Kean Federation of Teachers v. Morell

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of
the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Supreme Court. Please note that, in the interest of brevity, portions of any opinion may not
have been summarized.)

             Kean Federation of Teachers v. Ada Morell (A-84-16) (078926)

Argued January 17, 2018 -- Decided June 21, 2018

LaVECCHIA, J., writing for the Court.

        At issue in this case are (1) the extent of Kean University’s (Kean) notice obligations
as a public body under the Open Public Meetings Act (the OPMA or the Act), 
N.J.S.A. 10:4-
6 to -21, and whether the notice for the personnel exception established in Rice v. Union
County Regional High School Board of Education, 
155 N.J. Super. 64, 73 (App. Div. 1977)
(the Rice notice) applied here; (2) timing parameters for the release of minutes of meetings;
and (3) the appropriate remedy if the OPMA was violated in the latter respect in this matter.

        The OPMA requires the meetings of public bodies to be conducted in open session
and in view of the public. 
N.J.S.A. 10:4-12(a). In relevant part for purposes of this appeal,
the Act provides that “[a] public body may exclude the public only from that portion of a
meeting at which the public body discusses” a “matter involving the . . . termination of
employment . . . of any . . . current . . . employee . . . 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.” 
N.J.S.A. 10:4-12(b)(8). Employees whose
employment interests could be adversely affected have the right to waive the protection of
having their matter discussed in closed session. The ability to make that request is of little
import, however, if affected employees are not aware that their employment may be
discussed. Thus, employees must be given “reasonable notice” when a public entity intends
to take adverse employment action related to them in private session. Rice, 
155 N.J. Super.
at 74. Finally, 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],” 
N.J.S.A. 10:4-14, but does not define “promptly available.”

        Kean’s Board of Trustees (the Board), as a public body, is required to annually
establish and publish a schedule of its regular meetings. See 
N.J.S.A. 10:4-18. The Board’s
policy has been to hold five regularly scheduled meetings each year. Further, it is the
Board’s practice to approve a prior session’s minutes at the next scheduled meeting. One of
the Board’s duties is to vote on the reappointment or non-appointment of faculty members.
The President of the University provides a recommendation to the Board about whether to
reappoint each individual. Before the Board holds its meeting at which the reappointment of
faculty will be on the agenda, a Board subcommittee reviews the President’s
recommendations and then provides its own recommendation to the Board.
                                                1
        Plaintiff Valera Hascup received a letter from the University President informing her
that he would not nominate her for reappointment at the Board’s meeting scheduled for
December 6, 2014. On November 29, 2014, the Board published a tentative agenda for the
December meeting on the Kean University website, indicating that the Board intended to
discuss faculty reappointments during the public meeting. It did not send a Rice notice.

        The Board held its December 6, 2014 meeting as scheduled. The Board voted in
public session to accept the President’s recommendations -- reviewed by the subcommittee --
as to the reappointment and non-reappointment of faculty members. At that meeting, the
Board also approved the minutes of its prior meeting held on September 15, 2014. Minutes
from both the public and closed sessions were approved, but the closed session minutes were
to be redacted by legal counsel. On December 18, 2014, co-plaintiff James Castiglione, a
Kean professor and President of the Kean Federation of Teachers (KFT), filed an Open
Public Records Act request seeking the minutes from the closed sessions of the September 15
and December 6, 2014 meetings. The minutes for the closed session from the September 15
meeting were made available on February 2, 2015. The minutes for the December 6 meeting
were approved at the March 2 meeting and were released on March 4, 2015.

        The KFT, Castiglione, and Hascup filed the instant complaint in lieu of prerogative
writs in the Law Division, naming as defendants Kean, the Board, and Board Chairperson
Ada Morell. The complaint alleged that defendants violated the OPMA by failing to issue
Rice notices prior to the December 6, 2014 meeting and by failing to make the Board’s
minutes for the September 15 and December 6, 2014 meetings “promptly available” to the
public. The trial court granted partial summary judgment to each party. The court held that
the Board was not required to issue Rice notices but that the Board had violated the
“promptly available” requirement of 
N.J.S.A. 10:4-14. The court issued a permanent
injunction requiring the Board to make minutes available to the public within forty-five days.

        The Appellate Division affirmed the determination that the Board did not make the
meeting minutes promptly available, but reversed and vacated the permanent injunction. 
448 N.J. Super. 520, 526 (App. Div. 2017). The panel ordered the Board to adopt a meeting
schedule for the 2017-18 academic year that would promote the release of meeting minutes
within thirty to forty-five days of the last meeting, except in “extraordinary circumstances.”
Id. at 545. Turning to the Rice issue, the panel held that Rice notices are required “in
advance of any meeting at which a personnel decision may occur.” Id. at 544. The panel
declared void all personnel-related actions taken by the Board at the December 6 meeting.
Id. at 546.

       The Court granted defendants’ petition for certification. 
230 N.J. 524 (2017).

HELD: There is no obligation to send Rice notices here, where the Board determined from the
start to conduct its discussion about faculty reappointments in public session. Turning to the
release of meeting minutes, the delay that occurred is unreasonable no matter the excuses
advanced by the Board, but the Court modifies the Appellate Division’s holding requiring the
Board to set a regular meeting schedule.
                                                2
1. “A public body may exclude the public only from that portion of a meeting at which the
public body discusses any” of the enumerated topics. 
N.J.S.A. 10:4-12(b) (emphasis added).
Although 
N.J.S.A. 10:4-12(b)(8) adds personnel matters to the enumerated topics that a
governing body may consider privately, it also authorizes an exception to that personnel
exception -- when “all individual employees . . . whose rights could be adversely affected
request in writing that the matter or matters be discussed at a public meeting,” the governing
body may not opt to shut its doors. (emphasis added). Two principles thus emerge: the
public entity may elect to discuss a topic listed in subsection (b) in closed session, and the
choice to have that discussion in private may be overridden if all employees whose rights
could be adversely affected request in writing that the discussion occur at a public session.
The statute provides employees with the right to move a private discussion into the sunshine
of a public discussion. The personnel exception’s language is not applicable when a public
entity already intends to take public action. That conclusion is not undermined by a public
body’s use of a subcommittee of the whole to examine a topic in advance of a public
meeting. Forcing 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 OPMA does not contain a requirement about the
robustness of the discussion that must take place on a topic. The Court reverses on this issue
and also reverses the voiding of the personnel actions taken by the Board. (pp. 23-30)

