In a published decision, the New Jersey Superior Court, Appellate Division (Appellate Division), recently addressed a board of education’s authority and obligations when filling a vacancy.
In Arminio v. Monroe Township Board of Education, a board member resigned and several candidates applied to fill the vacancy, including (Michelle) Arminio and (Matthew) Gorham. Prior to the board meeting, the board members separately reviewed and ranked their top choices to fill the vacancy. At the board meeting, the board went into executive session for approximately 45 minutes, during which they discussed the pros and cons of the top three candidates and agreed to nominate Gorham without conducting interviews. When the board returned to public session, its attorney explained the process for filling the vacancy. The board then sought nominations. A board member nominated Gorham, and another board member seconded the nomination. The board then voted to appoint Gorham to fill the vacancy. Arminio filed a complaint seeking to void the board’s vote to appoint Gorham, and a declaratory judgment that the board’s executive session discussion violated the Open Public Meetings Act, N.J.S.A. 10:4-6, et seq., (OPMA).
The trial court found that the board violated OPMA and voided Gorham’s appointment. Specifically, the trial court concluded that the OPMA’s personnel exception (N.J.S.A. 10:4-12(b)(8)) did not permit the board to discuss the candidates for the vacancy in executive session. Although Gorham’s appointment was voided, the trial court did not void the votes Gorham participated in.
On appeal, the Appellate Division agreed that the board violated OPMA, but for different reasons. The Appellate Division’s “difficulty” with the board’s conduct was not whether it could move into executive session to discuss Gorham’s appointment because, per the Appellate Division “it could.” This determination specifically rejected the trial court’s decision that N.J.S.A. 10:4-12(b)(8) did not permit boards to discuss candidates in closed session.
However, the fact that all the board’s deliberations regarding candidate qualifications and whether to interview those candidates occurred in private, without giving the public any insight into these decisions, was problematic. The Appellate Division emphasized that “when [the board] resumes the public session, it must explain any decisions taken during the closed session and allow public discussion about those decisions and other matters the public wishes to raise before it moves to nominations and a vote to fill a vacancy.” The Appellate Division also held that the trial court did not err when it declined to retroactively void the votes in which Gorham had participated.
When a board needs to fill a vacancy, it should consult its attorney to determine, based on Arminio, the extent to which it may need to modify its process and procedure for appointing a candidate.
For additional information about this matter, please contact the NJSBA Legal Department at (609) 278-5279, or your board attorney for specific legal advice.
