On Sept. 9, 2021, the New Jersey Supreme Court declined to hear a case challenging the Tenure Employees Hearing Law’s (TEHL) exemption of tenure charge certification discussions from open public meeting proceedings. NJSBA appeared as amicus curiae in the case, arguing in support of the Paterson Board of Education.

Before the court was an appeal of the Appellate Division’s Jan. 21, 2021 decision which was reported in the Jan. 26, 2021 edition of School Board Notes.

In the matter, 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 employee hearing law exempts discussion of certification of tenure charges from open public meeting proceedings. Specifically, it 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 trial court sided with the teacher, finding that the teacher was entitled to a “Rice” notice in regard to the discussion of tenure charges. However, the New Jersey Appellate Division reversed the trial court, ruling that because 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. 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.

The plaintiff appealed the decision to the New Jersey Supreme Court, and the NJSBA supported the board in successfully arguing that this case did not merit the state’s highest court hearing the case. By declining to hear the plaintiff’s appeal, the New Jersey Supreme Court did not disturb the Appellate Division’s finding that the TEHL exempts tenure charge discussions in closed session from the “Rice” notice requirement.  The finding is important in affirming what has been regarded as common practice regarding tenure charge certification 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 Open Public Meetings Act 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.