Let the Sunshine! Board Meetings after Kean & Wall

Kasi M. Gifford, Esq.

-and-

Camille L. McKnight, Esq.

Cooper Levenson, P.A.

OPMA
Notice and Agenda

Issues

Let The Sun Shine In..

The Open Public Meetings Act (the “OPMA”)

What is the purpose of the OPMA?
• Public present at all public meetings
• Avoid secrecy in public affairs that undermine

the faith of the public’s trust in government
• Ensure that all citizens have adequate or advance

notice of public meetings to foster participation

• Public Comment
• Public Decisions?

Open Public Meetings Act
N.J.S.A. 10:4-6

• N.J.S.A. 10:4-7:
• The Legislature finds and declares that the right of the public 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
of public bodies, is vital to the enhancement and proper functioning
of the democratic process;
• That secrecy in public affairs undermines the faith of the public in
government and the public’s effectiveness in fulfilling its role in a
democratic society, and hereby declares it to be the public policy of
this State to insure the right of its citizens to have adequate
advance notice of and the right to attend all meetings of public
bodies at which any business affecting the public is discussed or
acted upon in any way except only in those circumstances where
otherwise the public interest would be clearly endangered or the
personal privacy or guaranteed rights of individuals would be clearly
in danger of unwarranted invasion.

Notice: The Requirements

Public Meeting Notice:

• Must advise if action will be taken

• Agenda must include all known items to be
discussed

– Annual notice (post & mail to 2 newspapers &
file with clerk)

– 48 hour notice (post & mail to 2 newspapers &
file with clerk)

– Emergency Mtgs. (requires affirmative vote
of ¾ of members present-limited to issue-
unforeseeable)

• Based on reality not appearance

What does “adequate notice” mean?

• At the start of each meeting, the Board President (or his or
her designee) must announce to the public that adequate
notice of the meeting was provided and the time, place, and
manner in which the notice was provided.
– This must be entered into the minutes.

• “Written advance notice of at least 48 hours, giving the
time, date, location, and to the extent known, the agenda of
any regular, special, or rescheduled meeting. . .”

• Must state whether formal action may or may not be taken

• Must be published and filed in accordance with N.J.S.A.

10:4-8.
• Where annual notice or revisions set forth the location of

any meeting, no further notice is required.

Opderbeck v. Midland Park Board
of Education

(Appellate Division Decision, 2015)

• The Court applied rules of statutory construction.

– N.J.S.A. 10:4-8(d):

• “Adequate notice” means written advance notice of at least 48
hours, giving the time, date, location and, to the extent known, the
agenda of any regular, special or rescheduled meeting. . .

– Gave the term “agenda” its plain, ordinary meaning: “a
list or outline of things to be considered or done.”

• This definition of “agenda” was consistent with the definition of
the term contained in an Attorney General Advisory Opinion
shortly after the adoption of the OPMA.

– Public bodies are not required to provide the
attachments and supplemental documents mentioned in
its “agenda.”

Worts v. Upper Township
(Because Everything is Awesome Until it’s Not)

• February 29, 1980 – The Township filed a notice of
the special meeting in the office of the Township
clerk, posted a copy on the bulletin board in the
Township Hall, and sent copies of the notice to four
(4) newspapers for publication.

– Publication Schedule: Two published on Thursdays;
one on Mondays, Wednesdays, and Fridays, and one
daily.

– March 3, 1980 was a Monday and said notice was
not published by any of the newspapers prior to the
meeting

• March 3, 1980 – Township Council held a special
meeting at which it approved the application for the
transfer of a liquor license to a new location.

Worts v. Upper Township

• A complaint was filed challenging the validity
of the transfer of the liquor license.

• In finding a violation of the OPMA, the Court
held that “only when a public body has given 48
hours advanced notice to newspapers capable
of timely publication that it can be concluded
that all reasonable effort has been made” to
notify the public.”

Challenges to Alleged
Improper Notice

• Action in Lieu of Prerogative Writ in
Superior Court

– 45 days

• Injunctive Orders
• Penalty (Prosecutor’s Office)

– $100 first offense
– $500 for any subsequent offense

– N.J.S.A. 10:4-15, N.J.S.A. 10:4-16, N.J.S.A. 10:4-17

OPMA

Exceptions to OPMA N.J.S.A. 10:4-12(b): “A public
body may exclude the public only from that portion of a meeting
at which the public body discusses any”:
• Express provisions of federal or state law that renders matter

confidential
• Release of information would impair federal funding
• Unwarranted invasion of individual privacy related to a public body

providing medical/social services
• Tactics and techniques utilized in protecting the safety and

property of the public
• Collective bargaining negotiations
• Purchase, lease, or acquisition of real property with public funds
• Pending or anticipated litigation/attorney-client privilege/contract

negotiation other than with employees
• Personnel Exception and Rice Notices
• Deliberations of a public body which may result in the imposition of

a civil penalty (including discipline) or suspension or loss of a
license or permit.

