The New Jersey Police Chief Magazine | March 2017 New Jersey Appellate Division Increases Requirements Under the Open
Public Meetings Act By M.L. Fabian, Esquire and David L. Disler, Associate Porzio, Bromberg & Newman, P.C.
On Wednesday, February 8, 2017, the Appellate Division released two companion opinions (“Kean I” and “Kean II”)1 that expanded the requirements under the Open Public Meetings Act (“OPMA”) to include:
1. Rice notice be provided to employees anytime matters involving their employment are placed on the agenda (even if the public entity has no intention of discussing the employee or personnel decision in executive session); and
2. Meeting minutes be released to the public within 45 days of the meeting (except for extraordinary circumstances).
Facts The facts in Kean I and Kean II are rather straightforward. Kean University’s Board of Trustees meets five times per year (the organizational meeting is held in September, plus meetings are scheduled in December, March, May, and June). Prior to the December meeting, the University President creates a list of his recommendations for the reappointment and non-appointment of faculty members. The Board’s subcommittee then reviews this list and makes a recommendation to the Board. At its December meeting, the Board votes on the President’s recommendations. Historically, the Board does not discuss or debate the list of recommendations. Rather, it simply votes on this list during the public session of its meeting. Because no discussion regarding the recommendations occurs, Rice notice is not provided. Instead, the President sends a letter prior to the meeting, which informs each faculty member of his recommendation for non-appointment.
Following the Board’s December meeting, several employees requested the minutes from the Board’s September and December meetings. The Board’s practice is that its minutes are not approved until the Board’s next full meeting. Since the Board only meets five times a year, the September minutes are not approved until December, and the December minutes are not approved until March. Based on this limited meeting schedule, it took 94 days for the Board to release its minutes for the September meeting and 58 days for the Board to release its minutes for the December meeting.
Rice Notice The OPMA allows public entities to go into executive session to discuss matters involving the
“employment, appointment, termination of employment, terms and conditions of employment, evaluation of the performance of, promotion or disciplining” of any public employee.2 However, employees may request the public entity hold this discussion in public. To ensure employees can exercise this right, public entities must provide employees with reasonable notice, which informs them of their ability to request the discussion take place in public (typically referred to as “Rice notice”).3
While it was commonly understood that public entities were only required to provide Rice notice when it intended to discuss a personnel matter in executive session, the Appellate Division was troubled by the Board’s lack of discussion regarding the President’s recommended personnel decisions. As such,
it
determined that the Board’s actions went against the intent behind the OPMA by essentially acting as a rubberstamp.4
Therefore, the Appellate Division reversed the trial judge5, and found that public entities must send Rice notices “any time it has placed on its agenda any matters” involving a public employee’s employment or when a personnel decision involving an employee “may occur.”6 Accordingly, even if a public entity simply intends to vote on the list of employees recommended for renewal and nonrenewal, without discussing the
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