On appeal from Superior Court of New Jersey Law Division, Bergen County.
Allcorn, Horn and Furman. The opinion of the court was delivered by Furman, J.s.c. (temporarily assigned).
Plaintiffs appeal from summary judgment (R. 4:46) dismissing their complaint in a prerogative writ action challenging a resolution adopted by defendant board at a public meeting on April 13, 1977. The resolution provided that the contracts of six nontenured teachers, including four plaintiffs, would not be renewed for the 1977-78 school year. Plaintiffs' reliance is upon the Open Public Meetings Act, N.J.S.A. 10:4-6 et seq.
The pertinent section of that act is N.J.S.A. 10:4-12(b)(8), which vouchsafes two rights to a public employee who may be adversely affected by a personnel action or decision of his employer: (1) a right to privacy, that is, to a nonpublic discussion at a closed meeting, and (2) a right to a public discussion at an open meeting upon his request in writing. A public discussion in this sense is not an evidentiary hearing with the right to a specification of charges, to cross-examine and to other procedural safeguards.
N.J.S.A. 10:4-12(b)(8) is as follows:
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, 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 employees or appointees whose rights could be adversely affected request in writing that such matter or matters be discussed at a public meeting.
We agree with Rice v. Union Cty. Reg. High School Bd. of Ed. , 155 N.J. Super. 64 (App. Div. 1977), that the right to request a public discussion of a personnel matter
presupposes notice to an employee who may be adversely affected and that the right to privacy is personal and cannot be waived except by the employee himself.
We must, therefore, determine whether the trial judge correctly held on the record before him that the April 13 resolution should not be invalidated on the ground that the Open Public Meetings Act was violated.
Plaintiffs' argument on this appeal rests upon the alleged invalidity of a nonpublic meeting of defendant board on March 24, 1977, at which renewal of their contracts was discussed without notice to them. No formal resolution was adopted to exclude the public from that closed session, despite the requirement of N.J.S.A. 10:4-13:
No public body shall exclude the public from any meeting to discuss any matter described in subsection 7.b. [ N.J.S.A. 10:4-12(b)] until the public body shall first adopt a resolution, at ...