Kean Federation of Teachers v. Ada Morell

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5481-14T3
KEAN FEDERATION OF TEACHERS,
JAMES CASTIGLIONE, and
VALERA HASCUP, APPROVED FOR PUBLICATION
February 8, 2017
Plaintiffs-Respondents/
Cross-Appellants, APPELLATE DIVISION
v.
ADA MORELL, BOARD OF TRUSTEES OF
KEAN UNIVERSITY, and KEAN
UNIVERSITY, a body Corporate and
Politic,
Defendants-Appellants/
Cross-Respondents.
___________________________________
Argued October 6, 2016 – Decided February 8, 2017
Before Judges Fuentes, Carroll, and Gooden
Brown.
On appeal from the Superior Court of New
Jersey, Law Division, Ocean County, Docket
No. L-306-15.
James P. Lidon argued the cause for
appellants/cross-respondents (McElroy,
Deutsch, Mulvaney & Carpenter, attorneys;
John J. Peirano, of counsel; Mr. Lidon, on
the brief).
Robert A. Fagella argued the cause for
respondents/cross-appellants (Zazzali,
Fagella, Nowak, Kleinbaum & Friedman,
attorneys; Mr. Fagella, on the briefs).
The opinion of the court was delivered by
FUENTES, P.J.A.D.
The Open Public Meetings Act ("OPMA"), N.J.S.A. 10:4-6 to
-21, promotes the democratic value of transparency in
governmental affairs and protects the public's right "to be
present at all meetings of public bodies, and to witness in full
detail all phases of the deliberation, policy formulation, and
decision making." Opderbeck v. Midland Park Bd. of Educ., 442
N.J. Super. 40, 55 (App. Div.) (quoting N.J.S.A. 10:4-7),
certif. denied, 223 N.J. 555 (2015). In this appeal, we are
required to examine two distinct obligations the OPMA imposes on
public bodies: (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. N.J.S.A. 10:4-12b(8); Rice v. Union Cty. Reg'l High
Sch. Bd. of Educ., 155 N.J. Super. 64, 73 (App. Div. 1977).
The matter before us originated in the Law Division as an
action in lieu of prerogative writs filed by plaintiffs Kean
Federation of Teachers ("KFT");1 KFT President James Castiglione;
and Valera Hascup, a Kean University faculty member. Plaintiffs
1
KFT is a labor organization that represents all of Kean
University's full-time faculty members.
2 A-5481-14T3
alleged the Board of Trustees of Kean University and Ada Morell
in her capacity as Chairperson2 (collectively "the Board")
violated the OPMA when they failed to make the Board's minutes
for the September 15, 2014 and December 6, 2014 meetings
"promptly available" to the public, as required by N.J.S.A.
10:4-14. Plaintiffs also claimed the Board terminated Hascup's
position without sending her the notice required by this court's
decision in Rice, supra, 155 N.J. Super. at 74.
After joinder of issue, the matter came before the trial
court by way of cross-motions for summary judgment. Plaintiffs
argued the Board violated N.J.S.A. 10:4-14 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 trial judge held in
plaintiffs' favor and concluded the Board failed to make these
minutes "promptly available[.]" N.J.S.A. 10:4-14. To bring the
Board in compliance with this statutory requirement, the trial
court issued a permanent injunction requiring the Board to make
the minutes of all future meetings available to the public
"within forty-five days[.]"
With respect to the Rice notice issue, the trial judge
found the Board did not violate the OPMA when it voted in public
2
N.J.S.A. 18A:64-4.
3 A-5481-14T3
session not to retain Valera Hascup without first apprising her
in writing of her right to waive the privacy protections
afforded to public employees under N.J.S.A. 10:4-12b(8). The
judge concluded that absent any discussion of Hascup's
employment status during closed session, or any stated intention
to engage in such discussion, the OPMA does not require the
Board to issue a Rice notice.
The Board now appeals, arguing the trial court erred when
it found its meeting minutes were not made "promptly available"
in accordance with N.J.S.A. 10:4-14. The Board claims the
motion judge did not properly consider the circumstances
preventing the Board from releasing its minutes earlier. The
Board also argues that a permanent injunction requiring the
release of official minutes within forty-five days is
inconsistent with the fact-sensitive approach reflected in
N.J.S.A. 10:4-14 and unduly interferes with the Board's
prerogative to manage its affairs.
Plaintiffs filed a cross-appeal challenging the trial
judge's ruling that Hascup did not have a right to a Rice
notice. Plaintiffs argue that every personnel action scheduled
before the Board involves the potential for discussion of
private matters. According to plaintiffs, N.J.S.A. 10:4-12b(8)
gives affected employees "the right to decide whether a public
4 A-5481-14T3
or private discussion is the preferred forum for consideration
of a reappointment application." Plaintiffs assert a Rice
notice gives the affected employees an opportunity to exercise
this right to choose.
Because the trial court decided these issues as a matter of
law, our review is de novo, State in Interest of K.O., 217 N.J.
83, 91 (2014); we employ the same standards used by the trial
judge. Globe Motor Co. v. Igdalev, 225 N.J. 469, 479 (2016).
We are compelled to grant summary judgment if "the pleadings,
depositions, answers to interrogatories and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact challenged and that the
moving party is entitled to a judgment or order as a matter of
law." R. 4:46-2(c). See also Brill v. Guardian Life Ins. Co.
of Am., 142 N.J. 520, 540 (1995).
Applying this standard to the undisputed facts, we agree
with the trial judge that the Board failed to make its minutes
"promptly available" to the public, as required by N.J.S.A.
