NJ Appeals Court Rules College Violated OPMA in Terminating Teacher

by Ramon E. Rivera on February 21, 2017

The Appellate Division of the New Jersey Superior Court recently held that Kean University violated the state’s Open Public Meetings Act (OPMA) when it terminated a faculty member. In Kean Federation of Teachers v. Ada Morell, Bd. Of Trustees of Kean University, the appeals court found that the college violated its obligation to make meeting minutes publicly available and comply with the notice requirements of Rice v. Union Cty. Reg’l High Sch. Bd. of Educ.

Alleged OPMA Violations

Plaintiffs Kean Federation of Teachers (KFT); KFT President James Castiglione; and Valera Hascup, a Kean University faculty member, filed an action in lieu of prerogative writs

against the Board of Trustees of Kean University and Ada Morell in her capacity as Chairperson (collectively “the Board”). The suit alleged that the Board violated the OPMA when it took ninety-four days to release the minutes of a meeting held on September 15, 2014, and fifty-eight days to release the minutes of a meeting held on December 6, 2014. The plaintiffs also alleged that the Board violated OPRA when it terminated Hascup’s position without sending her the notice required under Rice.

In Rice v. Union Cty. Reg’l High Sch. Bd. of Educ. , 155 N.J. Super. 64, 73 (App. Div. 1977), the Appellate Division held that public bodies must send affected employees reasonable advance notice to enable them to (1) make a decision on whether they desire a public discussion; and (2) prepare and present an appropriate request in writing.

In defense of the suit, the Board maintained that it produced the meeting minutes as quickly as possible given the Board’s five meetings per year schedule. The trial judge rejected the Board’s argument, finding any inconvenience to the Board was outweighed by the public policy in support of making its meeting minutes “promptly available” to the public. The court issued a permanent injunction requiring the Board to make the minutes of all future meetings available to the public “within forty-five days.”

With respect to the Rice notice issue, the trial judge found the Board did not violate the OPMA when it voted in public session not to retain Valera Hascup without first apprising her in writing of her right to waive the privacy protections afforded to public employees under N.J.S.A. 10:4–12b(8). The judge concluded that absent any discussion of Hascup’s employment status during closed session, or any stated intention to engage in such discussion, the OPMA does not require the Board to issue a Rice notice.

Court’s OPMA Decision

As noted by the Appellate Division, it was tasked with examining two distinct OPMA obligations: (1) to make meeting minutes “promptly available” to the public as required by N.J.S.A. 10:4–14;  and (2) to provide employees, whose employment status may be adversely affected, with notice informing them of their right to compel their public employer to discuss their employment status in public as required under Rice.

The Appellate Division agreed with the trial judge that the Board failed to make its minutes “promptly available” to the public as mandated under OPRA. However, it did not agree with the remedy. As the panel explained:

Although the OPMA expressly authorizes the Superior Court to issue injunctive relief as a means of enforcing its provisions, N.J.S.A. 10:4–16, the forty-five-day deadline imposed by the court here is inconsistent with the implicit, fact-sensitive approach the Legislature endorsed by using the words “promptly available” in N.J.S.A. 10:4–14. In this case, a judicially imposed permanent deadline for the release of the minutes usurps one of the Board’s managerial prerogatives and invites continuous judicial involvement in the form of enforcement by motion practice.

Instead, the Appellate Division ordered the Board to “adopt a meeting schedule for academic year 2017–2018 that will enable them to make its meeting minutes ‘promptly available’ under N.J.S.A. 10:4–14. The court further added that the new meeting schedule “shall enable the Board to formally consider, approve, and release the meeting minutes to the public within a timeframe of thirty to forty-five days of the last meeting, unless extraordinary circumstances prevent the Board from meeting.”

The Appellate Division concluded that a Rice notice was required. According to the court, “[a]cceptance of the Board’s position would sanction members of public bodies to take action on personnel matters without discussion or deliberation, for fear of violating the affected employees’ privacy rights.” The court further noted that “the Board voted not to reappoint Hascup without discussion in order to avoid sending her a Rice notice obscured the decision-making process, which is “precisely what the Legislature intended to prevent when it adopted the OPMA.”

Going forward, the Appellate Division held that a public body must send a Rice notice whenever it intends to act on matters “involving the employment, appointment, termination of employment, terms and conditions of employment, evaluation of the performance of, promotion, or disciplining of any specific prospective public officer or employee or current public officer or employee employed or appointed by the public body[.]” In this case, it found that the Board violated the OPMA by failing to send a Rice notice to all of the employees whose employment status was scheduled to be affected by the action the Board took at its December 6, 2014 meeting.

In light of the violation, the appeals court declared the actions taken by the Board at the December 6, 2014 meeting regarding personnel matters null and void. “The public policy of transparency and accountability in the OPMA demand that we hold the Board accountable for failure to adhere to both the text and the values underlying the OPMA,” the panel explained.

For more information about the court’s OPMA decision or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group.

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