NJ Supreme Court Rejects Appellate Division’s Expanded Rice Notice Requirements

NJ Supreme Court Rejects Appellate Division’s Expanded Rice Notice RequirementsIn the recent decision of Kean Federation of Teachers v. Ada Morell,the Supreme Court of New Jersey clarified two requirements under the New Jersey Open Public Meeting Act (“OPMA”):

(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 v. Union Cty. Reg’l High Sch. Bd. of Educ.(“Ricenotice”).

The state’s highest court reversed the Appellate Division decision which required all employees to receive Ricenotices if their names appeared on a public body’s agenda. It also held that the OPMA does not mandate the level of “robustness” that must accompany discussions of personnel decisions. The court declined to establish a precise deadline for the release of meeting minutes, reasoning that a reasonableness standard is more readily applied to varying types of public bodies.

OPMA Requirements

The OPMA requires the meetings of public bodies to be conducted in open session and in view of the public. It specifically requires that “[a] public body may exclude the public only from that portion of a meeting at which the public body discusses” a “matter involving the . . . termination of employment . . . of any . . . current . . . employee . . . unless all the individual employees or appointees whose rights could be adversely affected request in writing that the matter or matters be discussed at a public meeting.”

Employees whose employment interests could be adversely affected have the right to waive the protection of having their matter discussed in a closed session and may instead request the matter be heard in public. 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.

Additionally, the OPMA requires public bodies to make their meeting minutes “promptly available to the public to the extent that making such matters public shall not be inconsistent with [N.J.S.A. 10:4-12].” However, the OPMA does not define the term “promptly available.”

Facts of the Case

Plaintiffs, the Kean Federation of Teachers (“KFT”); KFT President James Castiglione; and a Kean University faculty member Valera Hascup, 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 OPMA when it terminated Hascup’s position without sending her the notice required under Rice.

In response, 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 meeting minutes “promptly available.” 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.”

The Appellate Division affirmed the determination of the lower court that the Board did not make the meeting minutes promptly available, but reversed and vacated the permanent injunction. The Appellate Division further ordered that the Board adopt a meeting schedule for the 2017-18 academic year that would promote the release of meeting minutes within thirty to forty-five days of the last meeting, except in “extraordinary circumstances.” With respect to the Riceissue, the Appellate Division held that Ricenotices are required “in advance of any meeting at which a personnel decision may occur.” The panel also voided all personnel-related actions taken by the Board at the December 6 meeting.

NJ Supreme Court’s Decision

The state’s highest court held that there was no obligation to send Ricenotices because the Board determined from the start to conduct its discussion about faculty reappointments in public session. With regard to the release of meeting minutes, the court held that the “delay that occurred is unreasonable no matter the excuses advanced by the Board.” However, it modified the Appellate Division’s holding requiring the Board to set a regular meeting schedule.

In its decisionissued on June 21, 2018, the New Jersey Supreme Court first rejected the Appellate Division’s interpretation of OPMA, which mandated that public bodies issue Rice noticesto all potentially affected employees, regardless of whether the employee is adversely affected, whenever a personnel matter appears on a governing body’s public meeting agenda and to “robustly” discuss all personnel matters. The court held that the lower court’s ruling incorrectly expanded the reach of Ricenotices and OPMA requirements. “We find that the procedural notice created in Riceshould not be stretched beyond its factual setting.” As the New Jersey Supreme Court further explained:

Forcing public bodies to issue Rice notices and robustly discuss all personnel matters, as the Appellate Division intimated, would intrude on a public body’s prerogative as to how to conduct its meetings. The Appellate Division’s holding on the Rice requirement takes that salutary notice procedure out of its context and places on public bodies an intrusive, expansive, and confusing notice requirement that extends beyond the plain language of the right of employees under N.J.S.A. 10:4-12(b)(8).

Accordingly, pursuant to the Supreme Court’s ruling Ricenotices are required only when the public body first makes the choice to discuss personnel matter in a closed session, and only when the discussion could result in adverse employment actions. Consequently, there is no obligation to send Rice notices where the Board determined from the start to conduct its discussion about faculty reappointments in public session.

Regarding the OPMA’s requirement that meeting minutes be made “promptly available,” the New Jersey Supreme Court reasoned that a public entity must establish its meeting schedule to suit the managerial obligations of its public responsibilities while also acting responsibly concerning its obligation to make minutes promptly available to the public. “The OPMA’s requirements apply to a diverse range of public entities, so no one set amount of time for the release of minutes should be mandated,” the court explained. “Reasonableness must remain the touchstone when assessing promptness.”

As to this issue, the Supreme Court agreed with the Appellate Division that the five-month delay in releasing the Board’s executive session minutes was unreasonable. However, it reversed the lower court’s holding requiring the Board to set a regular meeting schedule that would allow for the approval of minutes within a forty-five-day time period. The court noted that, “if a public entity, like the Board, were to continue to limit its meetings to five per year, significantly impeding its ability to approve meeting minutes promptly, we might see the issue again.”

Notably, the New Jersey Supreme Court commended public bodies that are using technology to release meeting minutes quickly to the public. “As for minutes of closed sessions, which may require sensitive considerations and even consultation with counsel, we expect public bodies will similarly develop ways to speed the process without shortchanging their decisions as to what may be included for release to the public in such minutes,” the court added.

This decision comes as a relief to many Boards of Education as they are no longer required to spend time and resources sending Ricenotices to every employee. Rice noticesare required only when the public body first makes the choice to discuss personnel matter in a closed session, and only when the discussion could result in adverse employment actions. Boards should continue to make all minute promptly available to the public in accordance with the OPMA.

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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