2. The Court has not specifically addressed the meaning of the “promptly available”
requirement but has made clear that minutes from a closed session are still subject to the
promptly available requirement. Even so, a public entity is permitted to take steps to modify
the disclosure where personal privacy interests are implicated. 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. The delay that occurred here -- the
release of minutes for the September 2014 meeting in February 2015 -- is unreasonable no
matter the individual or combination of excuses advanced by the Board. The Court affirms
the judgment of the panel as to the failure to make minutes promptly available. (pp. 31-34)

3. The Court, however, modifies the remedy the panel imposed for that failure. 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 one set amount of time for the release of minutes should be mandated.
Reasonableness must remain the touchstone when assessing promptness. The Court modifies
the panel’s holding requiring the Board to set a schedule that would allow for the approval of
minutes within forty-five days but cautions that, if a public entity were to continue to limit its
meetings to five per year, the Court might see the issue again. (pp. 35-37)

       REVERSED in part and AFFIRMED AS MODIFIED in part.

CHIEF JUSTICE RABNER and JUSTICES ALBIN, FERNANDEZ-VINA, and
SOLOMON join in JUSTICE LaVECCHIA’s opinion. JUSTICES PATTERSON and
TIMPONE did not participate.
                                3
                                     SUPREME COURT OF NEW JERSEY
                                       A-
84 September Term 2016
                                                078926

KEAN FEDERATION OF TEACHERS,
JAMES CASTIGLIONE, and VALERA
HASCUP,

    Plaintiffs-Respondents,

         v.

ADA MORELL, BOARD OF TRUSTEES
OF KEAN UNIVERSITY, and KEAN
UNIVERSITY, a body Corporate
and Politic,

    Defendants-Appellants.


         Argued January 17, 2018 – Decided June 21, 2018

         On certification to the Superior Court,
         Appellate Division, whose opinion is
         reported at 
448 N.J. Super. 520 (App. Div.
         2017).

         James P. Lidon argued the cause for
         appellants (McElroy, Deutsch, Mulvaney &
         Carpenter, attorneys; James P. Lidon, of
         counsel and on the briefs, and John J.
         Peirano, on the briefs).

         Robert A. Fagella argued the cause for
         respondents (Zazzali, Fagella, Nowak,
         Kleinbaum and Friedman, attorneys; Robert A.
         Fagella, of counsel and on the briefs, and
         Genevieve M. Murphy-Bradacs, on the briefs).

         Michael O’B. Boldt argued the cause for
         amicus curiae Rutgers, The State University
         of New Jersey (McElroy, Deutsch, Mulvaney &
         Carpenter, attorneys; John J. Peirano, on
         the brief).



                                1
Arnold H. Chait argued the cause for amicus
curiae New Jersey Council of County Colleges
(Vogel, Chait, Collins & Schneider,
attorneys; Arnold H. Chait, of counsel and
on the brief, and Craig A. Long, on the
brief).

John C. Gillespie argued the cause for amici
curiae New Jersey State League of
Municipalities and New Jersey Institute of
Local Government Attorneys (Parker McCay,
attorneys; John C. Gillespie, on the brief).

Alexi M. Velez argued the cause for amicus
curiae American Civil Liberties Union of New
Jersey (Edward L. Barocas, Legal Director,
attorney; Alexi M. Velez, Edward L. Barocas,
and Jeanne M. LoCicero, on the brief).

Louis P. Bucceri argued the cause for amicus
curiae New Jersey Education Association
(Bucceri & Pincus, attorneys; Louis P.
Bucceri, of counsel and on the brief, and
Albert J. Leonardo, on the brief).

Cherie L. Adams submitted a brief on behalf
of amici curiae State-Operated School
District of the City of Camden and the
Trenton Board of Education (Adams Gutierrez
& Lattiboudere, attorneys; Cherie L. Adams,
of counsel and on the brief, and Daniel A.
Schlein, on the brief).

Cynthia J. Jahn submitted a brief on behalf
of amicus curiae New Jersey School Boards
Association (Cynthia Jahn, General Counsel,
attorney; Cynthia J. Jahn and John J. Burns,
on the brief).

CJ Griffin submitted a brief on behalf of
amicus curiae Libertarians for Transparent
Government (Pashman Stein Walder Hayden,
attorneys; CJ Griffin, of counsel and on the
brief, and Michael J. Zoller, on the brief).

Kevin P. McGovern submitted a brief on
behalf of amicus curiae Council of New

                      2
         Jersey State College Locals AFT, AFL-CIO
         (Mets Schiro McGovern & Paris, attorneys;
         Kevin P. McGovern, of counsel and on the
         brief, and David M. Bander, on the brief).

         Maria M. Lepore submitted a letter brief on
         behalf of amicus curiae New Jersey
         Association of School Administrators (Maria
         M. Lepore, Chief Counsel, attorney; Maria M.
         Lepore, of counsel and on the brief, and
         Andrew Babiak, on the brief).


    JUSTICE LaVECCHIA delivered the opinion of the Court.

    With the enactment of the Open Public Meetings Act (the

OPMA or the Act), L. 1975, c. 231 (codified at 
N.J.S.A. 10:4-6

to -21), the Legislature established procedures governing the

conduct of meetings of public bodies.   The Act makes explicit

the legislative intent to ensure the public’s right to be

present at public meetings and to witness government in action.


N.J.S.A. 10:4-7.   That legislative intent is balanced by an

express recognition that public bodies must be allowed to

exercise discretion in determining how to perform their tasks,

see 
N.J.S.A. 10:4-12(a), and whether to engage in private

discussion and voting under certain identified circumstances,


N.J.S.A. 10:4-12(b).

    In this appeal, we consider whether the Appellate Division

erred in its application of the OPMA and relevant interpretive

case law to a specific public institution of higher education,

thereby burdening that entity and, by implication, other public


                                 3
bodies in the exercise of their discretion in how to conduct

their meetings.

    For the reasons that follow, we reverse the Appellate

Division’s judgment as to notice requirements under the OPMA,

and we affirm the judgment as to the Board’s failure to make

minutes promptly available but modify the remedy the panel

imposed for that failure.

