In a detailed July 11, 2012 letter, Hunterdon County Prosecutor Anthony Kearns, III found that the Clinton Township school board violated several sections of the Open Public Meetings Act (OPMA) on multiple occasions, failing to properly disclose its executive sessions, and producing inaccurate meeting minutes.
Since then, the school board has made several statements through its attorney, Vito Gagliardi, claiming the violations were “technical violations that have been remedied.” According to a Courier News report, this has been communicated to Prosecutor Kearns, who said, ”My office was informed that the school board will use its attorney for guidance in these matters and corrective action will be implemented.”
But public records reveal the school board continued to violate the OPMA at its May 14 meeting — with Gagliardi present — and again on June 4.
The systemic nature of violations that deprive the public of information about the board’s business is further revealed in the board’s failure to “keep reasonably comprehensible minutes of all its meetings.” Inspection of available public documents has revealed that the board conducts executive sessions of one to seven hours — and keeps minutes no longer than one sentence. Failure to record details of closed session meetings suggests tampering with public information records, a violation of a different statute.
School board continues to violate the law
The school board has continued to violate the laws cited by Prosecutor Kearns:
- After the board was threatened with a lawsuit by an open public meetings advocate.
- After the board became aware a complaint had been filed with the prosecutor.
- In Gagliardi’s presence in public, on May 14, without correction from Gagliardi.
- After the board learned from Gagliardi that the actions were illegal.
- After the board passed a resolution detailing the violations and implementing procedures to prevent further violations.
The board knew what it was doing was wrong, but kept doing it anyway, thereby subjecting all participants to personal liability.
The Cover-up: Busted again
Evidence gathered from the school board’s own website clearly shows that statements made to the press by attorney Vito Gagliardi on behalf of the school board on July 16 and 17 are inaccurate. These public relations quotes seem intended to cover up additional violations and to deflect attention from the board’s deliberate, willful, and knowing actions to withhold information from the public.
Actions of the board’s officers reveal that:
- The board either doesn’t understand the law, even after voting to implement procedures to ensure it follows the OPMA, or,
- The board doesn’t care about following the law, as witnessed by board president Jim Dincuff’s lackadasical behavior at meetings.
- The board has inadequate legal counsel, reflected in its attorney’s failure to correct an insufficient OPMA resolution in his presence.
- The board’s officers directed the repeated commission of the violations after all were advised the actions were illegal.
The Cover-up: Busted again
Gagliardi was quoted in the press saying the board put new procedures in place back in May, only days after the complaint was filed:
“We’ve had no issues with regard to the May or June meetings. I don’t think that anything like this (will be) repeated… I’m happy it’s come to a successful conclusion.”
Hunterdon Democrat, July 27, 2012
This is untrue. Public records show the board committed more violations in May and in June, even in the attorney’s presence.
Gagliardi said it’s all taken care of:
“The Morristown-based attorney called the matter ‘technical violations that have been remedied,’ adding that new guidelines under which the board has been operating recently are even more transparent than what’s required under the law.’
‘I’m not sure if there’s anything else the board needs to do,’ Gagliardi said.”
Courier News, July 17, 2012
But what the board needs to do is understand and actually follow the law.
The Hunterdon Democrat asked Gagliardi to “describe” the new procedures that would prevent further violations:
“Gagliardi said, ‘There is a form of resolution that the board secretary will read for an executive session with a very specific itemized list of the basis for going into executive session, that if that process is followed, I think quite frankly the board will be presenting even more detailed information than the statute requires in terms of the basis for going into executive session and informing the public appropriately. The process, I think is what will insure us that we will not have to confront this issue again,’ the board attorney said.”
Courier News, July 17, 2012
But the “form of resolution” implemented after the May 14 “remedy” does not even disclose the information the statute requires – even though it was formulated by the board’s own attorney and its officers, Jim Dincuff, Michelle Cresti, and Anthony Del Sordi.
New violations at same meeting as new resolution
Gagliardi’s references are to the May 14, 2012 school board meeting (click here for meeting minutes), at which the board passed a lengthy resolution detailing the procedures it would follow to ensure compliance with the Open Public Meetings Act.
Attorney Gagliardi was present at that meeting and listened while board president Jim Dincuff violated the OPMA to initiate an executive session in which the board would discuss candidates for a vacant board seat:
N.J.S.A. 10:4-13 states:
No public body shall exclude the public from any meeting to discuss any matter described in [N.J.S.A. 10:4-12b] 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.
