BOARD OF ED SUED
Lawsuit filed over alleged open meeting violation concerning superintendent’s merit pay >>
TRENTON >> An “unorthodox” city Board of Education meeting and alleged closeddoor vote on Fred McDowell’s merit means somebody’s getting paid.
It’s either going to be the Trenton Superintendent or attorney Donald Doherty Jr.
Doherty represents government accountability guru John Paff on a long-expected transparency lawsuit being brought against the Trenton Board of Education which could flip the system on its head.
He has framed what many Trenton stakeholders believe is an undeniable Open Public Meetings Act violation over an alleged dark vote undertaken by the board at a Sept. 24 meeting on McDowell’s merit pay as a violation of Paff’s civil rights under the New Jersey Civil Rights Act (NJCRA).
Doherty piggybacked the OPMA onto the NJCRA because the former – unlike the Open Public Records Act – doesn’t provide an avenue for the winners to get attorney fees when challenging lawbreakers who disregard the state “Sunshine Law.”
It’s the biggest drawbacks for attorneys taking on OPMA cases. And Doherty said shady government bodies bank on it.
“It would clean up New Jersey like nothing we’ve seen before,” he said. “New Jersey’s government process, once you cut in 80,000 lawyers against 1,000 government bodies, it would be cleaned up faster than [anything]. You don’t need other laws.”
“That would be a gamechanger,” acknowledged Paff, a well-known government records crusader.
But he said the heart of the case is still the public’s right to know about how the McDowell vote went down.
“It shouldn’t be government by ambush,” Paff said. “They should take pains to make sure the public’s informed. We just want to make them do a do-over on this one.”
He and Doherty have asked a judge to overturn the board’s decision to approve McDowell’s merit pay form submission, which Doherty said was essentially the board signing over a $25,000 check.
Doherty said the board used deliberately confusing language that only educational insiders would know when informing the public McDowell’ merit pay would be discussed in executive session.
“They used fancy terms and clouded language, and all of a sudden the money’s gone,” he said. “That’s what it comes down to.”
Beyond that, Doherty pointed to the dark vote, non-explanatory agendas and a superseding issue of “adequate notice” under the OPMA, mandating the board publish notice of meetings in two newspapers.
Paff obtained records from the school district indicating it paid $23.49 for public notice of meetings in The Times of Trenton but not The Trentonian.
“The problem arises for the defendant because they do not publish or even communicate the annual notice of meetings to two publications as required,” the attorney wrote. “The requirements
are mandatory. There are no options. The government is required to strictly toe the line regrading OPMA in general and as to adequate notice.”
For this reason, Doherty wrote, “every decision being made is voidable. It’s not a one-time error.”
That would include McDowell’s merit pay, which could technically get veto by interim county executive superintendent Yasmin Hernandez-Manno.
But many believe she will rubber-stamp the board’s decision, if that hasn’t happened already.
Doherty wrote in the pleadings there’s a “strong likelihood” the board voted on the McDowell matter in executive session, violating the OPMA.
Board president Gene Bouie, who is a named defendant along with the other six board members who approved McDowell’s merit pay, has strongly denied that was the case.
He insisted to The Trentonian
the vote happened publicly after a second executive session.
The lawsuits mirrors much of The Trentonian’s reporting on the merit pay flap, including the timeline.
The vote wasn’t audio recorded and the board minutes seem to undercut Bouie’s claims as they showed the board ended its meeting before going into a second executive session.
The board entered into its first executive session around 8:44 p.m. It emerged and voted on three matters, none involving McDowell’s merit pay.
The board adjourned the meeting. Board secretary Jayne Howard, who is responsible for recording the minutes, a school monitor and members of the public left thinking the meeting was over.
Then board members convened a second executive session during which board counsel James Rolle Jr. took minutes.
McDowell’s merit pay was unanimously approved, according to the minutes.
The decision has come under sharp criticism from city leaders.
The Trenton Education Association and special education advocates have said McDowell didn’t meet his goals and didn’t deserve any payout, especially amid mounting issues in the district’s special education program.
The state Department of Education has found the district out of compliance on a number of issues complained about by the Special Parent Advocacy Group, a watchdog for special education students in the Trenton area.
Mayor Reed Gusciora ordered his law director to take a look at whether the board broke the OPMA.
Law director John Morelli has yet to issue a decision on the matter.
Meanwhile, TEA grievance chair Janice Williams took it upon herself to file a formal complaint with the state Attorney General’s Office. Her complaint could take months to investigate.
By that time, Doherty said, McDowell’s check will have been cut and cashed.
He feels this lawsuit is the best chance at rectifying the vote and changing the law to make government bodies more compliant with OPMA for fear of paying out of their pockets.
“That’s the simple crime of it,” Doherty said. “If they’re doing the basic things that wrong, what happens when we get to the complexities of life.”