                                I.

    Before reciting the details of the dispute that generated

this appeal, it is helpful to review the OPMA’s basic provisions

as well as a key case on which the parties base their clashing

views of the Act’s requirements.

                                A.

    The OPMA establishes requirements for notice of meetings,


N.J.S.A. 10:4-9, publication of an annual schedule of regular

meetings, 
N.J.S.A. 10:4-18, and the keeping and public release

of minutes, 
N.J.S.A. 10:4-14, as well as definitions of basic

concepts of “public business” and “adequate notice,” 
N.J.S.A.

10:4-8(c), (d).   The requirements are generic even though the

definition of “public body” encompasses various types of public

institutions of diverse membership size, obligations, meeting

needs, and other practicalities.       See 
N.J.S.A. 10:4-8(a).

    The Act’s declared goal is to ensure “the right of the

public to be present for all meetings of public bodies, and to

                                   4
witness in full detail all phases of the deliberation, policy

formulation, and decision making of public bodies.”      
N.J.S.A.

10:4-7.   As a general rule, no meeting may occur without

adherence to the Act’s requirements as to adequacy of notice to

the public.     
N.J.S.A. 10:4-9.

    Except as identified, the OPMA requires the meetings of

public bodies to be conducted in open session and in view of the

public.   
N.J.S.A. 10:4-12(a).     That said, public bodies are

given discretion in how to conduct their meetings.      Ibid.

(“Nothing in this act shall be construed to limit the discretion

of a public body to permit, prohibit, or regulate the active

participation of the public at any meeting, except that”

municipal governing bodies and local boards of education are

required to set aside time for public comment).      The same

section acknowledges circumstances under which a public body may

enter into a closed session, for example, to address matters

required by federal or state law to be confidential; matters of

individual privacy; matters pertaining to collective bargaining

or the purchase, lease, or acquisition of real property; and

pending or anticipated litigation or contract negotiation in

which the public body is, or may become, a party.     
N.J.S.A.

10:4-12(b).     In relevant part for purposes of this appeal, the

Act provides:



                                   5
         A public body may exclude the public only from
         that portion of a meeting at which the public
         body discusses any:

         . . . .

         matter involving the employment, appointment,
         [or] termination of employment . . . 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 . .
         . .

         [N.J.S.A. 10:4-12(b)(8).]

That exception concerning personnel matters is a focal point of

this appeal.

                                B.

    Notably, pursuant to 
N.J.S.A. 10:4-12(b)(8), employees

whose employment interests could be adversely affected have the

right to waive the protection of having their matter discussed

in closed session.   The subsection provides for such individuals

to choose that the public body have the discussion in public.

Ibid.

    The ability to make that request is of little import,

however, if affected employees are not aware that their

employment may be discussed at a future meeting -- an issue

addressed soon after the OPMA’s adoption by the Appellate




                                 6
Division in Rice v. Union County Regional High School Board of

Education, 
155 N.J. Super. 64, 73 (App. Div. 1977).

    In that case, the Appellate Division considered whether a

school board violated 
N.J.S.A. 10:4-12(b)(8) by entering into

closed session and discussing whether to reduce staff by

terminating seventeen school employees at the end of the school

year for budgetary purposes.     Id. at 68-69.     The employees were

not given advance notice that their termination would be

discussed in a closed session.    See id. at 73-74.

    In finding the board’s failure of notice violative of the

OPMA, the Rice appellate panel noted that the OPMA provides

affected employees with the right “to have a public discussion

of his or her personnel matter.”      Id. at 72.   Tying the

personnel exception of 
N.J.S.A. 10:4-12(b)(8) to the employees’

privacy interests, the panel stated that the right to compel

public action on the personnel topic would be rendered “useless

and inoperative” if affected personnel are not given some form

of notice that action affecting their employment status is on

the agenda.   Ibid.   Continuing, the panel stated:

         The plain implication of the personnel
         exception to the [OPMA] is that if all
         employees whose rights could be adversely
         affected decide to request a public hearing,
         they can only exercise that statutory right
         and request a public hearing if they have
         reasonable advance notice so as to enable them
         to (1) make a decision on whether they desire


                                  7
            a public discussion and (2) prepare and
            present an appropriate request in writing.

            [Id. at 73.]

    The panel held that employees must be given “reasonable

notice” when a public entity intends to consider taking adverse

employment action related to them.      Id. at 74.   The details of

that notice, as described above, have become commonly known as a

Rice notice.

                                  C.

    Finally, also at issue in this appeal is the timeliness of

the release of the minutes from meetings.      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].”       
N.J.S.A.

10:4-14.    The Act does not define what it means to make meeting

minutes “promptly available.”     See 
N.J.S.A. 10:4-8 (providing

definitions for OPMA terms).

                                  II.

                                  A.

    The matter before us is one of a number of proceedings

concerning certain public meetings of a New Jersey higher-

education institution.     There is no dispute as to the salient

facts.     The parties’ disagreement is over the OPMA’s

requirements under the circumstances that occurred here.


                                   8
Specifically at issue are (1) the extent of the public body’s

notice obligations under the OPMA and whether the Rice notice

for the personnel exception applied; (2) timing parameters for

the release of minutes of meetings; and (3) the appropriate

remedy if the OPMA was violated in the latter respect in this

matter.     We draw the facts from the record created in the Law

Division.

    Kean University (Kean) is a public institution of higher

education operating campuses in Union and Ocean Counties.        As a

public university, Kean’s Board of Trustees (the Board) has

statutory authority, pursuant to 
N.J.S.A. 18A:64-6, to direct

and control Kean’s general operations, curriculum, and policy.

The Board is required to “meet and organize annually at a

regular meeting held during the second week of September, by the

election of a chairman, vice chairman and such other officers as

the board shall determine.”     
N.J.S.A. 18A:64-4.

    Aside from that mandatory annual meeting, “[t]he board may

meet at such other times and at such places as it may

designate.”    Ibid.   The OPMA requires the Board, as a public

body, to annually establish, post, and otherwise publish a

schedule of its regular meetings.      See 
N.J.S.A. 10:4-18.     The

schedule can be revised and republished thereafter.      Ibid.

