BOE Emails Should Be Public Record, Board Member Insists

The issue over emails written by a Parsippany Board of Education member—deemed not to be public government documents by the district last week—was still on the minds of some at the body's meeting last Thursday. 

Early in the gathering, BOE member Michael Strumolo revived last month's call to be allowed to see the documents written and shared by member Anthony Mancuso.

Addressing Board Attorney Kathleen Gilfillan, Strumolo again insisted that "as a duly elected member of this board, I have the right to see these emails."

Gilfillan, as she did in October, said that board members do not have an automatic right to see every document that resides on the BOE computer server.

"To the extent that these records do not represent something that the board is taking action on, board members do not have a right necessarily to see the documents," she said.

Last week, it was determined that members of the public do not have that right either.

In September, citizen-activist and former school board member Robert Crawford filed an Open Public Records Act request to see a number of Mancuso's emails he identified by date and subject. The school district's OPRA custodian, Interim Business Administrator Mark Resnick, after a series of delays, finally issued a response last week, telling Crawford that only three emails were found and that they were not in his opinion government documents.

An additional five emails requested by Crawford were not located, according to Resnick, and may or may not have existed.The subject of the emails and to whom they were distributed remains unknown, but Crawford and Strumolo say they believe board business was discussed by a quorum of board members, which would violate Department of Education regulations governing ethical conduct by members of school boards.

Mancuso has not revealed the content of the three emails, calling them private communications that did not involve a quorum—five members—of the BOE. He has also been mum on the identities of those who received the emails or if any were sitting board members.

Board President Frank Calabria announced that he did discuss the emails with Gilfillan and the possibility of whether board members were among those to whom the missives were distributed.

Strumolo asked Gilfillan if she had read the emails located by the district.

She indicated that she had seen "a portion of them."

Strumolo continued questioning the attorney.

"Your opinion is that they do not relate to board business," he asked.

"The board has my written [legal] opinion, Mr. Strumolo," said Gilfillan. "Because I work for the board, I would be uncomfortable waiving any attorney-client privilege."

School board member Sharif Shamsudin weighed in, presenting information obtained from a seminar at the recent New Jersey School Board Association conference held in Atlantic City last October.

"I learned a lot in a course on email and ethical conduct," Shamsudin said. "One of the points made, and I highlighted them, was that 'Board members acknowledge that certain discussions between board members other than during a public board meeting may still be governed by provisions of the Open Public Meetings Act, even when conducted through email.

"'In order to ensure that the board or individual board members comply with the requirements of the Open Public Meetings Act, the use of email to discuss matters of public business or board business should be avoided when possible.'

"So if board business was discussed in these emails," Shamsudin continued, "are they governed by provisions of the Open Public Meetings Act?"

He went on, indicating that unless matters are specifically exempt, emails can be considered government records.

"Unless they don't fall under the definition of a public government record," said Gilfillan. "I've rendered my opinion. The district has made a determination that they are not government records. The individual [Crawford] has the right to go ahead and appeal that. 

"I am not going to change my opinion, based on my review and my legal research, at this table or at any other time for any particular person," she insisted. "There is a method. If a person wants to challenge it, if they want to go to the [Government Records Council] and the GRC wants to go against the case law that's already out there that discusses what a government record is, if that's their determination, I will accept that."

Shamsudin continued, reading another highlighted point from the convention seminar.

"'Broadcasting messages to more than a quorum of board members should be limited to informational communications such as agendas,'" he read.

"And I believe Mr. Strumolo brought this up at the last meeting about whether there was an OPMA violation," Gilfillan replied. "My review of the emails indicates that there was not."

"There was no public business discussed or no closed session business discussed?" Shamsudin asked.

The attorney asserted that the three emails found did not contain material that would make them public government records.

"Your question was about OPMA, which addresses quorums," she said. "There's no violation of OPMA.

"I've given my opinion. Again, the district has made its determination about whether these are government records under the statute and under the case law."

Member Gary Martin offered his thoughts.

"If the person wants to, they have to go to the next step," he said. "That's Bob Crawford."

Crawford told Patch that he plans to file an appeal in hopes of gaining access to the files.

Crawford contends Mancuso penned others that Resnick said he could not find, said he is considering legal action over what he says is a violation of his privacy and an act of intended intimidation.

Strumolo asked whether, as a board member, he has a right to read Gilfillan's legal opinion.

The attorney said he may do so through a request to the board secretary [Resnick] or to the office of the superintendent.

He asked again whether her opinion pertained to the emails found on the BOE server.

"My legal opinion is that the information that I reviewed is not a government record."

Member Deborah Orme praised Shamsudin for correctly communicating what he learned at the convention.

"You got it absolutely correct," she said. "The issue is what separates what's public information and what's not. That's why we have our legal attorneys to advise us and why we have our officer of public records. It's not our decision."

Martin spoke up again.

"We're beating a dead horse," he said. "The person has to go to the next step.

"Can we move on?"