On appeal from the Superior Court, Law Division, Morris County.
Matthews, Furman and Havey. The opinion of the court was delivered by Furman, J.A.D.
Plaintiff was denied reemployment in her third year as vice principal for student affairs and discipline in the employ of defendant school board. In a prerogative writ action she attacked defendant's decision, charging a breach of the Open Public Meetings Act, N.J.S.A. 10:4-6 et seq. After a non-jury trial, the trial judge concluded that the act had been violated; that the written notice to plaintiff pursuant to N.J.S.A. 18A:27-10 that she would not be reemployed was a nullity; and that plaintiff was entitled to tenure and back pay as if she had had no notice that reemployment would not be offered to her, N.J.S.A. 18A:27-11. That judgment has been stayed pending appeal.
We are constrained to reverse. Plaintiff's nonreemployment was the result of a reduction in force of school administrators. As we said in In re Maywood Board of Education, 168 N.J. Super. 45, 55 (App.Div.1979), certif. den. 81 N.J. 292
(1979), "Reduction in force (RIF), whether of tenured or nontenured teachers, if done for reasons of economy, is entirely within the authority of the board. The relevant statutory provision so ordains. N.J.S.A. 18A:28-9."
Plaintiff's argument to the contrary that, despite the reduction in force of school administrators, she is entitled to tenure is dependent upon judicial invalidation of the closed board meeting of April 28, 1983, when the resolution to deny her reemployment was passed; of the open board meeting of June 6, 1983, when a motion to reverse that resolution was denied; and of the open board meeting of June 9, 1983 when a resolution was adopted "reaffirming [the] previous decision to reduce the administrative complement at the High School and, specifically, to eliminate the position of Vice-Principal for Discipline and Student Affairs, and reaffirming [the] decision not to renew the contract of plaintiff, Dr. Jamison."
Under Maywood, supra, a reduction in force is nonnegotiable and nongrievable. Review should be before the Commissioner of Education as a school-law dispute. In this proceeding plaintiff does not challenge on the merits defendant board's reduction in force of school administrators. The thrust of her argument is procedural: that she had no notice that the board at the April 28 meeting would consider whether to reemploy her and that the reaffirmances of that decision in June fell short of compliance with N.J.S.A. 10:4-15(a).
We reject plaintiff's argument that defendant's reduction in force of school administrators was a nullity because of noncompliance with the Open Public Meetings Act. N.J.S.A. 10:4-12(b)(8) 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.
Personnel action taken in a closed meeting may be beyond challenge. It is only voidable on the ground that the meeting was not open if it remained closed despite a request in writing for a public discussion by an employee whose rights were adversely affected; or if no notice was provided to an employee whose rights were adversely affected and who, conjecturally, would have requested a public discussion if he or she had had notice, as plaintiff claims she would have.
Plaintiff contends factually that because she had no notice that her employment status would be considered at the April 28 meeting, she had no opportunity to request a public discussion at an open meeting. Based upon the stipulated facts we disagree and conclude that adequate notice was provided to plaintiff.
Notice to conform to the act need not be actual; it may be constructive, Oliveri v. Carlstadt-E. Rutherford Bd. of Education, 160 N.J. Super. 131 (App.Div.1978). Plaintiff was on notice that a board meeting would be held on April 28. Two days before she met for more than an hour with the Superintendent and Deputy Superintendent of Schools, who advised her that "a form letter was being sent by the Board to all non-tenured employees," of which she was one. What else was communicated to plaintiff at that meeting was disputed in the testimony and not ...