    Over the last several years, the Board’s policy has been to

hold five regularly scheduled meetings each year.     Thus, for the

                                   9
2014-15 academic year the Board held meetings on September 15,

2014; December 6, 2014; March 2, 2015; May 11, 2015; and June

29, 2015.   Further, it is the Board’s practice to approve a

prior session’s minutes at the next scheduled meeting.

Consistent with that, the minutes for the September 15, 2014

meeting, for example, were approved at the December 6, 2014

meeting.

     One of the Board’s duties is to vote on the reappointment

or non-appointment of faculty members.   That procedure occurs in

accordance with a set protocol.    As described in sworn

statements provided to the Law Division, faculty applicants

whose appointments are expiring and who must be reappointed to

continue on the faculty are considered first by the President of

the University, who is the academic head of the institution.

The President then provides a recommendation to the Board about

whether to reappoint each individual.    Prior to notifying the

Board about a recommendation either for or against

reappointment, the President notifies each affected faculty

member regarding the recommendation and the date of the Board

meeting at which the Board will consider the nominations for

reappointment.1   Before the Board holds its meeting at which the




1  At oral argument we were informed that faculty who are not
recommended for reappointment have grievance rights under the
existing collective bargaining agreement.
                                  10
reappointment of faculty will be on the agenda for action, a

Board subcommittee -- known as the Academic Policy and Programs

Committee -- reviews the President’s recommendations and then

provides its own recommendation to the Board in the form of a

personnel report entitled “Faculty Reappointments and Faculty

Non-Reappointments.”

                               B.

    Prior to the commencement of this action, the Kean

Federation of Teachers (the KFT) -- a union representing the

Kean faculty -- and two individual professors sued the Board.

The complaint alleged that the Board violated the OPMA by

failing to make “promptly available,” pursuant to 
N.J.S.A. 10:4-

14, minutes from a December 7, 2013 meeting at which the Board

voted not to reappoint the two professors.   The complaint also

alleged that the Board was required to and failed to issue Rice

notices to the individual professors in advance of closed

session discussions followed by a public vote at that meeting.

    The Law Division issued an opinion, dated June 17, 2014,

holding that the Board’s failure to issue Rice notices to

affected faculty violated the OPMA.   However, the court

declined, under the circumstances, to void the Board’s action.

The court issued a second opinion on September 18, 2014, holding

that the Board had failed to meet the “promptly available”

requirement of 
N.J.S.A. 10:4-14 with respect to the release of

                               11
minutes from the closed session of the Board.   The court

“suggest[ed]” a guideline of between thirty to forty-five days

for release of minutes, indicating that the “promptly available”

requirement would be satisfied if the Board made the minutes

available within that timeframe.

    Those two Law Division decisions are backdrop to the

present matter.

                                C.

    On November 14, 2014, plaintiff Valera Hascup, an untenured

Assistant Professor of Nursing employed by Kean since 2011,

received a letter from the University President informing her

that he would not nominate her for reappointment at the Board’s

meeting scheduled for December 6, 2014.   Before that meeting

occurred, counsel for the KFT wrote to the Board’s attorney.

The letter set forth the KFT’s position that, to comply with the

Law Division’s June 2014 order, the Board should send Rice

notices at least two weeks before the December 6 meeting to

faculty affected by the reappointment decisions to be made by

the Board at that meeting.   On November 29, 2014, the Board

published a tentative agenda for the December meeting on the

Kean University website, indicating that the Board intended to

discuss faculty reappointments during the public meeting.

Specifically, the agenda listed the Subcommittee’s report on the

President’s recommendations on faculty retention among the items

                                12
to be discussed in public session.   The Board also issued a

campus announcement regarding the meeting, as well as an e-mail

to impacted groups.   It did not send a Rice notice to Hascup or

to the other affected faculty members.

      The Board held its December 6, 2014 meeting as scheduled.

The Board voted in public session to accept the President’s

recommendations -- reviewed by the Subcommittee -- as to the

reappointment and non-reappointment of faculty members,

including the President’s recommendation against the

reappointment of Hascup.

      At that meeting, the Board also approved the minutes of its

prior meeting held on September 15, 2014.   Minutes from both the

public and closed sessions were approved, but the closed session

minutes were to be redacted by legal counsel.

      On December 18, 2014, co-plaintiff James Castiglione, a

Kean professor and President of the KFT, filed an Open Public

Records Act (OPRA)2 request seeking the minutes from the closed

sessions of the September 15 and December 6, 2014 meetings.

Audrey Kelly, the Board’s Executive Director who was responsible

for OPRA requests, was on leave until mid-January and did not

learn of the request until her return.   Apparently, in her





2 N.J.S.A. 47:1A-1 to -13.
                                13
absence, no one assumed responsibility for her duties with

respect to that OPRA request.

    The minutes for the closed session from the September 15

meeting were made available on February 2, 2015.    With regard to

the December meeting minutes, the record reveals that Kelly

acknowledged she was aware of the prior trial court decision

that recommended release of minutes from closed sessions of the

Board within forty-five days.   She believed she could not comply

with that timeframe because the Board must approve the minutes

before they can be released, which requires a formal public

meeting conducted in conformity with the OPMA.     Kelly concluded,

with the advice of Board counsel, that she therefore could not

release the minutes for the December 6, 2014 meeting prior to

the Board’s next scheduled meeting on March 2, 2015.

Accordingly, the minutes for the December 6 meeting were

approved at the March 2 meeting and were released on March 4,

2015.

                                D.

    The KFT, Castiglione, and Hascup filed the instant

complaint in lieu of prerogative writs in the Law Division on

February 11, 2015, naming as defendants Kean, the Board, and

Board Chairperson Ada Morell.   The complaint alleged that

defendants violated the OPMA by failing to issue Rice notices

prior to the December 6, 2014 meeting and by failing to make the

                                14
Board’s minutes for the September 15 and December 6, 2014

meetings “promptly available” to the public.

    The matter proceeded on cross-motions for summary judgment.

In an opinion dated May 21, 2015, the trial court granted

partial summary judgment to each party.   On the notice issue,

the court held that the Board was not required to issue Rice

notices prior to the December meeting because the personnel

actions occurred during the public session.    The court explained

that Rice provides an employee the right to advance notice and

to demand a public discussion of matters relating to that

employee and, thus, is implicated “[o]nly when a public entity

intends to exclude the public and discuss in executive session a

personnel matter.”

