The Open Public Meetings Act ("OPMA"), N.J.S.A. 10:4-6 to -21, promotes the democratic value of transparency in governmental affairs and protects the public's right "to be present at all meetings of public bodies, and to witness in full detail all phases of the deliberation, policy formulation, and decision making." Opderbeck v. Midland Park Bd. of Educ., 442 N.J.Super. 40, 55, 120 A.3d 967 (App. Div.) (quoting N.J.S.A. 10:4-7), certif. denied, 223 N.J. 555, 127 A.3d 701 (2015). In this appeal, we are required to examine two distinct obligations the OPMA imposes on public bodies: (1) to make meeting minutes "promptly available" to the public as required by N.J.S.A. 10:4-14; and (2) to provide employees, whose employment status may be adversely affected, with notice informing them of their right to compel their public employer to discuss their employment status in public. N.J.S.A. 10:4-12(b)(8); Rice v. Union Cty. Reg'l High Sch. Bd. of Educ., 155 N.J.Super. 64, 73, 382 A.2d 386 (App. Div. 1977).
The matter before us originated in the Law Division as an action in lieu of prerogative writs filed by plaintiffs Kean Federation of Teachers ("KFT");
After joinder of issue, the matter came before the trial court by way of cross-motions for summary judgment. Plaintiffs argued the Board violated N.J.S.A. 10:4-14 when it took ninety-four days to release the minutes of a meeting held on September 15, 2014, and fifty-eight days to release the minutes of a meeting held on December 6, 2014. The trial judge held in plaintiffs' favor and concluded the Board failed to make these minutes "promptly available[.]" N.J.S.A. 10:4-14. To bring the Board in compliance with this statutory requirement, the trial court issued a permanent injunction requiring the Board to make the minutes of all future meetings available to the public "within forty-five days[.]"
With respect to the Rice notice issue, the trial judge found the Board did not violate the OPMA when it voted in public session not to retain Valera Hascup without first apprising her in writing of her right to waive the privacy protections afforded to public employees under N.J.S.A. 10:4-12(b)(8). The judge concluded that absent any discussion of Hascup's employment status during closed session, or any stated intention to engage in such discussion, the OPMA does not require the Board to issue a Rice notice.
The Board now appeals, arguing the trial court erred when it found its meeting minutes were not made "promptly available" in accordance with N.J.S.A. 10:4-14. The Board claims the motion judge did not properly consider the circumstances preventing
Plaintiffs filed a cross-appeal challenging the trial judge's ruling that Hascup did not have a right to a Rice notice. Plaintiffs argue that every personnel action scheduled before the Board involves the potential for discussion of private matters. According to plaintiffs, N.J.S.A. 10:4-12(b)(8) gives affected employees "the right to decide whether a public or private discussion is the preferred forum for consideration of a reappointment application." Plaintiffs assert a Rice notice gives the affected employees an opportunity to exercise this right to choose.
Because the trial court decided these issues as a matter of law, our review is de novo, State in Interest of K.O., 217 N.J. 83, 91, 85 A.3d 938 (2014); we employ the same standards used by the trial judge. Globe Motor Co. v. Igdalev, 225 N.J. 469, 479, 139 A.3d 57 (2016). We are compelled to grant summary judgment if "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). See also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540, 666 A.2d 146 (1995).
Applying this standard to the undisputed facts, we agree with the trial judge that the Board failed to make its minutes "promptly available" to the public, as required by N.J.S.A. 10:4-14. However, we reverse and vacate the permanent injunction requiring the Board to make all future minutes available within forty-five days of each meeting. Although the OPMA expressly authorizes the Superior Court to issue injunctive relief as a means of enforcing its provisions, N.J.S.A. 10:4-16, the forty-five-day deadline imposed by the court here is inconsistent with the implicit, fact-sensitive approach the Legislature endorsed by using the words "promptly available" in N.J.S.A. 10:4-14. In this case, a judicially imposed permanent deadline for the release of the minutes usurps one of the Board's managerial prerogatives and invites continuous judicial involvement in the form of enforcement by motion practice.