With Gagliardi sitting beside him, once again Dincuff broke the law. It is evident in the official recording that Gagliardi did not intervene as his clients voted to adopt Dincuff’s resolution for executive session that violated N.J.S.A. 10:4-13(b.). Dincuff did not state when the board would disclose the discussion it was about to conduct in closed session. And the attorney didn’t say a word.
Dincuff had just put a lengthy resolution on the same meeting’s agenda, to ensure the board properly disclosed information required in both parts (a.) and (b.) of the law. How could the board fail to follow that very law?
Oh, this is so technical – Do we really have to bother?
Are a bunch of town residents serving on the school board supposed to know the law and follow the tedious process of public meetings?
The Clinton Township school board’s officers are:
- School board president Frank “Jim” Dincuff, a career school administrator with decades of experience as principal in the South Plainfield school district.
- School board vice president Michelle Cresti, a New Jersey attorney.
- State-certified school district business administrator and board secretary, Anthony Del Sordi.
All are experts of one kind or another in school board meetings and the law. They know the importance of technical requirements in the law. With three officers who should know better leading them — and with their attorney standing by — the rest of the school board members went into executive session illegally on May 14.
Everything is just fine
Here’s Gagliardi, the board’s attorney of 17 years, speaking this week on behalf of the board to the press about Prosecutor Kearns’ findings:
“Gagliardi said the school board is ‘very pleased that the prosecutor’s office saw fit not to take any further action beyond that letter.’ He added that the Board of Education implemented a new procedure at the beginning of May, which he expects will ensure that ‘technical violations are not likely to be replecated [sic].’” [Emphasis added.]
Hunterdon Review, July 17, 2012
Any other public body would have bent over backwards to show the prosecutor that it was worthy of just an initial slap on the wrist — without penalties. This board, through its attorney, repeatedly dismisses the violations as “technical,” misleads the press, the public, and the prosecutor about compliance at subsequent meetings – and keeps violating the law. All the records documenting these violations are on the board’s website.
The minutes of the meeting (p. 6270) confirm the failure to disclose part (b.) of N.J.S.A. 10:4-13.
Three weeks later: Another violation on advice of the business administrator
At the June 4 board meeting, three weeks after the resolution which attorney Gagliardi says “remedied” the board’s bad behavior, board president Dincuff wants to take the board into executive session to interview candidates for the school board business administrator position.
Listen to the audio below.
Dincuff forgets about the law he voted on May 14 to defend, and asks for a motion to go into executive session without the OPMA resolution. Board member Kevin Maloy, who also forgot, makes the motion. (Maybe Maloy figured if the lawyer didn’t say anything last time, there’s no reason to worry this time.)
Anthony Del Sordi, the board’s state-certified business administrator, has to remind the board president that Dincuff must read the required resolution before anyone can make a motion to go to executive session. Dincuff pauses and jokes:
“That’s why I’m glad Michelle showed up!”
There is laughter at the mistake. Michelle Cresti is the vice president of the board to whom Dincuff has assigned the task of reciting the required legal notifications, per N.J.S.A. 10:4-13 (a. and b.). Cresti has probably read so many laws, this one must be a slam-dunk now that she voted special measures to ensure she and the board will follow it.
But Cresti asks whether she has to read the whole thing. Del Sordi, to whom the board pays an annualized $152,000, advises her:
“You can just read the purpose for which we’re going into exec. The last paragraph. The last whereas.”
Uh, yeah. (Who’s the lawyer…?) One school board officer — Del Sordi — has just advised another — Cresti — to ignore half the law. And she does:
Cresti makes no reference to part (b.) of N.J.S.A. 10:4-13. Dincuff takes over, asks for a motion and a second, and takes the board into executive session — again illegally.
Lawyers, a career principal, a certified business administrator — if they can drag the school board into trouble they’ve already promised to avoid, then it’s time to investigate how they’re running the rest of this “Oops — did we do that?” operation. They control education and spend over $30 million each year.
More falsified minutes
Prosecutor Kearns found the board in violation of another section of the OPMA: N.J.S.A. 10:4-14, which, he explains:
“Requires in part that a public body shall keep reasonably comprehensive minutes showing the subjects considered and the action taken.”
The minutes of the June 4 meeting report statements pertaining to the OMPA that were never made. This is notable because, while the board secretary often omits from the minutes details of what was actually said in meetings, the minutes never report more than what was said. Except in instances involving the OPMA, when the minutes — as Prosecutor Kearns notes – include entire paragraphs that were never spoken at the public meeting.
Again, as the prosecutor notes, it seems the board secretary just copies and pastes boilerplate verbiage into the minutes – different meetings include “nearly identical entries.”
However, the June 4 minutes do confirm that N.J.S.A. 10:4-13(b.) was omitted from the required disclosure.