    On the timing of the release of the minutes from the

September 2014 and December 2014 meetings, the court relied on

Matawan Regional Teachers Ass’n v. Matawan-Aberdeen Regional

Board of Education, 
212 N.J. Super. 328 (Law Div. 1986), to hold

that the Board had violated the “promptly available” requirement

of 
N.J.S.A. 10:4-14.   The court also noted that defendants had

disregarded its prior order regarding prompt release of minutes.

The court issued a permanent injunction requiring the Board to

make the minutes of all future meetings available to the public

within forty-five days.



                                15
    Defendants appealed the order establishing the forty-five

day deadline for issuance of the minutes.       Plaintiffs filed a

cross-appeal challenging the trial court’s determination on the

issue of Rice notice.

    In a published opinion, the Appellate Division affirmed the

determination that the Board did not make the meeting minutes

promptly available, but reversed and vacated the permanent

injunction requiring release of minutes from all future sessions

of the Board within forty-five days of each meeting.       Kean Fed’n

of Teachers v. Morell, 
448 N.J. Super. 520, 526 (App. Div.

2017).   The panel also reversed the trial court’s holding that

no Rice violation had occurred.    Id. at 527.

    With regard to the release of meeting minutes, the panel

declined to adopt the analysis from Matawan Regional and instead

relied on “well-settled principles of statutory construction” to

interpret the Legislature’s intent concerning the “promptly

available” requirement.   Id. at 531.      To the panel, “[t]he words

'promptly available’ in 
N.J.S.A. 10:4-14 require public bodies

to approve and make their meeting minutes available to the

public in a manner that fulfills the Legislature’s commitment to

transparency in public affairs.”       Ibid.   The panel thus

interpreted that language as requiring a public body to make it

“a priority” to issue its minutes, and to develop a protocol to

achieve that goal.   Ibid.   If the only way to make minutes

                                  16
“promptly available” would be “to meet ten times per year,”

then, the panel concluded, the public body would be obliged to

do so.    Id. at 533.

    That said, the panel viewed a permanent injunction with a

set timeframe for release of minutes to be problematic.   The

panel found that the injunction “undermines the Board’s autonomy

by usurping a quintessential managerial prerogative” and “is

managerially, logistically, and legally unsound because it

leaves the door ajar to permanent judicial entanglement.”    Id.

at 535.   Noting that courts “are ill suited to micromanage the

internal affairs” of a public body that the Legislature

entrusted with managing a public university, the panel

nonetheless viewed five meetings per year as inadequate to

comply with the “promptly available” requirement for minutes’

release and “urge[d]” the Board to “seriously consider”

increasing the frequency of its meetings.   Ibid.

    With respect to a remedy for the OPMA violation found to

have occurred here, taking into consideration the underlying

circumstances the panel ordered the Board to adopt a meeting

schedule for the 2017-18 academic year that would promote the

release of meeting minutes within thirty to forty-five days of

the last meeting, except in “extraordinary circumstances.”      Id.

at 545.



                                17
       Turning to the Rice issue, the panel expressed the view

that the Board was utilizing the subcommittee process to avoid

sending Rice notices, which, the panel concluded, violated the

policy of public participation advanced by the OPMA.    Id. at

540.    According to the panel, “a public body is required to send

out a Rice notice any time it has placed on its agenda any

matters” that involve employment, termination, discipline, or

any other items described in 
N.J.S.A. 10:4-12(b)(8).    Id. at

543.   Thus, the panel held that Rice notices are required “in

advance of any meeting at which a personnel decision may occur.”

Id. at 544.   The panel declared void all personnel-related

actions taken by the Board at the December 6 meeting.       Id. at

546 (citing 
N.J.S.A. 10:4-16).

       We granted defendants’ petition for certification.    
230 N.J. 524 (2017).   In addition, numerous parties were granted

amicus status.

       Rutgers, the State University of New Jersey (Rutgers); the

New Jersey Council of County Colleges (NJCCC); the State-

Operated School District of the City of Camden and the Trenton

Board of Education (the School Districts); the New Jersey State

League of Municipalities and the New Jersey Institute of Local

Government Attorneys (the League); the New Jersey School Boards

Association (NJSBA); and the New Jersey Association of School

Administrators (NJASA), filed briefs supportive of defendants.

                                 18
    The American Civil Liberties Union of New Jersey (ACLU-NJ);

the Council of New Jersey State College Locals, AFT, AFL-CIO

(the Council); the New Jersey Education Association (NJEA); and

Libertarians for Transparent Government (LTG), filed briefs in

support of plaintiffs.

                              III.

                               A.

    Defendants argue that the Appellate Division incorrectly

expanded the reach of Rice and 
N.J.S.A. 10:4-12(b)(8) to

encompass all discussions regarding personnel matters, which

places a heavy burden on public bodies and renders the notice

requirement effectively useless in light of the large volume of

notices that personnel will receive.   According to defendants,

Rice’s holding was narrow and designed to effectuate notice only

to personnel who will be negatively impacted by discussions or

actions conducted in a closed session, giving such personnel the

opportunity to demand that the discussion take place in public.

Defendants argue that the Appellate Division’s holding expands

the rule beyond its intended purpose, applying it to cases in

which personnel are not adversely affected and where the meeting

takes place in public.

    Defendants further contend that nothing in Rice or the OPMA

provides employees the right to demand a robust discussion on an

employment issue and that the Appellate Division holding will

                               19
effectively require detailed discussions of perfunctory

employment decisions.   Consequently, public bodies will be

forced to deliberate on employment decisions as a whole body

rather than delegate that authority to a committee.

    Regarding whether meeting minutes were made promptly

available and the appropriate remedy if they were not,

defendants argue that the Appellate Division’s holding

inappropriately and arbitrarily requires them effectively to

double the frequency of their board meetings for the sole

purpose of approving minutes of previous meetings.    According to

defendants, that holding will create a logistical hardship and

inappropriately interferes with the discretion that the

Legislature gave to the Board, as a public body, to determine

the most advantageous and efficacious manner of proceeding with

its business.   Moreover, defendants argue that the Appellate

Division pointed to nothing in either the OPMA or the

established case law on which it based the thirty-to-forty-five

day timeline.

                                B.

