Some additional thoughts on the Kean decision – the Cooper Levenson “solution-centered” way…..

by: William S. Donio, Esq.

By now we hope you’ve read our brief take on the New Jersey Supreme Court’s opinion in Kean Federation of Teachers v. Morell (A-84-16).    While the outcome reflects what we think will be a more workable approach for our Boards on when to issue Rice notices, we wanted to add two additional thoughts on language in the opinion that we think may have been overlooked:

First, even with this positive change in the application of when Rice notices are required the Supreme Court did issue this caution:

We add only that once a public entity has committed to a public discussion on a topic tangential to the personnel exception, if a Board member sought during that public session to raise questions or provoke a discussion that implicated a need to adjourn to private session, then the discussion would have to halt. The Rice notice practice would have to be employed for the employees whose rights could be adversely affected. We express no opinion on whether any or all questions about reappointment would implicate either a privacy concern under N.J.S.A. 10:4-12(b)(3) or a risk of litigation for the Board over reputational harm to the employee.

Second, in what appears to be “dicta” or non-precedential language, the Supreme Court seemed to positively comment on the issue of electronic participation in a meeting:

At argument, we were informed that, with the availability of technology, entities are developing ways to speed the preparation of minutes of public sessions. Indeed, some public bodies are able to release minutes on the very day of the meeting through the contemporaneous electronic production of minutes as the meeting unfolds followed by a vote on the minutes before the meeting is adjourned. We commend such action. Also, some public entities are using separately noticed additional public meetings, with telephonically enhanced access for members, to expedite the approval of minutes. Again, we encourage such ingenuity, which furthers the OPMA’s aims.

Just some thoughts to keep in mind as we move forward.

As always we are here to help you find solutions to these challenging and ever changing legal issues.

Click here to read the Court decision

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