I was hopeful that having lost in Court, the Board of Education would start observing the transparency rules. Sadly, that was not the case. At the August 21st meeting, despite one Trustee (James Wolff) objecting to the lack of proper notice, the Board President, Clara Williams continued the meeting.
Worse, the Board mischaracterized the errors they had made, refused to correct the errors moving forward and ignored the Order of the Judge in several respects (including not paying costs owed to the prevailing party within 30 days).
Due to the utter lack of contrition and their unwillingness to act under the Injunction entered by Judge Catuogno, an Ethics Complaint has been filed with the NJ Department of Education, Ethics Commission.
Bottom Line: Board members are ethically required to follow the law. The Judge found they didn’t comply with the mandates of the law.
Ergo, the Board members have committed Ethics violations.
The School Ethics Act
The School Ethics Act , N.J.S.A. 18A:12-21 et seq. is intended to ensure that the conduct of school officials holds the respect and confidence of the people. The Legislature declared that school officials must avoid conduct which is in violation of their public trust or which creates a justifiable impression that the public trust is being violated. N.J.S.A. 18A:12-22(a). The School Ethics Act applies only to school officials as defined by N.J.S.A. 18A:12-23, which includes administrators . (Source: School Ethics Commission)
The first requirement of the Code of Ethics states:
“I will uphold and enforce all laws, rules and regulations of the State Board of Education, and court orders pertaining to schools. Desired changes shall be brought about only through legal and ethical procedures.”
Superior Court of the State of New Jersey:
ORDERED that the declaratory judgment sought by Plaintiff in Count 3 of the complaint is GRANTED, the Court having found that the Teaneck Board of Education failed to comply with the mandates of the New Jersey Open Public Meetings Act (Order)
ORDERED that the declaratory judgment sought by Plaintiff in Count 4 of the complaint is GRANTED, the Court having found that the Teaneck Board of Education failed to comply with the mandates of the New Jersey Open Public Meetings Act (Order)
What will happen next?
Processing of Complaints
If the Commission finds probable cause for the allegations in the complaint, the matter can:
1. Be retained by the Commission for a hearing.
b. The Commission will not need to secure the parties’ written consent in matters where it finds probable cause to credit a violation of N.J.S.A. 18A:12-24.1 (Code of Ethics for School Board Members).
2. Be decided on a summary basis if the material facts are not in dispute
Nothing here is in dispute, so stay tuned…
Violations of the Act
Where the Commission deems there has been a violation of the Act, it may recommend a penalty to the Commissioner of Education which may include:
Reprimand
Censure
Suspension
Removal
In addition, if a school official was on notice that an activity would violate the Act, or in instances where a school official was previously sanctioned pursuant to this chapter, the Commission may recommend an enhanced penalty
“When we talk about the purpose of the open public meetings act and similar statutes, they are meant to provide relief to the public when the statutes are not being followed–and the rules are not being followed by the public entities. And in this instance, Mr Kaplan has come forward and shone a light on this particular issue at the Teaneck School Board.”
– Superior Court Judge Carol Novey Catuogno
To properly notice a meeting, the Board must post an annual list of meeting dates by January 10th of each year or notice a particular meeting with its agenda. You need to send the Notice to 2 newspapers, put it up on your website, send it to the Municipality and place it on the bulletin board so people can see.
Teaneck has failed to properly notice meetings, for years. And now that must change — by Court Order of the Superior Court of the State of New Jersey, County of Bergen.
Months of warnings over an ongoing series of violations of the Transparency Law
For months, the Board members stood with Superintendent Spencer and the decisions to remove Principal Valdes, to operate without proper notice and to ignore the warnings that their decisions can be voided. The weight and influence of the Weiner Law Group gave cover and credibility to those acting in secret.
Back in December, I stated that Superintendent Spencer abused the community’s trust, by operating secretly and holding votes that did not in any way comply with the Open Public Meetings Act, NJ’s “Sunshine Law”. Few took me seriously.
