The following discussion on critical issues revolving around the Sunshine Law is presented to assist Boards in understanding the fine distinctions and mechanics of the law. The decision as to whether to hold particular discussions in closed or open session sometimes falls within a "grey area." While other counsel may differ with our conclusions, we hope this is a useful tool for Boards:
I. INTRODUCTION
The Open Public Meetings Act, N.J.S.A. 10:4-6 et seq. is commonly referred to as the "Sunshine Law." The intent of the Legislature, in enacting this law, was to eliminate secrecy in public affairs which would undermine the faith of the public in government. The statute allows the public to witness the deliberation, policy formation, and decision-making of public bodies.
Generally, the statute requires that the public be notified in advance of and be allowed the right to attend meetings of public bodies, and that all discussions and official actions, unless specifically exempted, take place in public.
This law governs all public bodies organized by law, which can spend public funds or perform public governmental functions which affect people's rights, obligations, or benefits. See, N.J.S.A. 10:4-8a. A meeting of the public body is covered under the statute if it is open to or attended by all members of the public body and is held with the intent of discussing or acting on public business. A meeting is excluded from the requirements of the law if it is attended by fewer than an effective majority of the body. N.J.S.A. 10:4-8b. An effective majority is defined as that number of members that must be present at the meeting in order for the body to take official action, e.g. five members of a nine-member board. See, Guidelines on the Open Public Meetings Law, Department of State, p. 4.
In counterpoint to the general intent of the "Sunshine Law" are specific categories which mandate closed sessions and which are enumerated within the statute. Exempt matters may only be discussed in closed sessions. However, the final action/vote must be taken at open session. There are nine statutory exceptions to the public meeting requirement under N.J.S.A. 10:4-12(b). They are paraphrased as follows:
1. Any matter which by express provision of federal law, state statute or court rule is rendered confidential;
2. Any matter in which the release of information would impair a right to receive federal funds;
3. Any matter the disclosure of which would constitute an unwarranted invasion of individual privacy, unless the individual concerned requests in writing that the matter be disclosed publicly;
4. Any collective bargaining agreement, terms and conditions proposed for inclusion in such agreement and the negotiations of terms and conditions with employees or their representatives;
5. Any matter involving purchase, lease or acquisition of real property with public funds, the setting of banking rates or investment of public funds, where the public interest could be adversely affected if discussion were disclosed;
6. Any tactics and techniques utilized in protecting the safety and property of the public, if disclosure could impair such protection, and any investigations of violations or possible violations of the law;
7. Any pending or anticipated litigation or contract negotiations in which the public body is or may become a party and any matters falling within the attorney-client privilege, to the extent that confidentiality is required in order for the attorney to exercise his/her ethical duties as a lawyer. To invoke the litigation exception, the subject under discussion must be "pending or anticipated litigation" itself, i.e., the board's strategy in the litigation, the position it will take, the strengths and weaknesses of that position, possible settlement or some other facet of the litigation;
8. Any matter involving the employment, appointment, termination of employment, terms and conditions of employment, evaluation of performance, promotion or disciplining of any prospective or current public officer or employee, unless all the individuals whose rights could be adversely affected request in writing that such matters be discussed at a public meeting. It has been held that a closed session to discuss the termination of specific employees in the context of a reduction in force is valid under this exception. However, the public body is required to provide the employees concerned with reasonable notice of its intention to consider in closed session personnel matters related to them in order to allow them to exercise their statutory right to request a public hearing.
9. Any deliberations of a public body occurring after a public hearing that may result in the imposition of a specific civil penalty or suspension or loss of a license or permit belonging to an individual as the result of an act or omission for which the individual is responsible.
II. DISCUSSION POINTS
When the mandate to have all discussions conducted in open public meetings comes face-to-face with the exceptions mandating closed session, the fine line between the two can result in some close calls. The following few hypothetical examples should shed some insight on how to make the correct call.
Let's start with an easy one first.
Hypothetical No. 1
You want to discuss an untenured employee's absenteeism record because its excessiveness has affected the employee's job performance. What is your course of action at a Board meeting?
Answer
Since your discussion involves a personnel matter that may adversely affect the individual's employment with the District, the discussion falls under Exception 8 and must be held in a closed session. You must provide the employee with adequate notice that his personnel file will be discussed in closed session at a particular Board meeting, but that he has the right to waive the privacy of a closed session in order to have the discussion aired in public. This letter is often referred to as a "Rice" letter, pursuant to Rice v. Union Cty. Reg. High School Bd. of Ed., 155 N.J. Super. 64 (App. Div. 1977), certif. den. 76 N.J. 238 (1978). Nonetheless, even if the hearing is aired in public, this does not mean that the employee has the right to cross-examine you. In other words, the public discussion is not a full evidentiary hearing, and the employee is not accorded the same procedural rights and safeguards as in a court of law. Jamison v. Morris School Dist. Bd. of Educ., 198 N.J. Super. 411 (App. Div. 1985).