    In response, plaintiffs assert that personnel have a right

to determine whether discussions or actions pertaining to their

employment should take place in an open or closed session.

According to plaintiffs, employees must be given notice of

pending action or discussion concerning their employment status

                                20
in order to decide for themselves whether they want the meeting

to proceed in a closed or open session.   The entire purpose of

the notice requirement, plaintiffs argue, is to give employees

the power to demand a public discussion or to agree that any

discussion regarding their employment take place behind closed

doors.   Plaintiffs contend that the OPMA intended to protect

employees’ privacy rights and that the Appellate Division did no

more than allow the affected employees an opportunity to

exercise those rights here.

    On the availability of meeting minutes, plaintiffs contend

that the Appellate Division properly emphasized public

disclosure by requiring that meeting minutes be available within

forty-five days.   Plaintiffs note that under defendants’ release

timeline, as practiced here, minutes of prior meetings were not

available to the public for review and inspection until after

the next meeting, which forced interested parties to wait up to

five months (September to February) to address issues taken up

by the Board in closed session.

    Plaintiffs argue that the desire to protect board members

from inconvenience is not a consideration sufficient to outweigh

the public’s interest in transparency, and that courts have

regularly held that prompt disclosure must be prioritized over

administrative convenience.   Plaintiffs further contend that

imposing a deadline to disclose meeting minutes is a permissible

                                  21
remedy under the OPMA.    Lastly, plaintiffs fault defendants for

not utilizing technology to facilitate the process of making

meeting minutes available in a more timely fashion.

                                 IV.

                                  A.

    This appeal comes before us on a record created through

cross-motions for summary judgment.    The essential facts are

undisputed and the issues we face concern questions of law.      We

review such questions de novo.    Johnson v. Roselle EZ Quick LLC,


226 N.J. 370, 386 (2016).

    Specifically, we are addressing conflicting views as to a

statute’s requirements.    See Cashin v. Bello, 
223 N.J. 328, 335

(2015) (noting that appellate courts apply de novo standard in

construing statutory language).    When we interpret a statute,

our goal is to “ascertain and effectuate the Legislature’s

intent.”   Ibid.   To do that, we look first to the statute’s

actual language and ascribe to its words their ordinary meaning.

Mason v. City of Hoboken, 
196 N.J. 51, 68 (2008) (citing

DiProspero v. Penn, 
183 N.J. 477, 492 (2005)).    Where the

statutory language is ambiguous, we may consider extrinsic

materials such as legislative history, committee reports, and

other relevant sources.    Cashin, 
223 N.J. at 335-36 (relying on

State v. Fleischman, 
189 N.J. 539, 548 (2007)).    Those

principles of statutory construction guide us in this matter.

                                  22
                                 B.

    We begin with the failure to give Rice notices in the case

before us.    The trial court concluded that such notices were not

required, relying on the express language of the OPMA.     The

Appellate Division concluded the opposite, based on its view of

the OPMA’s aim and how that aim was advanced through Rice.

    We look first to the OPMA.      If its language is clear and

unambiguous, revealing the Legislature’s intent, our

interpretative task is concluded.     Mason, 
196 N.J. at 68

(stating that courts “need look no further” where meaning of

statutory words is “clear”).    Our duty is to enforce the words

of the Legislature.

    The relevant OPMA section uses plain language to express

what a public body may do with respect to conducting closed

sessions.    
N.J.S.A. 10:4-12(b) clearly permits the public body

to determine to enter into closed session for any one of the

identified circumstances approved by the Legislature.     That

section of the Act states that “[a] public body may exclude the

public only from that portion of a meeting at which the public

body discusses any” of the enumerated topics.     
N.J.S.A. 10:4-

12(b) (emphasis added).   The choice is that of the public body.

It determines whether to have the private discussion of the

listed topics, as evidenced by the Legislature’s use of the word



                                 23
“may.”   The Board and many of the amici correctly emphasize that

point.

    The so-called “personnel exception” also has specific

language that cannot be ignored or treated as surplusage.      See

In re Attorney Gen.’s “Directive on Exit Polling:   Media & Non-

Partisan Pub. Interest Grps.”, 
200 N.J. 283, 297-98 (2009) (“We

must presume that every word in a statute has meaning and is not

mere surplusage, and therefore we must give those words effect

and not render them a nullity.”).    Although 
N.J.S.A. 10:4-

12(b)(8) adds personnel matters to the enumerated topics that a

governing body may consider privately, it also authorizes an

exception to that personnel exception -- when “all individual

employees . . . whose rights could be adversely affected request

in writing that the matter or matters be discussed at a public

meeting,” the governing body may not opt to shut its doors.

(emphasis added).

    Two principles thus emerge from the legislative language:

the public entity may elect to discuss a topic listed in

subsection (b) in closed session, and the choice to have that

discussion in private may be overridden if all employees whose

rights could be adversely affected request in writing that the

discussion occur at a public session.

    The Appellate Division decision in Rice dealt with a

factual setting that squarely fit within both of those

                                24
principles.   The public body had determined to proceed with its

position reduction and employee termination plan in closed

session, and the individual employees whose rights were

adversely affected never had the opportunity to exercise the

right under 
N.J.S.A. 10:4-12(b) to request in writing that the

discussion occur in public session.   Rice thus developed a

procedural requirement designed to promote the opportunity for

adversely affected individuals to exercise the specific right

that the Legislature conferred on them.

    Defendants and amici curiae Rutgers, NJCCC, the School

Districts, the League, NJSBA, and NJASA describe the Appellate

Division’s holding in this case as expanding the Rice notice

requirement by mandating a Rice notice even when the matter is

intended to be discussed in public, as opposed to in closed

session, and even when the public entity’s actions do not

“adversely affect” an employee’s rights.   Relatedly, they argue

that the Appellate Division’s decision invades as well as

burdens the discretion granted to public entities to conduct

their meetings efficiently and without unwarranted interference.

    Plaintiffs and the amici supporting them acknowledge that

the holding under review is an expansion of Rice.   However, they

perceive that expansion as furthering the animating principle of

the OPMA.



                                25
    We find that the procedural notice created in Rice should

not be stretched beyond its factual setting.    To do so would

result in adding to the OPMA requirements that the Legislature

did not impose.   Moreover, it would risk throwing off the

careful balance that the Legislature struck between a public

body’s need to control its own proceedings and at the same time

determine when and how to protect confidential interests of the

public body or others.

