Kean Fed'n of Teachers v. Morell

• Decision Date: 21 June 2018
• Docket Number: 078926,A–84 September Term 2016
• Citation: 187 A.3d 153,233 N.J. 566
• Parties: KEAN FEDERATION OF TEACHERS, James Castiglione, and Valera Hascup, Plaintiffs–Respondents, v. Ada MORELL, Board of Trustees of Kean University, and Kean University, a body Corporate and Politic, Defendants–Appellants.
• Court: New Jersey Supreme Court

233 N.J. 566

187 A.3d 153

KEAN FEDERATION OF TEACHERS, James Castiglione, and Valera Hascup, Plaintiffs–Respondents,

v.Ada MORELL, Board of Trustees of Kean University, and Kean University, a body Corporate and Politic, Defendants–Appellants.

A–84 September Term 2016

078926

Supreme Court of New Jersey.

Argued January 17, 2018

Decided June 21, 2018

James P. Lidon, Morristown, argued the cause for appellants (McElroy, Deutsch, Mulvaney & Carpenter, attorneys; James P. Lidon, of counsel and on the briefs, and John J. Peirano, Morristown, on the briefs).

Robert A. Fagella, Newark, argued the cause for respondents (Zazzali, Fagella, Nowak, Kleinbaum and Friedman, attorneys; Robert A. Fagella, of counsel and on the briefs, and Genevieve M. Murphy–Bradacs, Newark, on the briefs).

Michael O'B. Boldt argued the cause for amicus curiae Rutgers, The State University of New Jersey (McElroy, Deutsch, Mulvaney & Carpenter, attorneys; John J. Peirano, Morristown, on the brief).

Arnold H. Chait, Morristown, argued the cause for amicus curiae New Jersey Council of County Colleges (Vogel, Chait, Collins & Schneider, attorneys; Arnold H. Chait, of counsel and on the brief, and Craig A. Long, on the brief).

John C. Gillespie, Mount Laurel, argued the cause for amici curiae New Jersey State League of Municipalities and New Jersey Institute of Local Government Attorneys (Parker McCay, attorneys; John C. Gillespie, on the brief).

Alexi M. Velez argued the cause for amicus curiae American Civil Liberties Union of New Jersey (Edward L. Barocas, Legal Director, attorney; Alexi M. Velez, Edward L. Barocas, and Jeanne M. LoCicero, on the brief).

Louis P. Bucceri, Clifton, argued the cause for amicus curiae New Jersey Education Association (Bucceri & Pincus, attorneys; Louis P. Bucceri, of counsel and on the brief, and Albert J. Leonardo, on the brief).

Cherie L. Adams, Newark, submitted a brief on behalf of amici curiae State–Operated School District of the City of Camden and the Trenton Board of Education (Adams Gutierrez & Lattiboudere, attorneys; Cherie L. Adams, of counsel and on the brief, and Daniel A. Schlein, on the brief).

Cynthia J. Jahn, Trenton, submitted a brief on behalf of amicus curiae New Jersey School Boards Association (Cynthia Jahn, General Counsel, attorney; Cynthia J. Jahn and John J. Burns, Trenton, on the brief).

CJ Griffin submitted a brief on behalf of amicus curiae Libertarians for Transparent Government (Pashman Stein Walder Hayden, attorneys; CJ Griffin, of counsel and on the brief, and Michael J. Zoller, on the brief).

Kevin P. McGovern, Iselin, submitted a brief on behalf of amicus curiae Council of New Jersey State College Locals AFT, AFL–CIO (Mets Schiro McGovern & Paris, attorneys; Kevin P. McGovern, of counsel and on the brief, and David M. Bander, on the brief).

Maria M. Lepore, Trenton, submitted a letter brief on behalf of amicus curiae New Jersey Association of School Administrators (Maria M. Lepore, Chief Counsel, attorney; Maria M. Lepore, of counsel and on the brief, and Andrew Babiak, on the brief).

JUSTICE LaVECCHIA delivered the opinion of the Court.

With the enactment of the Open Public Meetings Act (the OPMA or the Act), L. 1975, c. 231 (codified at N.J.S.A. 10:4–6 to –21), the Legislature established procedures governing the conduct of meetings of public bodies. The Act makes explicit the legislative intent to ensure the public's right to be present at public meetings and to witness government in action. N.J.S.A. 10:4–7. That legislative intent is balanced by an express recognition that public bodies must be allowed to exercise discretion in determining how to perform their tasks, see N.J.S.A. 10:4–12(a), and whether to engage in private discussion and voting under certain identified circumstances, N.J.S.A. 10:4–12(b).

