Rice Letters, and Making Meeting Minutes of Public Bodies “Promptly Available,” Under the Open Public Meetings Act

Kean Federation of Teachers v. Morell, 233 N.J. 566 (2018).  Yesterday’s opinion by Justice LaVecchia reversed in part and affirmed as modified a decision of the Appellate Division that was reported at 448 N.J. Super. 520 (App. Div. 2017), and was discussed here.  Without reiterating all the underlying facts of this Open Public Meetings Act (“OPMA”) case, there were two issues: (1) whether employees of Kean University whose employment interests might have been affected by discussion of their employment at a public session of the University’s Board of Trustees, were entitled, under Rice v. Union County Regional High School Bd. of Educ., 155 N.J. Super. 64 (App. Div. 1977), to notice of such an upcoming session, and (2) whether a lengthy delay in making Board meeting minutes public violated the OPMA’s requirement that minutes be made “promptly available.”

Reviewing decisions on cross-motions for summary judgment, the Appellate Division found that Rice notices were required, and that the delay in making minutes available violated the OPMA.  Exercising de novo review of the legal issues presented, a standard of review also applicable to summary judgment rulings, Justice LaVecchia disagreed on the Rice issue, but agreed that the delay in releasing the minutes was improper.

The plain language of the OPMA dictated the outcome on the Rice issue, Justice LaVecchia concluded.  The statute permits personnel matters to be considered in private (an exception to the general rule of public proceedings), at the option of the public body: “A public body may exclude the public only from that portion of a meeting at which the public body discusses” personnel matters.   But the OPMA “also authorizes and 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.”

Rice involved a situation where the public body intended to discuss personnel matters in closed session, and the employees were not given the chance to request that the proceedings occur in public.  The present case, as even plaintiffs acknowledged, sought an expansion of Rice, since the Board intended to discuss the personnel matters in public to begin with.

The Court concluded that Rice “should not be stretched beyond its factual setting.  To do so would result in adding to the OPMA requirements that the Legislature did not impose.”  Unlike in Rice, where the public body proposed to proceed in closed session, the Board here was going to operate in the open.  “Requiring Rice notices to employees when a public discussion is already planned so that the employees, if all agreed, could, in turn, insist that the discussion be public,” defied logic.  It also went beyond the language of the OPMA and “intrude[d] on a public body’s prerogative as to how to conduct its meetings.”  Justice LaVecchia reversed the decision of the Appellate Division that had required Rice notices, as well as its ruling that voided action taken at the meeting for which Rice notices had not been given.

On the issue of making meeting minutes “promptly available,” Justice LaVecchia noted that, due to the sensitivity of issues discussed in closed session, minutes of such sessions may need to be shielded from the public for longer than minutes of public meetings.  A “fact-sensitive” approach must be taken.  But here, where September 2014 meeting minutes were not made available until February 15, the delay was unreasonable, as the Appellate Division had determined.

The Court differed with the Appellate Division, however, as to remedy.  The Appellate Division had ordered the Board to modify its meeting schedule so as to allow for the approval of meeting minutes within 45 days.  Justice LaVecchia stated that the Court was “reluctant to set a specific timeframe for the calling of meetings, which should remain the prerogative of the body entrusted with running the public entity.”  But she concluded with “what should be obvious: minutes should be released within days of their approval, unless truly extraordinary circumstances prevent their availability to the public.”