With respect to plaintiffs' cross-appeal, we disagree with the trial judge that a Rice notice was not required in this case because the Board did not discuss Hascup's reappointment in private session. Acceptance of the Board's position would sanction members of public bodies to take action on personnel matters without discussion or deliberation, for fear of violating the affected employees' privacy rights. As plaintiffs correctly point out, the fact that the Board voted not to reappoint Hascup without discussion in order to avoid sending her a Rice notice obscured the decision-making process. This is precisely what the Legislature intended to prevent when it adopted the OPMA.
We hold that a public body is required to send a Rice notice whenever it intends to act on 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[.]" N.J.S.A. 10:4-12(b)(8). Here, the Board violated the OPMA by failing to send a Rice notice to all of the employees whose employment
Kean University is a State-funded institution of higher education with campuses in Union County and Ocean County. The Board has "general supervision" over the conduct of the University and is vested with "the power and duty" to govern and set policy over every aspect of the University's mission and operation. N.J.S.A. 18A:64-6. Although subject to the regulatory authority of the State Commissioner of Education, the Legislature has expressly endorsed a policy favoring decentralization and autonomy, giving our public colleges and universities "a high degree of self-government[.]" N.J.S.A. 18A:64-1.
As a matter of law "each board shall have not less than seven nor more than [fifteen] members." N.J.S.A. 18A:64-3. The record in this appeal does not include a description of the size and composition of the Board during the relevant time period.
In academic year 2014-2015, the Board held the statutorily mandated organizational meeting on September 15, 2014. Thereafter, the Board met four more times: December 6, 2014, March 2, 2015, May 11, 2015, and June 29, 2015. The trial court previously found the Board's annual meeting schedule dictated how and when meeting minutes were made available to the public:
The Board conducted the December 6, 2014 meeting at the University's Ocean County campus. The Board voted to approve the President's reappointment and non-appointment of faculty members during the meeting's public session, and without discussion or deliberation of any kind. It did not reappoint Hascup. The Board also approved the minutes for the meeting held on September 15, 2014.
On December 18, 2014, Castiglione requested the minutes of the September 15, 2014 and December 6, 2014 meetings. The Board's Executive Director, Audrey
Because Castiglione requested the executive session minutes for the meeting held on September 15, 2014, Kelly certified the minutes were "reviewed with counsel" and redacted to comply with the trial court's prior ruling. The minutes were released on February 2, 2015.
Kelly certified, however, that after reviewing the OPMA, she did not find any legally sustainable means of using technology to speed up the release of the minutes. According to Kelly, the OPMA requires the Board to approve the release of the minutes in a formal meeting, which would trigger the OPMA's notice requirements. Thus, under the Board's five meetings per year schedule, the earliest the December 6, 2014 meeting minutes could be approved was at the meeting scheduled for March 2, 2015. The trial court found the "Board approved the two-page executive session minutes of the December 6, 2014 meeting at its March 2, 2015 meeting, and then redacted and released the minutes to plaintiffs on March 4, 2015, which is fifty-eight (58) business days or eighty-eight (88) calendar days after the December 6, 2014 meeting."
Availability of Minutes
The Board argues the release of the minutes within this timeframe satisfied the "promptly available" standard in N.J.S.A. 10:4-14. The Board notes that approval of the minutes must be done in a formal public meeting. Thus, to comply with the trial court's forty-five-day timeframe, the Board would have "to schedule, advertise and hold a minimum of four to five additional meetings each year, resulting in an 80% to 100[%] increase in the number of meetings[.]"
The trial judge rejected the Board's argument, finding any inconvenience to the Board was outweighed by the public policy in support of making its meeting minutes "promptly available" to the public. The judge provided the following explanation in support of his ruling:
Given the absence of any published decisions addressing this issue from either the Supreme Court or this court, the trial judge decided to follow the multifactor analysis articulated in Matawan Reg'l Teachers Assoc. v. Matawan-Aberdeen Reg'l Bd. of Educ., 212 N.J.Super. 328, 333, 514 A.2d 1361 (Law Div. 1986). Although the approach in Matawan contains a number of useful common sense suggestions, we decline to adopt it as the standard to follow in deciding when a public body has made the official minutes of its meetings "promptly available" to the public under N.J.S.A. 10:4-14.
