Q I have a question about the Open Public Meetings Act. I know that we may go into closed session if we discuss a personnel situation, but I have heard people mention “Rice” notices in these situations, where the person whose situation the Council is discussing has a right to attend. Can this person choose to keep this a closed meeting and still attend?
A The “Rice Notice” exception to the Open Public Meetings Act is found at N.J.S.A. 10:4-12b(8). It states that a public body may go into closed session when discussing: “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 such matter or matters be discussed at a public meeting.”
Courts have held this to apply to both current and future employees, and to apply in issues involving discussions of qualifications, hiring, firing, promotion, etc.
There has been no direct statement by the courts as to whether someone can “have their cake and eat it too,” meaning they can opt for a closed session and still attend. The only mention of such an action was in 1991 where the facts indicated that an effected employee attended a closed hearing, but that was not an issue in the case and the Supreme Court did not discuss the propriety of such an action.
If someone opted for a closed meeting but still wished to attend, I would discuss with your municipal attorney the pros and cons of excluding them and decide from there.
Q We recently had a member of the town council move away from the state for employment related reasons. We are faced with a vacancy, and we understand that according to the Municipal Vacancy Law, we are permitted, in certain circumstances, to appoint someone to fill the remainder of the term. Can we do this is closed session, under the personnel exemption?
A There is a Law Division case, Gannett v. Manville Board of Ed, 201 NJ Super 65, 1984 that states: “The issue presented in this case is whether the “personnel exception” of the Open Public Meetings Act, N.J.S.A. 10:4-12(b)(8), applies when a school board fills a vacancy created by a departing board member. This court holds that it does not and that the meeting must be open to the public.”
Essentially the Board went into closed session to interview five candidates who applied for the open position. The Court held that such discussions must take place in public.
This is contrasted with Jones v. East Windsor Regional Bd. of Ed., 143 N.J.Super. 182, 1976, another Law Division case. There, the questions to be asked the individual candidates were decided on in open session, while the actual interviews took place in executive session. That Court found that this did not violate OPMA.
The Gannett Court distinguished the ruling in Jones by saying that “The court [in Jones] determined that no discussions took place in the closed session regarding the qualifications of the various applicants and that no decision had been made in the closed meeting. Jones is distinguishable from the instant case. In the case at bar, the interviews, nominations and voting all took place in the closed meeting. The decision was made in that session. The public did not witness any of the actions of the School Board in connection with this appointment.”
Thus, to be safe, you can do everything in public. You might still be okay, however, if you did everything but the actual interviews in public. For example, as in Jones, you could decide on the questions to be asked in public, go into executive session, interview the candidates, and then open the meeting up to the public again and deliberate on which candidate gave the best answers, and then vote
This column is for informational purposes only, and is not intended as legal advice.