10:4-14. However, we reverse and vacate the permanent
injunction requiring the Board to make all future minutes
available within forty-five days of each meeting. Although the
OPMA expressly authorizes the Superior Court to issue injunctive
relief as a means of enforcing its provisions, N.J.S.A. 10:4-16,
5 A-5481-14T3
the forty-five-day deadline imposed by the court here is
inconsistent with the implicit, fact-sensitive approach the
Legislature endorsed by using the words "promptly available" in
N.J.S.A. 10:4-14. In this case, a judicially imposed permanent
deadline for the release of the minutes usurps one of the
Board's managerial prerogatives and invites continuous judicial
involvement in the form of enforcement by motion practice.
With respect to plaintiffs' cross-appeal, we disagree with
the trial judge that a Rice notice was not required in this case
because the Board did not discuss Hascup's reappointment in
private session. Acceptance of the Board's position would
sanction members of public bodies to take action on personnel
matters without discussion or deliberation, for fear of
violating the affected employees' privacy rights. As plaintiffs
correctly point out, the fact that the Board voted not to
reappoint Hascup without discussion in order to avoid sending
her a Rice notice obscured the decision-making process. This is
precisely what the Legislature intended to prevent when it
adopted the OPMA.
We hold that a public body is required to send a Rice
notice whenever it intends to act on matters "involving the
employment, appointment, termination of employment, terms and
conditions of employment, evaluation of the performance of,
6 A-5481-14T3
promotion, or disciplining of any specific prospective public
officer or employee or current public officer or employee
employed or appointed by the public body[.]" N.J.S.A. 10:4-
12b(8). Here, the Board violated the OPMA by failing to send a
Rice notice to all of the employees whose employment status was
scheduled to be affected by the action the Board took at its
December 6, 2014 meeting.
I
Kean University is a State-funded institution of higher
education with campuses in Union County and Ocean County. The
Board has "general supervision" over the conduct of the
University and is vested with "the power and duty" to govern and
set policy over every aspect of the University's mission and
operation. N.J.S.A. 18A:64-6. Although subject to the
regulatory authority of the State Commissioner of Education, the
Legislature has expressly endorsed a policy favoring
decentralization and autonomy, giving our public colleges and
universities "a high degree of self-government[.]" N.J.S.A.
18A:64-1.
As a matter of law "each board shall have not less than
seven nor more than [fifteen] members." N.J.S.A. 18A:64-3. The
record in this appeal does not include a description of the size
7 A-5481-14T3
and composition of the Board during the relevant time period. 3
Defendant, Ada Morell, is the Chairperson. The Board has the
power to determine its size and composition. Ibid. The Board
is statutorily required to conduct an annual organizational
meeting during the second week of September to elect a
Chairperson and a Vice-Chairperson and "such other officers as
the [B]oard shall determine." N.J.S.A. 18A:64-4. Thereafter,
the Board "may meet at such other times and at such places as it
may designate." Ibid.In academic year 2014-2015, the Board held the statutorily
mandated organizational meeting on September 15, 2014.
Thereafter, the Board met four more times: December 6, 2014,
3
Kean University's official website describes the current
composition of the Board of Trustees as consisting of fourteen
members and one student-member. Board of Trustees Members, Kean
University (last visited Jan. 23, 2016),
http://archive.is/b4bn6. Student-members are not authorized to
participate in three statutorily specified matters, including:
Any matter involving the employment,
appointment, termination of employment,
terms and conditions of employment,
evaluation of the performance of, promotion
or disciplining of any specific prospective
officer or employee or current officer or
employee employed or appointed by the board,
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. 18A:64-3.1(d)(1) (emphasis
added).]
8 A-5481-14T3
March 2, 2015, May 11, 2015, and June 29, 2015. The trial court
previously found the Board's annual meeting schedule dictated
how and when meeting minutes were made available to the public:
[I]t has been the Board's practice to
consider for approval at each meeting the
minutes of the immediately previous meeting.
In the case at hand, that practice resulted
in the minutes of the December 7, 2013
meeting being approved at the next regularly
scheduled meeting of March 3, 2014 and
released on March 11, 2014, which was six
(6) days after the approval.
The Board conducted the December 6, 2014 meeting at the
University's Ocean County campus. The Board voted to approve
the President's reappointment and non-appointment of faculty
members during the meeting's public session, and without
discussion or deliberation of any kind. It did not reappoint
Hascup. The Board also approved the minutes for the meeting
held on September 15, 2014.
On December 18, 2014, Castiglione requested the minutes of
the September 15, 2014 and December 6, 2014 meetings. The
Board's Executive Director, Audrey M. Kelly, certified that
"[o]n or about December 22, 2014, the Office of the University's
Custodian of Records advised the Board of Trustees['] Office of
an OPRA4 request for the minutes of the executive sessions of the
4
"OPRA" refers to the "Open Public Records Act," N.J.S.A. 47:1A-
1 to -13.
9 A-5481-14T3
Board's September 15, 2014 and December 6, 2014 meetings."
Kelly certified that she was on "leave" from the University from
December 15, 2014 through January 5, 2015, and thus did not
learn of the request for copies of these minutes until she
returned. Kelly does not describe in her certification how many
employees are assigned to the Executive Director's office and
what measures, if any, the University has in place to ensure
that the office continues to function in her absence.
