of the Governor; Rules of Court; any federal law; federal regulation; or federal order. Prior to allowing access to any government record, the custodian thereof shall redact from that record any information which discloses the social security number, credit card number, unlisted telephone number, or driver license number of any person ; except for use by any government agency, including any court or law enforcement agency, in carrying out its functions, or any private person or entity acting on behalf thereof, or any private person or entity seeking to enforce payment of court-ordered child support; except with respect to the disclosure of driver information by the Division of Motor Vehicles as permitted by section 2 of P.L. 1997, c. 188 (C. 39:2-3.4); and except that a social security number contained in a record required by law to be made, maintained or kept on file by a public agency shall be disclosed when access to the document or disclosure of that information is not otherwise prohibited by State or federal law, regulation or order or by State statute, resolution of either or both houses of the Legislature, Executive Order of the Governor, rule of court or regulation promulgated under the authority of any statute or executive order of the Governor. . . .
b. A copy or copies of a government record may be purchased by any person upon payment of the fee prescribed by law or regulation, or if a fee is not prescribed by law or regulation, upon payment of the actual cost of duplicating the record. Except as otherwise provided by law or regulation, the fee assessed for the duplication of a government record embodied in the form of printed matter shall not exceed the following: first page to tenth page, $ 0.75 per page; eleventh page to twentieth page, $ 0.50 per page; all pages over twenty, $ 0.25 per page. . . .
. . . e. Immediate access ordinarily shall be granted to budgets, bills, vouchers, contracts, including collective negotiations agreements and individual employment contracts, and public employee salary and overtime information.
. . . g. A request for access to a government record shall be in writing and hand-delivered, mailed, transmitted electronically, or otherwise conveyed to the appropriate custodian. A custodian shall promptly comply with a request to inspect, examine, copy, or provide a copy of a government record. If the custodian is unable to comply with a request for access, the custodian shall indicate the specific basis therefor [sic] on the request form and promptly return it to the requestor. . . . If a request for access to a government record would substantially disrupt agency operations, the custodian may deny access to the record after attempting to reach a reasonable solution with the requestor that accommodates the interests of the requestor and the agency.
h. Any officer or employee of a public agency who receives a request for access to a government record shall forward the request to the custodian of the record or direct the requestor to the custodian of the record.
i. Unless a shorter time period is otherwise provided by statute, regulation, or executive order, a custodian of a government record shall grant access to a government record or deny a request for access to a government record as soon as possible, but not later than seven business days after receiving the request, provided that the record is currently available and not in storage or archived. . . . If the government record is in storage or archived, the requestor shall be so advised within seven business days after the custodian receives the request. The requestor shall be advised by the custodian when the record can be made available. If the record is not made available by that time, access shall be deemed denied.
j. A custodian shall post prominently in public view in the part or parts of the office or offices of the custodian that are open to or frequented by the public a statement that sets forth in clear, concise and specific terms the right to appeal a denial of, or failure to provide, access to a government record by any person for inspection, examination, or copying or for purchase of copies thereof and the procedure by which an appeal may be filed. . . .
N.J.S.A. 47:1A-8. Common law right of access. Nothing contained in P.L.1963, c. 73 (C.47:1A-1 et seq.), as amended and supplemented, shall be construed as limiting the common law right of access to a government record, including criminal investigatory records of a law enforcement agency.
N.J.S.A. 47:1A-10. Personnel or pension records not considered government records; exceptions. Notwithstanding the provisions of P.L.1963, c. 73 (C.47:1A-1 et seq.) or any other law to the contrary, the personnel or pension records of any individual in the possession of a public agency, including but not limited to records relating to any grievance filed by or against an individual, shall not be considered a government record and shall not be made available for public access, except that:
an individual's name, title, position, salary, payroll record, length of service, date of separation and the reason therefor, and the amount and type of any pension received shall be a government record;
personnel or pension records of any individual shall be accessible when required to be disclosed by another law, when disclosure is essential to the performance of official duties of a person duly authorized by this State or the United States, or when authorized by an individual in interest; and
data contained in information which disclose conformity with specific experiential, educational or medical qualifications required for government employment or for receipt of a public pension, but not including any detailed medical or psychological information, shall be a government record.
N.J.S.A. 47:1A-11. Violations. a. A public official, officer, employee or custodian who knowingly and willfully violates P.L.1963, c. 73 (C.47:1A-1 et seq.), as amended and supplemented, and is found to have unreasonably denied access under the totality of the circumstances, shall be subject to a civil penalty of $1,000 for an initial violation, $2,500 for a second violation that occurs within 10 years of an initial violation, and $5,000 for a third violation that occurs within 10 years of an initial violation.
A request for access to public records must be considered in accordance with the provisions of the Open Public Records Act as well as the balancing test required by the common law.
BERGEN COUNTY IMPROVEMENT AUTHORITY v. NORTH JERSEY MEDIA GROUP, INC., d/b/a THE RECORD, a New Jersey Corporation
Superior Court of New Jersey, Appellate Division
370 N.J. Super. 504, 851 A.2d 731 (2004)
The opinion of the court was delivered by FUENTES, J.A.D.
In this appeal we are asked to determine whether certified audited financial reports of affiliates of Bergen Regional Medical Center, L.P. (Bergen Regional), which were prepared at the behest of the Bergen County Improvement Authority (BCIA) and kept on file at its offices pursuant to the provisions of a lease agreement between BCIA and Bergen Regional, are deemed public documents under the common law right of access.
This issue is presented to us in the context of an appeal taken from an order entered by the Law Division in three consolidated actions arising out of requests made by reporter Shannon D. Harrington of The Record newspaper and by representatives of the Health Professionals and Allied Employees Union, Local 5091 (Union), for copies of the annual audited financial statements of Bergen Regional and its affiliated entities. Bergen Regional had provided these records to BCIA pursuant to the Lease and Operating Agreement of Bergen Regional Medical Center, formerly known as Bergen Pines County Hospital.
BCIA and Bergen Regional sought a judicial declaration as to whether the release of these documents was required under either the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, our State's common law right of access, or both. The Law Division held that these documents were proprietary financial information and thus exempt from disclosure under N.J.S.A. 47:1A-1.1, which excludes from the definition of a government record "trade secrets and proprietary commercial or financial information obtained from any source." This ruling has not been appealed.
The trial court held, however, that BCIA was required to release these documents under the common law right of access. The court, applying the legal principles articulated by the Supreme Court in Keddie v. Rutgers, 148 N.J. 36, 689 A.2d 702 (1997), ordered the records released. The court held that the affiliates' financial reports were "public records" because: (1) Bergen Regional was contractually obligated to prepare and file these documents with BCIA; (2) both The Record and the Union established a cognizable interest in the release of the documents; and (3) the release of the documents was not adverse to the public interest.
Bergen Regional, on behalf of itself and its affiliates, now appeals, arguing that the trial court erred in so holding. It urges us to reverse the court's ruling by harmonizing the common law definition of "public record" with the OPRA definition of "government record," thereby exempting these documents from public disclosure.
We reject these arguments and affirm. We now hold that the common law definition of "public record" is broader than the statutory definition of "government record" contained in N.J.S.A. 47:1A-1.1. Although the public policy expressed in OPRA is entitled to judicial consideration and respect, a court reviewing a citizen's petition for access under the common law must apply the legal principles articulated in judicial decisions to the facts of the case, in order to determine whether access is legally warranted.
In the absence of clear common law direction on the subject, a court engaged in this process may look to OPRA provisions as expressions of public policy on the question of public access to information. However, if disclosure of the information is warranted under the common law, OPRA provisions cannot be invoked to defeat a citizen's right of access.
I
The parties stipulated to the facts at the trial level. An analysis of the issues presented here does not require a complete recitation of those stipulated facts. We will thus only include such facts as are necessary to provide context to our decision.
. . . Effective March 15, 1998, BCIA and Bergen Regional, a for-profit privately owned company, entered into a nineteen-year Lease and Operating Agreement, pursuant to which Bergen Regional assumed responsibility to provide all management, administration, operation and maintenance services for the Bergen County Medical Center (formerly known as Bergen Pines County Hospital or Bergen Pines). The preamble of the Lease and Operating Agreement acknowledged and emphasized that for more than eighty years Bergen Pines had provided a "safety net" of health care services to the residents of Bergen County and its surrounding communities. It was thus the express purpose of the Agreement to enhance this health care safety net by providing quality health care services "in an efficient and cost effective manner."
The lease document actually names Solomon Health Care Group, LLC and Bergen Regional as lessees. Solomon entered into an Assignment and Guarantor Agreement with Bergen Regional, pursuant to which Bergen Regional assumed all of the rights and obligations of Solomon under the BCIA Lease and Operating Agreement and Solomon guaranteed the performance by Bergen Regional of all of its "Management Services" obligations under the BCIA Lease and Operating Agreement.
Bergen Regional Medical Center is this State's largest hospital with 1,185 patient beds. It is comprised of three major divisions of care: Acute Care; Long Term Care; and Behavioral Health Services, which provides psychiatric services to both adults and children. As a public health care institution, the Medical Center has an historic and ongoing mission to provide health care services to the poorest among us.
The Medical Center's public hospital license is held by BCIA. Under the Lease and Operating Agreement, Bergen Regional is responsible for the day-to-day operation of the Medical Center. . . .
. . . Against this factual backdrop, we will now examine the legal arguments against disclosure presented by Bergen Regional.
II
OPRA and the Common Law Right of Access
New Jersey provides access to public records in three ways: (1) through the citizen's common law right of access; (2) OPRA; and (3) through the discovery procedures applicable to civil disputes. Atlantic City Convention Ctr. Auth. v. South Jersey Publ'g Co., 135 N.J. 53, 59, 637 A.2d 1261 (1994) (citing Irval Realty, Inc. v. Board of Pub. Util. Comm'rs, 61 N.J. 366, 372, 294 A.2d 425 (1972)).
Bergen Regional argues that, in adopting OPRA, the Legislature set out a comprehensive public policy governing the right of access to public records. In so doing, according to Bergen Regional, the Legislature sought to reconcile the two "divergent" rights of access under the former Right to Know Law and at common law. In advancing this position, Bergen Regional urges us to "harmonize" the common law right of access with the limits laid down in the newly-enacted OPRA statute.
We reject this argument because its underlying premise, that OPRA's definition of "government records" should demark the outer limits of a citizen's common law right of access, cannot be reconciled with both the express provisions of OPRA and the public policy underpinning the common law.
In adopting OPRA, the Legislature expressly and unambiguously declared that the common law right of access remained a viable and legally independent means for a citizen to obtain public information. Nothing contained in [OPRA], as amended and supplemented, shall be construed as affecting in any way the common law right of access to any record, including but not limited to criminal investigatory records of a law enforcement agency. [N.J.S.A. 47:1A-1.
Nothing contained in [OPRA], as amended and supplemented, shall be construed as limiting the common law right of access to a government record, including criminal investigatory records of a law enforcement agency. [N.J.S.A. 47:1A-8.
Thus, Bergen Regional's argument that the adoption of OPRA signaled a legislative policy shift away from the common law and in favor of a statutory means for accessing public information, palpably lacks textual support.
In fact, as we have recently noted, in replacing the Right to Know Law with OPRA, the Legislature retained the original statement of legislative purpose and findings, N.J.S.A. 47:1A-1. See Hartz Mt. Indus., v. N.J. Sports & Exposition Auth., 369 N.J. Super. 175, 183 n.2, 848 A.2d 793 (App. Div. 2004).
OPRA defines "government record" as information "made, maintained or kept on file" by a government agency "in the course of its official business" or information that has been "received" by a government agency "in the course of its official business." It affirmatively excludes from such definition, however, twenty-one separate categories of information. By so doing, OPRA significantly reduces the universe of publicly-accessible information. As the Legislature acknowledged in N.J.S.A. 47:1A-1 and N.J.S.A. 47:1A-8, the only countervailing relief mechanism for those seeking access to a statutorily excluded document is the common law right of access.
N.J.S.A. 47:1A-1.1 provides for a wide variety of excluded information. Generally, they cover the following topics: (1) information received by a legislator from a constituent; (2) records used by legislators in the course of their official duties; (3) certain crime scene and autopsy photographs or videotapes; (4) criminal investigatory records; (5) victims' records; (6) trade secrets and other proprietary commercial or financial information; (7) information subject to the attorney-client privilege (excluding the non-privileged portion of lawyers' bills); (8) information that would jeopardize computer security; (9) information that would jeopardize the security of buildings, facilities or persons therein; (10) certain security measures and surveillance techniques; (11) information that would give an advantage to competitors or bidders; (12) information generated by public employers or employees in connection with any sexual harassment complaint or grievance; (13) information which is a communication between a public agency and its insurance carrier, administrative service organization or risk management office; (14) information required by court order to be kept confidential; and (15) that portion of any document which discloses the social security number, driver license number, credit card number or unlisted telephone number of any person, except as enumerated. In addition, six categories of information held by public institutions of higher education are also excluded from the definition. N.J.S.A. 47:1A-1.1.
In fact, unlike the Right to Know Law where disclosure was mandated once statutory access was established, the government under OPRA may seek to withhold any public record subject to the common law balancing test by claiming that the public interest for confidentiality outweighs the private right of access. N.J.S.A. 47:1A-9; In re Readoption with Amendments of Death Penalty Regulations N.J.A.C. 10A:23, 367 N.J. Super. 61, 74, 842 A.2d 207 (App. Div. 2004).
In Nero v. Hyland, 76 N.J. 213, 386 A.2d 846 (1978), the Supreme Court, for the first time, articulated with particularity the legal principles comprising the common law right of access in the context of a citizen's petition for access to public records. . . . A public record under the common law is, one required by law to be kept, or necessary to be kept in the discharge of a duty imposed by law, or directed by law to serve as a memorial and evidence of something written, said, or done, or a written memorial made by a public officer authorized to perform that function, or a writing filed in a public office. The elements essential to constitute a public record are ... that it be a written memorial, that it be made by a public officer, and that the officer be authorized by law to make it[.] [Id. at 221-22.]
. . . Here, Bergen Regional's affiliates' audited financial statements are common law public records because they were (1) prepared at the behest of BCIA and (2) filed at its offices pursuant to section 9.25(c) of the Lease and Operating Agreement. This contractual obligation was presumably negotiated and agreed to by the parties to facilitate BCIA's oversight responsibilities as the license holder for this public hospital. . . .