In this appeal, we consider whether the Appellate Division erred in its application of the OPMA and relevant interpretive case law to a specific public institution of higher education, thereby burdening that entity and, by implication, other public bodies in the exercise of their discretion in how to conduct their meetings.

For the reasons that follow, we reverse the Appellate Division's judgment as to notice requirements under the OPMA, and we affirm the judgment as to the Board's failure to make minutes promptly available but modify the remedy the panel imposed for that failure.

I.

Before reciting the details of the dispute that generated this appeal, it is helpful to review the OPMA's basic provisions as well as a key case on which the parties base their clashing views of the Act's requirements.

A.

The OPMA establishes requirements for notice of meetings, N.J.S.A. 10:4–9, publication of an annual schedule of regular meetings, N.J.S.A. 10:4–18, and the keeping and public release of minutes, N.J.S.A. 10:4–14, as well as definitions of basic concepts of "public business" and "adequate notice," N.J.S.A. 10:4–8(c), (d). The requirements are generic even though the definition of "public body" encompasses various types of public institutions of diverse membership size, obligations, meeting needs, and other practicalities. See N.J.S.A. 10:4–8(a).

The Act's declared goal is to ensure "the right of the public to be present for all meetings of public bodies, and to witness in full detail all phases of the deliberation, policy formulation, and decision making of public bodies." N.J.S.A. 10:4–7. As a general rule, no meeting may occur without adherence to the Act's requirements as to adequacy of notice to the public. N.J.S.A. 10:4–9.

Except as identified, the OPMA requires the meetings of public bodies to be conducted in open session and in view of the public. N.J.S.A. 10:4–12(a). That said, public bodies are given discretion in how to conduct their meetings. Ibid. ("Nothing in this act shall be construed to limit the discretion of a public body to permit, prohibit, or regulate the active participation of the public at any meeting, except that" municipal governing bodies and local boards of education are required to set aside time for public comment). The same section acknowledges circumstances under which a public body may enter into a closed session, for example, to address matters required by federal or state law to be confidential; matters of individual privacy; matters pertaining to collective bargaining or the purchase, lease, or acquisition of real property; and pending or anticipated litigation or contract negotiation in which the public body is, or may become, a party. N.J.S.A. 10:4–12(b). In relevant part for purposes of this appeal, the Act provides:

A public body may exclude the public only from that portion of a meeting at which the public body discusses any:

....

matter involving the employment, appointment, [or] termination of employment ... of any specific prospective public officer or employee or current public officer or employee employed or appointed by the public body, 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....

[ N.J.S.A. 10:4–12(b)(8).]

That exception concerning personnel matters is a focal point of this appeal.

B.

Notably, pursuant to N.J.S.A. 10:4–12(b)(8), employees whose employment interests could be adversely affected have the right to waive the protection of having their matter discussed in closed session. The subsection provides for such individuals to choose that the public body have the discussion in public. Ibid.

The ability to make that request is of little import, however, if affected employees are not aware that their employment may be discussed at a future meeting—an issue addressed soon after the OPMA's adoption by the Appellate Division in Rice v. Union County Regional High School Board of Education, 155 N.J. Super. 64, 73, 382 A.2d 386 (App. Div. 1977).

In that case, the Appellate Division considered whether a school board violated N.J.S.A. 10:4–12(b)(8) by entering into closed session and discussing whether to reduce staff by terminating seventeen school employees at the end of the school year for budgetary purposes. Id. at 68–69, 382 A.2d 386. The employees were not given advance notice that their termination would be discussed in a closed session. See id. at 73–74, 382 A.2d 386.

In finding the board's failure of notice violative of the OPMA, the Rice appellate panel noted that the OPMA provides affected employees with the right "to have a public discussion of his or her personnel matter." Id. at 72, 382 A.2d 386. Tying the personnel exception of N.J.S.A. 10:4–12(b)(8) to the employees' privacy interests, the panel stated that the right to compel public action on the personnel topic would be rendered "useless and inoperative" if affected personnel are not given some form of notice that action affecting their employment status is on the agenda. Ibid. Continuing, the panel stated:

The plain implication of the personnel exception to the [OPMA] is that if all employees whose rights could be adversely affected decide to request a public hearing, they can only exercise that statutory right and request a public hearing if they have reasonable advance notice so as 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.

[ Id. at 73, 382 A.2d 386.]

The panel held that employees must be given "reasonable notice" when a public entity intends to consider taking adverse employment action related to them. Id. at 74, 382 A.2d 386. The details of that notice, as described above, have become commonly known as a Rice notice.

C.

Finally, also at issue in this appeal is the timeliness of the release of the minutes from meetings. 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 ]." N.J.S.A. 10:4–14. The Act does not define what it means to make...