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.
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
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.
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
deliberations that led to his termination, and that this
information is necessary to challenge Defendants' purported reason for
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 ...