However, concluding that a document is a "public record" under the common law, is only the first step in the analysis. Once a court is satisfied that the information requested is a "public record," it must then ascertain whether the requestor has a cognizable interest in the subject matter contained in the material. Assuming such an individual interest is found, a court must determine whether the individual's right of access outweighs the State's interest in preventing disclosure. Ibid.
Here, Bergen Regional concedes that, as a newspaper, The Record has a cognizable interest in accessing and reviewing the audited financial records of its affiliates. Press of Atl. City v. Ocean County Joint Ins. Fund, 337 N.J. Super. 480, 488, 767 A.2d 533 (Law Div. 2000) (citing Red Bank Register, Inc. v. Board of Educ. of Long Branch, 206 N.J. Super. 1, 9, 501 A.2d 985 (App. Div. 1985)). See also Home News v. Department of Health, 144 N.J. 446, 454, 677 A.2d 195 (1996); South Jersey Publ'g Co. v. New Jersey Expressway Auth., 124 N.J. 478, 496-97, 591 A.2d 921 (1991).
As the bargaining agent for a significant percentage of the staff at the Medical Center, the Union argues that it has a legally valid private interest in reviewing this information. Bergen Regional contends that any disclosure which may be required under the common law does not apply to the Union, because state law in this area is preempted by the federal Labor Management Relations Act of 1947. 29 U.S.C.A. §§ 141 to -187.
We note that Bergen Regional has not cited any case law supporting its blanket assertion of preemption. However, we do not need to decide this issue in order to afford the Union access to this information. As the trial court correctly noted, denial of the information to the Union here would lead to the absurd result of the Union "being precluded from directly procuring this information under the common law, but could read all about it in the newspapers with the rest of the world."
The principal legal issue in dispute is centered on the final step in the analysis under the common law right of access. That is, whether the public's interest in withholding the release of the affiliates' audited financial statements outweighs the public benefit derived from their disclosure. Here again, Bergen Regional directs our attention to the provisions in OPRA as a means of resolving this conflict.
As previously noted, OPRA affirmatively excludes from the definition of "government records" twenty-one separate categories of information. Among the information excluded are "trade secrets and proprietary commercial or financial information obtained from any source." N.J.S.A. 47:1A-1.1. Bergen Regional argues that these exclusions represent the Legislature's considered public policy judgment that the prejudice caused by the disclosure of this type of information exceeds the benefit derived from its public dissemination. Thus, when confronted with a petition for disclosure under the common law, courts should defer to the Legislature's pronouncement on the subject.
We disagree. In our view, the provisions in OPRA explicitly retaining the common law right of access impose a non-delegable duty upon the judiciary to apply the common law standards and make an independent assessment whether disclosure is warranted. If the Legislature intended to derogate from this common law principle, it would have so stated. Peterson v. Ballard, 292 N.J. Super. 575, 583, 679 A.2d 657 (App. Div.), certif. denied, 147 N.J. 260, 686 A.2d 761 (1996). We do agree, however, that when engaging in the balancing test required under the common law, a court may look to the exclusions in OPRA as expressions of legislative policy on the subject of confidentiality. However, if application of common law principles would lead to a finding in favor of disclosure, OPRA provisions cannot be invoked to defeat a citizen's right of access.
. . . Having concluded that OPRA exclusions do not limit a citizen's common law right of access, we will now address whether the trial court correctly applied the common law balancing test. That test was succinctly described by the Supreme Court in Keddie v. Rutgers, supra, 148 N.J. at 51:
Generally, the public's interest in nondisclosure is based on the need to keep the information confidential. Where a claim of confidentiality is asserted, the applicant's interest in disclosure is more closely scrutinized. In that context, courts consider whether the claim of confidentiality is "'premised upon a purpose which tends to advance or further a wholesome public interest'" or a legitimate private interest. However, where the interest in confidentiality is "slight or non-existent," standing alone will be sufficient to require disclosure to advance a legitimate private interest.
Here, as the trial court noted, BCIA does not assert a public right to confidentiality. It is rather Bergen Regional, on behalf of itself and its affiliates, that asserts: (1) that without confidentiality, private for-profit companies, fearing the release of their proprietary financial information, would be discouraged from contracting with government agencies; and (2) release of this information would put them at a competitive disadvantage. Bergen Regional offers no proof of such prospects, however, calling them common sense, self-evident propositions.
The trial court found Bergen Regional's arguments in this respect to be speculative and far from self-evident. So do we. First, as noted by the trial court, Bergen Regional is legally required to file copies of its audited financial statements with the Department of Health and Senior Services. N.J.A.C. 8:31B-3.3. Second, and perhaps most importantly, the original Lease and Operating Agreement makes no provision for keeping the affiliates' audited financial statements confidential.
This Agreement reflects an exceedingly sophisticated understanding of New Jersey's legal environment. Bergen Regional's subsequent actions agreeing to modify the Lease and Operating Agreement by authorizing BCIA to release the information upon the issuance of an order from a court of competent jurisdiction, further reflects an informed acceptance of the legal risks involved. Finally, based on the financial records made available to us, Bergen Regional has continued to enjoy financial success notwithstanding the potential for disclosure.
Conversely, the public's interest in examining these financial records is self-evident. As our recitation of the facts demonstrates, there are large amounts of public funds being disbursed to procure management services for this public hospital. The fees paid to these three affiliates constitute more than three times the annual management fee paid to Bergen Regional. The scope of consulting services provided by the affiliates range from employee benefits to long term patient care. The citizens of Bergen County and of this State have an unquestioned interest in ensuring that public funds, in the form of preferential reimbursement rates, are being spent wisely, efficiently and consistent with the Medical Center's mission.
A citizen's right to obtain and review public information is historically rooted in the proposition that the government holds public information in trust for the people. As eloquently stated by Judge Dixon 125 years ago in State ex rel. Ferry v. Williams, 41 N.J.L. 332, 334 (Sup. Ct. 1879): Every officer appointed by law to keep records ought to deem himself for that purpose a trustee." Our republican form of governance is only possible when citizens have access to the information necessary to make a rational and informed judgment.
. . . The trial court correctly applied the elements of the common law right of access in ordering the release of the audited financial statements of Bergen Regional's three affiliates.
Affirmed.
Documents located in a personnel file are not necessarily excluded from disclosure, and public access to those documents may not be denied without sufficient justification.
STEVEN FENICHEL v. OCEAN CITY BOARD OF EDUCATION CUSTODIAN OF RECORD
New Jersey Governmental Records Council
GRC Complaint No. 2002-82 (January 17, 2003)
Executive Director's Recommendation
This complaint concerns a request for disclosure of copies of three research papers authored by administrators and/or teachers at Ocean City High School (OCHS) for which "Administrative Evaluation Compensation" was provided. Lacking justification from the records custodian to support a finding that these records are confidential under OPRA, it is recommended that Council order the documents be released to the requester at OPRA's standard copy rates, subject to any redactions appropriate under OPRA. These may include the identity of research subjects. In addition, although the requester expressed no desire to know the identity of the papers' authors, the custodian should release the names of the authors because there is no basis under OPRA to withhold access to them. There is a further consideration that attributing authorship protects not only the researchers' copyright in the material, but assists the public in assessing the soundness of the work.
Statements of Facts
On or about October 3, 2002 Steven Fenichel made a request of the Ocean City Board of Education for copies of three research papers authored by administrators and/or teachers at Ocean City High School (OCHS). The papers were described in an October 2, 2002 article in a local newspaper, "The Gazette." Specifically, the requester sought copies of research papers on (1) "anger management plans," (2) an "analysis of students failing at OCHS," and (3) "staff development programs." A fourth research project described in the newspaper article was not sought. The newspaper article states that in each case, the author of the paper received compensation in addition to regular salary, referred to as "Administrative Evaluation Compensation." The requester states that he does not seek the identity of the staff member who did the research.
On October 10, 2002, School Business Administrator and Records Custodian Doris Isaacs denied the request, advising that the research papers were part of the personnel records of the public employees who wrote the papers and, as such, were confidential under N.J.S.A. 47:1A-10. This section prohibits release of information from personnel records, with certain exceptions that do not include research papers by faculty. In the custodian's Statement of Information filed on December 3, 2002, the custodian alleged that the Complaint lacked a factual basis because:
Administrators (3) performance based salary increase documents utilized by the evaluator (Superintendent of Schools) to determine performance-based salary increases based on achievement of goal(s) were deemed to be personnel records not available for public access.
Analysis
N.J.S.A. 47:1A-10 provides, in pertinent part, that the personnel or pension records of any individual in the possession of a public agency shall not be considered a government record, except that (1) an individual's name, title, position, salary, payroll record, length of service, date of separation and the reason therefore, and the amount and type of any pension received shall be a government record; and (2) data which discloses conformity with specific experiential, educational or medical qualifications required for government employment or for receipt of a public pension shall be a government record , but shall not include any detailed medical or psychological information.
N.J.S.A. 47:1A-10 codifies a series of Executive Orders (EO) addressing disclosure of personnel records. The text of the initial Order (Hughes, EO #9) stated that limited access to personnel records was needed " to balance the right of the public to know against the risk of unintentional harm or injustice to individuals that might be occasioned by the indiscriminate exposure of certain records containing data of a sensitive or personal nature."
Executive Order #11 by Governor Byrne provided for disclosure of the specific information itemized in N.J.S.A. 47:1A-10 on the rationale that "disclosure of the name, title and position of persons receiving pensions and of the type and amount of pension being received is an insignificant invasion of privacy outweighed by the public's right to know who it is employing, what jobs they are filling and the identities of those receiving government pensions." [emphasis supplied].
Both these Orders as well as OPRA refer to "personnel records." The question in this case is whether the information requested is a "personnel record" or merely information placed in a personnel file. OPRA provides no specific guidance on the issue, thus the Council can examine case law from other jurisdictions in addition to its own consideration of the merits of the issue.
Other states considering the issue have held that not every bit of information found in a personnel file is necessarily personal so as to be exempt from disclosure. Personnel information that identifies a specific, individual government employee is exempt and therefore confidential. So, for example, New Jersey courts consider confidential any performance evaluations in personnel files. This shields from access supervisory criticisms or evaluation of the research in this case.
Furthermore, while the research papers sought in this matter may be personnel records for purposes of documenting why the employees received compensation in excess of their usual salary, that fact alone does not render the content of the research confidential. The records custodian does not state that any of the papers contain information of a personal nature peculiar to the author of the paper or which would reveal the compensation received by the author for the work. Research on anger management plans, failing students or staff development programs can be constructed to be generic in nature. For this reason, the Executive Director recommends that the Council order the custodian to provide the requester a copy of each research paper at standard OPRA per-page copy rates, subject to the following cautions as applicable.
Prior to release, the custodian should redact from the papers any information considered confidential under OPRA. For example, the names of any students in the "anger management" research or the "analysis of students failing at OCHS" should be redacted so as to conform with state and federal laws pertaining to confidentiality of student records. Similarly, the names of any staff member appearing in the "staff development program" research should be redacted as necessary to protect the legitimate privacy interests of staff members. However, it should be noted that OPRA permits release of that portion of employees' personnel files that disclose "conformity with specific experiential, educational or medical qualifications required for government employment."
While the parties do not address whether the papers have any economic value aside from the compensation paid to the authors by the school, the custodian should be mindful of the authors' legitimate copyright interest in the papers. The names of the authors should be released, first, because there is no exemption under OPRA to withhold access to them, and second, because the value of scientific studies is greatly affected by the author's training and experience.
Conclusion
This is not a case in which the requester is seeking the supervisor's evaluation of the papers or the payment received, either of which might reflect an evaluation of the professional performance of the author deemed confidential. This is not research performed at an institution of higher learning which is classified as confidential under N.J.S.A. 47:1A-1.1. The custodian has not stated that the "Staff Development" or "Anger Management" research reveals any information whatsoever identifiable with any particular staff member or student, nor is there a claim that the material was commissioned for use as part of a advisory, consultative or deliberative process to formulate school policy. There is no reasonable expectation of privacy in the work itself since it concerns generic topics, paid for by public funds.
Lacking justification from the custodian supporting an exception from disclosure there appears to be no basis to withhold access to the papers under OPRA. It is recommended that Council order the custodian to provide the requester a copy of each of the research papers at OPRA's standard per-page copy rate subject to redaction for any lawful reason. The requester may challenge the lawfulness of any redactions in a separate Complaint.
A board secretary’s handwritten notes taken during a closed-session meeting are not protected from disclosure by any provision of the Open Public Records Law or the common law.
MARTIN O’SHEA v. WEST MILFORD TOWNSHIP BOARD OF EDUCATION
New Jersey Government Records Council
GRC Complaint No. 2004-93, decided October 7, 2004
Relevant Records Requested:
. . . A copy of the minutes of the executive session held by the board of education during its meeting of June 22, 2004. If the minutes of the executive session are not on audiotape, . . . a copy of the original handwritten notes. . . .
Complainant’s Case Position
The Complainant filed a Denial of Access Complaint with the Government Records Council on July 13, 2004 pursuant to N.J.S.A. 47:1A-1 et. seq. alleging that the Custodian did not disclose the Board’s Secretary’s handwritten notes from the June 22, 2004 meeting . . .
The Complainant further asserts that the Custodian contacted him again on June 25, 2004 to inform him that . . . the draft minutes of the executive session would be available in two weeks. The Custodian also stated, according to the Complainant, that the executive session minutes would be available when the Board Attorney determines that confidentiality is no longer an issue. The Custodian then notified the Complainant on July 7, 2004, that the minutes of the Board’s public meeting were available for him to pick up at the Board of Education office. On July 12, 2004, the Complainant asserts that he received an e-mail from the Custodian stating that the draft unapproved minutes for the executive session were available and that his request for the handwritten notes was denied because they are not considered a government record.
. . . The Complainant contends that on June 23, 2004, the Custodian stated that no audiotape was available from the executive session of the June 22, 2004 meeting. Therefore, the Complainant asserts that he should have received the Board Secretary’s handwritten notes as he requested since they are considered “made, maintained and kept on file” pursuant to OPRA. The Complainant also states that the Custodian’s handling of his request is a violation of OPRA because he did not consider that redactions could be made to the handwritten notes or justify the rationale for denying the request. As the Council determined in Gober v. City of Burlington, GRC Complaint No. 2003-139, the Complainant argues that the Custodian cannot be vague in claiming a record is exempt. . . .
