BRICK – During her last meeting as a member of the Board of Education, Karyn Cusanelli questioned a change in the agenda format that she said reduces transparency to the public.
She said she noticed on the December agenda that PDF files were not attached under each item to be voted on, making them unavailable for public review.
“It’s something different this month,” said Cusanelli during the December 22 meeting. “Many of them are not on there and it just says ‘on file with the Business Administrator’s office.’ Was that an error or has there been a decision made to change the format?”
Business Administrator James Edwards said the change was made a few months ago after a vendor complained that their contract, which contained a confidentiality clause, was on the board agenda and available for public view.
He said that upon reviewing it in discussion with Board Attorney Nicholas Montenegro, “it’s not really a public contract until the Board of Education has approved it, so it’s really confidential until the board approves it, it’s not for the public to review until that time,” Edwards said.
Cusanelli noted some of the agenda items still had attachments. Edwards said those were items that were “okay to be public; what you’re referring to that say ‘on file’ are contracts that are still technically in negotiation until such time they’ve been board-approved.” He said copies of contracts would be available after they are approved.
Cusanelli said the public should be able to review contracts before the board votes on them.
“The public is not voting on them, you are,” Edwards said.
“But we represent the public,” Cusanelli said. “It’s their money that’s paying for these things.”
Saying it was more of a legal issue, Edwards deferred to Board Attorney Nicholas Montenegro, who cited case law indicating that attachments did not have to be placed on the agenda.
There was a three-pronged review of the issue, Montenegro said.
“The appellate division opined and indicated that a definition of the agenda was basically what was going to be discussed at the public meeting, and that attachments were not necessarily going to be placed upon the agenda,” he said.
Also, Montenegro continued, the Open Public Meetings Act allows a non-public executive session for contract reviews under contract negotiation; and lastly, the OPRA (Open Public Records Act) Review that indicates inter-agency documentations which are being reviewed are pending, and therefore are not subject to public review.
While the board is not required to provide an attachment, anyone should be able to review it at the board office prior to the meeting, argued Cusanelli. “That’s part of the Open Public Meetings Act, that the public gets to review the documents.”
Montenegro said pending documents are not official board documents until they are approved by the board. “When an executive session is complete there’s always the forecast that when the need for confidentiality no longer exists that it will become public,” he said.
Cusanelli said members of the public could add valuable information to the board before a vote.
“It’s the way it’s always been done…it seems to be kind of inconsistent as to what has attachments and what doesn’t,” she said. “I’m very confused and concerned about the transparency to the public. This seems to be in blatant violation of the Open Public Meetings Act to me,” she said.
“Well it’s not,” said Montenegro. “The attachments are not required to be placed upon an agenda and the policy obviously is subject to existing case law when there’s items of confidentiality that may exist in certain agreements that would not become public unless or until adopted.”
Cusanelli asked Board President John Lamela to research the issue.
“This appears to be in violation of the Open Public Meetings Act and I don’t know why we would want to hide information from the public; it makes no sense to me,” she said.
Lamela said he would ask the attorney to provide a brief on the matter.
“We need a more definitive answer in writing, because I’d like to see it, too, so that’s the direction we’re going to go on this,” he said.
“The learning curve just got greater for me tonight,” said Lamela, who just finished his first year as a board member and president.