Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kean Federation of Teachers v. Morell

Supreme Court of New Jersey

June 21, 2018

KEAN FEDERATION OF TEACHERS, JAMES CASTIGLIONE, and VALERA HASCUP, Plaintiffs-Respondents,
v.
ADA MORELL, BOARD OF TRUSTEES OF KEAN UNIVERSITY, and KEAN UNIVERSITY, a body Corporate and Politic, Defendants-Appellants.

          Argued January 17, 2018

          On certification to the Superior Court, Appellate Division, whose opinion is reported at 448 N.J.Super. 520 (App.Div. 2017).

          James 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 briefs).

          Robert 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).

          Arnold 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).

          John 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).

          Alexi 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).

          Louis 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).

          Cherie 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 brief).

          CJ 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).

          Kevin 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).

          Maria 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.

         At 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.

         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). 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."

         Kean's 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 the Board.

         Plaintiff 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.

         The 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.

         The 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.

         The 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.

         The Court granted defendants' petition for certification. 230 N.J. 524 (2017).

         HELD: 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 meeting schedule.

         1. "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)

         2. The 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)

         3. The 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)

         REVERSED in part and AFFIRMED AS MODIFIED in part.

          CHIEF JUSTICE RABNER and JUSTICES ALBIN, FERNANDEZ-VINA, and SOLOMON join in JUSTICE LaVECCHIA's opinion. JUSTICES PATTERSON and TIMPONE did not participate.

          OPINION

          LaVECCHIA, JUSTICE

         With 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).

         In this 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.

         For the 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.

         I.

         Before 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.

         A.

         The 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).

         The 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.

         Except 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 . . . .

[N.J.S.A. 10:4-12(b)(8).]

         That exception concerning personnel matters is a focal ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.