Hoboken resident Elizabeth Mason filed suit in November of 2006 in order to have the tapes made public under New Jersey's Open Public Records Act, after her written request to see the minutes was denied by the board earlier last year.
According to Steven Kleinman, the Attorney representing the Board of Education on behalf of the firm Scarinci and Hollenbeck, the judge reserved his decision until a later date.
Subject of litigation
Mason alleges that in denying her request, the board violated OPRA, the 1975 Open Public Meetings Act, and her common law rights to access and the production of public government records.
"You're supposed to be able to see the deliberations that take place so that the people affected can see what transpired," she said.
The 2002 Open Public Records Act says that government records, with certain exceptions, should be readily accessible to the public for inspection, examination, and copying.
The Open Public Meetings Act, also known as the "Sunshine Law," established the right of the public to attend meetings at which any business affecting the public is discussed or acted upon.
According to Board Secretary David Anthony, the closed meetings included private personnel discussions with a board attorney, which, he said, are exempt from the open public records act.
"It was determined by the board attorney that what was discussed in that meeting is protected under attorney-client privilege," Anthony said.
A vote on the approval of the amended minutes was placed on the agenda of the Jan. 9, 2007 board meeting, but was later delayed due to a debate among trustees.
"We took it off the agenda because there was some misunderstanding over who should and should not vote," Board President James Farina said last week.
At the Jan. 9 meeting, trustees Theresa Minutillo and Anthony Romano were advised by board attorney Joe Morano that they should abstain on the vote, since they were not sitting members of the board at the time of the disputed closed sessions.
Minutillo, who, along with Romano was elected to the board in April 2006, said that she had consulted with her own attorney and that he had advised her otherwise.
"I have been advised by counsel that as a sitting School Board trustee I have an absolute right to hear the executive session audio tapes from August 30th, 2005," Minutillo said in a written statement last week.
Also at the Jan. 9 meeting, some trustees questioned the accuracy of the minutes.
Carmelo Garcia said that his main objection was based on the transcripts.
"The chain of events that the board secretary was reporting in his minutes was inaccurate in comparison to what I heard in the tapes of those meetings," Garcia, who was President of the Board of Education at the time of the disputed meetings, said.
Garcia also requested that the minutes be certified by an attorney, instead of by Anthony. "I have a difficulty with him certifying the minutes because I believe that he had a conflict of interest at the time," he said.
David Anthony was appointed to his current position of board secretary at the end of one of the closed sessions. Though he was not the board secretary during the time of the meeting (Tim Calligy had been acting board secretary up to that point, filling in for Anthony Curko, who was on medical leave), it was Anthony who later provided and certified the detailed, amended minutes of that meeting.
At the center of the controversy are three closed executive session meetings that were held in 2005: two on Aug. 30, and one on Sept. 6.
Anthony said that the initial minutes of the sessions on Aug. 30 were voted on at the following meeting.
"Whatever was recorded at the time by the acting board secretary was approved," he said. "All minutes were approved in a timely fashion until there was a dispute."
He said that after the request was made by Mason for the minutes to be made public, board attorneys advised that the transcripts should be made more detailed. The task of expanding upon the transcripts fell upon Anthony as the board secretary. But, he added, "it is not uncommon for minutes to later be amended or corrected."
Regardless of the judge's ruling, the Hoboken Board of Education still has to vote to approve the minutes of the three meetings.
Minutillo, who requested access to the minutes as a member of the public in 2005, said in a written statement this week that she will withdraw her request as a board member to listen to the closed-session minutes.
"As the board minutes being submitted for approval for the August 30th meeting were not even prepared by the individual who was acting board secretary as of that meeting date, there is no current need for me to even hear the tape prior to voting to reject it," she stated.
Minutillo said she assumes the issue will be taken up again at the next meeting board meeting in February.
"I would expect to see them back on the agenda for a vote," Minutillo said.
Farina said he is hopeful that the situation will soon be resolved. "Once [all eligible members of the board] get the information they need, then we can decide on the course of action that we're going to take as far as approving those closed session meetings," he said.