On June 21, the New Jersey Supreme Court issued a decision clarifying the issuance of Rice notices and timelines for the approval of meeting minutes. In Kean Federation of Teachers v. Morell, the court upheld the long-standing requirement in the Open Public Meetings Act (OPMA) that provides employees with the right to move a board’s closed session discussion of them into public session. The court also determined that a public body’s use of a subcommittee of the whole to examine a topic in advance of a public meeting did not violate the act.

The dispute began when a university employee challenged its board of trustees’ practice of holding discussions in committee concerning renewals and non-renewals, and then having the full board vote on those recommendations, during public session, without discussion.

In December 2014, using this procedure, Dr. Valera Hascup, a Kean University faculty member, was not recommended for renewal for the 2015-2016 school year. While the university did individually notify Hascup of the nonrenewal recommendation, it did not provide her with advance notice of the meeting where that recommendation was to be presented to the board.

Following her nonrenewal, Hascup filed suit asserting that the board violated the Open Public Meetings Act by failing to provide her with a “Rice Notice” advising that the board was considering taking action concerning her employment. In response, the university asserted that notice is only required where the board convenes in executive session to deliberate employment recommendations. According to the university, there was no obligation to convene in closed session because the board did not have a need to deliberate on the employment recommendations and no privacy interests were implicated; therefore, no Rice Notice was required.

The Appellate Division of Superior Court determined that this procedure was violative of the OPMA. According to the Appellate Division decision, “[s]ending a Rice notice to all employees whose employment status may be adversely affected is the only means of creating an environment in which the members of public bodies are free to carry out their responsibilities in a manner that guarantees to the public that their ultimate decisions are the product of a thoughtful and deliberative process.” The court concluded by holding “that Rice notices must be provided in advance of any meeting at which a personnel decision may occur. This protocol provides the board with the flexibility to discuss matters in executive session when necessary and affords the affected employees the opportunity to request that any proposed discussion occur publicly.”

The university appealed to the N.J. Supreme Court arguing that the procedure required by the Appellate Division was not supported by the statute.

The New Jersey School Boards Association joined the appeal as a friend of the court. NJSBA argued that requiring Rice notices be sent to employees when a public discussion was already planned was redundant. It would permit those employees to insist that the discussion be public when the matter was already being held in public session. Such a requirement imposes a greater burden on public entities than the Legislature envisioned. In coming to its determination the court said, “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” in the OPMA.

The court also addressed the requirement in the OPMA that public bodies make their meeting minutes “promptly available.”  While the court declined to specifically define the term “promptly available,” the court made clear that a board has the obligation to regularly approve and release minutes from both open and closed sessions in a timely manner.  The court recognized closed session minutes may be withheld for a longer period of time due to the confidential nature of subject. However, the board’s five-month delay in releasing any minutes was unreasonable.

For further questions or concerns about this case, contact the NJSBA Legal and Labor Relations Department at (609) 278-5254 or your board attorney.

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