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Serra v. Borough of Mountainside

Decided: February 28, 1984.

RAYMOND DELLA SERRA, PLAINTIFF-RESPONDENT, CROSS-APPELLANT,
v.
BOROUGH OF MOUNTAINSIDE, THOMAS A. RICCIARDI, MAYOR; COUNCIL PEOPLE ABRAHAM SUCKNO, RONALD ROMACK, ROBERT VIGILANTE, MARILYN HART, LOUIS MAAS, AND WERNER SCHON, DEFENDANTS-APPELLANTS, CROSS-RESPONDENTS



On appeal from the Superior Court of New Jersey, Law Division, Union County whose opinion is reported at 188 N.J. Super. 134 (Law Div. 1983).

Michels, King and Dreier. The opinion of the court was delivered by King, J.A.D.

King

The principal issue here is whether the defendants, the Borough of Mountainside's Mayor and Council, violated the Open Public Meetings Act, N.J.S.A. 10:4-6 et seq., L. 1975, c. 231, frequently called the "Sunshine Law", when they participated in private deliberations on the disciplinary complaints against plaintiff, Raymond Della Serra, a police sergeant. On cross-motions for summary judgment, the Law Division judge held that the Mayor and Council violated the Act and he voided their deliberations. 188 N.J. Super. 134 (Law Div.1983). We respectfully disagree with the Law Division judge on this close question of statutory interpretation and we reverse. We also conclude that the municipal attorney was not disqualified by a conflict of interest and affirm on the cross-appeal.

I

The Act requires that meetings of public bodies be open to the public, with the exception of specifically exempted proceedings. N.J.S.A. 10:4-12. These nine exemptions include such matters as: legally confidential situations, the privacy of personal data, collective bargaining negotiations, purchase and investment information and decisions, sensitive public safety data, pending litigation, contract negotiations, employment, and certain deliberations following a public hearing. The issue here is whether the exemption of deliberations in subsection (b)(9) applies to deliberations relating to the discipline of a police officer after he has waived his right to have his subsection (b)(8) disciplinary hearing held in private and has opted for a public disciplinary hearing. As noted, the Law Division judge held that the police officer, in addition to a public hearing, had the legal right to public deliberations concerning any penalty upon a "request in writing that such matter or matters be discussed at a public meeting." N.J.S.A. 10:4-12(b)(8). We disagree.

The pertinent statutory framework is

a. Except as provided by subsection b. of this section all meetings of public bodies shall be open to the public at all times. Nothing in this act shall be construed to limit the discretion of a public body to permit, prohibit or regulate the active participation of the public at any meeting.

b. A public body may exclude the public only from that portion of a meeting at which the public body discusses:

(8) 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.

(9) Any 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].

By resolution of October 19, 1982 the Borough officials decided to conduct deliberations in this disciplinary proceeding in private. They wished to proceed "in such fashion as will produce the ...


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