Because Castiglione requested the executive session minutes
for the meeting held on September 15, 2014, Kelly certified the
minutes were "reviewed with counsel" and redacted to comply with
the trial court's prior ruling. The minutes were released on
February 2, 2015.5 With respect to the executive session minutes
for December 6, 2014, Kelly acknowledged being "advised" of the
court's recommendation to release the minutes within thirty to
forty-five days; she was also aware of the court's suggestion to
explore the possibility of using technology to speed up the
approval and release of the minutes.
Kelly certified, however, that after reviewing the OPMA,
she did not find any legally sustainable means of using
5
Kelly mentions in her certification that the minutes were
released "on the agreed upon extension date of February 2,
2015." We infer this "extension" relates to the custodian's
obligations under OPRA. See N.J.S.A. 47:1A-5(i).
10 A-5481-14T3
technology to speed up the release of the minutes. According to
Kelly, the OPMA requires the Board to approve the release of the
minutes in a formal meeting, which would trigger the OPMA's
notice requirements. Thus, under the Board's five meetings per
year schedule, the earliest the December 6, 2014 meeting minutes
could be approved was at the meeting scheduled for March 2,
2015. The trial court found the "Board approved the two-page
executive session minutes of the December 6, 2014 meeting at its
March 2, 2015 meeting, and then redacted and released the
minutes to plaintiffs on March 4, 2015, which is fifty-eight
(58) business days or eighty-eight (88) calendar days after the
December 6, 2014 meeting."
II
Availability of Minutes
The Board argues the release of the minutes within this
timeframe satisfied the "promptly available" standard in
N.J.S.A. 10:4-14. The Board notes that approval of the minutes
must be done in a formal public meeting. Thus, to comply with
the trial court's forty-five-day timeframe, the Board would have
"to schedule, advertise and hold a minimum of four to five
additional meetings each year, resulting in an 80% to 100[%]
increase in the number of meetings[.]"
11 A-5481-14T3
The trial judge rejected the Board's argument, finding any
inconvenience to the Board was outweighed by the public policy
in support of making its meeting minutes "promptly available" to
the public. The judge provided the following explanation in
support of his ruling:
The court is mindful that whether a public
body satisfies its statutory obligation to
make its minutes promptly available would
depend on the circumstances of the case.
Here, the Board of Trustees at Kean
University consists of professionals who
have met regularly on the same schedule over
the past several years. The executive
session minutes eventually produced
consisted of two pages, which indicates to
the court that the matters discussed in
closed session were not lengthy nor required
extensive redactions. Moreover, the subject
matter of the minutes would be important to
the faculty, student body, as well as the
public, with respect to actions taken by the
Board of Trustees of Kean University.
Considering these factors, the production of
the minutes in question by the Board after
ninety-four business days and fifty-eight
business days did not satisfy the "promptly
available" requirement of N.J.S.A. 10:4-14.
Given the absence of any published decisions addressing
this issue from either the Supreme Court or this court, the
trial judge decided to follow the multifactor analysis
articulated in Matawan Reg'l Teachers Assoc. v. Matawan-Aberdeen
Reg'l Bd. of Educ., 212 N.J. Super. 328, 333 (Law Div. 1986).
Although the approach in Matawan contains a number of useful
common sense suggestions, we decline to adopt it as the standard
12 A-5481-14T3
to follow in deciding when a public body has made the official
minutes of its meetings "promptly available" to the public under
N.J.S.A. 10:4-14.
We apply instead the well-settled principles of statutory
construction our Supreme Court has reaffirmed numerous times.
In interpreting a statute, our goal is to ascertain and enforce
the intent of the Legislature. Cashin v. Bello, 223 N.J. 328,
335 (2016). "In most instances, the best indicator of that
intent is the plain language chosen by the Legislature." Ibid.(quoting State v. Gandhi, 201 N.J. 161, 176 (2010)). Unless a
different meaning is expressly indicated, we must read and
construe words in a statute by giving them their generally
accepted meaning. N.J.S.A. 1:1-2. Finally, we must construe
the OPMA liberally "in order to accomplish its purpose and the
public policy of this State as set forth in [N.J.S.A. 10:4-7]."
N.J.S.A. 10:4-21.
The words "promptly available" in N.J.S.A. 10:4-14 require
public bodies to approve and make their meeting minutes
available to the public in a manner that fulfills the
Legislature's commitment to transparency in public affairs. It
requires a public body to adopt a protocol that makes the
availability of its meeting minutes a priority. The approval of
meeting minutes cannot be treated as a mere ministerial
13 A-5481-14T3
function, or worse yet, a technical annoyance. The expeditious
release of meeting minutes is a vital part of the OPMA's promise
to bring public affairs from obscurity to the light of day.
This requires those who agree to serve on public bodies to act
without delay and take the action required to make the meeting
minutes promptly available to the public.
The argument advanced by the Board to justify delaying the
approval of its minutes by as much as eighty-eight days is
unpersuasive. The position of trustee of a public university
governing board carries great responsibilities.
