KEAN FEDERATION OF TEACHERS, JAMES CASTIGLIONE, and VALERA HASCUP, Plaintiffs-Respondents/ Cross-Appellants,
ADA MORELL, BOARD OF TRUSTEES OF KEAN UNIVERSITY, and KEAN UNIVERSITY, a body Corporate and Politic, Defendants-Appellants/ Cross-Respondents.
Date: October 6, 2 016
appeal from the Superior Court of New Jersey, Law Division,
Ocean County, Docket No. L-306-15.
P. Lidon argued the cause for
Deutsch, Mulvaney & Carpenter, attorneys; John J.
Peirano, of counsel; Mr. Lidon, on the brief).
A. Fagella argued the cause for
Fagella, Nowak, Kleinbaum & Friedman, attorneys; Mr.
Fagella, on the briefs).
Judges Fuentes, Carroll, and Gooden Brown.
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).
matter before us originated in the Law Division as an action
in lieu of prerogative writs filed by plaintiffs Kean
Federation of Teachers ("KFT"); KFT President
James Castiglione; and Valera Hascup, a Kean University
faculty member. Plaintiffs alleged the Board of Trustees of
Kean University and Ada Morell in her capacity as
Chairperson (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.
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
respect to the Rice notice issue, the trial judge
found the Board did not violate the OPMA when it voted in
public 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.
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.
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
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.
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).
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, 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.
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.
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,
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.
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.
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 and composition of the Board during the relevant time
period.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.
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,
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
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.
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 OPRA request for the minutes of
the executive sessions of the 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.
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. 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.
certified, however, that after reviewing the OPMA, she did
not find any legally sustainable means of using 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
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
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.
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 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.
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.
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 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
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
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;
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