NJASA

Appellate Division Decision Significantly Expands Rice Notice Requirements

In a precedential opinion issued on February 8, 2017, the Superior Court, Appellate Division, in the case of Kean Federation of Teachers v. Morell, ___ N.J.Super. ___ (App. Div. 2017), held that a public body is required to send a Rice notice whenever it intends to act or “any time it has placed on its agenda any matters ‘involving the employment, appointment, termination of employment, terms and conditions of employment, evaluation of performance of, promotion, or disciplining of any specific prospective public officer or employee or current public officer or employee or appointment by the public body[.]’”1 (Emphasis in original). The Appellate Division further held that “Rice notices must be provided in advance of any meeting at which a personnel decision may occur.” (Emphasis in original). The appellate court reached this conclusion, reasoning that, “[s]ending a Rice notice to all employees whose employment status may adversely be 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.” The court reasoned that, if a Rice notice is not sent for personnel matters listed as an agenda item, the implication is that the board has pre-decided the issue and executive session discussion is not needed. In such a situation, “[a] silent unexplained vote . . . in public session gives the impression that the Board colluded to circumvent the OPMA’s requirements.”

The court’s holding significantly expands the Rice notice requirements of public bodies, including boards of education. Now, any time a board places a personnel matter on its agenda or any time a board intends on taking personnel action, regardless of whether closed session discussion is contemplated, it must issue the affected employee or prospective employee a Rice notice in advance of the meeting.2 The only exception to the court’s holding is a situation in which tenure charges are contemplated because all deliberations and actions with respect to the charges must take placed in a closed meeting, and the affected employee does not have the right to request public discussion of same.3 The court’s decision overturns case law dating back to the 1980s, when the Commissioner determined a Rice notice need not be given to an employee so long as the board action occurs in public session at a duly-noticed meeting, at which the contemplated action is part of the agenda, and where there is no public discussion regarding the employee’s performance and/or misconduct.4 Thus, the court’s decision has upset the longstanding practice of generally only issuing a Rice notice to an employee when the board intends on holding closed session discussion about whatever the matter is involving the employee.

The Appellate Division believed that, by requiring the issuance of Rice notices, in all circumstances involving personnel matters, it would prompt public bodies to discuss the personnel matter at hand, question the administration about the basis for recommended personnel action, and prompt the board to deliberate before reaching a decision. The court recognized, however, that its decision may not produce the type of decision-making process the Legislature intended when the Open Public Meetings Act (OPMA) was adopted. Nevertheless, it believed its decision struck a balance between allowing the board flexibility to discuss matters in executive session when necessary, and providing affected employees the right to request that any such discussion occur in public.

An appeal of the Appellate Division’s decision was expected to be filed on or before February 28, 2017, but there is no guarantee that the New Jersey Supreme Court will grant the request.5 In the meantime, NJASA offers the following guidance in order to comply with the court’s decision:

1. Contact the board attorney and request specific advice for your school district.

2. Make sure that written notice is issued to any employee and to any prospective employee at least 48 hours in advance of any board meeting, when the employee or prospective employee is on the agenda for personnel action, or for any board meeting at which the board contemplates taking any action involving the employee or prospective employee, regardless of whether any closed session discussion will occur. The written notice should inform the individual of the date, time, and place of the meeting, the board action contemplated, and his/her right to request that any discussion involving his/her employment occur in public session.

3. Consider the issuance of a “blanket” Rice notice to all employees for all regularly scheduled board meetings.

4. Consider discussing with union leadership the necessity of issuing mass Rice notices to avoid panic and unnecessary anxiety among staff.

5. Consider sending an email to all staff containing an explanation of the Appellate Division’s decision to inform them that Rice notices will be issued in all circumstances when personnel matters appear on the board’s agenda.

School administrators are reminded that, while the OPMA, in tandem with the Rice decision, has always required the issuance of a Rice notice for the appointment of any prospective employee, even though this did not occur in practice, the Kean Federation of Teachers decision re-emphasizes the necessity to provide a Rice notice to any prospective employee whose appointment will be on the board’s agenda.

¹  The Appellate Division also held that making meeting minutes “promptly available”under the Open Public Meetings Act means that public bodies should make the minutes available for release to the public within 30 to 45 days of the meeting, unless there are extraordinary circumstances, like extreme weather or an emergency, that prevent the board from meeting. NJASA will be preparing a complete summary of the court’s decision in an upcoming publication of the School News Briefs which is available to subscribers of our Legal Publications Program.

²  The Appellate Division did not elaborate on how far in advance of the meeting the Rice notice must be issued.  The Rice decision requires “reasonable advance notice.” In general, the standard practice has been 48 hours in advance of the meeting.

³  See N.J.S.A.18A:6-11; N.J.A.C. 6A:3-5.1(b)(7).

⁴  See McGrath v. Board of Educ. of the Bourough of Kenilworth, 1989 S.L.D. 2120; Jarrett v. Watchung Bd. of Educ., 1981 S.L.D. 1114.

⁵  Telephone Interview on Feb. 15, 2017 between Andrew Babiak, NJASA Assistant Counsel and James P. Lidon, Esq., Counsel for Board of Trustees of Kean University.