RICE Notice change! Supreme Court reverses Appellate Division over-inclusive RICE notice decision

By Amy Houck Elco, Esq.  and  Yolanda N. Melville, Esq.

Recently, the New Jersey Supreme Court issued its decision in Kean Federation of Teachers v. Ada Morell (A-84-16) (078926). The Supreme Court overturned the Appellate Division’s decision requiring all employees to receive a RICE notice if their names appeared on a public body’s agenda. The Supreme Court opined that RICE notices must be given if an employee will be discussed in executive session and adverse action may be taken regarding his or her employment. The Court also opined that mandating public bodies to issue RICE notices and robustly discuss all personnel matters, as the Appellate Division intimated, would intrude on a public body’s prerogative as to how to conduct its meetings. The Open Public Meetings Act (“OPMA”) does not contain a requirement about the robustness of the discussion that must take place on a topic.

In addition, the OPMA requires public bodies to make their meeting minutes “promptly available to the public to the extent that making such matters public shall not be inconsistent with [N.J.S.A. 10:4-12].” However, the OPMA but does not define the phrase, “promptly available.” The Court reasoned that a public entity must establish its meeting schedule to suit the managerial obligations of its public responsibilities while also acting responsibly concerning its obligation to make minutes “promptly available” to the public. The OPMA’s requirements apply to a diverse range of public entities, so no set amount of time for the release of minutes should be mandated. The OPMA’s legislative history recognizes that closed-session minutes may need to be shielded from the public for a longer period due to the sensitive nature of the material. However, reasonableness must remain the touchstone when assessing promptness. In this case, the five-month delay in releasing the Board’s executive session minutes was considered unreasonable.