Public Agency’s Case Position
. . . The Custodian asserts that . . . the draft unapproved minutes of the executive session were available upon completion on July 12, 2004. The Custodian additionally asserts that the Complainant was notified that his request for the Board Secretary’s handwritten notes is denied on the basis that they are not considered government records under OPRA. . . .
The Custodian’s counsel claims that the handwritten notes are not disclosable under N.J.S.A. 47:1A-1.1 because the information contained in the record is considered “advisory, consultative and deliberative” and the Board secretary interjects personal opinions into the draft record. The Custodian’s counsel also stated that the handwritten notes are not “accessible under common law right of access” and cites that “it is axiomatic that statutory interpretations that lead to absurd or unreasonable results are to be avoided.” State of NJ v. Haliski, 140 N.J. 1, 9 (1995) (citation omitted).
The Custodian’s counsel also provides that an agency claiming that records are advisory, consultative and deliberative “bears the burden of establishing that the document in question was in fact pre-decisional and that it is ‘deliberative in nature, containing opinions, recommendations or advice about agency policies.’” In the Matter of Readoption with Amendments of Death Penalty Regulations, 367 N.J. Super. 61, 73 (app. Div. 2004). The Custodian’s counsel contends that the handwritten notes are pre-decisional and reflect the personal thoughts and opinions of the Board Secretary; therefore, they are privileged.
The Custodian’s counsel lastly, argues that the handwritten notes are protected under the common law right of access and by using the “balance test,” which clearly indicates that if these records are disclosable, it shall impede public agency functions and prohibit public officials to make personal notes of their opinions. . . .
Analysis
. . . The Custodian, advised the Complainant in a June 25, 2004 e-mail that “[t]he draft minutes of the executive session minutes will be made available when confidentiality is no longer an issue.” Further, the Custodian stated that there are no audiotapes of the executive session.
On July 12, 2004, the Custodian advised the Complainant that Township counsel had determined the handwritten notes are “not a public document,” and that access would not be granted. The Custodian did, however, grant access to the unapproved executive session minutes on that date.
The Complainant accepts the Custodian’s statement that the audiotapes do not exist. . . Complainant does take issue with the lack of access to the handwritten notes . . . as well as the Complainant’s lack of justification for the denied access.
The Custodian’s counsel states that the Board Secretary’s handwritten notes contain Advisory Consultative and Deliberative (ACD) information and should not be considered a government record. Counsel asserts that the notes are memory aids and reflect the personal opinions and recommendations of the Board Secretary and the Board Members present for the June 22, 2004 executive session rather than final policy. N.J.S.A. 47:1A-1.1,
Custodian’s Counsel also asserts that the handwritten notes are protected by the Deliberative Process privilege as the notes are pre-decisional and reflect personal thoughts. In the Matter of Readoption with Amendments of Death Penalty Regulations, 367 N.J. Super. 61, 73 (App. Div. 2004).
Neither the statute nor the courts have defined the terms “intra-agency” or “advisory, consultative, or deliberative” in the context of the public records law. The Government Records Council (GRC) looks to an analogous concept, the deliberative process privilege, for guidance in the implementation of the OPRA ACD exemption. Both the ACD exemption and the deliberative process privilege enable a governmental entity to shield from disclosure material that is pre-decisional and deliberative in nature. Deliberative material contains opinions, recommendations, or advice about agency policies. Strictly factual segments of an otherwise deliberative document are not exempted from disclosure. In re the Liquidation of Integrity Insurance Company, 165 N.J. 75, 88 (2000); In re Readoption With Amendments of Death Penalty Regulations, 367 N.J. Super. 61, 73 (App. Div. 2004).
However, simply declaring a communication ACD does not automatically make it so. As with all privileges, application of the ACD privilege is limited to those circumstances that support its underlying policies. It is here that the Township position fails.
The Township has failed to provide to prove that the handwritten notes are protected by the ACD and Deliberative Process exemptions. It has not provided a general nature explanation of what the alleged opinions, recommendations and pre-decisional issues are or relate to. Nor has the Township explained if any part(s) of the notes are factual and if the notes could be disclosed in a redacted fashion.
Township Counsel also states that the notes are protected under the Common Law Right of Access. He argues that the common law balancing test weighs in favor of the Board as “efforts by public entities to evaluate programs and other facts of their operations would be chilled by disclosure.” In light of the fact that the Township has already released the unapproved draft minutes of the subject executive session, this is not a persuasive argument. If the minutes, or parts thereof, are disclosable, it does not stand to reason that the source documentation from which they were written would not be disclosable.
The Township should disclose the handwritten notes of the June 22, 2004 executive session pursuant to redactions in keeping with N.J.S.A. 47:1A-1 et seq.
The Custodian did not provide the Complainant with a timely response as to why the handwritten notes would not be disclosed. N.J.S.A. 47:1A-5(g). However, given that the custodian was reasonably acting under the advice of legal counsel, the ensuing delay should not be considered a knowing and willful violation in the totality of the circumstances. N.J.S.A. 47:11. . . .
Conclusions and Recommendations of the Executive Director
The Executive Director respectfully recommends that the Council find that:
1. The Custodian has not met the burden of proving that the Board Secretary’s handwritten notes of the June 22, 2004 closed session are exempt under OPRA because they are “advisory, consultative and deliberative,” protected by common law or the Deliberative Process. The Council should order the Custodian to disclose the handwritten notes subject to appropriate redactions in accordance with OPRA.
2. The Custodian should disclose the handwritten notes of the June 22, 2004 closed session pursuant to proper redactions under N.J.S.A 47:1A-1 et seq.
3. The Custodian should not be found to have “knowingly and willfully” violated OPRA under the totality of the circumstances.
X. Student Attendance and Accounting; Pupil Records
N.J.A.C. 6A:32-8.1. School register.
(a) This subchapter applies to all district boards of education or private agencies which provide educational services by means of public funds.
(b) The Commissioner shall prepare and distribute a school register which shall be known as the New Jersey School Register, for recording student attendance in all public schools of the State operated by district boards of education, except adult high schools.
(c) Student attendance shall be recorded in the school register during school hours on each day the school is in session.
(d) Separate school registers shall be kept for students attending preschool, kindergarten, grades one through five, grades six through eight, grades nine through 12, each preschool class for the disabled, each class for the disabled, shared-time classes for regular students, shared-time classes for students with disabilities, full-time bilingual education programs and vocational day programs, and summer schools operated by district boards of education.
(e) A student who has been placed on home instruction shall have his or her attendance status recorded on the regular register attendance pages for the program in which the student is enrolled. For the period beginning the first day the student is unable to attend school and ending the day before the first instructional day at the student's place of confinement, the student shall be marked absent. No absences will be recorded for the student while on home instruction, providing the hours of instruction are no less than required by N.J.A.C. 6A:14-4.8 and 4.9. The number of possible days of enrollment for a student on home instruction shall be the same as for other students in the program in which the student is enrolled.
N.J.A.C. 6A:32-8.2 School enrollment.
(a) The enrollment in a class, a school or a school district shall be the total number of original entries plus the number of re-entries, less the number of transfers, withdrawals or dropouts in any such unit during a school year. The total number of original entries and re-entries, less the number of transfers, withdrawals or dropouts, in all the classes and schools of a school district shall constitute the school enrollment for that district board of education during any school year.
(b) No student attending a school operated by a district board of education shall be enrolled in more than one school register in any school district during a school year. All students shall be enrolled as of the first day of attendance for that year.
(c) No student shall be enrolled in a school register until the student has reached the following legal school age:
1. Kindergarten--more than four years and less than six years;
2. Day school--more than five years;
3. Preschool disabled--more than three years and less than five years.
(d) Within 10 days of the start of the school year, a school district shall determine whether any re-entering student who has not attended school that year has an excused absence or has transferred, withdrawn or dropped out of the school district.
(e) Any student enrolled in a school register in a school district who moves to another school district in the same school year shall be enrolled in one register in the new school district upon entering school in that school district.
(f) The average daily enrollment in a school district for a school year shall be the sum of the days present and absent of all enrolled students when schools were in session during the year, divided by the number of days schools were actually in session. The average daily enrollment for the classes or schools of a district having varying lengths of terms shall be the sum of the average daily enrollments obtained for the individual classes or schools.
(g) The average daily attendance in a school district for a school year shall be the sum of the days present of all enrolled students when schools were in session during the year, divided by the number of days schools were actually in session. The average daily attendance for the classes or schools of a district having varying lengths of terms shall be the sum of the average daily attendance obtained for the individual classes or schools.
N.J.A.C. 6A:32-8.3 School attendance.
(a) For purposes of school attendance, a day in session shall be a day on which the school is open and students are under the guidance and direction of a teacher or teachers engaged in the teaching process. Days on which school is closed for such reasons as holidays, teachers' institutes and inclement weather shall not be considered as days in session.
(b) A school day shall consist of not less than four hours of actual instruction, except that in an approved kindergarten one continuous session of 2 1/2 hours may be considered as a full day.
(c) An approved kindergarten shall meet the following requirements:
1. Each kindergarten teacher shall be properly certified pursuant to N.J.A.C. 6A:9, Professional Licensure and Standards, and 6A:10A, Improving Standards-Driven Instruction and Literacy in Abbott School Districts: Implementing Standards-Driven Instruction and Effective and Efficient Practices under Abbott v. Burke.
2. A balanced program in an approved facility with adequate equipment, materials and supplies shall be provided each child. This program is to be designed to meet the individual needs of every child and may include instruction in reading and other subjects when it has been determined that a child is ready for such instruction by the teacher of the class; and
3. The maximum enrollment for a kindergarten class shall be 25 students per teacher and 21 students in an Abbott school district, in accordance with N.J.A.C. 6A:10A, Improving Standards-Driven Instruction and Literacy in Abbott School Districts: Implementing Standards-Driven Instruction and Effective and Efficient Practices under Abbott v. Burke. The county superintendent of schools may give permission to increase the number of students in a non-Abbott classroom to any number he or she chooses provided another teacher, an auxiliary teacher, or a teacher aide is employed full-time to provide for the increased size.
(d) A day of attendance shall be one in which a student is present for the full day under the guidance and direction of a teacher while school is in session. Whenever over-crowded conditions make it necessary to hold two separate sessions with a different group of students in each session, a student attending for all of either session shall be regarded as having attended for the full day. An excused absence for any reason shall not be counted as a day of attendance in the school register.
(e) A half-day class shall be considered the equivalent of a full day's attendance only if in session for four hours or more, exclusive of recess periods or lunch periods.
(f) A record of the attendance of all students on roll in a school register shall be kept each day that school is in session by a teacher or other authorized person. It shall be the duty of this person to keep the attendance records according to these rules and the specific instructions printed in the school register, and if necessary, according to supplementary instructions issued from time to time by the Commissioner.
(g) No student shall be recorded as present unless the school is in session and the student so recorded is under the guidance and direction of a teacher in the teaching process.
(h) A student shall be recorded as absent in the school register when not in attendance at a session of the school while a member of the school, except students excused due to religious holidays who shall be recorded as excused.
(i) A student shall be recorded as either present, absent, or excused for religious observance, every day the school is in session after the student enters until the date the student is transferred to another school, transferred to an individual home instruction record, or officially leaves the school system.
(j) The Commissioner shall annually prescribe a list of religious holidays on which it shall be mandatory to excuse students for religious observance upon the written request signed by the parent or person standing in loco parentis.
(k) The mere presence of a student at roll call shall not be regarded as sufficient attendance for compliance with these rules. In a school which is in session during both the forenoon and the afternoon, a student shall be present at least one hour during both the forenoon and the afternoon in order to be recorded as present for the full day. In a school which is in session during either the forenoon or the afternoon, a student shall be present at least two hours in the session in order to be recorded as present for the full day.
20 U.S.C. 1232g. Family educational and privacy rights.
(a) Conditions for availability of funds to educational agencies or institutions; inspection and review of education records; specific information to be made available; procedure for access to education records; reasonableness of time for such access; hearings; written explanations by parents; definitions.
(1) (A) No funds shall be made available under any applicable program to any educational agency or institution which has a policy of denying, or which effectively prevents, the parents of students who are or have been in attendance at a school of such agency or at such institution, as the case may be, the right to inspect and review the education records of their children. If any material or document in the education record of a student includes information on more than one student, the parents of one of such students shall have the right to inspect and review only such part of such material or document as relates to such student or to be informed of the specific information contained in such part of such material. Each educational agency or institution shall establish appropriate procedures for the granting of a request by parents for access to the education records of their children within a reasonable period of time, but in no case more than forty-five days after the request has been made.
(B) No funds under any applicable program shall be made available to any State educational agency (whether or not that agency is an educational agency or institution under this section) that has a policy of denying, or effectively prevents, the parents of students the right to inspect and review the education records maintained by the State educational agency on their children who are or have been in attendance at any school of an educational agency or institution that is subject to the provisions of this section.
. . . (2) No funds shall be made available under any applicable program to any educational agency or institution unless the parents of students who are or have been in attendance at a school of such agency or at such institution are provided an opportunity for a hearing by such agency or institution, in accordance with regulations of the Secretary, to challenge the content of such student's education records, in order to insure that the records are not inaccurate, misleading, or otherwise in violation of the privacy rights of students, and to provide an opportunity for the correction or deletion of any such inaccurate, misleading, or otherwise inappropriate data contained therein and to insert into such records a written explanation of the parents respecting the content of such records.
(3) For the purposes of this section the term "educational agency or institution" means any public or private agency or institution which is the recipient of funds under any applicable program.
(4) (A) For the purposes of this section, the term "education records" means, except as may be provided otherwise in subparagraph (B), those records, files, documents, and other materials which--
(i) contain information directly related to a student; and
(ii) are maintained by an educational agency or institution or by a person acting for such agency or institution.
(B) The term "education records" does not include--
(i) records of instructional, supervisory, and administrative personnel and educational personnel ancillary thereto which are in the sole possession of the maker thereof and which are not accessible or revealed to any other person except a substitute;
(ii) records maintained by a law enforcement unit of the educational agency or institution that were created by that law enforcement unit for the purpose of law enforcement;
(iii) in the case of persons who are employed by an educational agency or institution but who are not in attendance at such agency or institution, records made and maintained in the normal course of business which relate exclusively to such person in that person's capacity as an employee and are not available for use for any other purpose; or
(iv) records on a student who is eighteen years of age or older, or is attending an institution of postsecondary education, which are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in his professional or paraprofessional capacity, or assisting in that capacity, and which are made, maintained, or used only in connection with the provision of treatment to the student, and are not available to anyone other than persons providing such treatment, except that such records can be personally reviewed by a physician or other appropriate professional of the student's choice.
