KEAN FEDERATION OF TEACHERS, JAMES CASTIGLIONE, and VALERA HASCUP, Plaintiffs-Respondents,
ADA MORELL, BOARD OF TRUSTEES OF KEAN UNIVERSITY, and KEAN UNIVERSITY, a body Corporate and Politic, Defendants-Appellants.
January 17, 2018
certification to the Superior Court, Appellate Division,
whose opinion is reported at 448 N.J.Super. 520 (App.Div.
P. Lidon argued the cause for appellants (McElroy, Deutsch,
Mulvaney & Carpenter, attorneys; James P. Lidon, of
counsel and on the briefs, and John J. Peirano, on the
A. Fagella argued the cause for respondents (Zazzali,
Fagella, Nowak, Kleinbaum and Friedman, attorneys; Robert A.
Fagella, of counsel and on the briefs, and Genevieve M.
Murphy-Bradacs, on the briefs).
Michael O'B. Boldt argued the cause for amicus curiae
Rutgers, The State University of New Jersey (McElroy,
Deutsch, Mulvaney & Carpenter, attorneys; John J.
Peirano, on the brief).
H. Chait argued the cause for amicus curiae New Jersey
Council of County Colleges (Vogel, Chait, Collins &
Schneider, attorneys; Arnold H. Chait, of counsel and on the
brief, and Craig A. Long, on the brief).
C. Gillespie argued the cause for amici curiae New Jersey
State League of Municipalities and New Jersey Institute of
Local Government Attorneys (Parker McCay, attorneys; John C.
Gillespie, on the brief).
M. Velez argued the cause for amicus curiae American Civil
Liberties Union of New Jersey (Edward L. Barocas, Legal
Director, attorney; Alexi M. Velez, Edward L. Barocas, and
Jeanne M. LoCicero, on the brief).
P. Bucceri argued the cause for amicus curiae New Jersey
Education Association (Bucceri & Pincus, attorneys; Louis
P. Bucceri, of counsel and on the brief, and Albert J.
Leonardo, on the brief).
L. Adams submitted a brief on behalf of amici curiae
State-Operated School District of the City of Camden and the
Trenton Board of Education (Adams Gutierrez &
Lattiboudere, attorneys; Cherie L. Adams, of counsel and on
the brief, and Daniel A. Schlein, on the brief).
Cynthia J. Jahn submitted a brief on behalf of amicus curiae
New Jersey School Boards Association (Cynthia Jahn, General
Counsel, attorney; Cynthia J. Jahn and John J. Burns, on the
Griffin submitted a brief on behalf of amicus curiae
Libertarians for Transparent Government (Pashman Stein Walder
Hayden, attorneys; CJ Griffin, of counsel and on the brief,
and Michael J. Zoller, on the brief).
P. McGovern submitted a brief on behalf of amicus curiae
Council of New Jersey State College Locals AFT, AFL-CIO (Mets
Schiro McGovern & Paris, attorneys; Kevin P. McGovern, of
counsel and on the brief, and David M. Bander, on the brief).
M. Lepore submitted a letter brief on behalf of amicus curiae
New JerseyAssociation of School Administrators (Maria M.
Lepore, Chief Counsel, attorney; Maria M. Lepore, of counsel
and on the brief, and Andrew Babiak, on the brief).
LaVECCHIA, J., writing for the Court.
issue in this case are (1) the extent of Kean
University's (Kean) notice obligations as a public body
under the Open Public Meetings Act (the OPMA or the Act),
N.J.S.A. 10:4-6 to -21, and whether the notice for the
personnel exception established in Rice v. Union County
Regional High School Board of Education, 155 N.J.Super.
64, 73 (App. Div. 1977) (the Rice notice) applied
here; (2) timing parameters for the release of minutes of
meetings; and (3) the appropriate remedy if the OPMA was
violated in the latter respect in this matter.
OPMA requires the meetings of public bodies to be conducted
in open session and in view of the public. N.J.S.A.
10:4-12(a). In relevant part for purposes of this appeal, the
Act provides that "[a] public body may exclude the
public only from that portion of a meeting at which the
public body discusses" a "matter involving the . .
. termination of employment . . . of any . . . current . . .
employee . . . 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. 10:4-12(b)(8). Employees whose
employment interests could be adversely affected have the
right to waive the protection of having their matter
discussed in closed session. The ability to make that request
is of little import, however, if affected employees are not
aware that their employment may be discussed. Thus, employees
must be given "reasonable notice" when a public
entity intends to take adverse employment action related to
them in private session. Rice, 155 N.J.Super. at 74.
Finally, the OPMA requires public bodies to make their
meeting minutes "promptly available to the public to the
extent that making such matters public shall not be
inconsistent with [N.J.S.A. 10:4-12], " N.J.S.A.
