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Kean Federation of Teachers v. Morell

Superior Court of New Jersey, Appellate Division

February 8, 2017

ADA MORELL, BOARD OF TRUSTEES OF KEAN UNIVERSITY, and KEAN UNIVERSITY, a body Corporate and Politic, Defendants-Appellants/ Cross-Respondents.

          Argued Date: October 6, 2 016

         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).

          Before Judges Fuentes, Carroll, and Gooden Brown.


          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 alleged the Board of Trustees of Kean University and Ada Morell in her capacity as Chairperson[2] (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 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 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, 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, 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.


         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 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, 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 OPRA[4] 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.

         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 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."


         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[.]"

          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 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 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;
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 ...

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