    Neither 
N.J.S.A. 10:4-12(b)(8) nor Rice supports the

interpretation that notice must be given to all potentially

affected employees, regardless of whether the employee is

adversely affected, whenever a personnel matter appears on a

governing body’s public meeting agenda.     First, 
N.J.S.A. 10:4-

12(b)(8) applies only to adversely affected employees.    Second,

it speaks only to an employee’s right to make a private

discussion public.   The Appellate Division’s extension of Rice

as applied here is not logical in light of the express language

of 
N.J.S.A. 10:4-12(b)(8), and it intrudes upon the discretion

recognized for the Board in the legislative language.     See

McGovern v. Rutgers, 
211 N.J. 94, 111 (2012) (declining, in

context of OPMA, “to impose a greater burden on public bodies

than what the Legislature has required”).

    The statute does not provide employees with a right to

“select the forum of the discussion,” as has been argued to us.

                                26
Rather, it provides employees with the right to move a private

discussion into the sunshine of a public discussion.   The

personnel exception’s language is not applicable when a public

entity already intends to take public action on a personnel

matter implicating employees whose rights could be adversely

affected by that action.   Requiring Rice notices to employees

when a public discussion is already planned so that the

employees, if all agreed, could, in turn, insist that the

discussion be public, at once defies logic and, as pointed out

by amici supporting the Board, imposes a greater burden on

public entities than the Legislature envisioned under 
N.J.S.A.

10:4-12(b)(8).

    We note that the purpose underlying the original

requirement of a Rice notice is not advanced when a public body

votes on a summary resolution of personnel matters in a public

session.   That conclusion is not undermined by a public body’s

use of a subcommittee of the whole to examine a topic in advance

of a public meeting.   As pointed out by the League as amicus,

public bodies routinely approve recommendations in public

meetings without discussion and must rely on advice from

professional staff to make decisions.   A public body’s use of

the subcommittee process is common and is not fairly viewed as

an inherent subterfuge to eschew public discussion.    Nor is

there evidence in this case to support a finding that the desire

                                27
to avoid sending Rice notices motivated the Board to act on the

advice of its subcommittee to adopt the recommendations of the

University President.   The record before us simply does not

support the arguments of plaintiffs and amici curiae the ACLU-

NJ, the Council, and the NJEA that the Board purposefully

avoided compliance with the OPMA and Rice by undergoing a pro

forma process that attempted to technically comply with the law

while blatantly violating its spirit.3

     Forcing 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 Appellate Division’s holding

on the Rice requirement takes that salutary notice procedure out

of its context and places on public bodies an intrusive,

expansive, and confusing notice requirement that extends beyond

the plain language of the right of employees under 
N.J.S.A.

10:4-12(b)(8).   See DiProspero, 
183 N.J. at 492 (“It is not the

function of this Court to 'rewrite a plainly-written enactment

of the Legislature []or presume that the Legislature intended

something other than that expressed by way of the plain

language.’”   (alteration in original) (quoting O’Connell v.

State, 
171 N.J. 484, 488 (2002))).


3  We do not encourage a process that would have the effect of
stifling discussion on important personnel matters.
                                28
    The OPMA does not contain a requirement about the

robustness of the discussion that must take place on a topic.

Here, members of the public were able to witness the Board’s

public vote on faculty reappointments and thus have a base of

information on which they can express views to the Legislature

and others responsible for appointments to the Board regarding

the adequacy, or inadequacy, of the discussion of Board

business.   But the robustness of a debate on a particular item

discussed in public session is not a topic addressed in the

OPMA.   It is beyond the existing requirements of the OPMA.     If a

discussion of a certain length or quality is to be mandated, the

OPMA requires amendment by the Legislature, not by the courts.

                                 C.

    Here, Hascup, as an affected employee, knew that the

University President was not recommending her for reappointment

and knew that the President’s recommendation would go before the

Board at the December 6 meeting.      She had no right to demand a

closed session under the OPMA personnel exception.     She had the

right only, if all other affected employees agreed, to demand a

public setting for discussion.     She received a public setting

for the discussion and vote on the recommendations about

reappointment.   It may not have been much of a discussion, but

it was done in public view, as was the vote.      There is no Rice

obligation in that setting unless we were to read the opening

                                 29
language of 
N.J.S.A. 10:4-12(b) that says “may” to mean “must,”

triggering all personnel actions to be presumptively and

mandatorily private unless all affected employees request that

the public body hold its discussion in public.     We cannot

rewrite a clearly written statute to achieve that for

plaintiffs.    See DiProspero, 
183 N.J. at 492.

    We hold that the Appellate Division erred in reversing the

trial court’s judgment on this issue.     There is no obligation to

send Rice notices in a setting such as the one presented here,

where the Board determined from the start to conduct its

discussion about faculty reappointments in public session.

Accordingly, we also reverse the voiding of the personnel

actions taken by the Board at its December 6, 2014 meeting.

    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.

                                  30
                                  V.

                                  A.

    Turning to the release of meeting minutes, the OPMA

requires that public bodies 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].”


N.J.S.A. 10:4-14.     There is no definition of the term “promptly

available” in the Act.     See 
N.J.S.A. 10:4-8.

    The only published decision to provide a thorough

consideration of the question is a Law Division decision from

1986, Matawan Regional Teachers Ass’n v. Matawan-Aberdeen

Regional Board of Education, 
212 N.J. Super. 328.     In that case,

a local teachers’ association asserted that the Matawan-Aberdeen

Board of Education failed to make minutes of certain meetings

“promptly available to the public.”     Id. at 329.   Endeavoring to

ascertain the proper interpretation of “promptly” under the

OPMA, the court looked to an ordinary definition of “prompt,”

but found the definition ill-suited for purposes of the OPMA.

See id. at 331.     Instead, the court adopted a fact-sensitive

approach, identifying the following factors as relevant in the

court’s consideration of the matter at hand:

         1. Prior experience in the publication of
         board minutes.




                                  31
         2. The subject matter of the minutes and its
         importance to the association and others
         directly affected by board action.

