On January 21, 2021, the New Jersey Appellate Division issued a published decision in Simadiris v. Paterson Public School District in which it decided whether a board of education’s decision to certify tenure charges against an employee during private session violated that employee’s right to request such consideration in public. In short, the Appellate Division agreed with the school district and ruled that a board of education was prohibited from discussing the tenure charges during public session.
Tenure charges were brought against an employee of the Paterson Board of Education (“Board”). The employee’s attorney received notice two days before a Board meeting stating that the Board would consider during private session whether there was probable cause for the tenure charges. The employee objected to the notice. The Board responded that N.J.S.A. 18A:6-11 requires the discussion to occur in private session.
The employee sued, and the case made its way to the Appellate Division. The employee essentially argued that N.J.S.A. 10:4-12(b)(8) gave her the right to demand that the discussion by the Board regarding her employment – whether to certify tenure charges – was to occur in public session. Further, the employee argued that the Board improperly failed to provide her with a Rice notice to allow the discussion to occur in public session. The Board argued that N.J.S.A. 18A:6-11 is the controlling statute and precludes such discussion and/or voting regarding tenure charges to occur in public session, as N.J.S.A. 18A:6-11 states, in part, “The consideration and actions of the board as to any charge shall not take place at a public meeting.”
Ultimately, the Appellate Division agreed with the Board and determined that N.J.S.A. 18A:6-11 clearly does not provide an employee the right to have the discussion and vote regarding whether to certify tenure charges in public session. In reaching this conclusion, the Appellate Division reasoned that while the Open Public Meetings Act generally favors all discussions and actions to be public, there are legislative exceptions, such as the one created by N.J.S.A. 18A:6-11. The employee’s rights in this case were not violated.