And when Superintendent Spencer removed Principal Valdes from THS, I spoke up. The Board didn’t listen.
I asked the Board to do the right thing–and redo the vote (according to the Sunshine rules). The Board refused.
I explained to the Board of Education and the Public how the Sunshine rules regarding transparency required a new vote. The Board still refused to take action to remedy the violations.
I went to meeting after meeting. I stood before the Board, and in January I said they had one last chance before I forced them to do the right thing. The Board still refused.
I’m not a lawyer. I never went to law school.
But I learned my way around the legal system a bit. And while I’ve never been a litigant, I thought what the Superintendent did to Principal Valdes was not ok. What the Board permitted, was not ok. In short, this was a case worth making and more importantly, no one else was making it.
What is the issue?
In 1975, NJ created a series of “sunshine laws”. They require, at a minimum, to let the public know what you plan to do and describe in detail how to notice meetings.
As per the assignment Judge for the Superior Court of the State of New Jersey, the Township of Teaneck’s Board of Education has been violating the transparency rules for quite some time.
“One cannot ignore that there has been a series or a longstanding consistent failing under the Open Public Meetings Act to notice these meetings properly. Having said that I do think that remedy is necessary.”
– Superior Court Judge Catuogno (official court transcript forthcoming)
Not only must the Board re-do several of their votes from last year (including the votes last December to transfer Principals Valdes & LoGuidice), but they also must re-vote the Re-Organization meeting of January 3, 2024 — where they decided on who will be President / VP of the Board, Secretary, Board / District Legal Counsel, and other matters. All must be re-done, in strict compliance with notice rules.
The Judge also entered an injunction, that the Board must strictly abide by the Open Public Meetings act moving forward.
Judge Catuogno also found that the exemption that schools need not notice agendas, does not apply in Teaneck. The reason is simple: to receive the benefit of the exemption, you must notice your annual meeting list in accordance with the law–and Teaneck’s Board of Education did not do so. As such, not only must each meeting going forward be noticed as to the time, date and location, but the AGENDA, must also be noticed, including topics for closed session discussion.
This is a significant win for transparency!
Judge Catuogno said that she is “confident that Mr Edelstein will counsel the Board of Education that they are to comply with every aspect of the Open Public Meetings Act”.
Let’s see if she is correct.
The Meetings of December 21, 2023 and January 3, 2024
The Board has 70 days (until September 26, 2024) to re-do the votes of the December and January meetings. If they fail to do so, those votes are voided.
This is, as the President would say, a big f’ing deal.
The actions, in the judge’s words, were egregious enough and the pattern of the actions was longstanding enough, that an injunction was provided to force the Board to comply with the law.
“I’m particularly, specifically I should say, looking at counts three [transfer of principals] and four [holding the re-org meeting] for which relief has been granted. In both of those counts, in addition to the declaratory relief, the voiding of actions taken, I’m asked to award what’s generally referred to as injunctive relief. Thereby compelling or therefore compelling the defendants to change their agenda and public notice practices to provide adequate notice to the public.
I think based upon a review of the facts and circumstances in their totality, including the instances or the meeting dates referenced in count one (although they did not… they’re not cognizable before this court because they violate the statute of limitations), I do not think they can be ignored that this has been an ongoing pattern and it carries through to the counts three and four, where relief was granted, that there has been a pattern here.
Accordingly I do think it is appropriate for the court to enjoin the defendants and inform them that they are required, as is everybody that legislates or passes any sort of administrative policies, personnel decisions on behalf of the public–are required to comply with, in strict adherence according to the Supreme Court of the state of New Jersey, with the mandates of the open public [Meetings] act.
So I do think injunctive relief is granted.
This is appropriate in this instance and therefore it is granted.”
The law doesn’t stop you from making bad decisions, but it does stop you from doing it behind people’s backs.
