Two Issues Under the Open Public Meetings Act

Kean Federation of Teachers v. Morell, 448 N.J. Super. 520 (App. Div. 2017).  As a public body, Kean University’s Board of Trustees is subject to the Open Public Meetings Act, N.J.S.A. 10:4-6 to,-21 (“OPMA”).  This decision by Judge Fuentes addressed two issues under the OPMA.  The first was what is meant by the statute’s requirement, in N.J.S.A. 10:4-14, that minutes of a public body’s meetings be made “promptly available.”  The second was whether employees whose employment status may be adversely affected must be advised of their right to compel the employer to discuss their employment status in public.  A prior Appellate Division decision, Rice v. Union City Reg. High School Bd. of Educ., 155 N.J. Super. 64 (App. Div. 1977), required such a notice.

The Board took 58 and 94 days, respectively, to release minutes of two of its meetings in 2014.  The Board also voted, in public session, not to retain one of the plaintiffs, Valera Hascup, an Associate Professor of Nursing, “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).”

Plaintiffs filed an action in lieu of prerogative writ challenging the Board’s delay in releasing minutes and the Board’s action regarding Hascup.  On cross-motions for summary judgment, the Law Division ruled that the Board had violated the OPMA by failing to make meeting minutes “promptly available.”  The court entered an injunction requiring minutes to be made available within 45 days.  On the Hascup issue, the Law Division held that no Rice notice was required “absent any discussion of Hascup’s employment status during closed session, or any stated intention to engage in such discussion.”

Plaintiffs and defendants both appealed.  Applying the de novo standard of review to the legal decisions made below, the panel affirmed the ruling that the Board’s delay in releasing minutes had violated the OPMA, but vacated the injunction that the Law Division had entered.  The Appellate Division also reversed on the Hascup issue, holding that a Rice notice was required.

The Board argued that it would have to hold many more meetings than the five meetings per year it currently holds in order to approve and release meeting minutes sooner.  Board members are not compensated for their service, and attending additional meetings would be burdensome, according to the Board.  Judge Fuentes was not impressed with that argument.  He noted that Boad members have “great responsibilities,” quoting the lenghty list of such duties that appears in N.J.S.A. 18A:64-6.  Applying traditional principles of statutory interpretation in order to divine the meaning of “promptly available,” Judge Fuentes concluded that the language requires issuance of minutes “in a manner that fulfills the Legislature’s commitment to transparency in public affairs.”  Approval and release of minutes is not “a mere ministerial function, or worse yet, a technical annoyance.”  If the Board is required to meet ten times per year in order to issue minutes timely, Judge Fuentes said, “so be it.”

The OPMA authorizes injunctive relief for violations of the statute.  But the panel found that relief inappropriate here.  The 45-day deadline for issuing minutes “usurp[ed] a quintessential managerial prerogative,” was inconsistent with the Legislature’s adoption of a “fact-sensitive standard” in N.J.S.A. 10:4-14, and could entangle judges, who are “ill suited to micromanage the internal affairs” of a Board such as this, in motion practice in the future.  Judge Fuentes put the Board on notice that five meetings per year does not enable complicance with the OPMA’s “promptly available” requirement, but went no further than to “urge the Board to seriously consider increasing the number of times it meets annually.”  For the year 2017-18, however, the panel ordered the Board to adopt a meeting schedule that will “enable the Board to formally consider, approve, and release the meeting minutes to the public within a timeframe of thirty to forty-five days of the last meeting, unless extraordinary circumstances prevent the Board from meeting.”

On the Rice notice issue, Judge Fuentes analyzed the facts of the decision not to retain Hascup, and concluded that that decision was made in private by a process that involved the University’s “academic ranks,” the University’s President, and a Board subcommittee.  The agenda item for the meeting of the Board itself did not reveal what would be discussed, since it said only “Faculty Reappointments and Faculty Non-Reappointments” and “Personnel Action- Faculty.”  The panel found it “clear … that the Board uses this approach to avoid sending a Rice notice.”

The OPMA is to be liberally construed to accomplish the Legislature’s purpose and vindicate New Jersey’s public policy.  Accordingly, in order to protect employee rights, Judge Fuentes ruled that “Rice notices must be provided in advance of any meeting at which a personnel decision may occur” (emphases in original).  That remedy “provides the Board with the flexibility to discuss matters in executive session when necessary and affords the affected employees the opportunity to request that any proposed discussion occur publicly.”