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Jan 6 2004


The opinion of the court was delivered by: SUSAN WIGENTON, Magistrate Judge


Before the Court is a motion for a protective order (the "Motion") filed by defendants the Board of Education of the City of East Orange (the "Board"); Everett Jennings ("Jennings"), a member of the Board; and Robert Bowser ("Bowser"), the Mayor of the City of East Orange, (collectively, "Defendants"). Defendants seek to preclude plaintiff James Scott ("Plaintiff") from inquiring into the mental impressions and discussions of the members of the Board that contributed to their decision to terminate Plaintiff's employment with the Board, pursuant to the Deliberative Process Privilege and the Open Public Meetings Act, N.J.S.A. § 10:4-12.

The Court decides the Motion based upon the written submissions of the parties pursuant to Fed.R.Civ.P. 78. For the reasons set forth below, the Motion is denied. Page 2


  Plaintiff learned of a potential position with the Board through Dr. John Howard ("Howard"), at the time the Superintendent of the Board. See Compl. ¶ 8. Plaintiff and Dr. Howard resided at the same apartment complex and were social acquaintances. Id. ¶ 9. In July 1995, Plaintiff was hired as a foreman for the Board. Id. ¶¶ 7 and 10.

  During his employment with the Board, Plaintiff received satisfactory job performance evaluations and, in May 1997, Plaintiff was promoted to HVAC Supervisor. Id. ¶¶ 11-12. During his employment, Plaintiff developed a professional and personal relationship with Howard. Id. ¶ 13.

  In January 1998, Bowser was sworn in as the Mayor of the City of East Orange. Id. ¶ 14, During his campaign, Bowser opposed the educational funding initiatives supported by Howard and Sheila Oliver, his opponent for Mayor. Id. ¶ 14. Thereafter, Bowser appointed members to the Board who pursued the removal of Howard as the Superintendent and of employees aligned with Howard including Plaintiff. Id. ¶¶ 14 and 44.

  In 1998, pursuant to an initiative of the State of New Jersey, Plaintiff, on behalf of the Board, solicited and received sealed and confidential bids for an oil to gas heating conversion project. Id. ¶ 15-17. In April 2000, Plaintiff submitted three bids to the Board and recommended that LJM Engineering Group ("LJM") be awarded Page 3 the project because it was a qualified contractor and submitted the lowest bid. Id. ¶¶ 18-19. The Board rejected all three bids, and Jennings instructed Plaintiff to meet with representatives of Technical Associates, another contractor, to explain the conversion project. Id. ¶¶ 20-21 and 24. Plaintiff alleges that Jennings has a past and/or current relationship with Technical Associates. Id. ¶¶ 22-23, Plaintiff met with representatives of Technical Associates to discuss the conversion project. Id. ¶ 24. In June 2000, Technical Associates submitted a bid that was higher than the bid submitted by LJM and, then, it lowered its bid to match LJM's bid. Id. ¶¶ 25 and 27. Plaintiff contends that the bid submitted by Technical Associates contravened the Board's bidding procedures because the amounts of the preceding three bids were disclosed publicly before Technical Associates submitted a bid. Id. ¶ 26.

  In July 2000, the Board held a meeting, and Plaintiff refused to place on the agenda the bid submitted by Technical Associates because he believed that Technical Associates had not followed the Board's bidding procedures. Id. ¶ 28. Plaintiff alleges that as a result of his refusal to submit Technical Associates' bid, members of the Board threatened, harassed and pressured him into awarding the conversion project to Technical Associates. Id ¶ 29. Notwithstanding the pressure. Plaintiff did not assist Technical Associates to get the contract for the conversion project. Id. ¶ 30. Page 4

  In August 2000, the Board notified Plaintiff that he was being investigated for working at Howard's residence during business hours with the Board's materials. Id. ¶ 31. Plaintiff denies these allegations. Id. ¶ 32. In September 2000, Plaintiff was suspended by the Board. Id. ¶ 33, In January 2001, Plaintiff was terminated by the Board because, according to the Board, he failed to secure approval prior to purchasing plumbing supplies. Id. ¶¶ 34-35. Plaintiff denies that he did not have approval prior to purchasing plumbing supplies and asserts that this reason is a pretext for his failure to recommend Technical Associates for the conversion project and participate in an illegal bidding scheme. Id. ¶¶ 36-37; Plaintiff's Memo, of Law in Opp'n to Defendants' Motion for a Protective Order at 3 and 9.

  As such, Plaintiff filed a complaint against Defendants in which he alleges, inter alia, that in terminating his employment, Defendants, "acting under color of law, have violated [his] constitutional rights including his right to free expression, political association, substantive and procedural due process, privacy and equal protection under 42 U.S.C. § 1983." Compl. ¶ 45, Plaintiff seeks to depose members of the Board regarding their mental impressions and discussions that contributed to their decision to terminate his employment. Plaintiff argues that neither the Deliberative Process Privilege nor the Open Public Meetings Act preclude his access to the Board's pre-decisional Page 5 deliberations that led to his termination, and that this information is necessary to challenge Defendants' purported reason for his termination.


 I. Deliberative Process Privilege

  The Federal Rules of Civil Procedure govern civil matters filed in federal court. Fed.R.Civ.P. 1. Federal Rule Of Civil Procedure 26(b)(1) provides, in pertinent part, that "[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to [a] claim or defense." Fed.R.Civ.P. 26(b)(1). Privileges are designed to exclude evidence and, thus, must be narrowly construed. See U.S. v. Nixon, 418 U.S. 683, 709-10 (1974). A party asserting the protection of a privilege has the burden to establish its ...

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