Trustees are entrusted with the power and duty to:
b. Determine the educational curriculum and
program of the college consistent with the
programmatic mission of the institution
. . . ;
c. Determine policies for the organization,
administration and development of the
college;
d. Study the educational and financial needs
of the college; annually acquaint the
Governor and Legislature with the condition
of the college; and prepare and present the
annual budget to the Governor, the Division
of Budget and Accounting in the Department
of the Treasury and the Legislature in
accordance with law;
e. Disburse all moneys appropriated to the
college by the Legislature and all moneys
received from tuition, fees, auxiliary
services and other sources;
14 A-5481-14T3
f. Direct and control expenditures and
transfers of funds appropriated to the
college and tuition received by the college,
in accordance with the provisions of the
State budget and appropriation acts of the
Legislature, reporting changes and additions
thereto and transfers thereof to the
Director of the Division of Budget and
Accounting in the State Department of the
Treasury and as to funds received from other
sources, direct and control expenditures and
transfers in accordance with the terms of
any applicable trusts, gifts, bequests, or
other special provisions. All accounts of
the college shall be subject to audit by the
State at any time;
g. In accordance with the provisions of the
State budget and appropriation acts of the
Legislature, appoint and fix the
compensation of a president of the college,
who shall be the executive officer of the
college and an ex officio member of the
board of trustees, without vote, and shall
serve at the pleasure of the board of
trustees;
h. Notwithstanding the provisions of Title
11, Civil Service, of the Revised Statutes,
upon nomination by the president appoint a
treasurer and such deans and other
professional members of the academic,
administrative and teaching staffs . . . as
shall be required and fix their compensation
and terms of employment in accordance with
salary ranges and policies which shall
prescribe qualifications for various
classifications and shall limit the
percentage of the educational staff that may
be in any given classification;
i. Upon nomination by the president,
appoint, remove, promote and transfer such
other officers, agents or employees as may
be required for carrying out the purposes of
the college and assign their duties,
15 A-5481-14T3
determine their salaries and prescribe
qualifications for all positions, all in
accordance with the provisions of Title 11,
Civil Service, of the Revised Statutes;
[and]
j. Grant diplomas, certificates and
degrees[.]
[N.J.S.A. 18A:64-6 (emphasis added).]
We have highlighted subsections (i) and (j) to make clear
the interrelationship between these two important
responsibilities the Legislature entrusted to the trustees of
our State's public colleges and universities: to employ and
retain faculty capable of transmitting to future generations the
immeasurable gifts of intellectual enlightenment. The men and
women who have willingly agreed to serve on these Boards and
donate their time and talents without compensation have shown
the metal of their character. We expect them to fulfill their
responsibilities consistent with the values and public policy
embodied in the OPMA. If this requires the Board to meet ten
times per year to make the minutes of its meetings "promptly
available" to the public, so be it.
Injunctive Relief
In the companion opinion we release simultaneously with
this opinion, the trial judge was also required to address
whether the Board made its meeting minutes available to the
public in a prompt fashion as required by N.J.S.A. 10:4-14.
16 A-5481-14T3
Kean Fed'n of Teachers v. Bd. of Trs. of Kean Univ., No. A-2332-
14 (App. Div. Feb. ____ 2017) ("Kean II"). In a letter-opinion
dated September 18, 2014, the judge made the following findings:
Here, the court finds that the "promptly
available" requirement of N.J.S.A. 10:4-14
was not met by releasing the approved closed
session minutes ninety-seven (97) days after
the meeting. The court is mindful that OPMA
provides no temporal framework to public
bodies regarding their statutory obligation
to make approved minutes of their meeting
"promptly available."
. . . .
In light of no specific statutory
requirement, the custom and practice of a
particular public body must be afforded some
consideration, as long as they are
reasonable.
. . . .
Nevertheless, it is the court's view that
the passage of ninety-seven (97) days fails
to satisfy the "prompt availableness"
requirement. If a public body meets only
once or twice a year, then arguably some
steps need to be taken to generate approved
minutes in a more timely fashion. Although
such is not the case here, the delay of
ninety-seven (97) days is simply not prompt
under the circumstances here. The minutes
at issue contain[] subject matters that are
important to the teachers directly affected
by the Board[']s action[s].
Under these circumstances, the court suggested that the
Board release its meeting minutes "within 30 to 45 days." As
the record shows, the Board did not heed the trial court's
17 A-5481-14T3
suggestion. Plaintiffs argued to the trial court that the
Board's ninety-four-day delay in releasing the minutes of the
September 15, 2014 meeting and fifty-eight-day delay in
releasing the minutes of the December 6, 2014 meeting amounted
to a "willful and deliberate" disregard of the court's
authority. Plaintiffs initially requested that the court void
the outcome of the December 6, 2014 meeting, impose monetary
sanctions against the Board and its Chairperson, and award
counsel fees. Plaintiffs withdrew their application for the
imposition of monetary sanctions at the oral argument session
held on April 24, 2015.
After considering the "nature, quality, and effect of the
noncompliance in fashioning a corrective remedy," the court
concluded injunctive relief was "the appropriate remedy in this
case." The court provided the following explanation for its
decision:
Plaintiffs do not allege specific adverse
effects of defendants' past violations nor
provide sufficient evidence to show that
defendants' violations were intentional.
The concern of the court is the Board's
future compliance. Injunctive relief
provides the best assurance of defendants'
future compliance. Therefore, the court
orders that the Board conform in the future
to N.J.S.A. 10:4-14 by making meeting
minutes available to the public within
forty-five days.
18 A-5481-14T3
The Supreme Court has recognized that the Legislature
provided "three forms of remedy for an OPMA violation: a
prerogative writs action seeking to void any action taken at a
meeting that did not meet OPMA's requirements, N.J.S.A. 10:4-15;
injunctive relief to assure future compliance, N.J.S.A. 10:4-16;
and imposition of fines, N.J.S.A. 10:4-17." McGovern v.
Rutgers, 211 N.J. 94, 112 (2012). The Court in McGovern also
noted that injunctive relief under N.J.S.A. 10:4-16 may be
appropriate if "'a pattern of non-compliance has been
demonstrated.'" Ibid. (quoting Burnett v. Gloucester Cty. Bd.
of Chosen Freeholders, 409 N.J. Super. 219, 246 (App. Div.
