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Legal Q & A

Matthew Weng
Matthew Weng
League Staff Attorney

Executive Session Minutes and
Civility Codes

Q Are  public bodies required to take minutes during executive sessions? If so, are the minutes required to be released if they are requested under the Open Public Records Act? If we had to release the minutes from the executive session, does that not nullify excluding the public in the first place?

A The e Open Public Meetings Act requires that minutes be taken at all meetings of public bodies, including those in executive session from which the public is excluded. This would imply that the municipal clerk must also be present at executive sessions, since they are required to take minutes of the meetings of the governing body.

The municipal clerk should not record the minutes any differently in an executive session; they should be as comprehensive and detailed as the minutes of an open, public session. Further, the minutes of an executive session should be approved by a vote of the public body, just like the minutes of any other session. If there is any discussion necessary to approve the minutes, the public body may go into executive session to do so.

It is also important to remember that these minutes are public records under the Open Public Records Act. However, you are correct that to release the minutes of a discussion from which the public was excluded would contradict the point of excluding the public in the first place. Therefore, before those minutes are released, they should be redacted by the records custodian to remove any information on topics that are exempt from public discussion. It is possible that the minutes may need to be entirely redacted; in other words, the non-public information in the minutes may be so pervasive that the minutes need to be withheld entirely.

In any case, once the need for non-public discussion no longer exists (i.e., once litigation has ended or negotiations are complete on a labor contract) the minutes of the executive sessions must be made public without redaction. A court would likely reject the need for a public body to keep minutes redacted after the need for privacy has passed.



Q One  member of our council proposes at a meeting tomorrow night to introduce a resolution that is a "civility code" for the borough. It deals with respect and courtesy expected when the public approaches borough workers, and vice versa. These seem to be common in private industry, but I was curious to know if the League knew of any municipalities who have a so-called civility code. I expressed a few concerns to our solicitor and council president and I was asked to check it out.

A First, I want to advise you that the town has strictly limited authority to control how the public chooses to interact with the town. The public cannot communicate in a way that is against the law (libel, threats of violence, etc.) but anything further than that would almost certainly violate free speech rights.

With regard to employee interaction with the public, I believe that most towns will set a civility code in their personnel policy handbooks. However, some towns have passed similar requirements by ordinance on police department employees. They normally are one sentence long, similar to this:

“Courtesy and civility toward the public is required of all members of the Department. Members shall not use words which humiliate, disparage, demean, degrade, ridicule, or insult a person because of his race, creed, color, national origin, or ancestry.”

You could likely adapt something this like to apply to all employees.

Also, keep in mind that the rules are different during a public meeting. The chair of the meeting (whether the council president, mayor, or administrator) has the authority to require that the public not be disruptive, and can order the removal of a disruptive member if they ignore warnings.

This column is for informational purposes only, and is not intended as legal advice.


First published in New Jersey Municipalities, Volume 89, Number 1, January 2012

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