Alampi and Keefe, two lawyers in an illegal meeting about Lyndhurst’s overdue Middle School
For nearly two years, Lyndhurst Board of Education President Erin Keefe, a licensed attorney, as she described herself in her first campaign for BOE in 2017, has, in my opinion, meekly stood for the interests of the Lyndhurst School Board, staff and students, as our local school system has faced repeated attempts at illegal dictatorial control of the school system by the Lyndhurst Board of Commissioners, mostly by Commissioner John Montillo (see minutes of 02.11.2020 attached below), who has made approximately a quarter of a million dollars personally from Lyndhurst Schools as a NO-BID vendor. Cocky Commissioners, like Montillo, all seem to feel they are owed by the BOE because they are authorizing (without a public referendum) the borrowing of $67 million in public debt (that’s your money) to build a Middle School for the Lyndhurst BOE as part of a massive redevelopment deal which culminates in the Commissioners seeing new multi-story apartments constructed where the BOE’s Lincoln School now stands.
Lyndhurst Township Attorney Carmine Alampi is a politically appointed wheeler-and-dealer in way over his head, in my opinion. On February 11, 2020, I attended the Board of Commissioners meeting just to personally hand Mr. Alampi a legal memo from my attorney, who is an expert in New Jersey Public Meeting laws, regarding Alampi’s illegal plans to make the February 11 Commissioners’ meeting about the progress of the new Lyndhurst Middle School closed to the public. Mr. Alampi said he didn’t have time to read my one page memo about him breaking the law and he closed the caucus room door in my face.
Alampi does not live in Lyndhurst and is paid very well by Lyndhurst to do his job correctly, in a legal counsel role, which is to know what he is talking about and know the law. He falls short, way short.
The other participant who should have known better than to be involved in the illegal meeting Alampi approved, is from Lyndhurst. Lyndhurst Board of Education President Erin Keefe, also a licensed attorney, like Alampi.
As Board President, Keefe has had nearly two years to make sure the Lyndhurst Middle School was being built by the Commissioners according to agreements made between the Board of Commissioners and a past BOE. Keefe hasn’t involved the public in this, or, as far as I can tell, her colleagues on the BOE, to insure that the Middle School was done on time and done correctly, according to past agreements.
Yet, when you read the minutes of their closed door meeting, Keefe’s only serious interest seems to be appeasing the Lyndhurst Board of Commissioners as if they were in charge, as she did by attending the Commissioners’ February 11, 2020, illegal closed door meeting, despite warnings from a colleague, Elaine Stella, not to participate in the meeting. That night I looked on as Stella turned down Keefe’s invitation to join them all behind closed doors, as Stella said “I’m not participating in an illegal meeting and neither should you.” Keefe, the licensed attorney, ignored Stella and went behind closed doors anyway to discuss what was very much the public business that evening.
Keefe, the licensed attorney, listened to Carmine Alampi, another licensed attorney, and went on to violate NJ Open Public Meeting Laws on February 11, 2020. They make a nice, smug couple of lawyers.
So, to follow up and prove my point, I had my attorney, an actual expert, CJ Griffin, of Pashman, Stein, in Hackensack, in an August 2020 OPRA request the Executive Minutes of the February 11, 2020 closed door meeting between municipal and school staffs, attorneys, the entire Board of Commissioners and some Board of Education members, among others. I asked CJ to prepare a legal memo briefing me on what attorneys Alampi and Keefe and the government staffs and elected officials discussed behind closed doors, over seven months ago now, and how what they did in private may have violated the Open Public Meetings Act governing the conduct of public business in New Jersey.
Directly below, I share CJ’s memo publicly, even though public disclosure without a fight isn’t the Lyndhurst tradition. (Also, the full official minutes of the Commissioners’ and Keefe’s 02.11.2020 closed door meeting are found as an attachment at the end of this post).
TO: DAVID SIVELLA
FROM: CJ GRIFFIN, ESQ.