(5) (A) For the purposes of this section the term "directory information" relating to a student includes the following: the student's name, address, telephone listing, date and place of birth, major field of study, participation in officially recognized activities and sports, weight and height of members of athletic teams, dates of attendance, degrees and awards received, and the most recent previous educational agency or institution attended by the student.
(B) Any educational agency or institution making public directory information shall give public notice of the categories of information which it has designated as such information with respect to each student attending the institution or agency and shall allow a reasonable period of time after such notice has been given for a parent to inform the institution or agency that any or all of the information designated should not be released without the parent's prior consent.
(6) For the purposes of this section, the term "student" includes any person with respect to whom an educational agency or institution maintains education records or personally identifiable information, but does not include a person who has not been in attendance at such agency or institution.
(b) Release of education records; parental consent requirement; exceptions; compliance with judicial orders and subpoenas; audit and evaluation of Federally-supported education programs; recordkeeping.
(1) No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of educational records (or personally identifiable information contained therein other than directory information, as defined in paragraph (5) of subsection (a)) of students without the written consent of their parents to any individual, agency, or organization, other than to the following—
(A) other school officials, including teachers within the educational institution or local educational agency, who have been determined by such agency or institution to have legitimate educational interests, including the educational interests of the child for whom consent would otherwise be required;
(B) officials of other schools or school systems in which the student seeks or intends to enroll, upon condition that the student's parents be notified of the transfer, receive a copy of the record if desired, and have an opportunity for a hearing to challenge the content of the record;
(C) (i) authorized representatives of (I) the Comptroller General of the United States, (II) the Secretary, or (III) State educational authorities, under the conditions set forth in paragraph (3), or (ii) authorized representatives of the Attorney General for law enforcement purposes under the same conditions as apply to the Secretary under paragraph (3);
(D) in connection with a student's application for, or receipt of, financial aid;
(E) State and local officials or authorities to whom such information is specifically allowed to be reported or disclosed pursuant to State statute adopted--
(i) before November 19, 1974, if the allowed reporting or disclosure concerns the juvenile justice system and such system's ability to effectively serve the student whose records are released, or
(ii) after November 19, 1974, if--
(I) the allowed reporting or disclosure concerns the juvenile justice system and such system's ability to effectively serve, prior to adjudication, the student whose records are released; and
(II) the officials and authorities to whom such information is disclosed certify in writing to the educational agency or institution that the information will not be disclosed to any other party except as provided under State law without the prior written consent of the parent of the student.[;]
(F) organizations conducting studies for, or on behalf of, educational agencies or institutions for the purpose of developing, validating, or administering predictive tests, administering student aid programs, and improving instruction, if such studies are conducted in such a manner as will not permit the personal identification of students and their parents by persons other than representatives of such organizations and such information will be destroyed when no longer needed for the purpose for which it is conducted;
(G) accrediting organizations in order to carry out their accrediting functions;
(H) parents of a dependent student of such parents, as defined in section 152 of the Internal Revenue Code of 1986 [26 USCS § 152];
(I) subject to regulations of the Secretary, in connection with an emergency, appropriate persons if the knowledge of such information is necessary to protect the health or safety of the student or other persons; and
(J) (i) the entity or persons designated in a Federal grand jury subpoena, in which case the court shall order, for good cause shown, the educational agency or institution (and any officer, director, employee, agent, or attorney for such agency or institution) on which the subpoena is served, to not disclose to any person the existence or contents of the subpoena or any information furnished to the grand jury in response to the subpoena; and
(ii) the entity or persons designated in any other subpoena issued for a law enforcement purpose, in which case the court or other issuing agency may order, for good cause shown, the educational agency or institution (and any officer, director, employee, agent, or attorney for such agency or institution) on which the subpoena is served, to not disclose to any person the existence or contents of the subpoena or any information furnished in response to the subpoena.
Nothing in subparagraph (E) of this paragraph shall prevent a State from further limiting the number or type of State or local officials who will continue to have access thereunder.
(2) No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of releasing, or providing access to, any personally identifiable information in education records other than directory information, or as is permitted under paragraph (1) of this subsection unless--
(A) there is written consent from the student's parents specifying records to be released, the reasons for such release, and to whom, and with a copy of the records to be released to the student's parents and the student if desired by the parents, or
(B) except as provided in paragraph (1)(J), such information is furnished in compliance with judicial order, or pursuant to any lawfully issued subpoena, upon condition that parents and the students are notified of all such orders or subpoenas in advance of the compliance therewith by the educational institution or agency.
(3) Nothing contained in this section shall preclude authorized representatives of (A) the Comptroller General of the United States, (B) the Secretary, or (C) State educational authorities from having access to student or other records which may be necessary in connection with the audit and evaluation of Federally-supported education programs, or in connection with the enforcement of the Federal legal requirements which relate to such programs: Provided, That except when collection of personally identifiable information is specifically authorized by Federal law, any data collected by such officials shall be protected in a manner which will not permit the personal identification of students and their parents by other than those officials, and such personally identifiable data shall be destroyed when no longer needed for such audit, evaluation, and enforcement of Federal legal requirements.
(4) (A) Each educational agency or institution shall maintain a record, kept with the education records of each student, which will indicate all individuals (other than those specified in paragraph (1)(A) of this subsection), agencies, or organizations which have requested or obtained access to a student's education records maintained by such educational agency or institution, and which will indicate specifically the legitimate interest that each such person, agency, or organization has in obtaining this information. Such record of access shall be available only to parents, to the school official and his assistants who are responsible for the custody of such records, and to persons or organizations authorized in, and under the conditions of, clauses (A) and (C) of paragraph (1) as a means of auditing the operation of the system.
(B) With respect to this subsection, personal information shall only be transferred to a third party on the condition that such party will not permit any other party to have access to such information without the written consent of the parents of the student. If a third party outside the educational agency or institution permits access to information in violation of paragraph (2)(A), or fails to destroy information in violation of paragraph (1)(F), the educational agency or institution shall be prohibited from permitting access to information from education records to that third party for a period of not less than five years.
(5) Nothing in this section shall be construed to prohibit State and local educational officials from having access to student or other records which may be necessary in connection with the audit and evaluation of any federally or State supported education program or in connection with the enforcement of the Federal legal requirements which relate to any such program, subject to the conditions specified in the proviso in paragraph (3).
. . . (7) (A) Nothing in this section may be construed to prohibit an educational institution from disclosing information provided to the institution under section 170101 of the Violent Crime Control and Law Enforcement Act of 1994 (42 U.S.C. 14071) concerning registered sex offenders who are required to register under such section.
(B) The Secretary shall take appropriate steps to notify educational institutions that disclosure of information described in subparagraph (A) is permitted.
. . . (d) Students' rather than parents' permission or consent. For the purposes of this section, whenever a student has attained eighteen years of age, or is attending an institution of postsecondary education, the permission or consent required of and the rights accorded to the parents of the student shall thereafter only be required of and accorded to the student.
(e) Informing parents or students of rights under this section. No funds shall be made available under any applicable program to any educational agency or institution unless such agency or institution effectively informs the parents of students, or the students, if they are eighteen years of age or older, or are attending an institution of postsecondary education, of the rights accorded them by this section.
. . . (h) Certain disciplinary action information allowable. Nothing in this section shall prohibit an educational agency or institution from--
(1) including appropriate information in the education record of any student concerning disciplinary action taken against such student for conduct that posed a significant risk to the safety or well-being of that student, other students, or other members of the school community; or
(2) disclosing such information to teachers and school officials, including teachers and school officials in other schools, who have legitimate educational interests in the behavior of the student.
. . . (j) Investigation and prosecution of terrorism.
(1) In general. Notwithstanding subsections (a) through (i) or any provision of State law, the Attorney General (or any Federal officer or employee, in a position not lower than an Assistant Attorney General, designated by the Attorney General) may submit a written application to a court of competent jurisdiction for an ex parte order requiring an educational agency or institution to permit the Attorney General (or his designee) to--
(A) collect education records in the possession of the educational agency or institution that are relevant to an authorized investigation or prosecution of an offense listed in section 2332b(g)(5)(B) of title 18 United States Code, or an act of domestic or international terrorism as defined in section 2331 of that title; and
(B) for official purposes related to the investigation or prosecution of an offense described in paragraph (1)(A), retain, disseminate, and use (including as evidence at trial or in other administrative or judicial proceedings) such records, consistent with such guidelines as the Attorney General, after consultation with the Secretary, shall issue to protect confidentiality.
(2) Application and approval.
(A) In general. An application under paragraph (1) shall certify that there are specific and articulable facts giving reason to believe that the education records are likely to contain information described in paragraph (1)(A).
(B) The court shall issue an order described in paragraph (1) if the court finds that the application for the order includes the certification described in subparagraph (A).
(3) Protection of educational agency or institution. An educational agency or institution that, in good faith, produces education records in accordance with an order issued under this subsection shall not be liable to any person for that production.
(4) Record-keeping. Subsection (b)(4) does not apply to education records subject to a court order under this subsection.
34 C.F.R. 99.3. What definitions apply to these regulations?
The following definitions apply to this part:
. . . Directory information means information contained in an education record of a student that would not generally be considered harmful or an invasion of privacy if disclosed. It includes, but is not limited to, the student's name, address, telephone listing, electronic mail address, photograph, date and place of birth, major field of study, dates of attendance, grade level, enrollment status (e.g., undergraduate or graduate; full-time or part-time), participation in officially recognized activities and sports, weight and height of members of athletic teams, degrees, honors and awards received, and the most recent educational agency or institution attended.
. . . Education records (a) The term means those records that are:
(1) Directly related to a student; and
(2) Maintained by an educational agency or institution or by a party acting for the agency or institution.
(b) The term does not include:
(1) Records that are kept in the sole possession of the maker, are used only as a personal memory aid, and are not accessible or revealed to any other person except a temporary substitute for the maker of the record.
(2) Records of the law enforcement unit of an educational agency or institution, subject to the provisions of § 99.8.
(3)(i) Records relating to an individual who is employed by an educational agency or institution, that:
(A) Are made and maintained in the normal course of business;
(B) Relate exclusively to the individual in that individual's capacity as an employee; and
(C) Are not available for use for any other purpose.
(ii) Records relating to an individual in attendance at the agency or institution who is employed as a result of his or her status as a student are education records and not excepted under paragraph (b)(3)(i) of this definition.
(4) Records on a student who is 18 years of age or older, or is attending an institution of postsecondary education, that are:
(i) Made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in his or her professional capacity or assisting in a paraprofessional capacity;
(ii) Made, maintained, or used only in connection with treatment of the student; and
(iii) Disclosed only to individuals providing the treatment. For the purpose of this definition, "treatment" does not include remedial educational activities or activities that are part of the program of instruction at the agency or institution; and
(5) Records that only contain information about an individual after he or she is no longer a student at that agency or institution.
Eligible student means a student who has reached 18 years of age or is attending an institution of postsecondary education.
. . . Parent means a parent of a student and includes a natural parent, a guardian, or an individual acting as a parent in the absence of a parent or a guardian.
34 C.F.R. 99.37. What conditions apply to disclosing directory information?
(a) An educational agency or institution may disclose directory information if it has given public notice to parents of students in attendance and eligible students in attendance at the agency or institution of:
(1) The types of personally identifiable information that the agency or institution has designated as directory information;
(2) A parent's or eligible student's right to refuse to let the agency or institution designate any or all of those types of information about the student as directory information; and
(3) The period of time within which a parent or eligible student has to notify the agency or institution in writing that he or she does not want any or all of those types of information about the student designated as directory information.
(b) An educational agency or institution may disclose directory information about former students without meeting the conditions in paragraph (a) of this section.
No Child Left Behind Act, § 9528. Armed Forces Recruiter Access to Students and Student Recruiting Information.
(a) POLICY-
(1) ACCESS TO STUDENT RECRUITING INFORMATION- Notwithstanding section 444(a)(5)(B) of the General Education Provisions Act and except as provided in paragraph (2), each local educational agency receiving assistance under this Act shall provide, on a request made by military recruiters or an institution of higher education, access to secondary school students names, addresses, and telephone listings.
(2) CONSENT- A secondary school student or the parent of the student may request that the student's name, address, and telephone listing described in paragraph (1) not be released without prior written parental consent, and the local educational agency or private school shall notify parents of the option to make a request and shall comply with any request.
(3) SAME ACCESS TO STUDENTS- Each local educational agency receiving assistance under this Act shall provide military recruiters the same access to secondary school students as is provided generally to post secondary educational institutions or to prospective employers of those students.
N.J.S.A. 18A:36-19. Pupil records; creation, maintenance and retention, security and access; regulations; nonliability. The State Board of Education shall provide by regulation for the creation, maintenance and retention of pupil records and for the security thereof and access thereto, to provide general protection for the right of the pupil to be supplied with necessary information about herself or himself, the right of the parent or guardian and the adult pupil to be supplied with full information about the pupil, except as may be inconsistent with reasonable protection of the persons involved, the right of both pupil and parent or guardian to reasonable privacy as against other persons and the opportunity for the public schools to have the data necessary to provide a thorough and efficient educational system for all pupils.
No liability shall attach to any member, officer or employee of any board of education for the furnishing of any pupil records consistent with this act and the regulations adopted hereunder.
N.J.S.A. 18A:36-19a. Student records. The chief school administrator or the administrator's designee of any local school district that enrolls a new student shall request, in writing, the student's records from the school district of last attendance within two weeks from the date that the student enrolls in the new school district. The school district of last attendance shall provide to the receiving district all information in the student's record related to disciplinary actions taken against the student by the district and notify the receiving district if it has obtained any information pursuant to section 1 of P.L. 1982, c. 79 (C. 2A:4A-60). Written consent of the parent or adult student shall not be required as a condition of transfer of this information; however, written notice of the transfer shall be provided to the parent or adult student. Additionally, the school district shall obtain proper identification of any new student such as a certified copy of the student's certificate of birth.
N.J.S.A. 18A:36-19.1. Military recruitment in public schools. Local school districts in New Jersey are directed to establish policies which would provide military recruiters the same access to school facilities and student information directories that is provided to educational and occupational recruiters pursuant to regulations adopted by the State Board of Education. . . . The policies should be consistent with State and federal right to privacy laws.
