On Jan. 21, the New Jersey Appellate Division ruled that, while boards of education may not discuss certification of tenure charges in an open public meeting, a district has no obligation to provide an employee with a “Rice” notice prior to such discussion in closed session.
NJSBA appeared as amicus curiae in the case, arguing in support of the Paterson Board of Education.
In Simadiris v. Paterson Public School District, a teacher challenged the board’s vote to certify tenure charges in closed session. The teacher argued that she was not given sufficient notice or an opportunity to request that the discussion be held in public. The teacher relied on a part of the Open Public Meetings Act (OPMA) that allows a board to discuss certain personnel issues in closed session, unless the affected employee makes a written request that the discussion be held in public. The employee further alleged that she did not receive a “Rice” notice, so named from a 1977 Appellate Division decision finding that boards must provide “reasonable advance notice” to employees “whose rights could be adversely affected” by board discussion in closed session about the employee’s terms and conditions of employment.
However, the Tenure Employees Hearing Law (TEHL) exempts discussion of certification of tenure charges from open public meeting proceedings. Specifically, the TEHL states: “The consideration and actions of the board as to any charge shall not take place at a public meeting.” By way of further background, once boards of education certify tenure charges, the charges are forwarded to the New Jersey Commissioner of Education for a hearing and determination. This is unlike most other employment actions, including actions relating to nontenured employees, where the board itself makes the determination.
The court clarified that this section of the TEHL was an exception to the OPMA (Rice) notice requirement, and the board was prohibited from discussing the certification of tenure charges in public. In reaching its decision, the court noted that the OPMA permits the board to discuss items in closed session that are confidential or exempt from public discussion by “federal law, State statute, or rule of court,” which would include the TEHL. Moreover, if the Legislature believed the TEHL was limited by the OPMA, it likely would have clarified this point when it passed the relevant section of the TEHL just 19 days after passing the OPMA.
Finally, in reaching its conclusion, the court distinguished the process to certify tenure charges, where the board decides if there is probable cause, from other employment actions, where the board makes the final determination.
Significantly, in the decision, the court complimented the contributions of the NJSBA, which countered the arguments presented by the other amicus curiae in the case, the New Jersey Education Association. The court noted that it “is appreciative of the excellent submissions of both amici, as well as the litigants.”
The Simadiris decision benefits New Jersey districts in affirming what has been regarded as common practice regarding tenure charge certification. It was released as a published decision, meaning that it sets legal precedent for cases coming before lower state courts in New Jersey.
NJSBA as Amicus NJSBA participates as amicus curiae, or “friend of the court,” in cases that have an impact on school districts statewide. This NJSBA advocacy service helps shape legal decisions affecting public education in New Jersey. In the past several years, the Association has been involved as amicus curiae in more than two dozen cases before state and federal courts and administrative agencies.
For more information about this case as well complying with the OPMA in employment-related topics, board members should consult with their board attorney or call the NJSBA Legal and Labor Relations Department at (609) 278-5254.