Hypothetical No. 2
You have several employees who, because of economic constraints on your budget, must be Riffed. What is your course of action at the Board meeting?
Answer
Under Exception 8, when an employee is to be Riffed, the discussion must be in a closed session, with the affected employee having the right to request a public hearing. Rice v. Union Cty. Reg. High School Bd. of Ed., 155 N.J. Super. 64 (App. Div. 1977), certif. den. 76 N.J. 238 (1978). Thus, prior to the Board meeting at which a vote will be taken, the Board must give adequate notice to all employees who may be terminated that their status will be discussed at a closed session. You may be wondering why a strictly economic decision such as Riffing, and not a personal personnel problem, must be discussed in closed session. The short answer is that Exception 8 governs "termination of employment" as a reason to hold a closed session when there has been a determination made to Rif. Of course, the vote to terminate an employee by name is taken in the public session, after discussion in the closed session.
On the other hand, if the question is how many positions will be Riffed, the discussion may continue in public session as this involves general educational policy formation. The Open Public Meetings Act is liberally construed to accomplish the opportunity for public observation. N.J.S.A. 10:4-21; Houman v. Mayor & Coun. Bor., Pompton Lakes, 155 N.J. Super. 129 (Law Div. 1977).
For example, if the Board is discussing the probability that the budget cannot accommodate both positions of Director of Student Activities and Director of Student Personnel and only one can be maintained or that one out of seven positions in a department will have to be eliminated, this discussion can continue in public. In other words, if the discussion is about whether positions are to be Riffed and not about evaluating individuals, the Board remains in public session. The difficulty is that often the position is the individual, and while no names are mentioned, the Board must remain careful to discuss whether the position will be continued. Although this is a close issue, employees have not generally been successful in challenging the lack of "Rice" notices when a Board has discussed in open session the issues of termination and Rifs. See, e.g. Strangia v. Jersey City Bd. of Ed., 1984 S.L.D. (April 9) (slip op. at 8-11), aff'd State Bd. 1984 S.L.D. (October 3); Jarrett v. Watchung Bd. of Ed., 1981 S.L.D. 1114, 1117-1119; Schwartz v. Ridgefield Bd. of Ed., State Bd. 1980 S.L.D. 332, 333, rev'g 1980 S.L.D. 310, aff'd App. Div. (No A-740-80-T1, Nov. 2, 1981).
All of these decisions, in which the employees lost despite Rice objections, are good law. If anything, the holding in the Rice case in 1977 was slightly overbroad because at that time a Rif was often addressed to a particular employee who the Court felt needed protection. As budgets got tighter and Rifs more inevitable, courts began to realize that unless Riffing discussions took place in public, the public would not have enough access to a Board's discussion on its finances. Put differently, Rifs are no longer attacks on one teacher; they are now a major part of Board financial management and shall be discussed publicly.
Hypothetical No. 3
You are in executive session legitimately discussing an incident in which a teacher reprimanded a young child so severely that the child cried and complained to his parents. One of your members, or the Superintendent, states that he has heard of two or three other, similar incidents with that teacher. May you continue?
Answer:
You can (and indeed, must) inquire as to what is known about the other incidents. The reason you do this is that you are responsible for the conduct of the students and not inquiring would be a dereliction of your duty. Private session discussion is appropriate since there may be issues of individual privacy under N.J.S.A. 10:4-12(b). Once the discussion leads to an analysis of "what action should be taken against the teacher" you must stop and mail the teacher a Rice notice.
Hypothetical No. 4
You are in private session and a Board member asks about several recent incidents that have arisen concerning an aspect of the school program: the lacrosse team, the band, the school newspaper, etc. May this discussion continue in private?
Answer
No. While each of these incidents involves a staff member at some point -- the coach did or did not exercise sufficient control over the players and did or did not punish them severely enough, the staff member responsible for the band did or did not exercise good judgment, the teacher responsible for the newspaper should not have allowed the article to be published -- the continued employment of the teacher is generally not at issue. This is a sensitive area, in that the New Jersey Education Association and its allies generally want any discussion that even tangentially involves staff member negligence to be held in private, but that is not the law.
Hypothetical No. 5 You are in executive session and a Board member inquires about grading or class rank, such as the unfairness of some teachers giving higher or lower grades than others, the unfairness of how advanced placement or honors classes are treated, the unfairness of particular teachers, etc. Should you allow the discussion to continue in executive session?
Answer
No. Although grading and class rank appear at first glance to be private or confidential matters, they are generally not, since they do not fall under the exceptions of N.J.S.A. 10:4-12(b). The only time discussion will be held in private would be if a particular youngster were being discussed or if the discussion became so focused on a particular teacher that his or her job were imperiled, forcing a Rice notice.