RE: OPMA LEGAL ISSUES REGARDING LYNDHURST BOARD OF COMMISSIONERS 2/11/2020 MEETING WITH SCHOOL BOARD AND STAFF
Per the Open Public Meetings Act, A Closed Session May Not Be Held Unless an Exception Applies
The Open Public Meetings Act (OPMA) requires all meetings of a quorum of the governing body to be conducted in public. Public bodies are only permitted to go into closed session for one of the following discussions:
(1) matter which, by express provision of federal law, State statute, or rule of court shall be rendered confidential . . .
(2) matter in which the release of information would impair a right to receive funds from the Government of the United States;
(3) material the disclosure of which constitutes an unwarranted invasion of individual privacy such as any records, data, reports, recommendations, or other personal material of any educational, training, social service, medical, health . . .
(4) collective bargaining agreement, or the terms and conditions which are proposed for inclusion in any collective bargaining agreement . . .
(5) matter involving the purchase, lease, or acquisition of real property with public funds, the setting of banking rates, or investment of public funds, if it could adversely affect the public interest if discussion of the matters were disclosed;
(6) tactics and techniques utilized in protecting the safety and property of the public, provided that their disclosure could impair that protection, or investigations of violations or possible violations of the law;
(7) pending or anticipated litigation or contract negotiation other than in subsection b. (4) herein in which the public body is, or may become, a party, or matters falling within the attorney-client privilege, to the extent that confidentiality is required in order for the attorney to exercise his ethical duties as a lawyer;
(8) matter involving the employment, appointment, termination of employment, terms and conditions of employment, evaluation of the performance of, promotion, or disciplining of any specific prospective public officer or employee . . .
(9) deliberations of a public body occurring after a public hearing that may result in the imposition of a specific civil penalty upon the responding party or the suspension or loss of a license or permit belonging to the responding party as a result of an act or omission for which the responding party bears responsibility.
[N.J.S.A. 10:4-12 (emphasis added).]
With that in mind, a review of February 11, 2020 closed session meeting minutes of the Lyndhurst Board of Commissioners causes serious doubts that information was discussed in closed session without any legal basis to do so. In other words, the public seems to have been unlawfully excluded from the discussion of public business. Moreover, the fact that officials from the Lyndhurst School District – an entity that is opposing party in contract negotiations relating to the Lyndhurst Middle School—is additional evidence that this closed session was illegal.
Failure to Pass Resolutions
Before delving into specific items that appear to have been illegally discussed in closed session, it must be flagged that there was no mention of the closed session on the public agenda, despite the fact that the session was clearly planned in advance because third parties from the Lyndhurst School District attended it.
Additionally, the February 11, 2020 public meeting minutes make no reference to the closed sessions either, despite the fact that N.J.S.A. 10:4-13 requires a public body to pass a resolution before each closed session that states the “general nature of the subject to be discussed” and that resolution should be recorded in the public minutes.
Additionally, Lyndhurst does not appear to post any of its closed session meeting minutes on its website.
Without reference to the closed session on the agenda or in the public meeting minutes, there is no way for the public to even know that it occurred unless they were present on February 11, 2020 and saw the Commissioners go into a private room.
Questionable Closed Session Discussions
Some topics that were within the closed session(s) clearly fall within one of the above exceptions, such as discussions about tax appeals, salaries, and personnel matters. However, the following topics do not seem to fall within the any of the exceptions:
- Seating Fabric for the Auditorium: There was considerable discussion about a change in the fabric for the chairs in the auditorium. The discussion as described does not fall within any exception. It cannot be considered “contract negotiation,” given that the contract with the architect was already negotiated. It is about contract performance and is routine public business. See Burnett v. Gloucester Cty. Bd. of Chosen Freeholders, 409 N.J. Super. 219, 236 (App. Div. 2009) (county violated OPMA with closed session discussion of whether to allow a municipality to use a county facility, which was “routine business” and not subject to an exception).
Importantly, an additional OPMA violation appears to have occurred. In addition to inappropriately discussing this routine public business in a closed session, the Commissioners also passed a motion relating to the fabric. That motion was required to be discussed and voted on in public. See Burnett, 409 N.J. Super. at 239-40 (rejecting notion that public agency could vote in closed session); In re Consider Distrib. of Casino Simulcasting Special Fund, 398 N.J. Super. 7, 17 (App.Div.2008) (public body may not reach a decision based on a closed discussion without a public meeting).