2009)).
The Supreme Court has also cautioned judges to fashion a
remedy that considers "the nature, quality and effect of the
noncompliance of the particular offending governmental body[.]"
Polillo v. Deane, 74 N.J. 562, 579 (1977). In our view, a
permanent injunction requiring the Board to prospectively make
their meeting minutes available within forty-five days of the
conclusion of the meeting, regardless of the circumstances,
undermines the Board's autonomy by usurping a quintessential
managerial prerogative. This approach is also facially
inconsistent with the fact-sensitive standard the Legislature
adopted in N.J.S.A. 10:4-14. The imposition of a judicially
19 A-5481-14T3
crafted deadline to make the minutes of Board meetings available
to the public invites enforcement by motion practice under Rule
1:10-3.
Judges are ill suited to micromanage the internal affairs
of a Board entrusted by the Legislature with the "government,
control, conduct, management and administration" of our State's
public colleges and universities, N.J.S.A. 18A:64-2, and whose
members are appointed by the Governor, with the advice and
consent of the Senate, N.J.S.A. 18A:64-3, and serve without
compensation, N.J.S.A. 18A:64-5. As a matter of comity, a
judicial remedy should strive to strike a balance between the
public policy codified in the OPMA and respect for the
prerogatives of independent public bodies.
The Board is now on notice that five meetings per year will
not allow it to make its meeting minutes "promptly available" to
the public. We agree with the trial judge that waiting two or
three months to release the minutes does not comply with the
mandate of the statute. However, an inflexible forty-five-day
deadline for the release of the minutes is managerially,
logistically, and legally unsound because it leaves the door
ajar to permanent judicial entanglement. Having said this, we
urge the Board to seriously consider increasing the number of
20 A-5481-14T3
times it meets annually. It is clear that the continuation of
its present meeting schedule is legally untenable.
III
Rice Notice
In Rice, we held that the personnel exception codified in
N.J.S.A. 10:4-12b(8) could only be waived "if all employees
whose rights could be adversely affected decide to request a
public hearing[.]" Rice, supra, 155 N.J. Super. at 73. To give
the affected employees the opportunity to invoke this inchoate
right, we imposed upon the public body employer the obligation
to provide the affected employees with 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." Ibid.Hascup's appointment as an Associate Professor of Nursing
was scheduled to expire at the end of academic year 2014-2015.
In her role as the Board's Executive Director, Kelly submitted a
certification that described the process for reappointing
faculty members whose terms of employment expire at the end of
the academic year. According to Kelly, the process "culminates
in a determination by the [University] President [on] whether to
recommend to the Board that each such faculty member be
reappointed." "[A]pproximately three weeks in advance" of the
21 A-5481-14T3
Board's public meeting, the Board sends a letter to the affected
faculty members notifying them if the President has recommended
their reappointment.
Here, plaintiffs' counsel sent a letter to the Board's
attorney advising the Board that it must send Rice notices at
least two weeks before the scheduled meeting to ensure that
affected faculty can exercise their rights under the law. The
Board did not comply. Instead, as Kelly described in her
certification, President Dawood Farahi sent a letter dated
November 14, 2014, informing Hascup that he had decided not to
recommend her reappointment. The letter reads as follows:
After careful examination of your
application for reappointment and
consideration of your appeal and
accompanying documents, I will not be
recommending to the Kean University Board of
Trustees that your contract be renewed for
the academic year 2015-2106.
This letter is formal notification that I
will not nominate you for reappointment to
the Board of Trustees at the December 6,
2014 meeting.
[(Emphasis added).]
Kelly described in her certification what transpired after
President Farahi sent this letter to Professor Hascup.
A meeting of the Board is held in early
December of each year to consider, among
other items, applications for reappointment
of faculty members whose appointments to the
faculty would be expiring at the end of the
22 A-5481-14T3
current academic year absent a resolution by
the Board . . . granting reappointment. In
the 2014-2015 academic year, that meeting
was held on December 6, 2014.
Prior to the early December Board meeting at
which the Board considers the reappointment
of faculty, a subcommittee of the Board[,]
known as the Academic Policy and Programs
Committee[,] meets to consider the
recommendations of the President concerning
reappointments and to reach a consensus
concerning the recommendations of the
President and the recommendations that the
Academic Policy and Programs Committee will
provide to the full Board at the early
December meeting. The recommendations of
the Academic Policy and Programs Committee
are presented to the Board at its early
December meeting in the form of a personnel
report entitled Faculty Reappointments and
Faculty Non-Reappointments.
[(Emphasis added).]
Kelly attached to her certification a copy of the agenda
for the Board meeting held on December 6, 2014. According to
Kelly, on November 29, 2014, the tentative agenda for the
Board's December 6, 2014 meeting was posted on the University's
website and emailed to the KFT and other groups having an
interest in the University.
The "report" containing the recommendations of the Academic
Policy and Programs Committee is not part of this record.
However, the trial court addressed this issue in the course of
oral argument.
23 A-5481-14T3
THE COURT: And, am I correct then that when
. . . Dr. Hascup as one of a slate of non-
tenured [t]eachers came up, there was simply
a vote by the Board? Do we know that?
ATTORNEY FOR THE BOARD: There was a
Resolution to adopt the recommendations of a
subcommittee of the Board that had . . . the
names and proposed either reappointment or
non-reappointment for . . . all the faculty
people that were at issue.
THE COURT: And as I read the Agenda, the
way it was structured, this took place
before they retired into Executive Session?