Hypothetical No. 6
You have a tenured teacher whom you want to fire because of inefficiency, excessive absenteeism, or other just cause. You want to discuss the Tenure Charges in closed session. Must you send this teacher a Rice letter?
Answer
No. In the Matter of the Tenure Hearing of Woodward, 1988 S.L.D. 582, 596-598, aff'd St. Bd. 1988 S.L.D. 601 (there is no requirement that a Board considering tenure charges give a "Rice" notice to the affected employee.) This is one area where the Tenure Laws, N.J.S.A. 18A:6-10 et. seq. and the Sunshine Laws come face-to-face and the Tenure Law triumphs. It may be a paradox to deny the teacher an opportunity to have the discussion aired in public so that he may correct any perceived prejudices, but the courts have held that the discussion to bring tenure charges must be held in closed session, even if the tenured employee demands in writing that the charges against him be aired in public. Cirangle v. Maywood Bd. of Ed., 164 N.J. Super. 595 (Law Div. 1979). The Court held that unlike the Open Public Meetings Act, the Tenure Employees Hearing Law does not contain a provision enabling public discussion. Since the Tenure Laws were enacted slightly later than the Open Public Meetings Law, the Court interpreted the Legislature's intent as purposefully excluding "the public in the face of a demand for an open meeting by the affected tenured employee," Cirangle, 164 N.J. Super. at 602.
Hypothetical No. 7
You are in public session of a Board meeting and begin to discuss a complaint raised by a resident over the excessive salary paid to an administrator. Should you remain in public session?
Answer
Yes. This topic must remain a public discussion even if the conversation veers into comments about the administrator's scope of assignments, his performance, or the negotiations that led to his contract. The discussion is intended to be a financial issue, not a personnel issue, and cannot be withheld from the public by reverting to a closed session.
Hypothetical No. 8
You are in public session and begin to discuss a list of employees who are to be interviewed for a new program in the district. A board member recites the scope of responsibilities for the new program. The conversation veers into comments about one of the interviewee's psychological fitness for the position. What is your course of action?
Answer
At that point, pass a Resolution to continue the discussion in closed session. In closed session, if you decide that the employee should undergo a psychiatric examination pursuant to N.J.S.A. 18A:16-2, you can decide to send the employee a letter to that effect, all within closed session. The letter should state the reasons for the exam. The teacher is entitled to a public hearing at that point on the request for such exam. In addition, the teacher has the right to appeal the decision from the public hearing to the Commissioner of Education and then to the State Board of Education. Kochman v. Keansburg Bd. of Ed., 124 N.J. Super. 203 (Ch. Div. 1973); Gish v. Bd. of Ed. of Paramus, 145 N.J. Super. 96 (App. Div. 1976), cert. den. 434 U.S. 879 (1977).
Hypothetical No. 9
You are in public session and come to the part of the meeting where you must interview candidates to fill the vacancy created by a departing Board member. Do you do so in public or private session?
Answer
You must interview a candidate for a Board position in public session. The public must have the opportunity to witness the deliberation, policy formation and decision-making of the Board. However, the Board can use a closed session to discuss the particular qualifications of each candidate after the public session interviews. The key is not to take official action while in closed session. The public session must be returned to in order to complete any deliberations and to vote. The fact that the position filled is one which is normally voted upon by the public makes the public session even more compelling. Gannett Satellite Info. Network v. Bd. of Educ. of Manville, 201 N.J. Super. 65 (Law Div. 1984).
When candidates for the position of school superintendent are being interviewed, the actual interviews may be held in closed sessions, pursuant to the personnel exception. However, the procedure for public voting must be followed. Cullum v. Bd. of Educ. of North Bergen, 15 N.J. 285 (1954); Gayeski v. Board of Ed. of Hackensack, 1989 S.L.D. 1243.
Hypothetical No. 10
You are in public session and a report is being presented by your guidance counselors on the year's activities in a comprehensive testing program. The Board wants to ask informational questions of the staff. The Board considers this a "workshop" session by the Board. The discussion veers off into how various departmental personnel performed. What is your course of action?
Answer
The discussion continues in public session. By classifying that part of the meeting as a "training or workshop" session does not exclude it from the statutory definition of a public meeting. Although comments may be made concerning a specific person's performance, even negative comments which might later adversely affect his employment, the subject matters of workshops or training sessions are primarily "public business" and these evaluations are reported in open session as they involve how the education laws are implemented. In addition, any report by various departmental personnel, ultimately sent to the State Board, of their activities in implementing the education laws concerns the Board's public responsibilities and must be discussed in public session. See, Attorney General F.O. 1976, No. 19.
