[164 NJSuper Page 597] Plaintiff Louis Cirangle is a tenured superintendent of schools employed by defendant Maywood Board of Education. In the fall of 1977 certain alleged irregularities in the disbursement of public funds administered by Cirangle were brought to the attention of the board. An investigation followed and other apparent infractions were discovered. When confronted with these charges, plaintiff demanded in writing that they be aired in public. The board refused to comply with his request and proceeded to evaluate
the evidence against him at a series of closed meetings. On June 6, 1978 the board forwarded a number of charges against him to the Commissioner of Education for determination on the merits in accordance with the Tenure Employees Hearing Law, N.J.S.A. 18A:6-10 et seq. Plaintiff then instituted this suit to have the board's action declared void on the basis that it was taken during the course of a meeting which did not conform to the provisions of the Open Public Meetings Act, N.J.S.A. 10:4-15. The Commissioner has voluntarily stayed proceedings pending the outcome of this litigation.
The problem in this case arises out of legislative enactment of two flatly contradictory statutory provisions. On the one hand, the Open Public Meetings Act requires that consideration of the charges against Cirangle be conducted at an open public meeting. On the other hand, the Tenure Employees Hearing Law prohibits consideration and action by the board in public. Since the statutes cannot be reconciled, the ultimate outcome of this controversy is dependent solely upon application of the rules of judicial construction in an attempt to fathom the legislative intent.
The Open Public Meetings Act basically provides that meetings of public bodies such as defendant must be open to the public at all times, N.J.S.A. 10:4-12(a). One of the exceptions to this requirement permits exclusion of the public during discussion of
Any 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 or current public officer or employee employed or appointed by the public body, unless all the individual employees or appointees whose rights could be adversely affected request in writing that such matter or matters be discussed at a public meeting. [ N.J.S.A. 10:4-12(b)(8); emphasis supplied]
Plaintiff asserts that the sole purpose for the personnel exception is to prevent unwarranted invasion of an individual's right to privacy. Exercise or waiver involves a personal decision
as to whether the employee desires to have his private personal matters discussed in public. Since Cirangle waived this statutory right, the board was required to consider the charges against him in public. See Rice v. Union City Reg'l High School Bd. of Ed. , 155 N.J. Super. 64 (App. Div. 1977).*fn1
Defendant claims that it was unequivocally prohibited from acting on the charges against Cirangle during public meetings by the Tenure Employees Hearing Law, N.J.S.A. 18A:6-11. That measure details the procedure involved when charges are made against a tenured board of education employee. Under such circumstances, the board's role is limited to making findings as to whether there is probable cause to credit the evidence in support of the charges. If the board finds that probable cause exists, then it merely forwards such written charges to the Commissioner of Education for further determination on the merits. It is at this stage of the proceedings where public hearings must be held and the charged employee is granted the full panoply of his rights to due process. Unlike the Open Public Meetings Act, the Tenure Employees Hearing Law does not contain a provision which gives the employee the right to request that charges against him be heard in public. Instead, it specifically provides that:
Any charge made against any employee of a board of education under tenure during good behavior and efficiency shall be filed with the secretary of the board in writing and a written statement of evidence under oath to support such charge shall be presented to the board * * * After consideration of the charge, statement of position and statements of evidence presented to it, the board shall determine by majority vote of its full membership whether there is probable cause to credit the evidence in support of the charge and whether such charge, if credited, is sufficient to warrant a dismissal
or reduction of salary. * * * The consideration and actions of the board as to any charge shall not take place at a public meeting. [ ...