New Jersey Supreme Court to hear Kean OPMA case

Photo by Rebecca Panico
A case involving Kean Univeristy with potential implications for other government institutions regarding public meetings will be heard by the New Jersey Supreme Court.

UNION COUNTY, NJ — The state Supreme Court will hear an appeal from Kean University’s Board of Trustees after a lower court ruled it violated the state’s Open Public Meetings Act.

A state Appellate Division in February ruled that the board, Kean’s governing body, should have sent Valera Hascup, a former Kean nursing professor, an official Rice notice in 2014 about her non-reappointment vote.
A Rice notice is a formal notification sent to a person who works for a public institution stating that their employment status may be discussed publicly. Hascup could not ask to have her non-reappointment discussed at the trustees’ public meeting since she did not receive such a notice.

“The University is in full compliance with the Open Public Meetings Act and provides more transparency than the statute requires,” university spokeswoman Margaret McCorry said in an Oct. 16 statement.
The defendants in the case are the trustees, Chairwoman Ada Morell and Kean University. The plaintiffs are the Kean Federation of Teachers, the union President James Castiglione and Hascup.

“It has statewide implications and because of the potential to bolster openness and transparency in government,” said Castiglione of the case. “There is the support from these good governance entities like the (American Civil Liberty Union).”

The trustees contend the board did not have to send a Rice notice because it never intended to discuss Hascup’s employment in either a closed or public session.

“By statute and the parties’ collective negotiations agreement, an individual is eligible for reappointment by the trustees only if the individual is first nominated for reappointment by the (university) president,” McCorry said in the statement. “The trustees know, without the need for discussion, that they are not going to reappoint any individual who was not nominated by the president for reappointment because the trustees have no power or authority under the law to do so.”

The ACLU of New Jersey, New Jersey Education Association and Libertarians for Transparent Government all filed motions to show support for the Appellate Division’s decision, and the ACLU-NJ called Kean’s argument for not sending a Rice notice a “dodge” in its brief.

“In sum, the (state Appellate Court’s) requirement of notice under Rice was intended to foreclose upon similar future attempts by any public body to dodge OPMA’s most fundamental transparency objectives by claiming not to deliberate on significant personnel decisions at all.”

Meanwhile, Rutgers University and other groups — including the New Jersey School Boards Association, Association of School Administrators, League of Municipalities and Council of County Colleges — filed briefs showing disapproval of the ruling.

“It is respectfully suggested that the Appellate panel has re-written the Open Public Meetings Act in a way that was never intended by the Legislature,” the New Jersey State League of Municipalities wrote in its brief.

The state Appellate Court ruling has had far-reaching effects. A public body is now required to send out a Rice notice any time it has an agenda item involving issues including employment, appointment or termination. That, according to the New Jersey School Boards Association, has resulted in “an administrative burden” for local school boards and has created “confusion” among some employees.

“If more employees are receiving more notices more often for more varied reasons, it is less likely that the employees will act on them,” the New Jersey School Boards Association said in its brief to the state Supreme Court. “This creates a situation where the district undertakes an administrative burden in sending a voluminous amount of notices with little or no benefit to the employees who are the subject of those notices.”

The state Appellate Court also ruled that the trustees’ 2014 vote addressing Hascup’s non-reappointment to be null and void. So in March, the trustees voted again on its 2014 resolution, which originally included the non-reappointment of Hascup. This new vote did not include any non-reappointments, therefore, Hascup reportedly did not receive a Rice notice.

The lower court in February also ruled that trustees’ meeting minutes had to be approved and released more promptly. The trustees approved minutes of its Sept. 11 gathering at the same meeting, after returning from executive session.

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