ATTORNEY FOR THE BOARD: Correct. And . . .
there's evidence confirming that in the
record and the Certifications.6
THE COURT: Do we know when the deliberative
process, if any, occurred among Board
[m]embers with respect to their decision to
appoint or not appoint a non-tenured
[t]eacher?
ATTORNEY FOR THE BOARD: The deliberative
process largely is centered in . . . the
University through the academic ranks[;] the
Administration gives recommendations to the
Committee. The Committee studies the
recommendations and evaluates and agrees, or
agrees with them, and . . . then makes its
recommendation to the Board. So, the . . .
deliberation over the credentials of these
people is in the academic ranks in there.
In terms of the full Board, in a public
meeting, the extent of discussion is . . .
here is the report of the Committee in
public session.
THE COURT: The report of the Subcommittee?
6
We infer the Board Attorney is referring to the Kelly
certification.
24 A-5481-14T3
ATTORNEY FOR THE BOARD: I'm sorry, yes.
Yeah.
THE COURT: And . . . am I correct, then,
that the Subcommittee [report], which
apparently is for the purpose of evaluating
the reappointment or non-reappointment,
. . . was also . . . brought out in public
session?
ATTORNEY FOR THE BOARD: [W]ell, I think the
report, as we've seen last time, is an oral
situation. But there is a . . .
presentation of the Resolution that contains
the substance to the recommendations.
THE COURT: So we really don't know what was
said during a public session absent a
transcript; in other words, how this
process, . . . the Board of [Trustees],
which I think we all agree, elected not to
go into Executive Session on this particular
issue on December 6[,] [2014]. A slate of
non-tenured [t]eachers, I'm inferring from
this record, were not reappointed. Do we
have any idea what, if anything, was
discussed with respect to the decision by
the Board to adopt the Resolution not to
appoint . . . or reappoint?
ATTORNEY FOR THE BOARD: [T]here [are]
Minutes. . . . They're not verbatim
transcription[s] of what occurred. And so,
I don't know the specifics of what was said.
But it was in public session. Plaintiffs
are . . . making allegations about public
session. And the thing that they have not
alleged, which leaves this privacy-based
argument hanging in the wind, is that there
was any unwarranted invasion of privacy
under Section 7 of OPMA, that occurred.
I mean, I think what happened, based upon
what we can see from the Minutes, is
essentially what would have happened after
25 A-5481-14T3
closed session, in the sense that, . . .
there [were] brief comments, and then [an]
introduction of a Resolution[.]
From this point forward, the colloquy between the court and
the Board's attorney followed the same line of reasoning. The
trial judge summarized the Board's legal position in the
following statement to the Board's attorney:
THE COURT: The legal argument you[] [are]
advancing for the University is that there
were no Rice Notices needed in this
particular instance, because there was no
intention on the part of the Board to
discuss personnel which could implicate
privacy interests in closed session.
ATTORNEY FOR THE BOARD: Correct.
[(Emphasis added).]
Plaintiffs' counsel also summarized his clients' legal
position while addressing the trial judge at oral argument:
PLAINTIFFS' COUNSEL: [The Board's
attorney's] argument is an after-the-fact
argument. He's saying to you, [addressing
the trial court] you know what, my Board
didn't have any discussion. So, what
unwarranted invasion of privacy is involved?
That's the problem. The notice is to go out
in advance, because the discussion might
trigger that. So, unless this is a Kabuki
play, where . . . everybody's just going
through the motions, and maybe they are.
That's what I'm concerned about. This Board
apparently doesn't want to discuss anybody.
And we cannot make them do that. If they
want to be a rubberstamp organization, I
guess that's the way it will be.
26 A-5481-14T3
But the question is, at the time that that
recommendation is going to go [to] the
Board, is it possible . . . that maybe one
Board [m]ember might actually want to assert
some authority and have a discussion on
what's submitted to them[?]
And, you cannot say, well, it turned out
after the fact, we don't talk about
anything. We have a Committee. The
Committee gives us their recommendation.
And we rubber stamp it in public. What's
your problem?
The problem is that supposedly, or at least
theoretically, . . . we are not supposed to
know what the discussion of that Board will
be. And we would never know until after the
fact.
So what [the Board's attorney] is telling
you [addressing the trial court] is, well,
if we absolutely know that you'd have to
talk about somebody's medical condition,
then we would give them . . . a notice.
Well, how would anybody know, what any
intelligent and rational Board [m]ember
might want to ask about somebody before the
meeting is even conducted? The notice is
because of potential, not what happened
after the fact.
[(Emphasis added).]
We conclude plaintiffs' argument correctly captured the
disturbing incongruity that results from the approach the Board
adopted here. As the Board's Executive Director described in
her certification, the Board's Academic Policy and Programs
Committee met prior to the December 6, 2014 Board meeting "to
consider the recommendations of the President concerning
27 A-5481-14T3
reappointments and to reach a consensus concerning the
recommendations of the President[.]" (Emphasis added). This
subcommittee then presented its recommendations to the full
Board at the public session of the meeting in the form of a
resolution containing the names of the faculty members who would
be reappointed.
The record shows that the actual discussion concerning
whether to appoint a faculty member occurs in private with the
members of this subcommittee. As Kelly stated in her
certification, "[t]he recommendations of the Academic Policy and
Programs Committee are presented to the Board at its early
December meeting in the form of a personnel report entitled
Faculty Reappointments and Faculty Non-Reappointments." The
Board's attorney acknowledged that the deliberative process
largely is centered in the University's "academic ranks" and the
subcommittee. The only role the Board plays in this process is
approving the report of the subcommittee in public session.