N.J.A.C. 6:3-6.2. General considerations.
(a) This subchapter applies to all district boards of education or private agencies which provide educational services by means of public funds. District boards of education shall include, but not be limited to, all county boards of special services school districts, county vocational boards of education, jointure commissions, educational services commissions, education programs operated by county residential facilities and State-operated special education programs.
(b) Each district board of education shall have the responsibility to compile and maintain pupil records and to regulate access, disclosure or communication of information from educational records in a manner that assures the security of such records in accordance with this subchapter.
(c) Pupil records shall contain only such information as is relevant to the education of the pupil and is objectively based on the personal observations or knowledge of the certified school personnel who originate(s) the record.
(d) The district board of education shall notify parents and adult pupils annually in writing of their rights in regard to pupil records and pupil participation in educational, occupational and military recruitment programs. Copies of the applicable State and Federal laws and local policies shall be made available upon request. District boards of education shall make every effort to notify parents and adult pupils in their dominant language.
(e) A nonadult pupil may assert rights of access only through his or her parents. However, nothing in these rules shall be construed to prohibit certified school personnel, in their discretion, from disclosing pupil records to nonadult pupils or to appropriate persons in connection with an emergency, if such knowledge is necessary to protect the health or safety of the pupil or other persons.
(f) The parent or adult pupil shall either have access to or be specifically informed about only that portion of another pupil's record that contains information about his or her own child or him or herself.
(g) Each district board of education shall establish written policies and procedures for pupil records which:
1. Guarantee access to persons authorized under this subchapter within 10 days of the request, but prior to any review or hearing conducted in accordance with the State Board of Education rules;
2. Assure security of the records;
3. Enumerate and describe the pupil records collected and maintained by the district board of education;
4. Provide for the inclusion of educationally relevant information in the pupil record by the parent or adult pupil;
5. Allow for the designation, release and public notice of directory information as defined herein;
6. Provide the parent or adult pupil a 10-day period to submit a written statement to the chief school administrator prohibiting the institution from including any or all types of information about the student in any student information directory before allowing access to such directory and school facilities to educational, occupational and military recruiters pursuant to N.J.S.A. 18A:36-19.1;
7. Assure limited access to pupil records by secretarial and clerical personnel pursuant to N.J.A.C. 6:3-6.5; and
8. Provide for the access and security of pupil records maintained in a computerized system.
(h) All anecdotal information and assessment reports collected on a pupil shall be dated and signed by the individual who originated the data.
(i) The chief school administrator or his or her designee shall require all permitted pupil records of currently enrolled pupils to be reviewed annually be certified school personnel to determine the education relevance of the material contained therein. The reviewer shall cause data no longer descriptive of the pupil or educational to be deleted from the records except that prior notice must be given for classified students in accordance with N.J.A.C. 6A:14. Such information shall be destroyed and not be recorded elsewhere. No record of any such deletion shall be made.
(j) No liability shall be attached to any member, officer or employee of any district board of education permitting access or furnishing pupil records in accordance with these rules.
(k) When the parent's or adult pupil's dominant language is not English or the parent or adult pupil is deaf, the district board of education shall provide interpretation of the pupil record in the dominant language of the parents or adult pupil.
N.J.A.C. 6:3-6.3 Mandated and permitted pupil records.
(a) The district board of education shall not compile any other pupil records except mandated and permitted records as herein defined.
1. Mandated pupil records are those pupil records which the schools have been directed to compile by New Jersey statute, regulation or authorized administrative directive. Mandated pupil records shall include the following:
i. Personal data which identifies each pupil enrolled in the school district. These data shall include the pupil's name, address, date of birth, name of parent(s), citizenship and sex of the pupil. The district board of education is prohibited from recording the religious or political affiliation of the pupil and/or parent unless requested to do so in writing by the parent or adult pupil. The district is also prohibited from labeling the pupil illegitimate;
ii. Record of daily attendance;
iii. Descriptions of pupil progress according to the system of pupil evaluation used in the district. Grade level or other program assignments shall also be recorded;
iv. History and status of physical health compiled in accordance with State regulations, including results of any physical examinations given by qualified district employees;
v. Records pursuant to rules and regulations regarding the education of educationally handicapped pupils; and
vi. All other records required by the State Board of Education.
2. Permitted pupil records are those which a district board of education has authorized by resolution adopted at a regular public meeting to be collected in order to promote the educational welfare of the pupil. The district board of education shall report annually at a public board meeting a description of the types of pupil records it has authorized certified school personnel to collect and maintain. The pupil records so authorized must also comply with this subchapter as to relevance and objectivity.
N.J.A.C. 6:3-6.4. Maintenance and security of pupil records.
(a) The chief school administrator or his or her designee shall be responsible for the security of pupil records maintained in the school district and shall devise procedures for assuring that access to such records is limited to authorized persons.
(b) Records for each individual pupil shall be maintained in a central file at the school attended by the pupil. When records are maintained in different locations, a notation in the central file as to where such other records may be found is required.
(c) When records are stored in a computerized system, computer programmed security blocks are required to protect against any security violations of the records stored therein. To guard against the loss of pupil records, school districts must maintain an updated duplicate copy of pupil records.
(d) Mandated or permitted records required as part of programs established through state administered entitlement or discretionary funds from the U.S. Department of Education must be maintained for a period of five years after completion of the program activities.
N.J.A.C. 6:3-6.5. Access to pupil records.
(a) Only authorized organizations, agencies or persons as defined herein shall have access to pupil records.
(b) The district board of education may charge a reasonable fee for reproduction, not to exceed the schedule of costs set forth in N.J.S.A. 47:1A-2, provided that the cost does not effectively prevent the parents or adult pupils from exercising their rights under this subchapter or under rules and regulations regarding educationally handicapped pupils.
(c) Authorized organizations, agencies and persons shall include only:
1. The parent of a pupil under the age of 18 and the pupil who has the written permission of such parent;
2. Pupils at least 16 years of age who are terminating their education in the district because they will graduate secondary school at the end of the term or no longer plan to continue their education;
3. The adult pupil and the pupil's parent who has the written permission of such pupil, except that the parent shall have access without consent of the pupil as long as the pupil is financially dependent on the parent and enrolled in the public school system or if the pupil has been declared legally incompetent by a court of appropriate jurisdiction. The parent of the financially dependent adult pupil may not disclose information contained in the adult pupil's record to a second or third party without the consent of the adult pupil;
4. Certified school district personnel who have assigned educational responsibility for the pupil;
5. Certified educational personnel who have assigned educational responsibility for the pupil and who are employed by:
i. An approved private school for the handicapped;
ii. A state facility;
iii. Accredited nonpublic schools in which pupils with educational disabilities have been placed according to N.J.S.A. 18A:46-14; or
iv. Clinics and agencies approved by the Department of Education;
6. A district board of education, in order to fulfill its legal responsibility as a board, has access through the chief school administrator or his or her designee to information contained in a pupil's record. Information shall be discussed in executive session unless otherwise requested by the parent or adult pupil;
7. Secretarial and clerical personnel under the direct supervision of certified school personnel shall be permitted access to those portions of the record to the extent that is necessary for the entry and recording of data and the conducting of routine clerical tasks. Access shall be limited only to those pupil files which such staff are directed to enter or record information and shall cease when the specific assigned task is completed;
8. Accrediting organizations in order to carry out their accrediting functions;
9. The Commissioner of Education and members of the New Jersey Department of Education staff who have assigned responsibility which necessitates the review of such records;
10. Officials of other district boards of education within the State of New Jersey in which the pupil is placed, registered or intends to enroll subject to the following conditions:
i. Mandated pupil records shall be forwarded to the receiving district with written notification to the parent or adult pupil;
ii. Permitted records shall be forwarded to the receiving district only with the written consent of the parent or adult pupil except where a formal sending-receiving relationship exists between the school districts;
iii. All records to be forwarded shall be sent to the chief school administrator or his or her designee of the school district to which the pupil has transferred within 10 days after the transfer has been verified by the requesting school district;
iv. The chief school administrator or his or her designee shall request all pupil records in writing from the school district of last attendance within two weeks from the date that the pupil enrolls in the new district;
v. The chief school administrator or his or her designee of the school district of last attendance shall upon request, provide a parent(s) or an adult pupil with a copy of the records disclosed to other educational agencies or institutions; and
vi. Proper identification, such as a certified copy of the pupil's birth certificate, shall be requested at the time of enrollment in a new school district;
11. Officials of the United States Department of Education who have assigned responsibilities which necessitate review of such records;
12. Officers and employees of a State agency who are responsible for protective and investigative services for pupils referred to that agency, pursuant to N.J.S.A. 9:6-8.40. Wherever appropriate, district boards of education shall ask such State agency for its cooperation in sharing the findings of the investigation;
13. Organizations, agencies and persons from outside the school if they have the written consent of the parent or adult pupil, except that these organizations, agencies and persons shall not transfer pupil record information to a third party without the written consent of the parent or adult pupil;
14. Organizations, agencies and individuals outside the school, other than those specified in this section, upon the presentation of a court order; and
15. Bona fide researchers who explain in writing the nature of the research project and the relevance of the records sought and who satisfy the chief school administrator or his or her designee that the records will be used under strict conditions of anonymity and confidentiality. Such assurance must be received in writing by the chief school administrator prior to the release of information to the researcher.
N.J.A.C. 6:3-6.6. Conditions for access to pupil records.
(a) All authorized organizations, agencies and persons defined in this subchapter shall have access to the records of a pupil, subject to the following conditions:
1. No pupil record shall be altered or destroyed during the time period between a request to review the record and the actual review of the record.
2. Authorized organizations, agencies and persons from outside the school whose access requires the consent of parents or adult pupils must submit their request in writing together with any required authorization, to the chief school administrator or his or her designee.
3. The chief school administrator or his or her designee shall be present during the period of inspection to provide interpretation of the records where necessary and to prevent their alteration, damage or loss. In every instance of inspection of pupil records by persons other than parents, pupils or individuals who have assigned educational responsibility for the individual student, an entry shall be made in the pupil record of the names of persons granted access, the reason access was granted, the time and circumstances of inspection, the records studied and the purposes for which the data will be used.
4. Unless otherwise judicially instructed, the district board of education shall, prior to the disclosure of any pupil records to organizations, agencies or persons outside the school district pursuant to a court order, give the parent or adult pupil at least three days' notice of the name of the requesting agency and the specific records requested. Such notification shall be provided in writing if practicable. Only those records related to the specific purpose of the court order shall be disclosed.
5. A record may be withheld from a parent of a pupil under 18 or from an adult pupil only when the local education agency obtains a court order or is provided with evidence that there is a court order revoking the right to access. Only that portion of the record designated by the court may be withheld. When the local education agency has or obtains evidence of such court order the parent or adult pupil shall be notified in writing within five days of his or her request that access to the record has been denied and that the person has the right to appeal this decision to the court issuing the order.
N.J.A.C. 6:3-6.7. Rights of appeal for parents and adult pupils.
(a) Pupil records are subject to challenge by parents and adult pupils on grounds of inaccuracy, irrelevancy, impermissive disclosure, inclusion of improper information or denial of access to organizations, agencies and persons. The parent or adult pupil may seek to:
1. Expunge inaccurate, irrelevant or otherwise improper information from the pupil record;
2. Insert additional data as well as reasonable comments as to the meaning and/or accuracy of the records; and/or
3. Request an immediate stay of disclosure pending final determination of the challenge procedure as described in this subchapter.
. . . (d) Regardless of the outcome of any appeal, a parent or adult pupil shall be permitted to place a statement in the pupil record commenting upon the information in the pupil record or setting forth any reasons for disagreement with the decision of the agency. Such statements shall be maintained as part of the pupil record as long as the contested portion of the record is maintained. If the contested portion of the record is disclosed to any party, the statement commenting upon the information must also be disclosed to that party.
N.J.A.C. 6:3-6.8. Retention and destruction of pupil records.
(a) A pupil record is considered to be incomplete and not subject to the provisions of the Destruction of Public Records Law, N.J.S.A. 47:3-15 et seq., while the student is enrolled in the school district.
(b) Mandated pupil records of currently enrolled pupils, other than that described in (e) below, may be destroyed after the information is no longer necessary to provide educational services to a pupil. Such destruction shall be accomplished only after written parental or adult pupil notification and written parental or adult pupil permission has been granted or after reasonable attempts of such notification and reasonable attempts to secure parental or adult pupil permission have been unsuccessful.
(c) Upon graduation or permanent departure of a pupil from the school system:
1. The parent or adult pupil shall be notified in writing that a copy of the entire pupil record will be provided to them upon request.
2. Information in pupil records, other than that described in (e) below, may be destroyed but only in accordance with the Destruction of Public Records Law, N.J.S.A. 47:3-15 et seq. Such destruction shall be accomplished only after written parental or adult pupil notification and written parental or adult pupil permission has been granted, or after reasonable attempts at such notification and reasonable attempts to secure parental or adult pupil permission have been unsuccessful.
(d) No additions shall be made to the record after graduation or permanent departure without the prior written consent of the parent or adult pupil.
(e) The New Jersey public school district of last enrollment graduation or permanent departure of the pupil from the school district and shall keep in perpetuity a permanent record of a pupil's name, date of birth, sex, address, telephone number, grades, attendance record, classes attended, grade level completed, year completed, name of parent(s) and citizenship status.
Sharing students’ test papers with other students for purposes of peer grading does not violate the Family Educational Rights and Privacy Act (FERPA).
OWASSO INDEPENDENT SCHOOL DISTRICT NO-011 v. FALVO
United States Supreme Court
534 U.S. 426 (2002)
Opinion by KENNEDY, J.
Teachers sometimes ask students to score each other's tests, papers, and assignments as the teacher explains the correct answers to the entire class. Respondent contends this practice, which the parties refer to as peer grading, violates the Family Educational Rights and Privacy Act of 1974 (FERPA or Act), 88 Stat. 571, 20 U.S.C. § 1232g. We took this case to resolve the issue.
