A Capehart Scatchard Blog

To Rice or Not to Rice? A Lesson from the Appellate Division

By on February 15, 2017 in Open Public Meetings Act with 0 Comments

In a published decision released on February 8, 2017, the New Jersey Appellate Division issued an important ruling regarding a public entity’s obligations regarding Rice notices provided to its employees. In Kean Federation of Teachers v. Board of Trustees of Kean University, the Appellate Division determined that a public body is required to provide a Rice notice to any employee whose name appears on the agenda regarding his or her employment, regardless of whether the public body intends to discuss that individual’s employment. Specifically, the Appellate Division held that “a public body is required to send out a Rice notice any time it has placed on its agenda any matters ‘involving the employment, appointment, termination of employment, terms and conditions of employment, evaluation of the performance of, promotion, or disciplining of any specific prospective public officer or employee or current public officer or employee employed or appointed by the public body.’”

The Open Public Meetings Act (“OPMA”), N.J.S.A. 10:4-6 et seq., requires public entities, including local boards of education and charter school boards of trustees, to conduct all discussions and actions of the public body in public, unless a specific exception applies. One such exception is personnel matters, in which case, these discussions must occur in closed session unless reasonable and proper notice is given to the affected employee and the employee requests the discussion to occur in public. This requirement is commonly known as the Rice notice pursuant to the case New Jersey Appellate Division case Rice v. Union County Regional High School Board of Education, 155 N.J. Super. 64 (App. Div. 1977).

At issue in Kean Federation of Teachers v. Board of Trustees of Kean University was whether the Board of Trustees of Kean University (“Board”) was required to send a Rice notice to a faculty member when the Board did not discuss the faculty member’s employment and voted to not reappoint her for another term of employment with the university. The Board argued that no Rice notice was required because the Board did not intend to nor did it actually discuss the faculty member’s employment and only voted on whether to reappoint her. Such vote occurred properly in public session. The Board explained that a subcommittee of the Board reviews and analyzes the administration’s recommendations regarding reappointments and non-reappointments. Thereafter, the subcommittee presents to the full Board a personnel report and its recommendations for the Board to vote on during public session.

Unfortunately, the Appellate Division rejected the Board’s arguments and determined that the Board’s practice contravenes the OPMA. While subcommittees are entirely permissible, the only discussions and deliberations relating to whether to reappoint the faculty member occurred in private with the subcommittee, and the recommendations of the subcommittee were presented to the Board for “rubber stamping” during public session at the full board meeting. Finding the Board’s practice problematic, the Appellate Division reasoned that the Rice notice requirement is rooted in the presumption that members of public entities should and will discuss personnel matters presented to them and engage in true deliberations before voting as a public body. The Appellate Division determined that when the Board did not issue the Rice notice, it prohibited this process. That is, by not issuing a Rice notice, none of the board members at the full board meeting were allowed to ask questions or seek clarification if they sought, which is against the purpose of the OPMA.

Stay tuned for the next NJ School Law Blog post in which we will examine the Appellate Division’s other ruling in this case regarding a public entity’s obligation to make meeting minutes “promptly available.”

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Sanmathi (Sanu) Dev

About the Author

About the Author:

Sanmathi (Sanu) Dev, Esq. concentrates her practice on the representation of boards of education and charter schools in all areas of school law including: labor and employment, special education, Section 504, student discipline, FERPA, Anti-Bullying Bill of Rights Act, student residency, civil rights, tenure, OPRA, and OPMA. In connection with these representations, she is experienced in handling matters before State and Federal courts, including the Office of Administrative Law. Ms. Dev is an experienced special education litigator and defends school districts in due process hearings from inception through trial. In addition, she has handled matters before governmental agencies, including the U.S. Office for Civil Rights and New Jersey Division on Civil Rights. Ms. Dev routinely conducts training and seminars, drafts policies and manuals, and provides strategic advice to school administrators regarding school law issues. Ms. Dev was recently recognized as one of South Jersey’s Awesome Attorneys as published by South Jersey Magazine. She is licensed to practice law in New Jersey, the District Court for the District of New Jersey and Pennsylvania.

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