Important OPMA
Case Law to Remember

McGovern v. Rutgers University, et al.
Supreme Court 211 NJ 94

• Plaintiff filed a four-part complaint in lieu of prerogative
writs in N.J. Superior Court

– 1. Board failed to provide adequate notice of the items it would
consider at its September 10 meeting and to state whether
formal action may or may not be taken

– 2. Board improperly excluded the public from the September 10
meeting by discussing matters in closed session that lay outside
the OPMA’s exceptions

– 3. Board failed to set aside a portion of the September 10
meeting for public comment

– 4. Board’s notices and sequence of the regular meetings
• Confused the public
• Discouraged public attendance and participation
• Left the public bewildered, unaware of what was going on, and
with nothing to do until the next open session began later in
the day

McGovern v. Rutgers University, et al.
Supreme Court Decision

• Resolution to enter closed session was adequate
under N.J.S.A. 10:4-13, which requires a public
agency to state the “general nature of the
subject to be discussed.”

• “Contract negotiations for sports marketing, naming
rights of athletic facilities and stadium construction”

• “Employment of personnel and terms and conditions of
employment”

• “Pending litigation, investigations, and maters falling
within the attorney-client privilege with respect to
these subjects”

• But…

McGovern v. Rutgers University, et al.
Supreme Court Decision

• Notice of special meeting was inadequate

– Panel confused the statutory requirement for notice of closed session
matters, N.J.S.A. 10:4-13, with statutory requirement for notice of the
meeting and agenda items, N.J.S.A. 10:4-8

– Notice of meeting under N.J.S.A. 10:4-8 requires notice of “to the extent
known, the agenda” does not require higher burden or require “as much
knowledge as possible” as Appellate Division decided

• Notice of meeting stated that the Board would “act on a resolution to meet in
immediate closed session to discuss matters falling within contract negotiation
and attorney-client privilege”

• “The record reveals clearly that by the time this notice was prepared and
published, more was known about the extent of the proposed agenda than what
was conveyed by the generic references to ‘contract negotiation and attorney-
client privilege’”

• Despite inadequate notice, plaintiff was not entitled to a remedy

McGovern v. Rutgers University, et al.
Supreme Court Decision

• Is there an exception to notice requirement?

• “The two exceptions that permit a public body to meet without
having provided such ‘adequate notice’ are contained in N.J.S.A.
10:4-9(b) and N.J.S.A. 10:4-12(b).”

– N.J.S.A. 10:4-9(b): Matters of urgency
– N.J.S.A. 10:4-12(b): Matters falling within the nine statutorily

proscribed matters appropriate for executive session

• Is this correct?

– “[A] board of education shall be required to set aside a portion of
every meeting . . . for public comment.” N.J.S.A. 10:4-12.

– “No public body shall exclude the public from any meeting . . . until
the public body shall first adopt a resolution, at a meeting to which
the public shall be admitted.” N.J.S.A. 10:4-13

McGovern v. Rutgers University, et al.
Supreme Court Decision

• What about Closed Session Matters?

• The Court agreed with Appellate Division that certain
discussions should have been in public

• While there may be a natural progression from the
discussion topics appropriate for closed session to
topics from which the public may not be excluded,
public bodies must be vigilant during closed session to
ensure that they do not stray from the defined,
circumscribed issues that may be addressed in closed
session

• For same reason as notice violation, plaintiff was not
afforded a remedy

McGovern v. Rutgers University, et al.
Supreme Court Decision

• A public body must be afforded discretion in
determining the most advantageous and efficacious
manner of proceeding through its agenda

• Absent proof of bad motive, courts should be loathe to
intervene in such highly individualized decisions and to
impose rigid mandates that could prove unworkable

– That a member of the public experiences some inconvenience as
a result of the Board’s sequence does not meant the Board
acted with the purpose to cause that inconvenience and to
discourage him from attendance

Things to take away

from the McGovern

Case

McGovern v. Rutgers University, et al.

Supreme Court Decision

• The Resolution to Enter Close Session
• Describe general nature of subject to be discussed
• Contract negotiations

– Give formal names
– Ex: “Smith contract”

• Personnel matters

– “Personnel” sufficient

– Privacy interest of employee at issue. La Fronz v. Weehawken
Bd. of Educ., 164 N.J. Super. 5 (App. Div. 1978), certif. denied,
79 N.J. 491 (1979).