Under FERPA, schools and educational agencies receiving federal financial assistance must comply with certain conditions. § 1232g(a)(3). One condition specified in the Act is that sensitive information about students may not be released without parental consent. The Act states that federal funds are to be withheld from school districts that have "a policy or practice of permitting the release of education records (or personally identifiable information contained therein . . . ) of students without the written consent of their parents." § 1232g(b)(1). The phrase "education records" is defined, under the Act, as "records, files, documents, and other materials" containing information directly related to a student, which "are maintained by an educational agency or institution or by a person acting for such agency or institution." § 1232g(a)(4)(A). The definition of education records contains an exception for "records of instructional, supervisory, and administrative personnel . . . which are in the sole possession of the maker thereof and which are not accessible or revealed to any other person except a substitute." § 1232g(a)(4)(B)(i). The precise question for us is whether peer-graded classroom work and assignments are education records.
Three of respondent Kristja J. Falvo's children are enrolled in Owasso Independent School District No. I-011, in a suburb of Tulsa, Oklahoma. The children's teachers, like many teachers in this country, use peer grading. In a typical case, the students exchange papers with each other and score them according to the teacher's instructions, then return the work to the student who prepared it. The teacher may ask the students to report their own scores. In this case it appears the student could either call out the score or walk to the teacher's desk and reveal it in confidence, though by that stage, of course, the score was known at least to the one other student who did the grading. Both the grading and the system of calling out the scores are in contention here.
Respondent claimed the peer grading embarrassed her children. She asked the school district to adopt a uniform policy banning peer grading and requiring teachers either to grade assignments themselves or at least to forbid students from grading papers other than their own. The school district declined to do so, and respondent brought a class action pursuant to Rev. Stat. § 1979, 42 U.S.C. § 1983 (1994 ed., Supp. V), against the school district, Superintendent Dale Johnson, Assistant Superintendent Lynn Johnson, and Principal Rick Thomas (petitioners). Respondent alleged the school district's grading policy violated FERPA and other laws not relevant here. The United States District Court for the Northern District of Oklahoma granted summary judgment in favor of the school district's position. The court held that grades put on papers by another student are not, at that stage, records "maintained by an educational agency or institution or by a person acting for such agency or institution," 20 U.S.C. § 1232g(a)(4)(A), and thus do not constitute "education records" under the Act. On this reasoning it ruled that peer grading does not violate FERPA.
The Court of Appeals for the Tenth Circuit reversed. 233 F.3d 1203 (2000). FERPA is directed to the conditions schools must meet to receive federal funds, and as an initial matter the court considered whether the Act confers a private right of action upon students and parents if the conditions are not met. Despite the absence of an explicit authorization in the Act conferring a cause of action on private parties, the court held respondent could sue to enforce FERPA's terms under 42 U.S.C. § 1983. 233 F.3d at 1211-1213. Turning to the merits, the Court of Appeals held that peer grading violates the Act. The grades marked by students on each other's work, it held, are education records protected by the statute, so the very act of grading was an impermissible release of the information to the student grader. Id., at 1216.
We granted certiorari to decide whether peer grading violates FERPA. 533 U.S. 927, 150 L. Ed. 2d 715, 121 S. Ct. 2547 (2001). Finding no violation of the Act, we reverse.
The parties appear to agree that if an assignment becomes an education record the moment a peer grades it, then the grading, or at least the practice of asking students to call out their grades in class, would be an impermissible release of the records under § 1232g(b)(1). Tr. of Oral Arg. 21. Without deciding the point, we assume for the purposes of our analysis that they are correct. The parties disagree, however, whether peer-graded assignments constitute education records at all. The papers do contain information directly related to a student, but they are records under the Act only when and if they "are maintained by an educational agency or institution or by a person acting for such agency or institution." § 1232g(a)(4)(A).
Petitioners, supported by the United States as amicus curiae, contend the definition covers only institutional records -- namely, those materials retained in a permanent file as a matter of course. They argue that records "maintained by an educational agency or institution" generally would include final course grades, student grade point averages, standardized test scores, attendance records, counseling records, and records of disciplinary actions -- but not student homework or classroom work. Brief for Petitioners 17; Brief for United States as Amicus Curiae 14.
Respondent, adopting the reasoning of the Court of Appeals, contends student-graded assignments fall within the definition of education records. That definition contains an exception for "records of instructional, supervisory, and administrative personnel . . . which are in the sole possession of the maker thereof and which are not accessible or revealed to any other person except a substitute." § 1232g(a)(4)(B)(i). The Court of Appeals reasoned that if grade books are not education records, then it would have been unnecessary for Congress to enact the exception. Grade books and the grades within, the court concluded, are "maintained" by a teacher and so are covered by FERPA. 233 F.3d at 1215. The court recognized that teachers do not maintain the grades on individual student assignments until they have recorded the result in the grade books. It reasoned, however, that if Congress forbids teachers to disclose students' grades once written in a grade book, it makes no sense to permit the disclosure immediately beforehand. Id., at 1216. The court thus held that student graders maintain the grades until they are reported to the teacher. Ibid.
The Court of Appeals' logic does not withstand scrutiny. Its interpretation, furthermore, would effect a drastic alteration of the existing allocation of responsibilities between States and the National Government in the operation of the Nation's schools. We would hesitate before interpreting the statute to effect such a substantial change in the balance of federalism unless that is the manifest purpose of the legislation. This principle guides our decision.
Two statutory indicators tell us that the Court of Appeals erred in concluding that an assignment satisfies the definition of education records as soon as it is graded by another student. First, the student papers are not, at that stage, "maintained" within the meaning of § 1232g(a)(4)(A). The ordinary meaning of the word "maintain" is "to keep in existence or continuance; preserve; retain." Random House Dictionary of the English Language 1160 (2d ed. 1987). Even assuming the teacher's grade book is an education record -- a point the parties contest and one we do not decide here -- the score on a student-graded assignment is not "contained therein," § 1232g(b)(1), until the teacher records it. The teacher does not maintain the grade while students correct their peers' assignments or call out their own marks. Nor do the student graders maintain the grades within the meaning of § 1232g(a)(4)(A). The word "maintain" suggests FERPA records will be kept in a filing cabinet in a records room at the school or on a permanent secure database, perhaps even after the student is no longer enrolled. The student graders only handle assignments for a few moments as the teacher calls out the answers. It is fanciful to say they maintain the papers in the same way the registrar maintains a student's folder in a permanent file.
Other sections of the statute support our interpretation. See Davis v. Michigan Dep't of Treasury, 489 U.S. 803, 809, 103 L. Ed. 2d 891, 109 S. Ct. 1500 (1989) ("It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme"). FERPA, for example, requires educational institutions to "maintain a record, kept with the education records of each student." § 1232g(b)(4)(A). This record must list those who have requested access to a student's education records and their reasons for doing so. Ibid. The record of access "shall be available only to parents, [and] to the school official and his assistants who are responsible for the custody of such records." Ibid.
Under the Court of Appeals' broad interpretation of education records, every teacher would have an obligation to keep a separate record of access for each student's assignments. Indeed, by that court's logic, even students who grade their own papers would bear the burden of maintaining records of access until they turned in the assignments. We doubt Congress would have imposed such a weighty administrative burden on every teacher, and certainly it would not have extended the mandate to students.
Also FERPA requires "a record" of access for each pupil. This single record must be kept "with the education records." This suggests Congress contemplated that education records would be kept in one place with a single record of access. By describing a "school official" and "his assistants" as the personnel responsible for the custody of the records, FERPA implies that education records are institutional records kept by a single central custodian, such as a registrar, not individual assignments handled by many student graders in their separate classrooms.
FERPA also requires recipients of federal funds to provide parents with a hearing at which they may contest the accuracy of their child's education records. § 1232g(a)(2). The hearings must be conducted "in accordance with regulations of the Secretary," ibid., which in turn require adjudication by a disinterested official and the opportunity for parents to be represented by an attorney. 34 CFR § 99.22 (2001). It is doubtful Congress would have provided parents with this elaborate procedural machinery to challenge the accuracy of the grade on every spelling test and art project the child completes.
… For these reasons, even assuming a teacher's grade book is an education record, the Court of Appeals erred, for in all events the grades on students' papers would not be covered under FERPA at least until the teacher has collected them and recorded them in his or her grade book. We limit our holding to this narrow point, and do not decide the broader question whether the grades on individual student assignments, once they are turned in to teachers, are protected by the Act.
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Records of a disciplinary incident that involved a student’s threat of violence, and that led to the student’s withdrawal from a school district in order to avoid expulsion, are pupil records and remain educationally relevant until the student is no longer enrolled in the New Jersey public school system, and should not be expunged until such time.
J.C. v. BOARD OF EDUCATION OF THE BERGEN COUNTY VOCATIONAL SCHOOL DISTRICT
Office of Administrative Law, OAL Docket No. EDU 9575-03 (December 24, 2003)
Commissioner of Education, Agency Dkt. No. 284-8/03 (February 5, 2004)
State Board of Education, S.B. No. 12-04 (July 9, 2004)
(copy attached)
XI. Public School Contracts Law
N.J.S.A. 18A:18A-2. Definitions.
As used in this chapter, unless the context otherwise indicates:
a. "Board of education" means and includes the board of education of any local school district, consolidated school district, regional school district, county vocational school and any other board of education or other similar body other than the State Board of Education, the Commission on Higher Education or the Presidents' Council, established and operating under the provisions of Title 18A of the New Jersey Statutes and having authority to make purchases and to enter into contracts for the provision or performance of goods or services. The term "board of education" also shall include the board of trustees of a charter school established under P.L.1995, c. 426 (C.18A:36A-1 et seq.).
b. "Purchasing agent" means the secretary, business administrator or the business manager of the board of education duly assigned the authority, responsibility and accountability for the purchasing activity of the board of education and having the power to prepare advertisements, to advertise for and receive bids and to award contracts as permitted by this chapter, but if there be no secretary, business administrator or business manager, such officer, committees or employees to whom such power has been delegated by the board of education.
. . . g. "Extraordinary unspecifiable services" means services which are specialized and qualitative in nature requiring expertise, extensive training and proven reputation in the field of endeavor.
h. "Professional services" means services rendered or performed by a person authorized by law to practice a recognized profession and whose practice is regulated by law and the performance of which services requires knowledge of an advanced type in a field of learning acquired by a prolonged formal course of specialized instruction and study as distinguished from general academic instruction or apprenticeship and training. Professional services may also mean services rendered in the provision or performance of goods or services that are original and creative in character in a recognized field of artistic endeavor.
. . . j. "Purchases" means transactions, for a valuable consideration, creating or acquiring an interest in goods, services and property, except real property or any interest therein.
k. "Work" means any task, program, undertaking, or activity, related to any development, redevelopment, construction or reconstruction performed or provided pursuant to a contract with a board of education.
l. "Aggregate" means the sums expended or to be expended for the provision or performance of any goods or services in connection with the same immediate purpose or task, or the furnishing of similar goods or services, during the same contract year through a contract awarded by a purchasing agent.
m. "Bid threshold" means the dollar amount set in N.J .S.18A:18A-3, above which a board of education shall advertise for and receive sealed bids in accordance with procedures set forth in N.J.S.18A:18A-1 et seq.
n. "Contract" means any agreement, including but not limited to a purchase order or a formal agreement, which is a legally binding relationship enforceable by law, between a vendor who agrees to provide or perform goods or services and a board of education which agrees to compensate a vendor, as defined by and subject to the terms and conditions of the agreement. A contract also may include an arrangement whereby a vendor compensates a board of education for the vendor's right to perform a service, such as, but not limited to, operating a concession.
. . . s. "Lowest price" means the least possible amount that meets all requirements of the request of a purchasing agent.
t. "Lowest responsible bidder or vendor" means the bidder or vendor: (1) whose response to a request for bids offers the lowest price and is responsive; and (2) who is responsible.
. . . w. "Quotation" means the response to a formal or informal request made by a purchasing agent to a vendor for provision or performance of goods or services, when the aggregate cost is less than the bid threshold. Quotations may be in writing, or taken verbally if a record is kept by the purchasing agent.
x. "Responsible" means able to complete the contract in accordance with its requirements, including but not limited to requirements pertaining to experience, moral integrity, operating capacity, financial capacity, credit, and workforce, equipment, and facilities availability.
y. "Responsive" means conforming in all material respects to the terms and conditions, specifications, legal requirements, and other provisions of the request.
. . . dd. "Service or services" means the performance of work, or the furnishing of labor, time, or effort, or any combination thereof, not involving or connected to the delivery or ownership of a specified end product or goods or a manufacturing process. Service or services may also include an arrangement in which a vendor compensates the board of education for the vendor's right to operate a concession.
N.J.S.A. 18A:18A-3. Bid threshold.
a. When the cost or price of any contract awarded by the purchasing agent in the aggregate, does not exceed in a contract year the total sum of $ 17,500, the contract may be awarded by a purchasing agent when so authorized by resolution of the board of education without public advertising for bids and bidding therefor, except that the board of education may adopt a resolution to set a lower threshold for the receipt of public bids or the solicitation of competitive quotations. If the purchasing agent is qualified pursuant to subsection b. of section 9 of P.L.1971, c.198 (C.40A:11-9) the board of education may establish that the bid threshold may be up to $ 25,000. Such authorization may be granted for each contract or by a general delegation of the power to negotiate and award such contracts pursuant to this section.
b. Commencing in the fifth year after the year in which P.L.1999, c.440 takes effect, and every five years thereafter, the Governor, in consultation with the Department of the Treasury, shall adjust the threshold amount and the higher threshold amount which the board of education is permitted to establish as set forth in subsection a. of this section or the threshold amount resulting from any adjustment under this subsection, in direct proportion to the rise or fall of the index rate as that term is defined in N.J.S.18A:18A-2, and shall round the adjustment to the nearest $1,000. The Governor shall notify all local school districts of the adjustment no later than June 1 of every fifth year. The adjustment shall become effective on July 1 of the year in which it is made.
Any contract made pursuant to this section may be awarded for a period of 24 consecutive months, except that contracts for professional services pursuant to paragraph (1) of subsection a. of N.J.S.18A:18A-5 may be awarded for a period not exceeding 12 consecutive months.
N.J.S.A. 18A:18A-4. Contract awarded by board of education resolution; disqualification conditions.
a. Every contract for the provision or performance of any goods or services, the cost of which in the aggregate exceeds the bid threshold, shall be awarded only by resolution of the board of education to the lowest responsible bidder after public advertising for bids and bidding therefor, except as is provided otherwise in this chapter or specifically by any other law.