It is entirely proper for the Board to delegate to a
subcommittee the responsibility of reviewing the President's
recommendations concerning the appointments and non-appointments
of faculty members and thereafter reporting its own
recommendations to the full Board. This approach, however,
cannot operate to substitute a Board member's duty to make his
28 A-5481-14T3
or her own independent decision on such matters. The OPMA is
expressly intended to promote meaningful citizen participation
in governmental affairs. When a public body acts on a personnel
matter without prior discussion of any kind, the silent
unexplained vote cast by the Board member reduces the event to a
perfunctory exercise, devoid of both substance and meaning.
That is the antithesis of what the Legislature intended when it
adopted the OPMA. N.J.S.A. 10:4-7.
It is clear to us that the Board uses this approach to
avoid sending a Rice notice. To accomplish this, the Board has
delegated its core responsibility to discuss personnel matters
to the Faculty Reappointments and Faculty Non-Reappointments
report. At oral argument before the trial court, the Board's
attorney represented that the subcommittee's "report" to the
full Board consisted only of the resolution containing the names
of the faculty members recommended for reappointment. The
agenda for the December 6, 2014 meeting also reflects the opaque
nature of the public session. Agenda Item 9 states only
"Faculty Reappointments and Faculty Non-Reappointments." Item
9.1 simply states "Personnel Action-Faculty." These two cryptic
notations are the only information the Board revealed to the
public concerning this critically important phase of the public
session.
29 A-5481-14T3
Sending 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. N.J.S.A. 10:4-12b
authorizes a public body to exclude "the public only from that
portion of a meeting at which the public body discusses" any one
of nine specifically enumerated matters:
(1) matter which, by express provision of
federal law, State statute, or rule of court
shall be rendered confidential or excluded
from the provisions of subsection a. of this
section;
(2) matter in which the release of
information would impair a right to receive
funds from the Government of the United
States;
(3) material the disclosure of which
constitutes an unwarranted invasion of
individual privacy such as any records,
data, reports, recommendations, or other
personal material of any educational,
training, social service, medical, health,
custodial, child protection, rehabilitation,
legal defense, welfare, housing, relocation,
insurance, and similar program or
institution operated by a public body
pertaining to any specific individual
admitted to or served by an institution or
program, including but not limited to,
information relative to the individual's
personal and family circumstances, and any
material pertaining to admission, discharge,
treatment, progress, or condition of any
30 A-5481-14T3
individual, unless the individual concerned
(or, in the case of a minor or an
incapacitated individual, the individual's
guardian) shall request in writing that the
material be disclosed publicly;
(4) collective bargaining agreement, or the
terms and conditions which are proposed for
inclusion in any collective bargaining
agreement, including the negotiation of the
terms and conditions thereof with employees
or representatives of employees of the
public body;
(5) matter involving the purchase, lease, or
acquisition of real property with public
funds, the setting of banking rates, or
investment of public funds, if it could
adversely affect the public interest if
discussion of the matters were disclosed;
(6) tactics and techniques utilized in
protecting the safety and property of the
public, provided that their disclosure could
impair that protection, or investigations of
violations or possible violations of the
law;
(7) pending or anticipated litigation or
contract negotiation other than in
subsection b.(4) herein in which the public
body is, or may become, a party, or matters
falling within the attorney-client
privilege, to the extent that
confidentiality is required in order for the
attorney to exercise his ethical duties as a
lawyer;
(8) matter involving the employment,
appointment, termination of employment,
terms and conditions of employment,
evaluation of the performance of, promotion,
or disciplining 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
31 A-5481-14T3
employees or appointees whose rights could
be adversely affected request in writing
that the matter or matters be discussed at a
public meeting; or
(9) deliberations of a public body occurring
after a public hearing that may result in
the imposition of a specific civil penalty
upon the responding party or the suspension
or loss of a license or permit belonging to
the responding party as a result of an act
or omission for which the responding party
bears responsibility.
[(Emphasis added).]
A careful reading of the statute reveals that with the
exception of subsections (3), (8), and (9), the remaining six
subsections involve matters touching upon the Board's legal
privileges and obligations. For example, N.J.S.A. 10:4-12b(4)
authorizes the Board to discuss in executive session matters
involving collective bargaining agreements. Similarly, N.J.S.A.
10:4-12b(7) authorizes an executive session to discuss matters
involving or implicating attorney-client communications.
Conversely, N.J.S.A. 10:4-12b(3) authorizes the Board to
exclude the public to protect "the disclosure of [material]
which constitutes an unwarranted invasion of individual
privacy[.]" (Emphasis added). N.J.S.A. 10:4-12b(9) authorizes
the Board to go into executive session when "deliberations of a
public body occurring after a public hearing . . . may result in
the imposition of a specific civil penalty upon the responding
32 A-5481-14T3
party[.]" These subsections protect the individual's right to
privacy.
The language the Legislature used in N.J.S.A. 10:4-12b(8)
is equally clear on this point. This is the basis for our
decision in Rice. We recognized that the personnel exception
codified in N.J.S.A. 10:4-12b(8) could only be waived "if all
employees whose rights could be adversely affected decide to
request a public hearing." Rice, supra, 155 N.J. Super. at 73.
Only those who possess a legal right have the commensurate
authority to waive that right.
The overarching public policy of the OPMA seeks to
encourage, promote, and enhance the public's participation in
the democratic process. This arises from our State's "long
'history of commitment to public participation in government and
to the corresponding need for an informed citizenry.'"