We apply instead the well-settled principles of statutory construction our Supreme Court has reaffirmed numerous times. In interpreting a statute, our goal is to ascertain and enforce the intent of the Legislature. Cashin v. Bello, 223 N.J. 328, 335, 123 A.3d 1042 (2015). "In most instances, the best indicator of that intent is the plain language chosen by the Legislature." Ibid. (quoting State v. Gandhi, 201 N.J. 161, 176, 989 A.2d 256 (2010)). Unless a different meaning is expressly indicated, we must read and construe words in a statute by giving them their generally accepted meaning. N.J.S.A. 1:1-2. Finally, we must construe the OPMA liberally "in order to accomplish its purpose and the public policy of this State as set forth in [N.J.S.A. 10:4-7]." N.J.S.A. 10:4-21.
The words "promptly available" in N.J.S.A. 10:4-14 require public bodies to approve and make their meeting minutes available to the public in a manner that fulfills the Legislature's commitment to transparency in public affairs. It requires a public body to adopt a protocol that makes the availability of its meeting minutes a priority. The approval of meeting minutes cannot be treated as a mere ministerial function, or worse yet, a technical annoyance. The expeditious release of meeting minutes is a vital part of the OPMA's promise to bring public affairs from obscurity to the light of day. This requires those who agree to serve on public bodies to act without delay and take the action required to make the meeting minutes promptly available to the public.
The argument advanced by the Board to justify delaying the approval of its minutes by as much as eighty-eight days is unpersuasive. The position of trustee of a public university governing board carries great responsibilities.
Trustees are entrusted with the power and duty to:
We have highlighted subsections (i) and (j) to make clear the interrelationship between these two important responsibilities the Legislature entrusted to the trustees of our State's public colleges and universities: to employ and retain faculty capable of transmitting to future generations the immeasurable gifts of intellectual enlightenment. The men and women who have willingly agreed to serve on these Boards and donate their time and talents without compensation have shown the metal of their character. We expect them to fulfill their responsibilities consistent with the values and public policy embodied in the OPMA. If this requires the Board to meet ten times per year to make the minutes of its meetings "promptly available" to the public, so be it.
In the companion opinion we release simultaneously with this opinion, the trial judge was also required to address whether the Board made its meeting minutes available to the public in a prompt fashion as required by N.J.S.A. 10:4-14. Kean Fed'n of Teachers v. Bd. of Trs. of Kean Univ., No. A-2332-14 (App. Div. Feb. ___ 2017) ("Kean II"). In a letter-opinion dated
Under these circumstances, the court
After considering the "nature, quality, and effect of the noncompliance in fashioning a corrective remedy," the court concluded injunctive relief was "the appropriate remedy in this case." The court provided the following explanation for its decision:
The Supreme Court has recognized that the Legislature provided "three forms of remedy for an OPMA violation: a prerogative writs action seeking to void any action taken at a meeting that did not meet OPMA's requirements, N.J.S.A. 10:4-15; injunctive relief to assure future compliance, N.J.S.A. 10:4-16; and imposition of fines, N.J.S.A. 10:4-17." McGovern v. Rutgers, 211 N.J. 94, 112, 47 A.3d 724 (2012). The Court in McGovern also noted that injunctive relief under N.J.S.A. 10:4-16 may be appropriate if "`a pattern of non-compliance has been demonstrated.'" Ibid. (quoting Burnett v. Gloucester Cty. Bd. of Chosen Freeholders, 409 N.J.Super. 219, 246, 976 A.2d 444 (App. Div. 2009)).
The Supreme Court has also cautioned judges to fashion a remedy that
Judges are ill suited to micromanage the internal affairs of a Board entrusted by the Legislature with the "government, control, conduct, management and administration" of our State's public colleges and universities, N.J.S.A. 18A:64-2, and whose members are appointed by the Governor, with the advice and consent of the Senate, N.J.S.A. 18A:64-3, and serve without compensation, N.J.S.A. 18A:64-5. As a matter of comity, a judicial remedy should strive to strike a balance between the public policy codified in the OPMA and respect for the prerogatives of independent public bodies.
The Board is now on notice that five meetings per year will not allow it to make its meeting minutes "promptly available" to the public. We agree with the trial judge that waiting two or three months to release the minutes does not comply with the mandate of the statute. However, an inflexible forty-five-day deadline for the release of the minutes is managerially, logistically, and legally unsound because it leaves the door ajar to permanent judicial entanglement. Having said this, we urge the Board to seriously consider increasing the number of times it meets annually. It is clear that the continuation of its present meeting schedule is legally untenable.
