What N.J. law says about personnel records and discussions
New Jersey law governs what public bodies like school boards can and can’t discuss in public and can or can’t disclose when it comes to documents.
The Open Public Meetings Act
The “Sunshine Law,” otherwise known as the Open Public Meetings Act (OPMA), gives the public the right to be present at meetings of public bodies and to witness in full detail the deliberation, policy formulation, and decision-making of public bodies.
Exceptions (when the public can be excluded)
The Sunshine Law allows public bodies to exclude the public when discussing:
- Matters considered confidential by law or court rule;
- Matters that would diminish the chances of receiving federal funds if released to the public;
- Material that would constitute an unwarranted invasion of individual privacy;
- Collective bargaining agreements, including negotiations about them;
- Matters involving investments of or real estate transactions with public funds, or the setting of banking rates, where disclosure of information could adversely affect the public interest;
- Tactics and techniques used in protecting the safety and property of the public and investigations of violations or possible violations of the law; Pending or anticipated litigation or contract negotiations involving the public body, and matters covered by the attorney-client privilege;
- Personnel matters including the employment, appointment, or the termination of current or prospective employees (unless affected individuals request for the matter be discussed); or
- Deliberations that could result in a fine or the suspension or loss of a license or permit (but only after an initial public hearing on that subject).
The Open Public Records Act (OPRA)
Personnel Records
Personnel and pension records are confidential, except specific information identified as follows:
- An individual’s name, title, position, salary, payroll record, length of service, date of separation and the reason for such separation, and the amount and type of any pension received,
- 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.
- Data contained in information that 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.
The power to disclose rests with the employee
Personnel matters affecting specific individuals are discussed in closed session to allow the individuals being discussed to avoid having their employment issues aired in public.
But the employee is allowed to disclose his or her information and choose to have the discussion take place in public.
A Rice Notice is a notification from a public body that the public body is going to discuss an individual’s employment at an upcoming meeting.
Having an individual’s employment discussed in closed session means that the individual cannot attend and be privy to the discussion and deliberations regarding their employment. Faced with these alternatives, many people would prefer to have their employment issues aired in public.
A public body in New Jersey that is going to discuss the employment of one or more specific individuals must notify those individuals at least 48 hours in advance of the meeting. This notice must include the time and place of the meeting and that the individual’s employment will be discussed. It must also inform the individuals affected that they have the right to request that the discussion be held in open session, and how to request this.
When it comes to personnel records, again the employee is the one who has the power to share the records. A public body can not release written performance evaluations and similar documents to the public. But the individual employee can choose to disclose and share such documents with the public if that person chooses to do so.
The BOE wrote “We understand that the lack of information in Friday’s communication was frustrating, but we are unfortunately limited in what we can say by New Jersey’s Open Public Records Act, N.J.S.A. 47:1A-10, and the privacy rights held by public employees.”
According to N.J.S.A. 47:1A-10, the BOE could have disclosed the date of separation and the reason for separation but chose not to do so. In fact, the email from the BOE did not even say explicitly that there has been a separation. Do we not deserve even the tiniest sliver of transparency in this matter?
That is because there has been no separation yet. Contrary to the petition, Mr. Chmiel has not been fired. Our understanding from some of his supporters and colleagues is that he has been put on paid leave.
Can Planet Princeton confirm the date of the school board meeting at which the board will vote on the decision to terminate Principal Chmiel?
While the substance of a personnel discussion is confidential, isn’t the public body obligated to list the matter on its agenda for the closed session. So if the Board discussed the personnel situations for individual X, then the agenda should indicate that X will be discussed, without any details of that discussion?
From one of the top OPRA/Sunshine lawyers in the state: If the disclosure of a name could link the employee to protected personnel info., then the name should not be disclosed and the closed session should list personnel matters or similar. That’s why we have the Rice Notice. The employee can choose to make the discussion public. Then it would be listed on the agenda with the name.