The board of education may, by resolution approved by a majority of the board of education and subject to subsections b. and c. of this section, disqualify a bidder who would otherwise be determined to be the lowest responsible bidder, if the board of education finds that any board or, in the case of a contract for a school facilities project, the New Jersey Economic Development Authority, has had prior negative experience with the bidder within the past 10 years, as reported in a contractor evaluation submitted pursuant to N.J.S. 18A:18A-15 or in a school facilities project performance evaluation submitted pursuant to regulations of the Department of the Treasury or section 62 of P.L. 2000, c. 72 (C.18A:7G-36), as appropriate.
b. As used in this section, "prior negative experience" means any of the following:
(1) the bidder has been found, through either court adjudication, arbitration, mediation, or other contractually stipulated alternate dispute resolution mechanism, to have: failed to provide or perform goods or services; or failed to complete the contract in a timely manner; or otherwise performed unsatisfactorily under a prior contract with a board of education or, in the case of a school facilities project, with the New Jersey Economic Development Authority;
(2) the bidder defaulted on a contract, thereby requiring a board of education or, in the case of a school facilities project, the New Jersey Economic Development Authority, to utilize the services of another contractor to provide the goods or perform the services or to correct or complete the contract;
(3) the bidder defaulted on a contract, thereby requiring a board of education or, in the case of a school facilities project, the New Jersey Economic Development Authority, to look to the bidder's surety for completion of the contract or tender of the costs of completion; or
(4) the bidder is debarred or suspended from contracting with any of the agencies or departments of the executive branch of the State of New Jersey at the time of the contract award, whether or not the action was based on experience with aboard of education or, in the case of a school facilities project, with the New Jersey Economic Development Authority.
. . . d. The purchase of text books and materials that exceed the bid threshold and are approved by a board of education pursuant to N.J.S.18A:34-1 shall not require the further adoption of a resolution for purchase.
N.J.S.A. 18A:18A-4.1. Use of competitive contracting by boards of education; purposes. Notwithstanding the provisions of any law, rule or regulation to the contrary, competitive contracting may be used by boards of education in lieu of public bidding for procurement of specialized goods and services the price of which exceeds the bid threshold, for the following purposes:
a. The purchase or licensing of proprietary computer software designed for board of education purposes, which may include hardware intended for use with the proprietary software. This subsection shall not be utilized for the purpose of acquiring general purpose computer hardware or software;
b. The hiring of a for-profit entity or a not-for-profit entity incorporated under Title 15A of the New Jersey Statutes for the purpose of:
(1) the operation, management or administration of recreation or social service facilities or programs; or
(2) the operation, management or administration of data processing services;
c. Services performed by an energy services company, including the design, measurement, financing and maintenance of energy savings equipment or renovations, which result in payment derived, in whole or in part, from the sale of verified energy savings over the term of an agreement with a public utility or subsidiary, but not the provision or performance of the physical improvements that result in energy savings, provided that such savings are calculated pursuant to guidelines promulgated by the Board of Public Utilities and further provided that the Local Finance Board, in consultation with the State Board of Education, shall find that the terms and conditions of any financing agreement are reasonable;
d. Telecommunications transmission or switching services that are not part of a tariff or schedule of charges filed with the Board of Public Utilities;
e. The purchase of specialized machinery or equipment of a technical nature, or servicing thereof, which will not reasonably permit the drawing of specifications;
f. Food services provided by food service management companies when not part of programs administered by the New Jersey Department of Agriculture, Bureau of Child Nutrition Programs;
g. Driver education courses provided by licensed driver education schools;
h. At the option of the board of education, any good or service that is exempt from bidding pursuant to N.J.S.18A:18A-5;
i. Laboratory testing services;
j. Concessions;
k. The operation, management or administration of other services, with the approval of the Division of Local Government Services in the Department of Community Affairs.
Any purpose included herein shall not be considered by a board of education as an extraordinary unspecifiable service pursuant to paragraph (2) of subsection a. of N.J.S.18A:18A-5.
N.J.S.A. 18A:18A-5. Exceptions to requirement for advertising. Any contract, the amount of which exceeds the bid threshold, shall be negotiated and awarded by the board of education by resolution at a public meeting without public advertising for bids and bidding therefor if
a. The subject matter thereof consists of:
(1) Professional services. The board of education shall in each instance state supporting reasons for its action in the resolution awarding each contract and shall forthwith cause to be printed once, in an official newspaper, a brief notice stating the nature, duration, service and amount of the contract, and that the resolution and contract are on file and available for public inspection in the office of the board of education;
(2) Extraordinary unspecifiable services which cannot reasonably be described by written specifications. The application of this exception as to extraordinary unspecifiable services shall be construed narrowly in favor of open competitive bidding where possible and the Director of the Division of Local Government Services in the Department of Community Affairs is authorized to establish rules and regulations after consultation with the Commissioner of Education limiting its use in accordance with the intention herein expressed; and the board of education shall in each instance state supporting reasons for its action in the resolution awarding the contract for extraordinary unspecifiable services and shall forthwith cause to be printed, in the manner set forth in paragraph (1) of this subsection, a brief notice of the award of such contract;
(3) The doing of any work by employees of the board of education;
(4) The printing of all legal notices; and legal briefs, records and appendices to be used in any legal proceeding in which the board of education may be a party;
(5) Library and educational goods and services;
(6) Food supplies, including food supplies for home economics classes, when purchased pursuant to rules and regulations of the State board and in accordance with the provisions of N.J.S.18A:18A-6;
(7) The supplying of any product or the rendering of any service by a public utility, which is subject to the jurisdiction of the Board of Public Utilities, in accordance with the tariffs and schedules of charges made, charged and exacted, filed with said board;
(8) The printing of bonds and documents necessary to the issuance and sale thereof by a board of education;
(9) Equipment repair service if in the nature of an extraordinary unspecifiable service and necessary parts furnished in connection with such services, which exception shall be in accordance with the requirements for extraordinary unspecifiable services;
(10) Insurance, including the purchase of insurance coverage and consultant services, which exception shall be in accordance with the requirements for extraordinary unspecifiable services;
(11) Publishing of legal notices in newspapers as required by law;
(12) The acquisition of artifacts or other items of unique intrinsic, artistic or historic character;
(13) Those goods and services necessary or required to prepare and conduct an election;
. . . (17) The doing of any work by persons with disabilities employed by a sheltered workshop;
(18) Expenses for travel and conferences;
(19) The provision or performance of goods or services for the support or maintenance of proprietary computer hardware and software, except that this provision shall not be utilized to acquire or upgrade non-proprietary hardware or acquire or update non-proprietary software;
(20) Purchases of goods and services at rates set by the Universal Service Fund administered by the Federal Communications Commission;
(21) Goods and services paid with funds that: are raised by or collected from students to support the purchase of student oriented items or materials, such as yearbooks, class rings, and a class gift; and are deposited in school or student activity accounts; and require no budget appropriation from the board of education;
(22) Food services provided by food service management companies pursuant to procedures established by the New Jersey Department of Agriculture, Bureau of Child Nutrition Programs;
(23) Vending machines providing food or drink.
b. It is to be made or entered into with the United States of America, the State of New Jersey, county or municipality or any board, body, officer, agency, authority or board of education or any other state or subdivision thereof.
c. Bids have been advertised pursuant to N.J.S.18A:18A-4 on two occasions and (1) no bids have been received on both occasions in response to the advertisement, or (2) the board of education has rejected such bids on two occasions because it has determined that they are not reasonable as to price, on the basis of cost estimates prepared for or by the board of education prior to the advertising therefor, or have not been independently arrived at in open competition, or (3) on one occasion no bids were received pursuant to (1) and on one occasion all bids were rejected pursuant to (2), in whatever sequence; any such contract may then be negotiated and may be awarded upon adoption of a resolution by a two-thirds affirmative vote of the authorized membership of the board of education authorizing such a contract; provided, however, that:
(a) A reasonable effort is first made by the board of education to determine that the same or equivalent goods or services, at a cost which is lower than the negotiated price, are not available from an agency or authority of the United States, the State of New Jersey or of the county in which the board of education is located, or any municipality in close proximity to the board of education;
(b) The terms, conditions, restrictions and specifications set forth in the negotiated contract are not substantially different from those which were the subject of competitive bidding pursuant to N.J.S.18A:18A-4; and
(c) Any minor amendment or modification of any of the terms, conditions, restrictions and specifications which were the subject of competitive bidding pursuant to N.J.S.18A:18A-4 shall be stated in the resolution awarding the contract; provided further, however, that if on the second occasion the bids received are rejected as unreasonable as to price, the board of education shall notify each responsible bidder submitting bids on the second occasion of its intention to negotiate, and afford each bidder a reasonable opportunity to negotiate, but the board of education shall not award such contract unless the negotiated price is lower than the lowest rejected bid price submitted on the second occasion by a responsible bidder, is the lowest negotiated price offered by any responsible vendor, and is a reasonable price for such goods or services.
d. Whenever a board of education shall determine that a bid was not arrived at independently in open competition pursuant to subsection c.(2) of N.J.S.18A:18A-5, it shall thereupon notify the county prosecutor of the county in which the board of education is located and the Attorney General of the facts upon which its determination is based, and when appropriate, it may institute appropriate proceedings in any State or federal court of competent jurisdiction for a violation of any State or federal antitrust law or laws relating to the unlawful restraint of trade.
e. The board of education has solicited and received at least three quotations on materials, supplies or equipment for which a State contract has been issued pursuant to N.J.S.18A:18A-10, and the lowest responsible quotation is at least 10% less than the price the board would be charged for the identical materials, supplies or equipment, in the same quantities, under the State contract. Any such contract or agreement entered into pursuant to subsection d. or subsection e. may be made, negotiated or awarded only upon adoption of a resolution by the affirmative vote of two-thirds of the full membership of the board of education at a meeting thereof authorizing such a contract or agreement. . . .
N.J.S.A. 18A:18A-10. Purchase through state agency; use of federal supply schedules of the general services administration.
a. A board of education, without advertising for bids, or after having rejected all bids obtained pursuant to advertising therefor, by resolution may purchase any goods or services pursuant to a contract or contracts for such goods or services entered into on behalf of the State by the Division of Purchase and Property.
b. A board of education may also use, without advertising for bids, or having rejected all bids obtained pursuant to advertising, the Federal Supply Schedules of the General Services Administration promulgated by the Director of the Division of Purchase and Property in the Department of the Treasury pursuant to section 1 of P.L.1996, c. 16 (C.52:34-6.1), subject to the following conditions:
(1) the price of the goods or services being procured is no greater than the price offered to federal agencies;
(2) the Federal Supply Schedules may be used only for purchases of up to $500,000 per year or for one product unit at any price and only for reprographic equipment or services, including digital copiers, used by the board of education;
(3) the board of education receives the benefit of federally mandated price reductions during the term of the contract and is protected from price increases during that time;
(4) the price of the goods or services being procured is no greater than the price of the same or equivalent goods or services under the State contract, unless the board of education determines that because of factors other than price, selection of a vendor from the Federal Supply Schedules would be more advantageous to the board of education; . . .
c. Whenever a purchase is made, the board of education shall place its order with the vendor offering the lowest price, including delivery charges, that best meets the requirements of the board of education. Prior to placing such an order, the board of education shall document with specificity that the goods or services selected best meet the requirements of the board of education.
N.J.S.A. 18A:18A-11. Joint purchases by districts, municipalities, counties; authority. The boards of education of two or more districts may provide jointly by agreement for the provision and performance of goods and services for their respective districts, or one or more boards of education may provide for such provision or performance of goods or services by joint agreement with the governing body of any municipality or county.
. . . N.J.S.A. 18A:18A-15. Specifications generally. Any specifications for the provision or performance of goods or services under this chapter shall be drafted in a manner to encourage free, open and competitive bidding. In particular, no specifications under this chapter may:
a. Require any standard, restriction, condition or limitation not directly related to the purpose, function or activity for which the contract is awarded; or
b. Require that any bidder be a resident of, or that the bidder's place of business be located in, the county or school district in which the contract will be awarded or performed, unless the physical proximity of the bidder is requisite to the efficient and economical performance of the contract; or
c. Discriminate on the basis of race, religion, sex, national origin creed, color, ancestry, age, marital status, affectional or sexual orientation, familial status, liability for service in the Armed Forces of the United States, or nationality; or
d. Require, with regard to any contract, the furnishing of any "brand name," but may in all cases require "brand name or equivalent," except that if the goods or services to be provided or performed are proprietary, such goods or services may be purchased by stipulating the proprietary goods or services in the bid specification in any case in which the resolution authorizing the contract so indicates, and the special need for such proprietary goods or services is directly related to the performance, completion or undertaking of the purpose for which the contract is awarded; or
e. Fail to include any option for renewal, extension, or release which the board of education may intend to exercise or require; or any terms and conditions necessary for the performance of any extra work; or fail to disclose any matter necessary to the substantial performance of the contract.
The specifications for every contract for public work, the entire cost whereof will exceed $ 20,000.00, shall provide that the board of education, through its authorized agent, shall upon completion of the contract report to the department as to the contractor's performance, and shall also furnish such report from time to time during performance if the contractor is then in default.
Any specification which knowingly excludes prospective bidders by reason of the impossibility of performance, bidding or qualification by any but one bidder, except as provided herein, shall be null and void and of no effect and shall be readvertised for receipt of new bids, and the original contract shall be set aside by the board of education.
No provision in this section shall be construed to prevent a board of education from designating that a contract for goods or services shall be awarded to a small business enterprise, a minority business enterprise or a women's business enterprise pursuant to P.L.1985, c.490 (C.18A:18A-51 et seq.).
Any prospective bidder who wishes to challenge a bid specification shall file such challenges in writing with the purchasing agent no less than three business days prior to the opening of the bids. Challenges filed after that time shall be considered void and having no impact on the board of education or the award of a contract.
. . . N.J.S.A. 18A:18A-20. American goods and products to be used where possible. Each board of education shall provide, in the specifications for all contracts for work for which it will pay any part of the cost or work which by contract it will ultimately own and maintain, that only manufactured and farm products of the United States, wherever available, be used in such work.
N.J.S.A. 18A:18A-21. Advertisements for bids; bids; general requirements.
a. Except as provided in section 5 of P.L.1985, c.490 (C.18A:18A-55), all advertisements for bids shall be published in an official newspaper sufficiently in advance of the date fixed for receiving the bids to promote competitive bidding, but in no event less than 10 days prior to such date.
b. The advertisement shall designate the manner of submitting and of receiving the bids and the time and place at which the bids will be received. If the published specifications provide for receipt of bids by mail, those bids which are mailed to the board of education shall be sealed and shall be opened only for examination at such time and place as all bids received are unsealed and announced. At such time and place the purchasing agent of the board of education shall publicly receive the bids and thereupon immediately proceed to unseal them and publicly announce the contents, which announcement shall be made in the presence of any parties bidding or their agents who are then and there present. A proper record of the prices and terms shall be made in the minutes of the board. No bids shall be received after the time designated in the advertisement. . . .