• Remember Rice v. Union County Reg’l High Sch. Bd. of Educ., and
Kean Fed. of Teachers v. Bd. of Trustees of Kean University,

Litigation

• Give name of case
Matters within the attorney-client privilege

Did Someone Monitor the
Closed?

• Proper notice

– Agenda
– Resolution for closed session

• Monitor the conversations

– Conversations limited to those covered by an
exception

– Conversations limited to those covered by an
exception you announced

– Beware of the phone, e-mails, and text messages

• Policy discussions should occur in public

Meeting Sequence

• Start the open and closed portions of your meetings at
the time provided in the published notices of the meetings

• If closed session following open session is required

– Estimate before going into closed how long you anticipate closed
session will last

– Use best efforts to limit closed session to time specified
– Good way to limit the closed session

• N.J.S.A. 18A:10-6

– All meetings must be called to commence not later than 8 p.m. of
the designated day

– If there is no quorum at the time for which the meeting is called,
members present may recess the meeting to a time not later than
9 p.m. of said day

– If no quorum is present at 9 p.m., meeting may be adjourned until 8
p.m. of another day

• Within 7 days of the originally scheduled meeting date

Minutes of Meetings

The Open Public Meetings Act
& School Board Minutes

• A public body shall keep minutes of

“all its meetings”. N.J.S.A. 10:4-14

– No distinction is made between those
meetings held in public or executive

session. Attorney General Opinion,

October 15, 1998.

School Board Minutes:

The Requirements

• Must be “reasonably comprehensible”

– New Jersey Supreme Court: “. . . .sufficient
facts and information to permit the public to
understand and appraise the reasonableness of

the public body’s determination.” South Jersey
Publishing Co. v. New Jersey Expressway
Authority (1991).

– Minutes do not need to be a verbatim

transcript of the discussion. Attorney General
Opinion, October 15, 1998

School Board Minutes:
The Requirements

• Time & place
• Members present
• Subjects considered
• Action taken
• Vote of each member

– Ballots
– Roll Calls

• Any other information required to be
shown in the minutes by law

School Board Minutes

• Minutes “shall be promptly available”
to the public to the extent that
making such matters public shall not
be inconsistent” with OPRA.

– Executive Session minutes for purposes
of the OPRA, must be considered in
light of the OPMA.

The Open Public Records Act
and School Board Minutes

• As a best practice, executive session minutes
should be approved, if possible, at the next
regularly scheduled Board meeting.

• Public entitled to view the minutes.

• Every six (6) months, executive session minutes
should be reviewed for privilege and then
released.

• Material that is not subject to disclosure under
OPRA must be redacted as appropriate.

OPRA: School Board
Minutes

• Public and Executive Session Minutes
are “government records” under
OPRA.

– Executive Session Minutes are subject
to redactions.

– Committee Minutes? Is a meeting of a
Board committee a “meeting” under the
OPMA?

OPRA: School Board

Minutes

• “The terms shall not include inter-agency or intra-agency,

consultative, or deliberative material.” N.J.S.A. 47:1A-1.1

– Common law “deliberative process privilege”

– Mapother v. Dept. of Justice (D.C. Cir. 1993)

• Committee minutes are not “government records” until
after a policy or decision by the Board is adopted.
• After a decision is made committee minutes may be
released upon a showing that the need for the
materials overrides the Board’s interest in
confidentiality.

• Executive Session minutes?

RICE Notices

What does this mean?

• If the Board wants to exclude the public from its
discussions in “closed” or “executive” session, it must, under
the OPMA, first publicly adopt a resolution that states the
general nature of the subject that will be discussed, and
the time when and the circumstances under which the

discussion can be publicly disclosed. N.J.S.A. 10:4-13.

• The OPMA gives each employee the statutory right to
request in writing that matters involving terms and
conditions of employment be discussed at a public meeting.

Id. Therefore, the employee needs advance notice of the

discussion.

Rice v. Union County Regional High School Board of
Education

155 N.J. Super. 64, 72-73 (App. Div. 1977)

Plaintiff teacher and plaintiff teachers' association sought review of the judgment of a New Jersey trial
court that dismissed their complaint against defendant board of education for violations of the Open
Public Meetings Act (“OPMA” or “Act”), N.J.S.A. 10:4-6 et. seq.

