A Capehart Scatchard Blog

N.J. Supreme Court Reverses Blanket Rice Notice Requirement for Personnel Actions at Public Meetings

By: Cameron R. Morgan, Esq.
Editor: Sanmathi (Sanu) Dev, Esq.

On June 21, 2018, the New Jersey Supreme Court has reversed an Appellate Division ruling that many felt had overly burdened public bodies in the administration of their duties and gone beyond the requirements of the Open Public Meetings Act, N.J.S.A. 10:4-6 to -21 (“OPMA”).  Kean Fed’n of Teachers v. Morell, ___ N.J. ___, No. A-84-16 (2018).  Under the seminal decision in Rice v. Union County Reg’l High Sch. Bd. of Educ., 155 N.J. Super. 64, 73 (App. Div. 1977), public bodies seeking to invoke the OPMA exception allowing them to discuss personnel matters in closed executive session have long been required to provide written notice to employees whose employment could be adversely affected of their right to have the discussion held in public.  In Kean, the Court considered whether employees who were non-renewed had a right to receive Rice notices informing them of their right to have the discussion made public, even though the agenda did not include any discussion of the affected individuals’ employment scheduled to be held in private.

In a decision last year, a panel of 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” that involve employment, termination, discipline, or any of the other personnel items identified in the OPMA statute.  The decision had required Rice notices to be sent “in advance of any meeting at which a personnel decision may occur.”  That ruling had been widely criticized as an overreach that unnecessarily extended the provisions of OPMA, and, in effect, required Rice notices for nearly every personnel item placed on a public bodies’ agenda.  On June 21, 2018, the Supreme Court reversed the ruling, holding that there is nothing in the OPMA or the Rice decision to support the proposition that all potentially affected employees must receive notice whenever a personnel matter appears on a governmental bodies’ public meeting agenda.

The Court rejected an expansive reading of OPMA and the suggestion that the statute provides employees with the right to “select the forum of the discussion” about their employment.  Rather, the Court recognized that OPMA provides discretion to public bodies whether to hold personnel discussions in public or private.  If scheduled to be held in private, the statute requires Rice notices to the affected employees and the option for employees who could be potentially adversely affected to exercise their “right to move a private discussion into the sunshine of a public discussion.”  However, the Court clarified that the personnel exception is not applicable when a public entity already intends to take personnel action in public.

The Supreme Court also rejected the Appellate Division’s intimation that the subcommittee structure might be used to circumvent the protections of the OPMA, finding that the subcommittee process, of discussing personnel matters in advance of taking action at a public meeting by the full board, “is common and not fairly viewed as an inherent subterfuge to eschew public discussion.”  The Court went on to state that the OPMA does not contain any requirement about the robustness of the discussion that must take place on a topic.  The Court reasoned:  “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.”

Finally, the Court considered the requirement of the OPMA that public bodies make the minutes of their meetings “promptly available” to the public.  For both public meeting minutes and executive session minutes, the Court agreed with the parties that a fact-sensitive, case-by-case analysis is appropriate in assessing whether a public body has met the requirement, but added that the five month delay in publishing the minutes in Kean was unreasonable.  The Court held that “reasonableness must remain the touchstone” when assessing the promptness of a public entities’ action to approve its minutes, adding that minutes should also “be released within days of their approval, unless truly extraordinary circumstances prevent their availability to the public.”


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