10:4-14, but does not define "promptly available."
Board of Trustees (the Board), as a public body, is required
to annually establish and publish a schedule of its regular
meetings. See N.J.S.A. 10:4-18. The Board's
policy has been to hold five regularly scheduled meetings
each year. Further, it is the Board's practice to approve
a prior session's minutes at the next scheduled meeting.
One of the Board's duties is to vote on the reappointment
or non-appointment of faculty members. The President of the
University provides a recommendation to the Board about
whether to reappoint each individual. Before the Board holds
its meeting at which the reappointment of faculty will be on
the agenda, a Board subcommittee reviews the President's
recommendations and then provides its own recommendation to
Valera Hascup received a letter from the University President
informing her that he would not nominate her for
reappointment at the Board's meeting scheduled for
December 6, 2014. On November 29, 2014, the Board published a
tentative agenda for the December meeting on the Kean
University website, indicating that the Board intended to
discuss faculty reappointments during the public meeting. It
did not send a Rice notice.
Board held its December 6, 2014 meeting as scheduled. The
Board voted in public session to accept the President's
recommendations -- reviewed by the subcommittee --as to the
reappointment and non-reappointment of faculty members. At
that meeting, the Board also approved the minutes of its
prior meeting held on September 15, 2014. Minutes from both
the public and closed sessions were approved, but the closed
session minutes were to be redacted by legal counsel. On
December 18, 2014, co-plaintiff James Castiglione, a Kean
professor and President of the Kean Federation of Teachers
(KFT), filed an Open Public Records Act request seeking the
minutes from the closed sessions of the September 15 and
December 6, 2014 meetings. The minutes for the closed session
from the September 15 meeting were made available on February
2, 2015. The minutes for the December 6 meeting were approved
at the March 2 meeting and were released on March 4, 2015.
KFT, Castiglione, and Hascup filed the instant complaint in
lieu of prerogative writs in the Law Division, naming as
defendants Kean, the Board, and Board Chairperson Ada Morell.
The complaint alleged that defendants violated the OPMA by
failing to issue Rice notices prior to the December
6, 2014 meeting and by failing to make the Board's
minutes for the September 15 and December 6, 2014 meetings
"promptly available" to the public. The trial court
granted partial summary judgment to each party. The court
held that the Board was not required to issue Rice
notices but that the Board had violated the "promptly
available" requirement of N.J.S.A. 10:4-14. The court
issued a permanent injunction requiring the Board to make
minutes available to the public within forty-five days.
Appellate Division affirmed the determination that the Board
did not make the meeting minutes promptly available, but
reversed and vacated the permanent injunction. 448 N.J.Super.
520, 526 (App.Div. 2017). The panel ordered the Board to
adopt a meeting schedule for the 2017-18 academic year that
would promote the release of meeting minutes within thirty to
forty-five days of the last meeting, except in
"extraordinary circumstances." Id. at 545.
Turning to the Rice issue, the panel held that
Rice notices are required "in advance
of any meeting at which a personnel decision may
occur." Id. at 544. The panel declared void all
personnel-related actions taken by the Board at the December
6 meeting. Id. at 546.
Court granted defendants' petition for certification. 230
N.J. 524 (2017).
There is no obligation to send Rice notices here,
where the Board determined from the start to conduct its
discussion about faculty reappointments in public session.
Turning to the release of meeting minutes, the delay that
occurred is unreasonable no matter the excuses advanced by
the Board, but the Court modifies the Appellate
Division's holding requiring the Board to set a regular
"A public body may exclude the public only from
that portion of a meeting at which the public body discusses
any" of the enumerated topics. N.J.S.A. 10:4-12(b)
(emphasis added). Although N.J.S.A. 10:4-12(b)(8) adds
personnel matters to the enumerated topics that a governing
body may consider privately, it also authorizes an exception
to that personnel exception -- when "all individual
employees . . . whose rights could be adversely
affected request in writing that the matter or matters
be discussed at a public meeting, " the governing body
may not opt to shut its doors. (emphasis added). Two
principles thus emerge: the public entity may elect to
discuss a topic listed in subsection (b) in closed session,
and the choice to have that discussion in private may be
overridden if all employees whose rights could be adversely
affected request in writing that the discussion occur at a
public session. The statute provides employees with the right
to move a private discussion into the sunshine of a public
discussion. The personnel exception's language is not
applicable when a public entity already intends to take
public action. That conclusion is not undermined by a public
body's use of a subcommittee of the whole to examine a
topic in advance of a public meeting. Forcing public bodies
to issue Rice notices and robustly discuss all
personnel matters, as the Appellate Division intimated, would
intrude on a public body's prerogative as to how to
conduct its meetings. The OPMA does not contain a requirement
about the robustness of the discussion that must take place
on a topic. The Court reverses on this issue and also
reverses the voiding of the personnel actions taken by the
Board. (pp. 23-30)
Court has not specifically addressed the meaning of the
"promptly available" requirement but has made clear
that minutes from a closed session are still subject to the
promptly available requirement. Even so, a public entity is
permitted to take steps to modify the disclosure where
personal privacy interests are implicated. The OPMA's
legislative history recognizes that closed-session minutes
may need to be shielded from the public for a longer period
due to the sensitive nature of the material. The delay that
occurred here -- the release of minutes for the September
2014 meeting in February 2015 -- is unreasonable no matter
the individual or combination of excuses advanced by the
Board. The Court affirms the judgment of the panel as to the
failure to make minutes promptly available. (pp. 31-34)
Court, however, modifies the remedy the panel imposed for
that failure. A public entity must establish its meeting
schedule to suit the managerial obligations of its public
responsibilities while also acting responsibly concerning its
obligation to make minutes promptly available to the public.
