Sen. Byron M. Baer Open Public Meetings Act(“Sunshine Law”) NJASBO Academy Program Basic School Law Robbinsville – November 2, 2017 Michael F. Kaelber, Esq. kaelbs1122@aol.com 732-692-7237

Sen. Byron M. Baer Open Public Meetings Act(“Sunshine Law”) N.J.S.A. 10:4-6 et. seq. Applies to meetings of boards of education, and other government bodies “ …it is it to be the public policy of this State to insure the right of its citizens to have adequate advance notice of and the right to attend all meetings of public bodies at which any business affecting the public is discussed or acted upon in any way…”

Sen. Byron M. Baer Open Public Meetings Act(“Sunshine Law”) N.J.S.A. 10:4-6 et. seq. Meeting – effective majority of the board present to discuss and act on public business Consider – committees of less than a quorum, training sessions, retreats, conventions, chance encounters, social functions

Sen. Byron M. Baer Open Public Meetings Act(“Sunshine Law”) N.J.S.A. 10:4-6 et. seq. Meeting – effective majority of the board present to discuss and act on public business; “…whether corporeal or by means of communication equipment…” Board policy - speakerphone, teleconference, Email, texting - county prosecutor memos

Sen. Byron M. Baer Open Public Meetings Act(“Sunshine Law”) Meeting Notice Regular – Time, Date, Location – 7days org Special – 48 hour advance notice of meeting, including time, date, location and agenda to the extent known, whether formal action will be taken Emergency – Unforeseen, substantial harm to public interest, ¾ vote of members present

Sen. Byron M. Baer Open Public Meetings Act(“Sunshine Law”) Publication Requirements Two newspapers capable of publication, greatest likelihood of informing the public Posted, filed with clerk, mailed to requestors Electronic notice permitted – N.J.S.A. 10:4-9.1, 9.2

Sen. Byron M. Baer Open Public Meetings Act(“Sunshine Law”) Public Participation Boards of education must set aside a portion of every meeting for pubic comment on school district issues. Not part of original Sunshine Law Municipal governing bodies - 2002 Boards of education – 2008 Time, place, manner restrictions; may not restrict content of speech

Sen. Byron M. Baer Open Public Meetings Act(“Sunshine Law”) Minutes Required for all meetings “Reasonably comprehensible” Time/place, members present, subjects considered, actions taken, vote of each member Statement of compliance “Promptly available”

Sen. Byron M. Baer Open Public Meetings Act(“Sunshine Law”) Closed Session Topics - Resolution N.J.S.A. 10:4-13 Must adopt resolution at public meeting General nature of subjects to be discussed; time and circumstances when the discussion can be disclosed to the public. Some specificity is required; simply naming the exceptions is not enough.

Sen. Byron M. Baer Open Public Meetings Act(“Sunshine Law”) Closed Session Topics N.J.S.A. 10:4-12 Matters confidential by law Matters which could impair right to receive federal funds Matters of individual privacy Collective bargaining Lease/purchase of property, bank rates, if public interest could be adversely affected

Sen. Byron M. Baer Open Public Meetings Act(“Sunshine Law”) Closed Session Topics N.J.S.A. 10:4-12 Tactics and techniques for protecting safety and property of the public Contract negotiation other than collective bargaining Pending/anticipated litigation; attorney – client privilege Deliberations of public body after a public hearing

Sen. Byron M. Baer Open Public Meetings Act(“Sunshine Law”) Closed Session Topics N.J.S.A. 10:4-12 b 8 Personnel Exception – Rice Notice Any matter involving the employment, appointment, termination of employment, terms and conditions of employment, evaluation of the performance of, promotion, or disciplining of any specific prospective public officer or employee or current public officer or employee employed or appointed by the public body, unless all the individual employees or appointees whose rights could be adversely affected request in writing that the matter or matters be discussed at a public meeting;

Sen. Byron M. Baer Open Public Meetings Act(“Sunshine Law”) Closed Session Topics N.J.S.A. 10:4-12 Personnel Exception – Rice Notice 48 Hours in advance of meeting Right to request that closed session discussion be moved to public session No right to attend closed session; if invited by the board, right to bring representation

Sen. Byron M. Baer Open Public Meetings Act(“Sunshine Law”) Kean Federation of Teachers v. Morrell 448 N.J. Super. 520 (App. Div. Feb. 8, 2017) Key Facts: Higher Ed faculty member was not recommended for reappointment as Associate Professor of Nursing. Employee was not given Rice Notice. Board voted not to reappoint. Board claimed there was no private discussion, so there was no need for Rice Notice. Also, the minutes of the meeting were not made available for 88 days OPMA says must be made “promptly available.”

Sen. Byron M. Baer Open Public Meetings Act(“Sunshine Law”) Kean Federation of Teachers v. Morrell 448 N.J. Super. 520 (App. Div. Feb. 8, 2017) Holding – Board is required to send out Rice notice any time any matter is on the agenda involving the employment, appointment, termination, evaluation, promotion, or disciplining of an employee. Court further held that, absent extraordinary circumstances, minutes need to be made available w/in 45 days. Result - Vote to not reappoint is null and void. Required 45 day time limit for minutes release, absent extraordinary circumstances.

Sen. Byron M. Baer Open Public Meetings Act(“Sunshine Law”) Kean Federation of Teachers v. Morrell 448 N.J. Super. 520 (App. Div. Feb. 8, 2017) Key Quotes: “When a public body acts on a personnel matter without prior discussion of any kind, the unexplained vote … reduces the event to a perfunctory exercise, devoid of both substance and meaning …” “It is clear to us that the Board uses this approach to avoid sending a Rice notice… A silent unexplained vote … gives the impression that the Board colluded to circumvent the OPMA’s requirements.”

Sen. Byron M. Baer Open Public Meetings Act(“Sunshine Law”) Noncompliance, Penalties N.J.S.A. 10:4-15, 16, 17 Actions may be voidable. Corrective action may be taken Superior Court – 45 days; Commissioner – 90 days Knowing violations - $ 100, $ 500 No board member liability if objection stated on the record.

Sen. Byron M. Baer Open Public Meetings Act(“Sunshine Law”) Questions? Michael F. Kaelber, Esq. kaelbs1122@aol.com 732-692-7237