Moving Teaneck Forward, the BOE must keep everyone informed as to what will happen in their meetings.
As mentioned in a previous post, on March 28th I filed an Ethics Complaint against Councilwoman Denise Belcher regarding an Application for a zoning variance before the Township’s Zoning Board of Adjustment.
Since Teaneck dissolved our local ethics board, the Complaint is adjudicated by the Local Government Division of the Local Finance Board.
The first step in resolving these types of complaints is to meet and determine if it’s frivolous or whether the allegations merit review. As per Counsel at the LFB, that happened today and as per the letter they just sent:
“Please be advised that it is the Board’s practice and intent to conduct a thorough investigation of the allegations presented. The Board’s staff is processing your complaint at this time and will, subsequently, present it to the Board for review and authorization of any necessary action. The Board will correspond with you as soon as a determination is made in this matter.”
In one word, Transparency. It’s also about the fact that the Board dismissed Principal Pedro Vades from Teaneck Hich School through a series of meetings that violates NJ’s Sunshine Law.
The law lets any citizen bring suit to ensure the law is complied with correctly. Today, I happen to be that citizen.
Of course, Mr. Edelstein (who says on his firm Bio: “I always want to be the best prepared person in the courtroom”), has the upper hand being an attorney admitted to the NJ bar longer than I’ve been alive.
Oral Argument was held on Friday, April 5th. Both BOE Counsel Stephen J. Edelstein from the Weiner Law Group and I argued our points to Judge Catuogno.
Why am I doing this?
I have lived in Teaneck for almost 20 years. My daughter attended the district and I’ve volunteered my time as a public servant on the Planning Board and Township Council where I had the opportunity to represent the interests of residents. While I do not personally benefit from the outcome of this action, the case affects important issues and the lives of residents. Principal Valdes has spent his life and career in Teaneck. He is respected by the student body and parents and the greater community. Among the violative meetings for which I’m asking this Court to take action to void was a December meeting in which he was removed from the high school. While the NJ Supreme Court has indicated under a case called Polillo and the cases that followed it that even mere procedural improprieties should be found to be violative of the OPMA, the current issues before the court affect real people and deserve to be vindicated for many within the municipality.
NJ’s Sunshine Law was passed in the 1970s and requires all State Agencies, Public Universities, Municipal Governments, and Boards of Education to follow certain requirements. The Complaint alleges that the Teaneck Board of Education has violated these requirements for many years, including recent meetings at which Principal Valdes was removed from Teaneck High School, the Board met in secret, without informing the public about discussions, and more.
Is there evidence the Board violated the OPMA?
Yes, the Board Admitted to doing so
The Board admits they violated the OPMA. In their Answer to the Court, they admit that they technically violated the Notice Requirements for the OPMA [NJSA 10:4-8(d)] for Workshop and Regular Public Meetings in paragraph 41 and they admit that they technically violated the proper notice requirements for the special meeting of December 21, 2023 (at which they removed Principal Valdes from THS) at paragraph 22
Yes, under binding precedent, the Court may be lenient in looking at the remedy used to cure a defect, but not as to whether a defect took place.
Under Polillo v. Deane (which the Board of Ed cites in their own documents), the Supreme Court of NJ said:
The thrust of defendants’ argument is that the Court should uphold the Commission’s recommendation on the basis of its substantial compliance with the Sunshine Law. They assert (1) that there was no attempt “to meet secretly or without some notice to the public,” as found by the Appellate Division, and (2) that any meeting at which formal votes were taken complied with the Act, thereby satisfying the requirements of the law. Although, on these facts, we impute to the Commission no wrongful motivation for choosing to conduct its business as it did, lack of wrongful intent cannot excuse noncompliance with the Act. Such a reading of the statute would invite abuse and would contravene the legislative intent in enacting the provision.