In Rice, we held that the personnel exception codified in N.J.S.A. 10:4-12(b)(8) could only be waived "if all employees whose rights could be adversely affected decide to request a public hearing[.]" Rice, supra, 155 N.J.Super. at 73, 382 A.2d 386. To give the affected employees the opportunity to invoke this inchoate right, we imposed upon the public body employer the obligation to provide the affected employees with reasonable advance notice "to enable them to (1) make a decision on whether they desire a public discussion[;] and (2) prepare and present an appropriate request in writing." Ibid.
Hascup's appointment as an Associate Professor of Nursing was scheduled to expire at the end of academic year 2014-2015. In her role as the Board's Executive Director, Kelly submitted a certification that described the process for reappointing faculty members whose terms of employment expire at the end of the academic year. According to Kelly, the process "culminates in a determination by the [University] President [on] whether to recommend to the Board that each such faculty member be reappointed." "[A]pproximately three weeks in advance" of the Board's public meeting, the Board sends a letter to the affected faculty members notifying them if the President has recommended their reappointment.
Here, plaintiffs' counsel sent a letter to the Board's attorney advising the Board that it must send Rice notices at least two weeks before the scheduled meeting to ensure that affected faculty can exercise
Kelly described in her certification what transpired after President Farahi sent this letter to Professor Hascup.
Kelly attached to her certification a copy of the agenda for the Board meeting held on December 6, 2014. According to Kelly, on November 29, 2014, the tentative agenda for the Board's December 6, 2014 meeting was posted on the University's website and emailed to the KFT and other groups having an interest in the University.
The "report" containing the recommendations of the Academic Policy and Programs Committee is not part of this record. However, the trial court addressed this issue in the course of oral argument.
From this point forward, the colloquy between the court and the Board's attorney followed the same line of reasoning. The trial judge summarized the Board's legal position in the following statement to the Board's attorney:
Plaintiffs' counsel also summarized his clients' legal position while addressing the trial judge at oral argument:
We conclude plaintiffs' argument correctly captured the disturbing incongruity that results from the approach the Board adopted here. As the Board's Executive Director described in her certification, the Board's Academic Policy and Programs Committee met prior to the December 6, 2014 Board meeting "to consider the recommendations of the President concerning reappointments and to reach
The record shows that the actual discussion concerning whether to appoint a faculty member occurs in private with the members of this subcommittee. As Kelly stated in her certification, "[t]he recommendations of the Academic Policy and Programs Committee are presented to the Board at its early December meeting in the form of a personnel report entitled Faculty Reappointments and Faculty Non-Reappointments." The Board's attorney acknowledged that the deliberative process largely is centered in the University's "academic ranks" and the subcommittee. The only role the Board plays in this process is approving the report of the subcommittee in public session.
It is entirely proper for the Board to delegate to a subcommittee the responsibility of reviewing the President's recommendations concerning the appointments and non-appointments of faculty members and thereafter reporting its own recommendations to the full Board. This approach, however, cannot operate to substitute a Board member's duty to make his or her own independent decision on such matters. The OPMA is expressly intended to promote meaningful citizen participation in governmental affairs. When a public body acts on a personnel matter without prior discussion of any kind, the silent unexplained vote cast by the Board member
It is clear to us that the Board uses this approach to avoid sending a Rice notice. To accomplish this, the Board has delegated its core responsibility to discuss personnel matters to the Faculty Reappointments and Faculty Non-Reappointments report. At oral argument before the trial court, the Board's attorney represented that the subcommittee's "report" to the full Board consisted only of the resolution containing the names of the faculty members recommended for reappointment. The agenda for the December 6, 2014 meeting also reflects the opaque nature of the public session. Agenda Item 9 states only "Faculty Reappointments and Faculty Non-Reappointments." Item 9.1 simply states "Personnel Action-Faculty." These two cryptic notations are the only information the Board revealed to the public concerning this critically important phase of the public session.
