Kean loses multiple OPRA lawsuits to teachers unions

File Photo The Kean Federation of Teachers took the school to court regarding multiple Open Public Record Act requests they felt the school did not fulfill.
File Photo
The Kean Federation of Teachers took the school to court regarding multiple Open Public Record Act requests they felt the school did not fulfill.

UNION COUNTY — A Superior court judge last week found Kean University violated the Open Public Meetings and Open Public Records acts when they refused to provide information allowed by law. Moreover, the university also broke the law when they failed to notify employees that their job status would be discussed at a board of trustees meeting.

Last year, right before Christmas, when the university decided not to give six professors tenure, it caused considerable angst within the Kean Federation of Teachers unionized members.

Despite hours of impassioned pleas by faculty members and students, the Kean Board of Trustees went along with recommendations made by the administration and university president Dawood Farahi, denying tenure to the six professors who held probationary status for five years.
At the time the board did not make a statement regarding this pivotal decision, however, the KFT found a critical mistake was made when the university failed to officially and formally notify the six professors.
Although Kean had every legal right not to offer tenure to probationary employees, the KFT maintained in court papers that by not sending Rice Notices to the six professors, the university failed to follow the letter of the law, said Ocean County Superior Court Judge Vincent J. Grasso.
A Rice Notice is a formal notification sent to individuals whose job status is on a meeting agenda of any governmental board. This official notice, required by law, alerts employees their position is in jeopardy and the matter will be discussed at either a public or executive session meeting.
Grasso ruled the university violated the Sunshine Law, Open Public Meeting Act, by not providing official notice to the untenured faculty members whose employment was being acted upon at the board of trustee meeting.
According to KFT President James Castiglione, the court could have required the university board of trustees to reconvene the meeting to vote again on the matter, but declined doing so because the vote on the matter would not change.
“Henceforth, the university is obligated to provide the proper Rice notice for all employees subject to a personnel action on the agenda of any future meeting, whether they are untenured or tenured faculty, professional staff, librarians, administrators or any other category,” the KFT president explained.
The court also came down on the university for not providing Kean Board of Trustee executive session minutes promptly.
According to Castiglione, when the KFT requested minutes of the executive closed session meeting where the fate of these six professors was discussed, the board claimed they could not release the minutes until they were approved at the next meeting. In this case, that meeting would not have taken place until March.
“The judge ruled that was a clear violation of the meaning of the ‘prompt release’ clause of the law,” said the KFT president, adding that the court said the board of trustees “must release the executive session minutes within 30 to 45 days of any future meeting.”
The court also ruled that when the trustees finally released the minutes of the December meeting, “they were so heavily redacted as to be unintelligible.” Redacted means a significant amount of the minutes were “blacked out,” which made it impossible to understand what was said about these six employees during the executive session.
“We added that violation of the Sunshine Law to our lawsuit,” Castiglione explained, adding that the judge agreed with them and directed the Kean board of trustees “to release far more comprehensible minutes from the December meeting and to do so in short order.”

“The judge also acted to ensure that such heavy redactions don’t occur in the future,” the KFT president added.
The court will be issuing injunctions against Kean University and the board of trustees on each of the three counts won by the KFT.
The first injunction will act to ensure the university issues Rice notices for all employees subject to action at any future meeting of the board of trustees.

The second injunction ensures the board of trustees must adhere to a 30 to 45 day timeline for the release of executive session minutes for all future meetings.

The third injunction ensures that “unacceptably heavy redactions of executive session minutes do not occur in the future.”
Castiglione explained the judge did not levy any penalties for the violations; however, he said the possibility of future penalties is more likely if this behavior is repeated or if the injunctions are violated in the future.

On the other hand, the court did award the KFT union reimbursement for legal fees for the OPRA and OPMA violations. Castiglione was elated about the victory, explaining what this meant in the future.

“One impact of this legal victory is that all our sister institutions will be required to abide by the same procedures as Kean, meaning that the impact of the ruling will be felt statewide,” said the KFT president.

“Further, this ruling is a victory for transparency and governance, principles that are absolutely fundamental to integrity and academic freedom,” he added, noting that it is his understanding that the ruling applies to untenured faculty who are currently going through the reappointment process and who will be on the board of trustees December meeting agenda.

“In the meantime, KFT members can take away from this victory the knowledge that the Farahi administration can be held accountable. That it is possible, through collective action of our union, to take on the Farahi administration and win,” Castiglione said.
Although the KFT also filed a violation against Kean for failure to provide resolutions and board of trustees committee reports, the court did not rule in their favor on these issues.

“The judge concluded that these reports cannot be disclosed because, shockingly, the board insists no such reports exist,” said Castiglione.

“So what this lawsuit revealed is that the trustee committees, which make recommendations on the spending of millions of taxpayer dollars at every meeting, produce no written record of the body of the work that they do,” added the KFT president.

“We are investigating whether this revelation rises to the level of dereliction of duty or failure of the board to perform its fiduciary responsibilities as the body entrusted with oversight of the university,” explained Castiglione, adding that it is worth noting that “the judge agreed with us that there would have been a violation of the Sunshine Law and OPRA had the records actually existed and the board would have been ordered to release them.

On the second issue involving the release of reports, the judge ruled that the board of trustees were not obligated to provide copies of resolutions listed on the meeting agenda prior to a public meeting.

“He concluded the documents fall within the ‘pre-decisional and advisory’ exemptions from OPRA.” Castiglione said, pointing out that a court in Bergen County came to the opposite conclusion in a case involving resolutions on the agenda of a board of education.

“That court ruled that resolutions must be released in advance of the meeting upon request under the logic that it is virtually impossible to speak about an issue at a meeting without being able to review the resolution in advance,” he said about the Bergen county case.