The OPMA's requirements apply to a diverse range of
public entities, so no one set amount of time for the release
of minutes should be mandated. Reasonableness must remain the
touchstone when assessing promptness. The Court modifies the
panel's holding requiring the Board to set a schedule
that would allow for the approval of minutes within
forty-five days but cautions that, if a public entity were to
continue to limit its meetings to five per year, the Court
might see the issue again. (pp. 35-37)
in part and AFFIRMED AS MODIFIED in part.
JUSTICE RABNER and JUSTICES ALBIN, FERNANDEZ-VINA, and
SOLOMON join in JUSTICE LaVECCHIA's opinion. JUSTICES
PATTERSON and TIMPONE did not participate.
the enactment of the Open Public Meetings Act (the OPMA or
the Act), L. 1975, c. 231 (codified at N.J.S.A. 10:4-6 to
-21), the Legislature established procedures governing the
conduct of meetings of public bodies. The Act makes explicit
the legislative intent to ensure the public's right to be
present at public meetings and to witness government in
action. N.J.S.A. 10:4-7. That legislative intent is balanced
by an express recognition that public bodies must be allowed
to exercise discretion in determining how to perform their
tasks, see N.J.S.A. 10:4-12(a), and whether to engage in
private discussion and voting under certain identified
circumstances, N.J.S.A. 10:4-12(b).
appeal, we consider whether the Appellate Division erred in
its application of the OPMA and relevant interpretive case
law to a specific public institution of higher education,
thereby burdening that entity and, by implication, other
public bodies in the exercise of their discretion in how to
conduct their meetings.
reasons that follow, we reverse the Appellate Division's
judgment as to notice requirements under the OPMA, and we
affirm the judgment as to the Board's failure to make
minutes promptly available but modify the remedy the panel
imposed for that failure.
reciting the details of the dispute that generated this
appeal, it is helpful to review the OPMA's basic
provisions as well as a key case on which the parties base
their clashing views of the Act's requirements.
OPMA establishes requirements for notice of meetings,
N.J.S.A. 10:4-9, publication of an annual schedule of regular
meetings, N.J.S.A. 10:4-18, and the keeping and public
release of minutes, N.J.S.A. 10:4-14, as well as definitions
of basic concepts of "public business" and
"adequate notice, " N.J.S.A. 10:4-8(c), (d). The
requirements are generic even though the definition of
"public body" encompasses various types of public
institutions of diverse membership size, obligations, meeting
needs, and other practicalities. See N.J.S.A. 10:4-8(a).
Act's declared goal is to ensure "the right of the
public to be present for all meetings of public bodies, and
to witness in full detail all phases of the deliberation,
policy formulation, and decision making of public
bodies." N.J.S.A. 10:4-7. As a general rule, no meeting
may occur without adherence to the Act's requirements as
to adequacy of notice to the public. N.J.S.A. 10:4-9.
as identified, the OPMA requires the meetings of public
bodies to be conducted in open session and in view of the
public. N.J.S.A. 10:4-12(a). That said, public bodies are
given discretion in how to conduct their meetings. Ibid.
("Nothing in this act shall be construed to limit the
discretion of a public body to permit, prohibit, or regulate
the active participation of the public at any meeting, except
that" municipal governing bodies and local boards of
education are required to set aside time for public comment).
The same section acknowledges circumstances under which a
public body may enter into a closed session, for example, to
address matters required by federal or state law to be
confidential; matters of individual privacy; matters
pertaining to collective bargaining or the purchase, lease,
or acquisition of real property; and pending or anticipated
litigation or contract negotiation in which the public body
is, or may become, a party. N.J.S.A. 10:4-12(b). In relevant
part for purposes of this appeal, the Act provides:
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, [or]
termination of employment . . . 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 the matter or
matters be discussed at a public meeting . . . .
exception concerning personnel matters is a focal ...