McGovern, supra, 211 N.J. at 99 (citation omitted). The
Legislature codified the right of the public "to be present at
all meetings of public bodies, and to witness in full detail all
phases of the deliberation . . . and decision making of public
bodies[.]" N.J.S.A. 10:4-7 (emphasis added). The Legislature
also declared that "secrecy in public affairs undermines the
faith of the public in government and the public's effectiveness
in fulfilling its role in a democratic society[.]" Ibid. To
33 A-5481-14T3
strike a proper balance between the values favoring openness and
meaningful access in public affairs and the protection of the
privacy rights of individuals, the Legislature codified the nine
specifically enumerated exemptions in N.J.S.A. 10:4-12b.
We now hold that a public body is required to send out a
Rice notice any time it has placed on its agenda any matters
"involving the employment, appointment, termination of
employment, terms and conditions of employment, evaluation of
the performance of, promotion, or disciplining of any specific
prospective public officer or employee or current public officer
or employee employed or appointed by the public body[.]"
N.J.S.A. 10:4-12b(8). This approach will provide all of the
affected employees with the opportunity to: (1) decide whether
they desire a public discussion, and (2) prepare and present an
appropriate request in writing. Rice, supra, 155 N.J. Super. at
73.
The notice requirement in Rice is predicated on the
presumption that members of public bodies discuss personnel
matters that come before them, question the underlying basis for
the course of action recommended by the staff, and deliberate
before reaching an ultimate decision that reflects the views of
the members. As Justice Stein eloquently noted:
[T]he personnel exemption focuses on free
and uninhibited discussion about matters
34 A-5481-14T3
relating to the hiring, firing, performance,
compensation, and discipline of public
employees. Such discussions necessarily
involve subjective comments and evaluations
of employees by members of the public body,
and their willingness to comment openly and
freely about such matters would obviously be
inhibited if the discussion were to be
conducted publicly. The statutory exemption
for personnel matters, recognizing the
potentially-inhibiting effect of public
debate about the qualifications,
performance, merit, and shortcomings of
specific employees, allows that debate to
occur in executive session.
[S. Jersey Pub. Co. v. N.J. Expressway, 124
N.J. 478, 493 (1991) (emphasis added).]
Here, the record shows that not sending a Rice notice
stifles the Board's deliberative process and inhibits the robust
discussion by individual Board members that Justice Stein
described as the hallmark of informed decision-making. Only the
Board has the authority to decide when to go into executive
session. N.J.S.A. 10:4-13. Conversely, only the affected
employees have the right to waive the privacy protections
afforded to them by the Legislature in N.J.S.A. 10:4-12b(8). A
decision not to send Rice notices in which personnel matters are
listed as an agenda item implies the Board has decided in
advance of the meeting that executive session discussion is not
warranted. A silent unexplained vote to approve a list of
preapproved candidates in public session gives the impression
that the Board colluded to circumvent the OPMA's requirements.
35 A-5481-14T3
This court is bound to liberally construe the OPMA "to
accomplish its purpose and the public policy of this State[.]"
N.J.S.A. 10:4-21. Therefore, we hold 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.
We recognize that requiring a Rice notice may not produce
the type of decision-making process the Legislature envisioned
when it adopted the OPMA. We are also mindful that the
judiciary plays no role in selecting the makeup of public
bodies. The judiciary, however, is entrusted with enforcing the
OPMA, which requires public bodies to conduct the public's
business in the light of day, "hence its unofficial moniker,
'the Sunshine Law.'" Opderbeck, supra, 442 N.J. Super. at 55.
IV
We now address the question of remedy. With respect to the
release of the meeting minutes, the record shows the trial court
previously gave the Board an opportunity to satisfy the
"promptly available" requirement under N.J.S.A. 10:4-14 without
imposing any sanctions. When the court's "suggestion" proved
ineffective, the court imposed the permanent injunction we have
36 A-5481-14T3
vacated here. Thus, fairness dictates that we impose some form
of sanction. N.J.S.A. 10:4-16 authorizes the court to impose
"such remedies as shall be necessary to insure compliance with
the provisions of this act." We are satisfied that the
following sanctions will promote the public policy of the OPMA
without unduly interfering with the Board's managerial
prerogatives.
This court orders the Board of Trustees of Kean University
to adopt a meeting schedule for academic year 2017-2018 that
will enable them to make its meeting minutes "promptly
available" under N.J.S.A. 10:4-14. This meeting schedule shall
enable the Board to formally consider, approve, and release the
meeting minutes to the public within a timeframe of thirty to
forty-five days of the last meeting, unless extraordinary
circumstances prevent the Board from meeting. Extraordinary
circumstances shall include, but are not limited to, extreme
weather, public emergencies, and any other unforeseen events
that would make gathering to meet unreasonable. This court does
not retain jurisdiction to enforce this order. Any party
aggrieved by the Board's failure to carry out this order will be
required to file an action in lieu of prerogative writs in the
Superior Court, Law Division, Civil Part pursuant to Rule 4:69-
1. In the event of any future violations of the OPMA by the
37 A-5481-14T3
Board, the trial court may consider the history of the Board's
noncompliance in fashioning an appropriate remedy.
We declare the actions taken by the Board at the December
6, 2014 meeting regarding personnel matters null and void. Such
relief is clearly authorized under N.J.S.A. 10:4-16. The public
policy of transparency and accountability in the OPMA demand
that we hold the Board accountable for failure to adhere to both
the text and the values underlying the OPMA.
Affirmed in part and reversed in part. We do not retain
jurisdiction.
38 A-5481-14T3