Ruling against Kean could have widespread implications

UNION COUNTY, NJ — An appellate court has ruled that Kean University failed to provide adequate notice to a professor before deciding not to renew her contract at a public meeting.

Kean University’s board of trustees made the decision not to reappoint associate professor of nursing Valera Hascup at a Dec. 6, 2014, meeting, without prior discussion, as part of several other personnel decisions made at the meeting.

On Feb. 8, the Appellate Division of the Superior Court of New Jersey found that the university violated the state’s “Sunshine Law” by failing to send faculty members “Rice notices,” or warnings, before the college’s trustees met to decide on their reappointments.

The Sunshine Law requires certain proceedings of government agencies to be open or available to the public.

The published decision speaks forcefully to the issue of transparency and accountability in public decision-making and strengthens the state’s Open Public Meeting Act.

The Kean Federation of Teachers president James Castiglione and Valera Hascup, filed the suit in December 2014, against chair of Kean University’s board of trustees, Ada Morell, the board of trustees of Kean University and Kean University, arguing that the university failed to provide adequate notice to Hascup regarding the termination of her employment.

The plaintiffs also argued that the board violated a specific statute when it took 58 days to release the minutes of the meeting held Dec. 6, 2014.

These minutes, according to the court’s decision, had been heavily redacted by the board of trustees, and that the redactions kept the minutes from being “reasonably comprehensible.”

The New Jersey Appellate Division ruled that Kean University violated the state’s open public meetings law by failing to give Hascup the chance to waive her right to have her employment discussed at the college board’s regular business meeting.

The court’s decision could have far-reaching implications, as the ruling could not only apply to Kean, but to every other public college and university in the state.
The ruling overturned a trial court’s ruling that the trustees were not required to provide Hascup with a Rice notice informing her of her right to request that Kean’s board of trustees discuss her employment status in public.

Although the trial judge ruled in the plaintiff’s favor, concluding that the board failed to make these minutes “promptly available” and issuing a permanent injunction requiring the board to make the minutes of all future meetings available to the public within 45 days, the appellate court overturned this decision.

While the appellate court did agree with the trial judge’s decision that waiting two or three months to release minutes from a meeting is not in compliance with the mandate of the statute, they also determined that, “an inflexible forty-five-day deadline for the release of the minutes is managerially, logistically, and legally unsound because it leaves the door ajar to permanent judicial entanglement.”

Despite this, however, the appellate court stated that “we urge the board to seriously consider increasing the number of times it meets annually. It is clear that the continuation of its present meeting schedule is legally untenable.”

The Feb. 8 decision stated that the appellate court disagreed with the trial judge that a Rice notice was not required because the board did not discuss Hascup’s reappointment in private session.

“Acceptance of the board’s position would sanction members of public bodies to take action on personnel matters without discussion or deliberation, for fear of violating the affected employees’ privacy rights,” the ruling stated. “As plaintiffs correctly point out, the fact that the board voted not to reappoint Hascup without discussion in order to avoid sending her a Rice notice obscured the decision-making process. This is precisely what the Legislature intended to prevent when it adopted the OPMA.”

The court went on to state that a public body is required to send a Rice notice whenever it intends to act on matters involving the employment, appointment, termination of employment and terms and conditions of employment of public employees employed by a public body.

“Here, the Board violated the OPMA by failing to send a Rice notice to all of the employees whose employment status was scheduled to be affected by the action the board took at its December 6, 2014 meeting,” stated the ruling. “A silent, unexplained vote to approve a list of preapproved candidates in public session gives the impression that the board colluded to circumvent the OPMA’s requirements,” the decision said.

In addition, the ruling called out the board’s decision-making regarding personnel, citing the “silent unexplained vote cast by the board member,” and stating that this “reduces the event to a perfunctory exercise, devoid of both substance and meaning.”

Robert Fagella, attorney for Hascup, told LocalSource that the reversal of the trial court’s decision by the appellate court on the issue of the 45-day deadline is limited.

“It’s a very, very limited reversal,” Fagella said in a phone call last week. “The appellate court said that they leave it up to the board.”

Fagella lauded the overall decision of the court.
“I think the appellate court said that they don’t do their job,” he said, referring to Kean’s board of trustees. “The appellate court found that their behavior was just a complete abdication of their responsibilities to issue Rice notices and to evaluate and discuss any personnel recommendations.”

Kean University issued a statement to LocalSource on Feb. 15, stating that the university is considering the possibility of an appeal.

“Kean University maintains that it acted fully consistent with the Open Public Meetings Act,” read the statement. “The university is in the process of reviewing the decisions and is considering all legal options, including the possibility of an appeal.”

American Federation of Teachers President Donna Chiera said in a statement released to LocalSource on Feb. 15, that the court’s ruling was a wake-up call.
“This ruling is a wake-up call for state college and university managers who think they can ram through opaque decisions affecting the livelihoods of workers who’ve dedicated their lives to serving the public,” Chiera said. “The Sunshine Law serves a righteous purpose — to ensure the decisions taken in public meetings can be scrutinized by the citizens who fund our institutions. The court rightly found that the Kean trustees, by resolving not to renew these contracts without debate or discussion, were in flagrant violation of both the intent and spirit of the law.”

In a statement released to LocalSource on Feb. 15, Castiglione said, “We are pleased that the court has recognized, and put to a stop, Kean University President Dawood Farahi and his administration’s willful flouting of the Sunshine Law, done with the acquiescence of a rubber-stamp majority faction of the Kean board of trustees.”

Castiglione also called on Gov. Chris Christie, and all of the state’s current gubernatorial candidates, to make “effective oversight of New Jersey’s public colleges and universities, and compliance with the text and the values of the Sunshine Law by all public bodies, a priority of a good governance agenda.”

In a Feb. 13 letter written by Castiglione to members of the KFT, Fagella offered a synopsis regarding several components of the appellate court’s decision, including the timeframe of the board for releasing minutes of its meetings.

“The only component of the trial decision which was in any way revised was the trial judge’s decision that the board must issue its minutes within 45 days regardless of the circumstances,” wrote Fagella. “The Appellate Division acknowledged there might be some emergency in the future. But it reiterated that any time frame longer than 45 days would generally be too long, and that if the board had to conduct 10 meetings per year to ensure the timely issuance of minutes, then “so be it.”