N.J.S.A. 18A:18A-22. Rejection of bids. A board of education may reject all bids for any of the following reasons:
a. The lowest bid substantially exceeds the cost estimates for the goods or services;
b. The lowest bid substantially exceeds the board of education's appropriation for the goods or services;
c. The board of education decides to abandon the project for provision or performance of the goods or services;
d. The board of education wants to substantially revise the specifications for the goods or services;
e. The purposes or provisions or both of N.J.S.18A:18A-1 et seq. are being violated; and
f. The board of education decides to use the State authorized contract pursuant to N.J.S.18A:18A-10.
. . . N.J.S.A. 18A:18A-36. Time for making awards, deposits returned.
a. The board of education shall award the contract or reject all bids within such time as may be specified in the invitation to bid, but in no case more than 60 days, except that the bids of any bidders who consent thereto may, at the request of the board of education, be held for consideration for such longer period as may be agreed. All bid security except the security of the three apparent lowest responsible bidders shall, if requested, be returned after 10 days from the opening of the bids, Sundays and holidays excepted and the bids of such bidders shall be considered as withdrawn. Within three days after the awarding of the contract and the approval of the contractor's performance bond the bid security of the remaining unsuccessful bidders shall be returned to them forthwith, Sundays and holidays excepted.
b. The contract shall be signed by all parties within the time limit set forth in the specifications, which shall not exceed 21 days, Sundays and holidays excepted, after the making of the award; provided, however, that all parties to the contract may agree to extend the limit set forth in the specifications beyond the 21-day limit required in this subsection. The contractor, upon written request to the board of education, is entitled to receive, within seven days of the request, an authorization to proceed pursuant to the terms of the contract on the date set forth in the contract for work to commence, or, if no date is set forth in the contract, upon receipt of authorization. If for any reason the contract is not awarded and the bidders have paid for or paid a deposit for the plans and specifications to the board of education, the payment or deposit shall immediately be returned to the bidders when the plans and specifications are returned in reasonable condition within 90 days of notice that the contract has not been awarded.
N.J.S.A. 18A:18A-37. Award of purchases, contracts or agreements. All contracts enumerated in this section shall be awarded as follows:
a. For all contracts that in the aggregate are less than the bid threshold but 15 percent or more of that amount, and for those contracts that are for subject matter enumerated in subsection a. of N.J.S.18A:18A-5, except for paragraph (1) of that subsection concerning professional services and paragraph (3) of that subsection concerning work by employees of the board of education, the purchasing agent shall award the contract after soliciting at least two competitive quotations, if practicable. The award shall be made to a vendor whose response is most advantageous, price and other factors considered. The purchasing agent shall retain the record of the quotation solicitation and shall include a copy of the record with the voucher used to pay the vendor.
b. When in excess of the bid threshold, and after documented effort by the purchasing agent to secure competitive quotations, a contract for extraordinary unspecifiable services may be awarded when the purchasing agent has determined in writing that solicitation of competitive quotations is impracticable. Any such contract shall be awarded by resolution of the board of education.
c. If authorized by the board of education by resolution, all contracts that are in the aggregate less than 15 percent of the bid threshold may be awarded by the purchasing agent without soliciting competitive quotations.
d. Whenever two or more responses to a request of a purchasing agent offer equal prices and are the lowest responsible bids or proposals, the board of education may award the contract to the vendor whose response, in the discretion of the board of education, is the most advantageous, price and other factors considered. In such a case, the award resolution or purchase order documentation shall explain why the vendor selected is the most advantageous.
A board of education may waive immaterial deficiencies in a bid, and its failure to do so may constitute an abuse of discretion where the result is additional cost to the public.
TEC ELECTRIC, INC. v. FRANKLIN LAKES BOARD OF EDUCATION
Superior Court of New Jersey, Law Division
284 N.J.Super. 480, 665 A.2d 803 (L. Div. 1995)
STARK, J.S.C.
The issue before the court is whether the failure of the lowest bidder to include a Prequalification Affidavit is a nonconformity requiring bid rejection pursuant to the Public School Contracts Law, N.J.S.A. 18A:18A-32.
On May 12, 1995, defendant Franklin Lakes Board of Education (Board of Education) opened bids for a project known as "Additions and Alterations at Franklin Avenue Middle School." Among the bidders for Contract No. 5- Electrical work were plaintiff, Tec Electric Incorporated (Tec), and defendant, Redmann Electric Company (Redmann). Tec was the lowest bidder, submitting a base bid of $834,490, and Redmann was the second lowest bidder, with a base bid of $879,499.
One of the bid specifications was the submission of a one page document entitled Prequalification Affidavit. However, the ten items on the bidder checklist prepared by the Board of Education for enclosure with the bid proposal did not include the required Prequalification Affidavit. Item three on the checklist called for "Proof of N.J. DBC Pre-qualification (form DBC 701--amount of uncompleted contracts; and Form DBC Notice of Classification)." Tec's bid included both the DBC Form 701 and Notice of Classification but failed to include the Prequalification Affidavit. On May 25, 1995, the Board of Education awarded the contract to Redmann, having disqualified Tec for failing to submit a Prequalification Affidavit. Tec was not offered an opportunity to cure that deficiency. That Tec's bid in any other way failed to meet the specifications is not suggested. On June 5, 1995, Tec commenced this action against both the Board of Education and Redmann to declare the Board of Education's contract with Redmann void.
Analysis of the Public Schools Contracts Law, N.J.S.A. 18A:18A-1 to 59, is required to determine whether the failure to comply with the mandatory language of N.J.S.A. 18A:18A-32 can be cured after bids have been opened. Courts have consistently held in the context of Public Contracts Law, N.J.S.A. 40A:11-1 to 49, that the purpose of the competitive-bidding process is to secure the most economical result in the expenditure of public moneys by promoting uninhibited competition and guarding against "favoritism, improvidence, extravagance and corruption." Township of Hillside v. Sternin, 25 N.J. 317, 322, 136 A.2d 265 (1957); see also L. Pucillo & Sons, Inc. v. Mayor of New Milford, 73 N.J. 349, 356, 375 A.2d 602 (1977); Terminal Constr. Corp. v. Atlantic County Sewerage Auth., 67 N.J. 403, 410, 341 A.2d 327 (1975). Those goals are also intended to be achieved through the Public Schools Contracts Law. F.S.D. Industries, Inc. v. Board of Educ., 166 N.J.Super. 330, 334, 399 A.2d 1021 (App.Div.1979).
Accordingly, the statutes authorizing competitive bidding demand that publicly advertised contracts be awarded to the "lowest responsible bidder." N.J.S.A. 40A:11-6.1; N.J.S.A. 18A:18A-18. Our Supreme Court, in its most recent pronouncement on public bidding, reiterated that the statute contemplates that the contract be awarded to the lowest bidder that "complies with the substantive and procedural requirements in the bid advertisements and specifications." Meadowbrook Carting Co. v. Island Heights Borough, 138 N.J. 307, 313, 650 A.2d 748 (1994) (citing Hillside, supra, 25 N.J. at 324, 136 A.2d 265).
While strict compliance with public-bidding guidelines is required, the Supreme Court has recognized that competitive-bidding provisions should be construed and administered in a manner so as not to thwart the primary purpose of achieving economy. As such, immaterial deficiencies in bids can be waived. Meadowbrook, supra, 138 N.J. at 314-15, 650 A.2d 748. In fact, Judge Pressler has suggested that "where the irregularity is not substantial, it may well be the duty as well as the right of the municipality to waive it." Township of River Vale v. R.J. Longo Constr. Co., 127 N.J.Super. 207, 222, 316 A.2d 737 (Law Div.1974). There the issue was whether the type of security deposit required in the specifications, a certified check, was substantially the same as a bid bond supplied by the contractor. Id. at 212, 316 A.2d 737. The court determined that there was no discernible difference when each was analyzed in light of the bidding statute purposes. Id. at 218-21, 316 A.2d 737.
The two-part test to determine materiality announced in River Vale which was endorsed in Meadowbrook, supra, 138 N.J. at 315, 650 A.2d 748, requires the following determination:
[F]irst, whether the effect of a waiver would be to deprive the municipality of its assurance that the contract will be entered into, performed and guaranteed according to its specified requirements, and second, whether it is of such a nature that its waiver would adversely affect competitive bidding by placing a bidder in a position of advantage over other bidders or by otherwise undermining the necessary common standard of competition.
[River Vale, supra, 127 N.J.Super. at 216, 316 A.2d 737].
. . . The point of contention involves submission of a one page Prequalification Affidavit to defendant Board of Education as required pursuant to N.J.S.A. 18A:18A-32: "Every bidder shall submit with his bid an affidavit that subsequent to the latest [qualification information] submitted by him there has been no material adverse change in his qualification information except as set forth in said affidavit." On its face, the Prequalification Affidavit is a certification under oath that states the following: 1) the type of trade and approved amount of work the bidder is classified to do, 2) the total amount of uncompleted work on existing contracts the bidder has, and 3) the effective dates of the bidder's classification. Assuming the veracity of the Affidavit, the Board of Education can use the Affidavit to ascertain whether there has been any "material adverse change" in the qualification information subsequent to the bidder's last determined classification by the DBC pursuant to N.J.A.C. 17:19-2.7. . . .
Defendants argued that the Prequalification Affidavit is a material requirement because it is the only document that assures a bidder's financial information is current. The argument is unpersuasive, since the Notice of Classification Form completed by Tec in late February 1995 was effective through September 30, 1995, while Form DBC 701 (Total Amount of Uncompleted Contracts) was signed, notarized and dated May 2, 1995. The bids were opened on May 12, 1995. Thus, from the face of the bid's contents, it is clear that there was no probability of material change in Tec's financial information since its last submission to the DBC. The information provided on the Prequalification Affidavit simply and essentially duplicates what Tec had already submitted with its bid. The truth or falsity of the Prequalification Affidavit would have had the same consequences if given concurrently with, or after, the bids were opened, but in no event could the Affidavit alter the facts that existed on the day the bid was opened.
If there is some evident problem with the Affidavit information, the statute provides for implementation of curative procedures so that the public can get the benefit of the lowest bid. N.J.S.A. 18A:18A-31. Even after bid acceptance, the bidder is required to update its qualifications within thirty days of the award. N.J.A.C. 17:19-2.7(d). Implicit in the statutory scheme is an intention to have the public entity continually monitor the contractor, while giving the bidder/contractor the opportunity to cure any deficiencies. The statute provides more stringent results by way of fines and penalties if the Prequalification Affidavit submitted is intentionally false. N.J.S.A. 18A:18A-33.
Not only had plaintiff Tec submitted the prerequisite assurances of financial, as well as physical plant and equipment, qualifications, it had supplied the required unqualified bid bond and unqualified consent of surety. Tec and its surety were compelled to execute the contract, issue the required performance and payment bonds, and complete the work according to its terms. Failure to proceed with the execution of the contract work if the bid were accepted would have subjected Tec to severe financial and legal ramifications. Thus, the first prong of the River Vale test for waiver has been clearly demonstrated. Defendant Board of Education had substantially the same assurances from Tec as it had from the other contractors relating to their respective ability to enter into, perform, and guarantee all of the contractual work.
With regard to the second criterion of the River Vale materiality test, the failure to submit a Prequalification Affidavit offered Tec no opportunity adversely to affect competitive bidding. The information contained in the Prequalification Affidavit concerns the bidder's current DBC classification rating, which in turn denotes a contractor's financial capacity, as well as availability of equipment and personnel, to do the job. It does not and could not influence the amount of plaintiff's or any other contractor's bid. See In re Contract for Route 280 Section 7U Exit Project, 179 N.J.Super. 280, 285, 431 A.2d 848 (App.Div.1981), appeal dismissed, 89 N.J. 1, 444 A.2d 51 (1982). Tec could not avoid its obligations after bid opening and clearly had no intention of doing so, as evidenced by its initiating this litigation. Tec certainly was not offering an unusually high bid to induce acceptance of another's lower bid. There was not a scintilla of evidence or legal argument suggesting that manipulation of the bidding process for competitive advantage was either the intended or unintended result of failure to provide the Prequalification Affidavit. The evidence before the court was clear and persuasive: Tec's failure to submit the statutorily mandated Prequalification Affidavit did not affect the bidding process and could not give rise to "favoritism, improvidence, extravagance and corruption." Hillside Township, supra, 25 N.J. at 322, 136 A.2d 265. The court therefore finds that the Prequalification Affidavit can be waived at opening under these facts and circumstances.
Having found the omission of the Prequalification Affidavit to be a waivable, immaterial defect, it is necessary to determine whether the denial of the waiver by the Board of Education was an abuse of discretion. See In re On-Line Games Contract, 279 N.J.Super. 566, 595, 653 A.2d 1145 (App.Div.1995). The standard for such review is the ordinary abuse of discretion standard. Ibid. The disqualification of Tec resulted in depriving the public of a $47,000 savings. Such action constitutes an abuse of discretion where, as here, all tenets of the public bidding process were effectively met. "The statute was not meant to cost public bodies many thousands of dollars by requiring acceptance of higher bids for mere technical violations." Schlumberger Indus. v. Borough of Avalon, 252 N.J.Super. 202, 212, 599 A.2d 589 (App.Div.1991), certif. denied, 130 N.J. 8, 611 A.2d 648 (1992).
The court is therefore compelled to set aside the award to defendant Redmann. The matter is remanded to the Franklin Lakes Board of Education for award of the bid to plaintiff Tec Electric, Inc., subject to plaintiff's submission of a completed Prequalification Affidavit.
................
................
In order to avoid copyright disputes, this page is only a partial summary.
To fulfill the demand for quickly locating and searching documents.
It is intelligent file search solution for home and business.
Related searches
- what is a statement of teaching philosophy
- what is the purpose of education essay
- what is a theme of a story
- what is the purpose of education ascd
- what is the purpose of education pdf
- what is a philosophy of education
- what is the board of nursing
- what is a philosophy of nursing
- what is a statement of interest
- what is a sequence of events
- what is the purpose of education define
- what is a board foot