- Commissioner Haggerty’s Disappointment with the Sprinkler System: The minutes state that Commissioner Haggerty is upset over the sprinkler system, to which Mr. Benecke stated that the architect has until June 1st to resolve it. Contract performance does not fall within any of the permitted exceptions. The public should be able to hear that there are issues with the sprinkler system, especially since that could raise public safety concerns.
- Commissioner Jarvis’ Unhappiness with the Wall Mural: There was evidently a discussion about Commissioner Jarvis’ unhappiness with the wall mural. Aesthetic displeasure is not one of the enumerated exceptions that permit a closed session.
- Wrestling Mats: Commissioner Montillo stated that he met with the vendor for wrestling mats, who will be sending him samples for the competition gym. He stated that the walls will be matted and he will send the samples out to everyone once he receives them. Again, building aesthetics are not among the enumerated exceptions that permit a closed session.
- Bleachers: There was a discussion about bleachers and whether they were needed. Again, building aesthetics are not among the enumerated exceptions that permit a closed session.
- HVAC: Commissioner Montillo had “concerns over the HVAC system” and Commissioner Haggerty stated that it was “fair to say the money was not spent wisely.” The sufficiency of building’s heating and air systems are not one of the enumerated exceptions that permit a closed session.
- Lengthy Discussion with Lyndhurst School Board Members, State Monitor Egan, School Business Administrator Bisic, and Frank DeCoroso: The Commissioners invited these officials from the Lyndhurst School District to the closed session for a very lengthy discussion of numerous topics. The conversation began with Commissioner Montillo stating that “they wanted to continue the dialogue between the two boards.” Additionally, he said they were asking questions about the topics that were discussed because “we have contractual issues.” In total, the wide-ranging conversation touched upon:
- The hiring of a new school principal, including criticism of that hiring
- Middle school scheduling
- Budgeting, state aid, self-insurance, and anticipated revenue
- Staffing of the school
- Care of the school
- Potential staff cuts
- Plans to improve the high school, including wireless phone projects and infrastructure
- New software for social studies and science
- Amount of money spent on the high school from the referendum
- Classroom demographics
- Hiring a facilities manager
- The BOE’s business plan
- Future meetings and OPMA
- Lettering that fell from the school building and quotes to replace them
- The Commissioners’ frustration with the amount of money that has been invested in the high school
During this closed session discussion, Mr. Benecke, clearly realizing that these conversations were not permitted under OPMA, reminded the room that the “only item we can discuss are contracts.”
This portion of the closed session is highly questionable. Much of what was discussed was unequivocally routine public business and not subject to any exception. These conversations should have occurred in public, where the public could benefit from hearing the Commissioners’ thoughts about budgeting issues, finances, and other important matters and the response from school officials. Although there was a statement that these questions were being asked due to “contractual issues,” that is not a basis for this closed session to have occurred. The contract negotiations exception (7) that permits a public agency to meet in closed session so that it may discuss its positions privately and away from the opposing party with whom potential the contract will be made. It is not intended to be a secret meeting between the two sides. Therefore, the inclusion of Lyndhurst School District officials into the closed session violated OPMA. See, e.g., Gandolfi v. Town of Hammonton, 367 N.J. Super. 527, 539 (App.Div.2004) (propriety of adverse attorney being present in closed meeting “may be in doubt” in light of statements by the Court in Payton v. New Jersey Tpk. Auth., 148 N.J. 524, 558 (1997); Nevin v. Asbury Park City Council, A-2124-04T2, 2005 WL 2847974 (App. Div. Nov. 1, 2005) (“In our view, exception b(7) does not relate to contract negotiations with the opposing party but only, as plaintiffs contend, to discussions about contract negotiations by the public body.”); Paff v. Washington Tp. Council, MER-L-2205-07, 2008 WL 2090777 (Law Div. Mar. 14, 2008) (finding agency violated OPMA by negotiating a vendor contract with vendor in closed session).
The Commissioners were certainly free to meet as a quorum with officials from the Lyndhurst School District to express their concerns about the ways in which the School District was operating and spending money. That meeting, however, should have been held in public.