It’s time for Plan B: The board’s officers knew they were violating the law
As detailed here, evidence from the school board’s own records demonstrates the school board’s officers willfully, deliberately, and with full knowledge of the law violated the Open Public Meetings Act again and again at their May and June meetings — after voting a resolution promising they’d stop, and after their attorney tells the prosecutor they didn’t do it again.
Prosecutor Kearns should now bring actions for the imposition of penalties for violations of the Sunshine Law and other statutes against the board officers who led the entire board to join them in unauthorized actions.
Prosecutor Kearns let the school board off easily, and it’s understandable why. Armed with evidence from just three board meetings, his first objective is compliance with the OPMA — not prosecutions. He writes in his July 11 letter to the board:
“Since this matter represents the first time that we have been advised of a potential OPMA violation, our purpose at this point is simply to bring this matter to your attention so that you may properly advise your client of its obligations under the OPMA, its obligation to make truthful minutes of meetings under OPMA and other statutes, and that this Office takes such matters seriously.”
Kearns grants them the benefit of the doubt, and wants to believe the board did not ”knowingly” violate the law – because, he tells them, that would constitute yet another violation.
But Kearns also puts them on notice that ”this office takes such matters seriously” and that “the County Prosecutor or the Attorney General may choose to bring an action for imposition of penalties for violations of the Sunshine Law against board members who participate in the unauthorized action.”
It is now well-documented that board president Jim Dincuff, vice president Michelle Cresti, and state-certified board secretary Anthony Del Sordi all knew the law when they continued to violate it — because:
- They had just adopted a resolution that acknowledged their offenses under the OPMA;
- They’d been given legal advice about the OPMA by their lawyer Gagliardi; and,
- They agreed with a public vote to use the legally-required disclosure notices before going into executive session.
Yet at the very meeting where they adopted the “remedy” and discussed the violations — in the presence of their attorney — the officers of the board take the board illegally into executive session.
And again at a meeting just three weeks later:
- Dincuff ignores the law when he asks for a motion to go to executive session without disclosing the required information to the public,
- Del Sordi advises Cresti to act in a manner that violates the law,
- And Cresti — an attorney who should know better — delivers a truncated, inadequate OPMA disclosure statement.
On June 4, the school board’s officers once again led the board into executive session illegally — but with full knowledge of that law at that point. Worse, at the May 14 meeting, they did it under the nose of their attorney Vito Gagliardi — whose inaction reveals the board lacks adequate legal counsel.
The school board officers have created their own public record of willful, knowing, and deliberate violations. The prosecutor should now prosecute the board officers for violating the public’s right to know — and for flaunting the the law after they promised to obey it.
Holders of elected office are citizen volunteers who are assumed to be naive about the law. When they make mistakes, they are protected from liability — or no one would ever serve in public office. If government gets sued and officials are named, government’s attorneys defend them, and the government’s insurance carrier covers litigation costs and the costs of judgments against them. Except when the officials have the benefit of legal counsel that advises them an act is illegal.
If they commit the act anyway, legal principle holds that the governing body they serve on — and its insurance carrier — are no longer liable. They were advised the act was wrong but did it anyway. They become personally liable.
It is clear, based on the actions the board took with respect to the OPMA on May 14, that the board’s officers and the board members had the benefit of legal counsel and that they acted affirmatively to defend the OPMA. They knew the law. When they then violated it, they subjected themselves to personal liability. Or perhaps their laywer didn’t explain that to them. The question now is, who will turn evidence, and who will continue the public relations charade to defend Dincuff’s administration at potentially significant personal cost?
Dincuff has stated that he doesn’t need a lawyer at his board meetings. He’d rather spend the money “on the kids.” (According to an Express Times news report, “Board Attorney Vito A. Gagliardi Jr. said he attended two meetings over the past year. He comes to the meetings only when he is invited, he said.”) Perhaps it’s time for the Hunterdon County Prosecutor to come to the aid of the Clinton Township school board — and to take it over until a full investigation reveals why the board operates as if it is above the law.
Editorial calls for penalties
The Easton Express-Times has called for penalties in the matter:
Complete audio recordings, from which excerpts are provided here, are available on the Clinton Township school district website. So are minutes of public meetings. Minutes of executive sessions are kept under lock and key until you file an OPRA request. (Learn how to do it — get involved in keeping your school board honest.) ExMayor.com will continue to publish as many executive session minutes as we can get our hands on. What you do with them is up to you.
Coming next: Violations of N.J.S.A. 10:4-14 and N.J.S.A. 2C:28-7. Since at least 2007 the board routinely tampered with public records by failing to adequately record its executive sessions.