Sending a Rice notice to all employees whose employment status may be adversely affected is the only means of creating an environment in which the members of public bodies are free to carry out their responsibilities in a manner that guarantees to the public that their ultimate decisions are the product of a thoughtful and deliberative process. N.J.S.A. 10:4-12(b) authorizes a public body to exclude "the public only from that portion of a meeting at which the public body
A careful reading of the statute reveals that with the exception of subsections (3), (8), and (9), the remaining six subsections involve matters touching upon the Board's legal privileges and obligations. For example, N.J.S.A. 10:4-12(b)(4) authorizes the Board to discuss in executive session matters involving collective bargaining agreements. Similarly, N.J.S.A. 10:4-12(b)(7) authorizes an executive session to discuss matters involving or implicating attorney-client communications.
Conversely, N.J.S.A. 10:4-12(b)(3) authorizes the Board to exclude the public to protect "the disclosure of [material] which constitutes an unwarranted invasion of
The language the Legislature used in N.J.S.A. 10:4-12(b)(8) is equally clear on this point. This is the basis for our decision in Rice. We recognized that the personnel exception codified in N.J.S.A. 10:4-12(b)(8) could only be waived "if all employees whose rights could be adversely affected decide to request a public hearing." Rice, supra, 155 N.J.Super. at 73, 382 A.2d 386. Only those who possess a legal right have the commensurate authority to waive that right.
The overarching public policy of the OPMA seeks to encourage, promote, and enhance the public's participation in the democratic process. This arises from our State's "long `history of commitment to public participation in government and to the corresponding need for an informed citizenry.'" McGovern, supra, 211 N.J. at 99, 47 A.3d 724 (citation omitted). The Legislature codified the right of the public "to be present at all meetings of public bodies, and
We now hold that a public body is required to send out a Rice notice
The notice requirement in Rice is predicated on the presumption that members of public bodies discuss personnel matters that come before them, question the underlying basis for the course of action recommended by the staff, and deliberate before reaching an ultimate decision that reflects the views of the members. As Justice Stein eloquently noted:
Here, the record shows that not sending a Rice notice stifles the Board's deliberative process and inhibits the robust discussion by individual Board members that Justice Stein described as the hallmark of informed decision-making. Only the Board has the authority to decide when to go into executive session. N.J.S.A. 10:4-13. Conversely, only the affected employees have the right to waive the privacy protections afforded to them by the Legislature in N.J.S.A. 10:4-12(b)(8). A decision
This court is bound to liberally construe the OPMA "to accomplish its purpose and the public policy of this State[.]" N.J.S.A. 10:4-21. Therefore, we hold that Rice notices must be provided in
We recognize that requiring a Rice notice may not produce the type of decision-making process the Legislature envisioned when it adopted the OPMA. We are also mindful that the judiciary plays no role in selecting the makeup of public bodies. The judiciary, however, is entrusted with enforcing the OPMA, which requires public bodies to conduct the public's business in
We now address the question of remedy. With respect to the release of the meeting minutes, the record shows the trial court previously gave the Board an opportunity to satisfy the "promptly available" requirement under N.J.S.A. 10:4-14 without imposing any sanctions. When the court's "suggestion" proved ineffective, the court imposed the permanent injunction we have vacated here. Thus, fairness dictates that we impose some form of sanction. N.J.S.A. 10:4-16 authorizes the court to impose "such remedies as shall be necessary to insure compliance with the provisions of this act." We are satisfied that the following sanctions will promote the public policy of the OPMA without unduly interfering with the Board's managerial prerogatives.
This court orders the Board of Trustees of Kean University to adopt a meeting schedule for academic year 2017-2018 that will enable them to make its meeting minutes "promptly available" under N.J.S.A. 10:4-14. This meeting schedule shall 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. Extraordinary circumstances shall include, but are not limited to, extreme weather, public emergencies, and any other unforeseen events that would make gathering to meet unreasonable. This court does not retain jurisdiction to enforce this order. Any party aggrieved by the Board's failure to carry out this order will be required to file an action in lieu of prerogative writs in the Superior Court, Law Division, Civil Part pursuant to Rule 4:69-1. In the event of any future violations of the OPMA by the Board, the trial court may consider the history of the Board's noncompliance in fashioning an appropriate remedy.
We declare the actions taken by the Board at the December 6, 2014 meeting regarding personnel matters null and void. Such relief is clearly authorized under N.J.S.A. 10:4-16. The public policy of transparency and accountability in the OPMA demand that we hold the Board accountable for failure to adhere to both the text and the values underlying the OPMA.
Affirmed in part and reversed in part. We do not retain jurisdiction.