Twice in the last six weeks, Middle Township Committee has approved a closed separation agreement with a municipal police officer. The resolution authorizes municipal officials to execute “a settlement agreement and general release” between the municipality and the departing officer.
There is no reason to single out Middle Township for any wrongdoing. The practice of closed settlements of this type is widely used in New Jersey. Since the subject of the settlement involves the separation of an employee, the Open Public Records Act (OPRA) exception for personnel records is invoked to avoid public scrutiny, even if a citizen files an OPRA request to see the settlement terms.
The very nature of a settlement and general release implies that something has been given in order to avoid an adverse action. One does not need a settlement agreement to acknowledge that an employee is leaving voluntarily. Similarly, no such agreement should be necessary when an employee has been asked to leave for cause.
When a public entity enters into a settlement agreement, the public has a right to know why one was needed and what the nature of the quid pro quo was. A settlement agreement, by definition, involves a quid pro quo. Something is given or received, or the agreement has no purpose. That something does not have to involve a transfer of funds to be of public interest.
When two such instances arise in a relatively short span of time, both involving police officers, there is properly a public interest. Was a disciplinary issue involved? Was an agreement reached as to how the employee’s separation would be represented to future employers? Did a failure of oversight result in a potential liability to be avoided?
The response to public inquiry should not simply be that the matter involves personnel issues and therefore is out of bounds for public disclosure. How does the public evaluate why the agreements were necessary let alone what the specific terms of the agreement were?
There may be legitimate situations in which a closed settlement is in the public interest, but these should be the exception and not the rule. In the case of the Middle Township agreements on which the governing body was required to take the action approving the settlement in a public forum, the public was not allowed to know even the barest outlines of why the agreements were necessary. It is an odd form of government transparency.
A recent attorney general (AG) directive requires all New Jersey law enforcement to submit to the AG an annual report on major discipline cases. The first such report was made public for the period of June 15, 2020, to Dec. 31, 2020. It is a start in a process of informing the public of behavior that is not expected of our police officers.
No one can say that closed settlements and separation agreements have any connection to inappropriate behavior or discipline, but the public is left to wonder why the agreements were needed. Such a process, barred from public view, gives the perception of possible liability on the part of the municipality or the officer.
It is time to end closed settlements or at least to greatly circumscribe their use. “Settlement and general release” is the language of lawyers dealing with liabilities or attempting to forestall litigation. In a public entity, these should not be sealed by labeling them personnel matters.
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From the Bible: Blessed are those whose way is blameless. From Psalm 119