Rather than providing a new exception to the rule, we believe that defendants’ suggestion would swallow the rule. Accordingly we reject this argument completely and hold that strict adherence to the letter of the law is required in considering whether a violation of the Act has occurred. Polillo v. Deane 74 N.J. 562 (1977)
What will happen if the Plaintiff wins?
Under the NJ Open Public Meetings Act, the Judge is empowered to do two things:
Void actions that were done not in accordance with the OPMA [NJSA 10:4-15]
Issue an injunction [NJSA 10:4-16] that the Board must follow the rules of OPMA going forward (which can be enforced if they do not follow the rules)
What can the Board do if the actions are voided?
The Board is free at any time to re-do the actions that were done improperly [see NJSA 10:4-15]. In fact, the Board claims that they have done so (at the meeting of January 17th). This will be one of the topics of discussion at the hearing on Friday.
How does the Board Re-Do the Votes they took improperly?
If the Board does decide to re-do their decisions (e.g. the vote to remove Principal Valdes), they would have to:
Properly Notice a meeting
Send out an Agenda stating the action(s) they wish to take
Abide by the requirements of the Open Public Meetings Act and any other applicable laws (e.g. RICE notices to affected employees)
Mention the information or testimony/reports from the previous discussion(s) they intend to use to form the basis for a vote
Since there are new members of the Board who didn’t attend the closed sessions in December, they will likely need to re-do the closed session discussion for the new members
Have public input (from those who did not know about the previous meeting at a minimum, but hopefully anyone who wishes to speak)
STAY TUNED FOR UPDATES
Hearing information:
The hearing before Judge Catuogno will take place on Friday, April 5th at 2pm. You can watch via the Zoom link below:
Topic: (MTD Hearing) Kaplan v. Teaneck BOE – BER-L-121-24
Time: Apr 5, 2024 02:00 PM Eastern Time (US and Canada)
If anyone is interested in reading the documents in the case, they can do so here: https://www.teanecktoday.com/blog/board-of-education/litigation/ber-l-000121-24-kaplan-vs-teaneck-board-of-education/
For those unaware: NJ has been using “the line” to ensure preferential treatment for establishment pols since the 60’s. It works incredibly well. There hasn’t been a pol that won “off the line” in about a decade and a half (since 2009). You can read about the case against the line here: Abolosh The Line
Judge Zahid N. Quraishi (NJ’s First Muslim Article III Judge) ruled on Friday that the line had to go.
And now, there’s a Superior Court action for multiple violations of the Open Public Meetings Act (NJ’s signature transparency law)
I called several of the OPMA violations out at meetings, including the failure to abide by the minimum requirements of transparency–sending notice to two newspapers. The First Amendment organization FIRE (Foundation for Individual Rights and Expression) has called them out for Civil Rights violations, not once, but TWICE. And the Feds are investigating the District.
Sadly, there’s no sign that the illegal and improper activities that the Trustees of the Board of Education and the Administration in Teaneck have been engaged in, will be ending on their own.
So I have filed a Verified Complaint and an Order to Show Cause against the School District. Today, the Order was granted by Judge Catuogno.
The last meeting of both the Municipal Council and the Board of Education has shown just how much transparency is a buzzword, without much meaning, to many elected to public office.
The Council
At the December 12th meeting of the Teaneck Council, Councilwoman Goldberg made a motion to appoint co-chairs of the PPRAB. In response, the following conversation appears to indicate that open session (public) items have not only been discussed in closed session but decisions were made in closed session for open session items, in violation of the Open Public Meetings Act (OPMA):
Discussion from the December 12th Open session meeting:
The conversation below starts at approximately 1:15:26
Deputy Mayor Gee: “Mr. Mayor, I’m doing all the personnel nominations, I’m not sure why she [Councilwoman Goldberg] did that.”
CW Belcher: “The discussion is, I thought in closed session, we said that Deputy Mayor Gee was going to put forth the nominations, so I don’t know why Councilwoman Goldberg is usurping that intent. That was clearly stated during closed session.” Continue reading “Municipal Weather: Shady With Remote Chance of Sunshine”
What happens in a closed session of the Council or Board of Education stays in that closed session… but the minutes, with proper redactions, are still a public record.
