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Appellate Division Broadens Open Public Meetings Act’s Rice Notice Obligation

Posted by Michael S. Selvaggi | Apr 11, 2017 | 0 Comments

The Open Public Meetings Act (“OPMA”) requires that public entities conduct business in an open public meeting, unless there is a specific exception specified under the Act. One of those exceptions is the discussion of personnel matters which must occur in closed session to protect the privacy of the employee. In 1977, the Appellate Division, in Rice v. Union County Regional High School Board of Education, held that an individual employee whose employment is scheduled to be discussed by a public employer in executive session could waive his/her right to privacy and require the employer to have that discussion in open session. Therefore, the Court ruled that a public employee is entitled to reasonable written notice when her employment was scheduled to be discussed and advising her that she could elect to have that discussion in public. This required notice is now commonly referred to as a Rice Notice.

Last month, the New Jersey Appellate Division issued a significant ruling which broadens a public entity's obligation to give Rice notices. Prior to the ruling in Kean Federation of Teachers v. Board of Trustees of Kean University, the common practice was for a public employer to issue Rice notices only when a current public employee's job performance was being discussed. In the Kean decision, the Appellate Division ruled that a Rice Notice is required any time a public body places on its agenda any matters ‘involving the employment, appointment, termination of employment, terms and conditions of employment, evaluation of the performance or, promotion, or disciplining' of any specific current or prospective public officer or employee, regardless of whether the entity will actually be discussing the individual.

Under review in Kean was whether the Board of Trustees for Kean University (a public employer) was required to give reasonable notice to an employee who was not being specifically discussed but whose reappointment was on the agenda. The Board of Trustees had adopted a procedure to evaluate the reappointment of existing faculty members. Under this procedure, the University president forwarded renewal or nonrenewal recommendations to the Board's personnel subcommittee. The subcommittee then evaluate the recommendations and submitted to the Board a report with its recommendations for the Board to vote on in public session. The Board did not issue a Rice notice to the faculty listed in the report because the Board was not expected to specifically discuss each employee at the public meeting. After the vote was taken, one employee who was not renewed sued. One of the arguments raised was that the Board failed to provide her with a Rice notice

The Appellate Division rejected the Board's argument that a Rice notice was not required, since it was not intending to, nor did it actually discuss the individual employee. The Court held that while the use of subcommittees is permissible, the use of a subcommittee as the only place for deliberations relating to the reappointment of an employee, followed by a “rubberstamp” by the full Board, contravened the Open Public Meetings Act.

The Court ruled 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 or, promotion, or disciplining of any specific prospective public employee employed or appointed by the public body'. The court reasoned that this approach will provide all of the affected employees with the opportunity to decide whether they desire a public discussion and, if so, present the request in writing.

It is important to note that the Court in Kean held that the Rice notice requirement applies not only to current employees but also to prospective employees. Public employers should be mindful of the Appellate Division's decision when creating their agendas. If employment matters are scheduled, the employer may be obligated to provide all affected current and prospective employees reasonable notice of the meeting, thereby affording them the opportunity to request that any discussion be held in public.

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Michael S. Selvaggi

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