Last week, in a ruling expected to impact local school boards, the state’s second-highest court ruled that employees and prospective employees are entitled to receive a “Rice Notice” any time a matter involving their employment is placed on the board’s agenda, regardless of whether the board will actually be discussing the individual.
The “Rice Notice” requirement stems from the 1977 case of Rice v. Union Cty. Reg’l High Sch. Bd. of Educ. In that case, the Appellate Division held that the Open Public Meetings Act allows public bodies to exclude members of the public from discussions of personnel matters in order to protect the confidential nature of personnel deliberations. The Rice court found that despite the authority designated in the act to exclude members of the public, the individual employees being discussed nevertheless could waive their right to privacy and have the board conduct that portion of the meeting in open session. In order to ensure this right, boards are required to provide advance notice, a.k.a. “Rice Notice,” whenever the board intends to discuss that individual’s employment.
In the current case, Kean Federation of Teachers v. Morell, Kean University’s Board of Trustees adopted an employment procedure in regard to the renewal of an existing faculty member. Under this procedure, the university president forwarded renewal and nonrenewal recommendations to the personnel committee. The personnel committee then discussed the president’s recommendations in a committee meeting in order to reach a consensus on the individuals who were going to be offered continued employment. The committee then created a consensus report, which was forwarded to the full board for consideration.
In December 2014, using this procedure, Dr. Valera Hascup, a Kean University faculty member, was not recommended for renewal for the 2015-2016 school year. While the university did individually notify Hascup of the nonrenewal recommendation, it did not provide her with advance notice of the meeting where that recommendation was to be presented to the board.
Following her nonrenewal, Hascup filed suit asserting that the board violated the Open Public Meetings Act (OPMA) by failing to provide her with a “Rice Notice” advising that the board was considering taking action concerning her employment. In response, the university asserted that notice is only required where the board convenes in executive session to deliberate employment recommendations. According to the university, there was no obligation to convene in closed session because the board did not have a need to deliberate on the employment recommendations and no privacy interests were implicated; therefore, no Rice Notice was required.
In its decision, the Appellate Division focused on the fact that, according to the above procedure, the deliberative process took place during the personnel committee meeting, outside the presence of the public, which then submitted its personnel recommendations to the board. The board’s only role was to approve that report in public session. The court opined that this procedure essentially sidestepped OPMA and denied the public the right to observe all phases of the board’s deliberation and decision-making process.
According to the court, “[s]ending 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.” The court concluded by holding “that Rice notices must be provided in advance of any meeting at which a personnel decision may occur. This protocol provides the board with the flexibility to discuss matters in executive session when necessary and affords the affected employees the opportunity to request that any proposed discussion occur publicly.”
The court in the Kean matter also determined that the university trustees’ bi-monthly meeting schedule did not allow minutes to be “promptly available” after the meeting. The trustees of the university met five times per year and typically approved the minutes of each meeting at the subsequent meeting, which were often spaced sixty or more days apart. The court “encouraged” the trustees to adopt a more frequent meeting schedule so that minutes of each meeting could be made “promptly available” to the public.
This decision is certain to have a significant potential impact on how boards of education conduct their internal personnel affairs. The New Jersey School Boards Association encourages board members to discuss the decision with legal counsel to ensure appropriate implementation.