United States District Court, D. New Jersey
Jan 6 2004
JAMES SCOTT, Plaintiff, BOARD OF EDUCATION OF THE CITY OF EAST ORANGE, EVERETT JENNINGS, AND ROBERT BOWSER, Defendants
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 applicability. See Torres v.
Kuzniasz, 936 F. Supp. 1201, 1208-09 (D.N.J. 1996) (citing
G-69 v. Degnan, 130 F.R.D. 326, 331 (D.N.J. 1990).
When a claim is based on federal law, like a section 1983 claim, issues
relating to privilege are governed by federal common law. See
Fed.R.Evid. 501. Under federal common law, the Deliberative Process
Privilege the "Privilege") protects the "decision making processes of
government agencies" by limiting access to pre-decisional communications
"reflecting advisory opinions, recommendations and deliberations
comprising part of a process by which governmental decisions and policies
formulated." (internal citations omitted) National Labor
Relations Board v. Sears, Roebuck & Co., 421 U.S. 132, 150
(1975). The Legislature underscored the significance of the Privilege
It was pointed out in the comments of many of the
agencies that it would be impossible to have any
frank discussion of legal or policy matters in
writing if all such writings were to be subjected
to public scrutiny. It was argued, and with merit,
that efficiency of Government would be greatly
hampered if, with respect to legal and policy
matters, all Government agencies were prematurely
forced to `operate in a fishbowl.' The committee
is convinced of the merits of this general
proposition, but it has attempted to delimit the
exception as narrowly as consistent with efficient
Environmental Protection Agency v. Mink. 410 U.S. 73
(1973) (quoting S.Rep. No. 813, p. 9).
However, notwithstanding the benefit to the government, the Privilege
offers qualified, not absolute, protection. Thus, once it determines that
the Privilege applies, a court must weigh a party's need for discovery
against the government agency's need for confidentiality in the matter
before it. See Torres v. C.U.N.Y., 1992 WL 380561, *7
(S.D.N.Y.) (citing In re Franklin National Sank Securities
Litigation. 478 F. Supp. 577, 582 (E.D.N.Y, 1979). Factors that
should be considered include:
(i) the relevance of the evidence sought to be
(ii) the availability of other evidence;
(iii) the "seriousness" of the litigation and the
(iv) the role of the government in the litigation;
(v) the possibility of future timidity by
government employees who will be forced to
recognize that their secrets are violable.
The Privilege is properly United to "communications relating to policy
formulation at the higher levels of government; it does not operate
indiscriminately to shield all decision-making by public officials."
Grossman v. Schwarz, 125 F.R.D. 376, 381 (S.D.N.Y, 1989)
(citing Kelly v. San Jose, 114 F.R.D. 653, 658-59 (N.D.Cal.
1987), See also Soto v. City of Concord. 162 F.R.D. 603,
612-13 (N.D.Cal. 1995) ("[t]he deliberative process privilege should be
invoked only in the context of communications designed to directly
contribute to the formulation of important public policy.") (quoting
Kelly, 114 F.R.D. at 659, following Burka v. New York City Transit
Authority, 110 F.R.D. 660 (E.D.N.Y. 1986). The Privilege is not
designed to shield all communications that support any decision made by a
government agency. Torres v. City University of New York, 1992
WL 360561, * 7 (following Kelly, 114 F.R.D. at 659). Indeed,
"[r]outine operating decisions cannot be transformed into policy
formulation at the higher levels of government simply because they are
made at public: institutions." (internal quotations omitted)
Id. at * 7 (citing White v. N.Y.C. Health s Hospitals
Corp. 1990 WL 33747, * 7-8 (S.D.N.Y.)).
Further, when the deliberations of a government agency are at
issue, the Privilege is not available to bar disclosure of such
deliberations. Particularly, "[i]n a civil rights action where the
deliberative process of State or local officials is itself genuinely in
dispute, privileges designed to shield that process from public scrutiny
must yield to the overriding public policies expressed in the civil
rights laws." Grossman, 125 F.R.D. at 381 (citing Burka v.
New York City Transit Authority, 110 F.R.D. 660, 667 (S.D.N.Y.
1986). See also Memorial Hospital v. Shadur, 664 F.2d 1058 (7th
Cir. 1981) (confidential medical disciplinary proceedings required to be
disclosed in federal antitrust action alleging conspiracy); United
States v. AT & T. 524 F. Supp. 1381, 1389-90 (D.D.C. 1981) (FCC
employees could be questioned about thought processes in administrative
process, notwithstanding claim of deliberative process privilege, where
manipulation of agency decisions by employees was in issue in antitrust
action); Hinsdale v. City of Liberal. Kansas, 1997 WL 557314,
* 1 (D.Kan.) ("Courts have consistently found that the deliberative
proces[s] privilege is outweighed by the interest in disclosure where a
case is based on alleged violations of federally-protected civil
rights.") (citing United States v. Phoenix Union High School
District, 681 F.2d 1235, 1237-38 (9th Cir. 1982), cert.
denied, 459 U.S. 1191 (1983) (information sought to determine
compliance with civil rights law had to be provided despite state law of
In the instant matter, Plaintiff may question members of the Board
regarding their pre-decisional deliberations that led to his termination
of employment. Plaintiff has alleged that he was terminated, in violation
of section 1983, because he failed to participate in an illegal bidding
scheme and because he attempted to unearth such scheme. In other words,
Plaintiff is attacking the integrity of the Board's decision to terminate
him and is seeking to disclose the Board's misconduct. Thus, inquiry into
the Board's pre-decisional mental impressions and discussions is
necessary to challenge the purported reason for Plaintiff's termination.
Otherwise, the Board would be able to insulate itself from
accountability from potential civil rights violations. So important is
the prevention of such a result, that the Privilege is not available to
the Board in this instance.
In fact, the Privilege cannot be invoked by the Board in this matter
because the Privilege shields deliberations that contribute to the
formulation of important public policy not routine operating decisions
like the termination of a HVAC Supervisor. Routine operating decisions
cannot be transformed into policy formulation at the higher levels of
government simply because they are made at public institutions.
II. Open Public: Meetings Act
Pursuant to the Open Public Meetings Act (the "Act"), N.J.S.A. §
10:4-12(b), a public body;
may exclude the public only from that portion of a
meeting at which the public body discusses
. . . [a]ny 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
Id. Thus, the Act enables a public body to exclude the
public from particular meetings. The Act, however, has no effect on
whether Plaintiff may access the Board's pre-decisional deliberations
that contributed to his termination,
For these reasons, Plaintiff may inquire into the mental impressions
and discussions of the members of the Board that contributed to their
decision to terminate Plaintiff subject to the limitation that the
information discovered may be used only in this litigation. The Motion is
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