Plaintiffs contended that the Act was violated when defendant held an executive session to discuss
personnel matters and failed give the 17 terminated employees notice of the meeting.

Appellate Division explained “[t]he public policy behind the personnel exception to the OPMA is clearly
stated in N.J.S.A. 10:4-7 and indicates a concern for ‘personal privacy or guaranteed rights of individuals
[which] would be clearly in danger of unwarranted invasion’ if these matters were to be discussed in
public.”

There must be “a method by which the individual may forego this personal privacy and have a public
discussion on the matter.” Ibid.

The Rice court held that an individual may forego his or her personal privacy and have a public discussion
on the matter if he or she has “reasonable advance notice so as to enable [him or her] to (1) make a
decision on whether they desire a public discussion and (2) prepare and present an appropriate request in
writing.” Id. at 72-73.

• The Board should enter executive session in order
to have open and free discussions about the
qualifications, performance, merit, and
shortcomings of a specific employee, or any other
matter that touches the terms and conditions of

the employee’s employment, so long as the Board
sent the appropriate notice under Rice to the
effected employee.

Sample RICE Notice

RICE NOTICE
Employee/Prospective Employee
Address, New Jersey

Dear __________:
Please be advised that pursuant to the requirements of N.J.S.A 10:4-12,
you are hereby advised that at the meeting of the Board of Education to
be held on [Date] at [Time] in [Place], the Board will have a discussion
which could affect the terms and conditions of your employment.
Specifically, the Board will discuss [state nature of discussion i.e.
promotion, termination, discipline, grievance, job application,
performance review, leave request, compensation, etc.]

This discussion will take place in closed session unless you deliver a
request in writing to [Name], Business Office, [Address] that you wish
such discussion to be held in public session. Such request should be
received in no later than 5:00 p.m. on [Date of Meeting].

Very truly yours,

???

Can you e-mail Rice Notice?

• Yes….but

– Make sure your computer operating
system allows for tracking if an e-mail
was received, i.e. read receipts or some
other method

– Make sure the employee has access to a
computer

• Custodians
• Cafeteria Workers
• Bus Drivers
• Aides

Kean Federation of Teachers v. Morell, 233 N.J. 566
Supreme Court of New Jersey

January 17, 2018, Argued; June 21, 2018, Decided

*Plaintiffs alleged the Board of Trustees of Kean University violated
the Open Public Meetings Act (OPMA) by delaying 94 days and 58
days before releasing the minutes of two board meetings

*The trial court and appellate court found the Board violated the
“promptly available” standard under N.J.S.A. 10:4-14 of the OPMA.

*Plaintiffs also allege that the Board should not have taken action to
terminate an employee without first providing the employee with a
RICE notice.

*Here, the trial court ruled that absent any discussion of the
employees' status during closed session, or any stated intention to
engage in such discussion, the board is not required to send a Rice
notice to the affected employees.

*Appellate Division reversed and held that a public body is
required to send a Rice notice to all affected employees
any time it places on its agenda its intention to take
action affecting these employees' employment status.

Kean Federation of Teachers v. Morell

• The Court overturned the Appellate Division's decision which
found that public bodies must issue Rice notices to employees in
advance of any meeting "at which a personnel decision may occur.“

• The Court noted the Open Public Meetings Act (OPMA) and
related case law, which expressly state that Rice notices must be
provided only to those employees whose employment may be
"adversely affected."

• We find that the procedural notice created in Rice should not be
stretched beyond its factual setting.

• Neither N.J.S.A. 10:4-12(b)(8) nor Rice supports the
interpretation that notice must be given to all potentially affected
employees, regardless of whether the employee is adversely
affected, whenever a personnel matter appears on a governing
body's public meeting agenda.

• Also held that where public discussion is already planned,
a Rice notice does not have to be provided. Further, the use of
subcommittees to discuss and approve personnel recommendations
is common and "is not fairly viewed as an inherent subterfuge to
eschew public discussion." There is no requirement
in the OPMA for public bodies to "robustly discuss
all personnel matters.“

– Public Discussion may be desirable?

Kean Federation of Teachers v. Morell

• Minutes should be released within days of their approval,
unless truly extraordinary circumstances prevent their
availability to the public.

• There is no definition of the term “promptly available” in
the Act. See N.J.S.A. 10:4-8.

• Balance private interests;
• Fact sensitive;
• Reasonableness must remain the touchstone when assessing

the promptness of a public entity’s actions in this area.