But not according to the Teaneck Board of Education. I have emailed the Board Secretary to provide these documents. If they do not do so, suit shall be commenced.
I hope they do not waste taxpayer dollars trying to hide this public information.
The Foundation for Individual Rights and Expression (“FIRE”) calls on the Board to reform its policies and practices to comply with its constitutional obligations.
“When the Board of Education Violated My Civil Rights, I Chose to Fight Fisher with F.I.R.E.” – Keith Kaplan
The Board of Education is bound by the First Amendment
“The Fourteenth Amendment, as now applied to the States, protects the citizen against the State itself and all of its creatures — Boards of Education not excepted.”
“Such Boards are numerous, and their territorial jurisdiction often small. But small and local authority may feel less sense of responsibility to the Constitution, and agencies of publicity may be less vigilant in calling it to account.”
“There are village tyrants, as well as village Hampdens, but none who acts under color of law is beyond reach of the Constitution.”
“The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”
and my favorite line from any opinion:
“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.”
The Superintendent’s Letter:
On October 11, Teaneck School’s Superintendent Dr. Andre D. Spencer sent out a letter to parents in the wake of the most horrific attack on the Jewish people in a single day since the Holocaust.
In that letter, Dr. Spencer referred to the attacks perpetrated by Hamas as “the latest incidents in the cycle of violence in the Middle East” and “[t]he unfortunate situation in the Middle East”.
In the days following, I personally reached out to Dr. Spencer and we spoke via telephone for a while about the reasons the letter was so problematic to many residents, including those who had children in the district. I even went as far as to prepare language that Dr. Spencer might be able to use1 to indicate that he understood the Jewish community’s anguish and was being responsive to those in his care.
Residents reach out to BOE and receive unequal treatment
The next day, residents came to address the Board of Education and Superintendent Spencer at the regular board meeting of October 18th [video link to meeting].
FIRE: The Teaneck Board of Education’s Restrictions on Public Comment Violate the First Amendment
At the 10/18 BOE meeting, Board Vice President Victoria Fisher regularly cut off speakers who mentioned atrocities committed by Hamas against Israel, but did not do so for those making comments in the opposite direction. After seeing at least six of these incidents happen (watch e.g. at time indexes: 16:55, 50:16, 54:35 and 1:21:57), I went to the microphone and spoke.
You can watch me speaking at time reference 1:49:57.
Several residents were cut off from speaking based on vague notions that dangerous actions, described in detail were too much for High School students in attendance, to hear.
The Court in Cohen v. CA dealt with the issue of using alternative words, stating:
“Additionally, we cannot overlook the fact, because it is well illustrated by the episode involved here, that much linguistic expression serves a dual communicative function: it conveys not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well. In fact, words are often chosen as much for their emotive as their cognitive force. We cannot sanction the view that the Constitution, while solicitous of the cognitive content of individual speech, has little or no regard for that emotive function which, practically speaking, may often be the more important element of the overall message sought to be communicated. Indeed, as Mr. Justice Frankfurter has said,
“[o]ne of the prerogatives of American citizenship is the right to criticize public men and measures — and that means not only informed and responsible criticism, but the freedom to speak foolishly and without moderation.” Baumgartner v. United States, 322 U. S. 665, 322 U. S. 673-674 (1944). Cohen v. California, 403 U.S. 15 (1971)
“Several parents and community members used the public comment period to criticize Spencer for not explicitly and forcefully condemning the attack. But when they described Hamas’s actions to support that criticism, the board repeatedly shut them down. The board took particular exception to commenters’ “graphic” descriptions of the attack and repeatedly told speakers to keep in mind that children were in the audience.
Yet when other commenters used their time to emphasize the plight of Palestinians and used similarly “graphic” language, the board allowed them to continue.”
