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.
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 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.
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.
“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.
Council has announced it will be voting upon new members of the Planning Board and Zoning Board of Adjustment (“Statutory Boards”) at the next Council meeting on June 27th, 2023.
The following is a list of the positions for which the Council is seeking to vote on nominees:
Class III Member
Class IV Member (2)
Alternate Member (1)
Zoning Board of Adjustment
Regular Member (1)
Alternate Member (2)
The public discussion at the June 13, 2023 Council meeting indicated that a subcommittee of the council consisting of Mayor Pagan, Deputy Mayor Gee, and Councilwoman Goldberg interviewed some 16 individuals to fill the seats listed above.
As stated by Councilmembers Schwartz and Orgen and confirmed by the Mayor and subcommittee members, no interviews were held by the full council in contemplation of filling these potential vacancies and no interviews or requests for interviews were sent to those currently holding the positions, in order for the Council to determine if the members wished to be re-nominated / continue serving.
(see discussion at June 13th, 2023 Council Meeting between 8:38pm and 8:47pm)
I write to you because it would appear that the council has announced six nominees to fill expiring positions, in a manner that does not follow the law.
In order to effect a transparent and open system through which all members of the public have an effective opportunity to volunteer and be noticed when vacancies occur, the council created procedures to govern nominations and votes to fill seats on advisory and statutory boards. These can be found in the Teaneck Code as Attachment 1 (Appendix I Council Rules of Procedure) to Chapter 2 (Charter/Administrative Code) of the Township of Teaneck (“procedures”)
In October 2020, the Al Ummah Community Center (also known as AUCC) commenced a lawsuit against the Township, the Zoning Board of Adjustment, Building Department officials, and others.
This week, Judge Kevin McNulty dismissed the amended complaint (without prejudice) largely for the reasons I outlined back in October 2020.
Teaneck was represented by Thomas B. Hanrahan of Hanrahan Pack, LLC.
ORDER that the motions to dismiss 94 , 95 , 96 and 97 are granted. ***CIVIL CASE TERMINATED. Signed by Judge Kevin McNulty on 11/15/2022. (sm) (Entered: 11/15/2022)
What was the suit about?
UPDATE (11/20/22): Plaintiffs filed another amended complaint on Friday, 11/18. It will take a little while to evaluate the new / changing claims)
As per Plaintiffs:
“This case is about religious liberties and the discriminatory and unequal practices of the Teaneck, its employees, and its Zoning Board of Adjustments… Despite years and thousands of dollars spent to appease the Defendants’ unlawful and discriminatory requirements, Defendants continue to act in violation of the Constitutions of the United States and New Jersey, as well as the Federal law explicitly prohibiting religious discrimination by discriminating against the Plaintiffs and imposing an unlawful burden on the practice of their faith.”
– Page 2 of amended complaint (Introduction)
Did the town discriminate against AUCC? Or was something else going on?
As it turned out, Judge McNulty said the case was more about the difficulties of land use and getting projects through boards.
“AUCC’s frustration is palpable. It emphasizes in the amended complaint that it has been “going through this process for years with no end in sight.” (Compl. ¶213.) Adding insult to injury, the ZBA has demanded that AUCC put up more money to fund its continued application process. (Id. ¶162.) The delay and AUCC’s frustration, however, are hardly unique in the annals of local land use regulation, and the process does seem to be at least potentially moving ahead, on a revised legal basis.”
– Opinion at page 14
At this evening’s council meeting, we will vote on ordinance 21-2022:
ADOPTING A REVISION AND CODIFICATION OF THE ORDINANCES OF THE TOWNSHIP OF TEANECK
When the Township Council passes a law, we do so by ordinance. Each ordinance lasts until it is removed.
That creates problems, such as when the State makes an update that pre-empts a local law.
Sometimes this type of State Law rule change is benign: A Teaneck-specific hands-free car phone use ordinance was passed decades ago. When the State of NJ passed a similar State statute, it nullified ours, but because it was duplicative, nothing much changed as far as practice went (other than police citing a different rule when issuing a summons).
Sometimes, this type of State Law rule change is not benign: A resident called me a few years back because their neighbor had a pool without a fence and our code mandated fences around all pools — and they feared the worst for their kids and others. Except, it turns out that NJ adopted Continue reading “Re-Codification of the Teaneck Code: August 30, 2022”