Kean Federation of Teachers v. Morell

• Two Last Thoughts from the Court:

– We add only that once a public entity has committed to a public discussion on a topic
tangential to the personnel exception, if a Board member sought during that public
session to raise questions or provoke a discussion that implicated a need to
adjourn to private session, then the discussion would have to halt. The Rice
notice practice would have to be employed for the employees whose rights could
be adversely affected. We express no opinion on whether any or all questions about
reappointment would implicate either a privacy concern under N.J.S.A. 10:4-12(b)(3)
or a risk of litigation for the Board over reputational harm to the employee.

• In what appears to be "dicta", the Supreme Court seemed to
positively comment on the issue of electronic participation in a
meeting:

– At argument, we were informed that, with the availability of technology, entities are
developing ways to speed the preparation of minutes of public sessions. Indeed, some
public bodies are able to release minutes on the very day of the meeting through the
contemporaneous electronic production of minutes as the meeting unfolds followed by
a vote on the minutes before the meeting is adjourned. We commend such action.
Also, some public entities are using separately noticed additional public meetings,
with telephonically enhanced access for members, to expedite the approval of
minutes. Again, we encourage such ingenuity, which furthers the OPMA's aims.

•

Who may issue a RICE
Notice?

• Ordinarily the Board President, Business
Administrator or Superintendent o/b/o Board
(per policy).

• Independently Arranging RICE Notice Found To
Be An Ethics Violation. In a recent decision,

Persi v. Woska, the New Jersey Commissioner of

Education has shed much-needed light on who

has the authority to issue a RICE notice.

Persi v. Woska

• Board member called the business administrator and told
him he wanted a RICE notice prepared in order to discuss
the superintendent’s employment at an upcoming board
meeting.

• The member was not the board president, and he did not
discuss the Rice notice with the president or any sitting
member of the board.

• The issue arose around the time of the board’s annual
reorganization meeting, and the board member discussed
the interim superintendent’s future “in passing” with three
newly elected members.

Persi v. Woska

• In the school district in question, Rice notices for
employees, other than the superintendent, were
ordinarily signed by the school business
administrator, the assistant superintendent or
superintendent of schools.

• In 2011 School Ethics Commission’s (“SEC”) rules
that a board member on the Brick Township board
violated the School Ethics Act.

Persi v. Woska

The SEC determined:
• It was the board’s prerogative to issue the Rice notice or to

determine who had the authority to issue a Rice notice,
perhaps the board president.

• By taking such unilateral action, the board member took
private action beyond the scope of his duties and
responsibilities of a board member that not only had the
potential, but did, compromise the board as it set off a
chain of events which resulted in litigation before the SEC
and the Commissioner.

– This was precisely the type of action which the Code of Ethics for
School Board Members was intended to proscribe.

Persi v. Woska

• Board Member appeals the SEC determination,
• Appellate Division remands to C’mmr. for clarification.
• Commissioner on remand, observes and clarifies:

-There is no law or regulation that specifically outlines the procedure
for issuance of a Rice notice to the chief school administrator of a
district board of education.

-Employment matters related to the chief school administrator are
similar to those that precipitate a special meeting of the board of
education, and are often serious and time-sensitive. State regulation
provides that a board secretary must call a special board meeting
whenever requested by the board president or when the board
secretary is presented with a request signed by a majority of the full
membership of the board. The commissioner concluded that the
issuance of a Rice notice to the chief school administrator of a district

warrants a similar protocol.

Persi Teaches us That:

• The presence of a quorum of the Full
Board, as subject to the OPMA, would be
required to RICE those employees who it
may discuss and take action upon.

– Processes and procedures in place for doing
this.

• Individual Board Members should not RICE
employees.

Executive Session

• Employees do not have a right to
attend the Board’s executive session

– Some Board’s allow employees in as a
courtesy

– Simply Make a Statement
– Not a Hearing
– Why? When? How?

Public Comment &
Disruption

Public Comment at Public Meetings

• The OPMA provides that a public body always
retains the right to “permit, prohibit, or regulate
the active participation of the public at any
meeting.” N.J.S.A. 10:4-12

• The BOE must, “set aside a portion of every
[public] meeting, the length of the portion to be
determined by the. . .[Board] for public comment
on any governmental or school district issue that a
member of the public feels may be of concern to
the residents of the municipality or school
district.” N.J.S.A. 10:4-12

Public’s Rights Under the OPMA

• Public is allowed to tape meetings.

– Taurus v. Borough of Pine Hill, 189 N.J. 497

(2007)

• Even if you have a policy against it!

• All meetings must have a public comment period.

– Besler v. Bd. of Educ. of West Windsor-
Plainsboro Reg.’l Sch. Dist., 201 N.J. 544 (2010)