Question On Closed Session Recusal Answered

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Published: April 7, 2015 @ 8:30 AM EDT

At last Thursday night’s Mayor & Council meeting, a closed session matter discussed was that of Michael Yakubov vs. the Borough of Roselle Park. There was some question as to whether Fifth Ward  Councilman Richard Templeton recused or should have recused himself from those talks. Citing two sources, it has been confirmed that the councilman did indeed recuse himself from the discussions. In the matter of Michael Yakubov vs. the Borough of Roselle Park, councilman Templeton was named as a witness in a Notice Of Claim presented to the municipality earlier this year.

In line with the NJSA 10:4-6, more commonly known as the Open Public Meetings Act (OPMA) or Sunshine Law, the public is legally excluded from such proceedings that are termed closed or executive sessions, providing that those discussions are covered by one of the following legal exemptions:

  • Matters made confidential by state, federal law or rule by court.
  • Disclosure would result in an unwarranted invasion of individual privacy, unless the person affected consents in writing.
  • Disclosure would impair the body’s right to receive federal or state funds
  • Collective bargaining
  • Lease or acquisition of property, setting of banking rates,investment of public funds if disclosure would harm the public interest.
  • Investigations into violations of law.
  • Strategies to protect public security.
  • Pending, ongoing or anticipated litigation or contract negotiation, including attorney-client privilege. The threat of litigation must be more than theoretical for this exemption to apply.
  • Personnel matters affecting employees of the public bodies, unless all parties request or consent to a public hearing. Prior to discussion of personnel, affected employees must be given notice, known as a Rice notice, which gives the employee the right to request a public hearing.
  • Proceedings that could result in a suspension, civil penalty, or loss of a license or permit.

In cases when member of the governing body (or attorney or borough clerk) who have a vested interest in a closed session topic, those individuals are to recuse themselves by leaving the meeting. Usually, such individuals exit council chambers into the main first floor hallway in Borough Hall. It has been reported that in this instance, the councilman left via the rear council chamber doors that lead to the police station. Once the matter was concluded, the councilman was asked to return to the meeting. Although procedure was follow, no such notice was provided before or after the executive session which led to questions of recusal.

As legally required, closed session minutes are to be made available at a later date with information on what was discussed and who was in attendance. There might be instances where sections of an executive session might be redacted for matters of confidentiality but they must always be made available.

All governing bodies, including the Board Of Education, must follow the Open Public Meetings Act and provide as-specific-as-possible information to notify the public of the reason for entering into an executive session of a meeting. Closed sessions can happen before, after, or even during a public meeting.