Private Investigator Hiring Was Proper, Toms River School Board Attorney Says

TOMS RIVER, NJ — The attorney for the Toms River Regional Board of Education said the hiring of a private investigator to probe the release of confidential documents and other information to local media was handled appropriately.

A report Monday by the Asbury Park Press said a vote to approve the hiring a private investigator was taken in executive session and apparently was taken without records kept of who voted and how they voted, an action that could be a violation of New Jersey's Open Public Meetings Act.

In response to a request for comment, Stephan R. Leone, the Toms River school board's attorney, said the action to hire the private investigator fell under his responsibilities.

"As Board Attorney my firm deals on a daily basis with a host of issues ranging from personnel matters, leases, contracts, OPRA requests, tuition eligibility and personal injury defense matters," Leone said. "A separate resolution is not required for my office to conduct its legal services as they arise."

"Any assertion that the Board violated the Open Public Meetings Act is without merit as matters concerning personnel or investigations in progress are exempt from disclosure until confidentiality is no longer necessary," Leone said.

A copy of the Aug. 7 executive session minutes released to the Patch states the board discussed personnel matters involving three employees and "the need for the Board Attorney to investigate confidentially breaches."

The private investigator, James Dierking of DAR Associates of Beachwood, has contacted media outlets and, according to the Asbury Park Press report, has interviewed members of the school board and others. Leone said the interviews are in regard to a pattern of leaks of confidential information.

"The Board has been faced with the disclosure of confidential matters over the past year ranging from union negotiations, contract negotiations, and personnel matters," Leone wrote. "The members of the Board of Education are rightfully concerned about such disclosures as they can jeopardize negotiations, injure personnel, interfere with the Administration of the schools and be misinterpreted based on limited information."

The disclosure that appears to have been the trigger for the investigation is the release in July of a June 22 letter to the school board from an attorney for the Toms River Education Association that detailed sexual harassment allegations against Superintendent David Healy.

The letter from Steven R. Cohen, an attorney who represents the Toms River Education Association, asked the board to investigate the allegations. The Patch was among the recipients of the letter, which arrived in a package mailed to a reporter's home. That package contained a copy of Cohen's letter and the front page of the agenda for the July 19 Board of Education meeting. The agenda was not posted publicly until July 18, but the Patch received the package on July 17.

The employee's name was blacked out in the letter; on the agenda, an item under the executive session portion regarding a personnel RICE notice was circled. The Patch has declined to publish Cohen's letter because despite the redaction of the employee's name, the employee is readily identifiable based on full information contained in the letter.

At the July 19 board meeting, school board president Ben Giovine and Leone, the board attorney, assailed the release of the letter and mentioned the possibility of investigating the release of the letter.

Dierking contacted the Patch last week requesting a meeting to discuss "the source of leaks regarding confidential information that has been released to the public and media. Board Attorney Mr. Leone has asked that we interview you regarding this matter." The Patch refused that request.

The Press report said the probe was approved during the August executive session.

Retired Superior Court Judge Vincent Grasso, who is part of Leone's firm, was investigating the sexual harassment claims. At the August school board meeting, Leone said the investigation had been completed and the board had accepted the findings and expressed confidence in Healy.

In his email Monday, Leone called the Press report "inaccurate," referring apparently to the release of billing information related to the private investigator.

"The Press was provided with a copy of the August Executive minutes which authorized the Board Attorney, at his suggestion, to engage a private investigator to assist in investigating the source of disclosure of confidential information. I personally spoke to Mr Larsen on Friday and informed him the billing information between the Board Attorney’s firm and the District requested on Friday would be available Monday Am; he advised that Tuesday would be timely."

"The information is available as of 1:00pm on Monday," Leone said. "Immediate access does not mean instantaneous access of attorney-client bills; less than one business day should be reasonable."

Copies of the billing statements for July and August were released to the Patch Monday afternoon and show dates and amounts, but in many cases the reason for the expense is redacted. The total spent related to the harassment complaint in July was $7,876 and in August was $8,566.25.

Photo by Karen Wall