         3. The subject matter of the minutes and its
         importance to the public, in general.

         4. The intervals at which regular meetings
         were scheduled.

         5. Whether meetings complained of were
         regularly scheduled or were, because of some
         exigency, held so close together that the
         board could not reasonably be expected to
         abide by the act’s requirement.

         [Id. at 333.]

    Our Court has not specifically addressed the meaning of the

“promptly available” requirement; however, we have made clear

that when a public body meets in closed session, minutes from

that session are still subject to the promptly available

requirement.   S. Jersey Publ’g Co. v. Expressway Auth., 
124 N.J.
 478, 493-95 (1991).    Even so, a public entity is permitted to

take steps to modify the disclosure where personal privacy

interests are implicated, “provided the public interest is not

subverted.”    Id. at 494.   The release of closed session minutes

must balance the interests of personal privacy and the public’s

right to information:

         [I]f a public body legitimately conducts a
         meeting in closed session under any of the
         exceptions enumerated in 
N.J.S.A. 10:4-12(b),
         it nevertheless must make the minutes of that
         meeting “promptly available to the public”
         unless full disclosure would subvert the
         purpose of the particular exception.       If

                                  32
         disclosure would subvert the purpose of an
         exception, then the subversion must be
         balanced against the applicant’s interest in
         disclosure.

         [Payton v. Tpk. Auth., 
148 N.J. 524, 556-57
         (1997).]

    Thus, although we have made clear that minutes from a

closed session meeting must be made “promptly available,”

because closed session meetings involve matters that generally

are of a sensitive nature, the development of releasable minutes

of closed sessions must be approached more cautiously than

meetings carried out in public.    See ibid.; S. Jersey Publ’g

Co., 
124 N.J. at 494 (“To the extent a cognizable privacy

interest may be compromised by the required disclosure, the

extent of disclosure may be modified appropriately, provided the

public interest is not subverted.”     (citation omitted)).

    The OPMA is not crystal clear on the “promptly available”

requirement generally, or as it pertains to the more subtle

considerations involved with minutes of closed sessions.      Hence,

a resort to legislative history is appropriate.     DiProspero, 
183 N.J. at 492-93 (“[I]f there is ambiguity in the statutory

language that leads to more than one plausible interpretation,

we may turn to extrinsic evidence, 'including legislative

history . . . .’”   (quoting Cherry Hill Manor Assocs. v. Faugno,


182 N.J. 64, 75 (2004))).   The legislative history is sparse

about a generic meaning for “promptly available,” but that

                                  33
history does illuminate that the Legislature anticipated the

need for extra flexibility when it comes to closed-session

portions of public meetings.

    The OPMA’s legislative history qualifies the requirement of

prompt disclosure of meeting minutes in recognition of the fact

that closed-session minutes may need to be shielded from the

public for a longer period due to the sensitive nature of the

material under discussion.   Statement to Third Official Copy

Reprint of A. 1030 12 (L. 1975, c. 231) (“Minutes must be

promptly available to the public, except for material covering

meetings or portions of meetings closed to the public.”

(emphasis added)); see also 
N.J.S.A. 10:4-14 (minutes must be

made “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]”).   Indeed, the Legislature was aware that certain

sensitive material must be carefully reviewed and anticipated

that some of the information under review may never reach the

public’s eyes.   Statement to Third Official Copy Reprint of A.

1030 12 (“[N.J.S.A. 10:4-13] requires that whenever a public

body seeks to meet in private it must first pass a resolution .

. . [that] must also state the general nature of the matters to

be discussed and approximately when, if ever, the matters

discussed can be made public.”   (emphasis added)).



                                 34
                                B.

    The parties and amici generally agree that the Appellate

Division correctly took an essentially fact-sensitive, case-by-

case approach to the requirement that minutes be “promptly

available” to the public.   We agree.

    The term’s application requires context.    The Legislature’s

choice of the phrase implicitly requires individual assessments

as specific facts unfold in matters, while at the same time

signaling to public bodies the legislative expectation that the

release of minutes must be considered a priority, an obligation,

and not a nuisance to be addressed when convenient.   The

Appellate Division sought to thoughtfully balance the OPMA’s

language and underlying legislative goals and to create a fair

balance between the public’s need for information and a public

entity’s autonomy and need for logistical flexibility.

    The delay that occurred here -- the release of minutes for

the September 2014 meeting in February 2015 -- is unreasonable

no matter the individual or combination of excuses advanced by

the Board.   Our concern is with the remedy selected by the

Appellate Division.   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

                                35
entities, so no one set amount of time for the release of

minutes should be mandated.   Reasonableness must remain the

touchstone when assessing the promptness of a public entity’s

actions in this area.   We are reluctant to set a specific

timeframe for the calling of meetings, which should remain the

prerogative of the body entrusted with running the public

entity.   See McGovern, 
211 N.J. at 115 (noting that “public body

must be afforded discretion in determining” most effective way

of conducting its proceedings).

    Hence, although the 2017-18 academic year is nearing its

end, we modify the Appellate Division’s holding requiring the

Board to set a regular meeting schedule that would allow for the

approval of minutes within a forty-five-day time period.         That

having been said, if a public entity, like the Board, were to

continue to limit its meetings to five per year, significantly

impeding its ability to approve meeting minutes promptly, we

might see the issue again.

    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,

                                  36
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.     As

for minutes of closed sessions, which may require sensitive

considerations and even consultation with counsel, we expect

public bodies will similarly develop ways to speed the process

without shortchanging their decisions as to what may be included

for release to the public in such minutes.    Cf. Atl. City

Convention Ctr. Auth. v. S. Jersey Publ’g Co., 
135 N.J. 53, 67-

69 (1994) (recognizing that public release of executive session

minutes requires careful balancing of competing interests);

O’Shea v. W. Milford Bd. of Educ., 
391 N.J. Super. 534, 539-41

(App. Div. 2007) (same).

    Finally, we add what should be obvious:     minutes should be

released within days of their approval, unless truly

extraordinary circumstances prevent their availability to the

public.

                               VI.

    The judgment of the Appellate Division is reversed in part,

and affirmed, as modified, in part.



     CHIEF JUSTICE RABNER and JUSTICES ALBIN, FERNANDEZ-VINA,
and SOLOMON join in JUSTICE LaVECCHIA’s opinion. JUSTICES
PATTERSON and TIMPONE did not participate.

                               37