– Foundation for Individual Rights and Expression
Watch the board selectively stop certain points of view:
“For example, when one speaker said it’s possible to unequivocally condemn Hamas’s actions without taking a side in the conflict “unless of course you’re trying to appease people who actually think that the raping and murdering and pillaging of the community is appropriate,” Board Vice President Victoria Fisher immediately cut him off. In contrast, the board remained silent when another commenter said, “These people talking about raping and piling bodies on top of each other, that happened in the Holocaust. And if they’re having PTSD for what they’re doing to the Muslim community in Palestine, that’s something they need to seek mental health counseling for.”
When a speaker rhetorically asked how others would feel if “Indigenous people in our country … pulled your kids out of their beds and then shot you in front of them,” Fisher disapprovingly interrupted. But the board allowed someone else to freely comment that Israel’s “dehumanizing and genocidal actions” and the “propaganda surrounding them have spread all the way to us, where kids are stabbed 26 times just for being Palestinian.”
The board also repeatedly warned speakers discussing the Hamas attack not to repeat details or facts already “on the record.” Yet several pro-Palestinian speakers repeated details mentioned by previous commenters without receiving such warnings or admonitions.”
– Foundation for Individual Rights and Expression
Cease and Desist
At the next meeting, the Board voted in closed session to have the Counsel for the District send a letter to “Cease and Desist” regarding my “conduct” to the board. In this revision of history, the attorneys stated:
“The Board takes no position with respect to the subject matter of your comments”
This is clearly belied by the facts, as anyone can see on the recorded Board meeting.
Luckily, there are groups such as the Foundation for Individual Rights and Expression (FIRE), whose mission is “to defend and sustain the individual rights of all Americans to free speech and free thought — the most essential qualities of liberty.”
FIRE lays out exactly where the Board VP, Victoria Fisher repeatedly violated the civil rights of parents and other members of our community. The letter, which is posted in full below with links to all relative documents and cases, requests a response by December 11th. I will update you whenever responses come through.
Due to a significant number of emails received by the Teaneck Board of Education, I also notified Board President Sebastian Rodriguez and Vice President Victoria Fisher separately, since they were cc’d on the communication to me. I will post any further responses I receive below.
“Keith you sent the letter to the attorney Mr. Tabarkin, as such you must wait for his response by the due date on the letter (12/11/23).”
The language I gave Dr. Spencer was based on a letter prepared by the President of Northwestern University.
Sadly, Dr. Spencer did not send this and chose not to revise his communications. You can find my suggested wording here (note these are NOT words created by Dr. Spencer): Last week, I sent out a letter outlining services our community can provide to our scholars, staff, and families. In that communication, some language has been seen by members of our community to suggest that I believe that the Teaneck Public School District as an entity does not condemn the atrocities that were committed. That cannot be further from the truth and I write again to share my thoughts about our values and our response to atrocities. There is no one who believes we should not be governed by a set of values… that everything is relative. Let me be very clear — we are absolutely guided by a set of shared values and principles. Among the values that we all share and embrace both individually and collectively are commitments to open discourse, diversity, equity, inclusion, and an abhorrence of antisemitism and racism. The abhorrent and horrific actions of Hamas last Saturday are clearly antithetical to Teaneck’s and our scholars’ values — as well as my own. Wherever one finds themselves on greater issues regarding the conflict, our shared humanity should lead us all to condemn these barbaric acts. One more value that I know we share in Teaneck is care and compassion for one another. Our scholars, our faculty, our staff, and our entire community are in tremendous pain. This is a moment for us to pull together, support one another, and seek common ground. I have been in communication with our leaders. We are coordinating our resources. No one should think we need to agree with each other about divisive issues like the Israeli-Palestinian conflict. But we must have empathy for each other and strive to build understanding. We condemn the terror visited on our community. We share our compassion and stand with all innocent people in Israel and Gaza at this time.