Rice Notice: What Is It And Why It Was Cited Incorrectly

At the February 18th Mayor & Council meeting, Borough Clerk Doreen Cali took the unusual step of leaving the dais and speaking as a member of the public during the public comment portion of the meeting. She did this to reiterate statements she made earlier when her name was mentioned by 5th Ward Councilman Thomas ‘Thos’ Shipley at the end of his council report. He first stated, “I would be remiss if I didn’t address what happened at last Thursday’s regular council meeting regarding the resolution proposed by Councilwoman Storey to designate duties of the Chief Administrative Officer to clerk Doreen Cali and give her a $25,000 raise.”

Additionally he said that he believed that the councilwoman and the borough clerk were in collusion regarding the resolution for appointment of CAO duties which was not passed by a 4-3 vote with Mayor Carl Hokanson breaking the tie. He added, “These machinations between Councilwoman Storey, an elected official, and Ms. Doreen Cali, a borough employee, are not isolated.”

In response to the statements made by Councilman Shipley, Ms. Cali stated at the beginning of her department’s report, “For the record I want it known that it’s my opinion that tonight there was a violation of the ‘Rice Act’. My name was mentioned – false accusations of improprieties where I was accused of publicly – and I want it noted for the record that it was allowed to happen and it was not stopped. You are not allowed, according to the law, to talk about an employee, their performance, their job, any demotion, promotion – publicly – without Ricing that employee and giving that employee the option to have that discussion held in closed session or in open session. So a violation of the Open Public Meetings Act was done tonight and I was falsely accused of accusations which I will be noting for the record.”

The only problem with her statement is that there was no violation of the Open Public Meetings Act (also known as OPMA), specifically NJSA 10:4-12, nor of a Rice notice, which Ms. Cali incorrectly termed repeatedly as the ‘Rice Act’.

A Rice notice is named after Regina Rice, a plaintiff in a 1977 New Jersey Superior Court case Rice v. Union County Regional High School Board of Education – the case that is used as precedent in such matters. involving the discussion of personnel that might adversely affect a specific employee. In 1976, the UCRHS BOE held a closed executive session where there was discussion to terminated several employees due to reasons of economy. Afterwards, the Board returned to open session and adopted a resolution that named 17 employees who would be terminated at the end of the school year. Regina Rice, the president of the Union County Regional High School Teachers Association but who was not one of the teachers terminated, filed litigation arguing that the board failed to comply with the Open Public Meetings Act by failing to give the 17 terminated employees advance notice of the meeting so they could exercise their right to request, in writing, a public discussion of the matter. The court held that the terminated employees were entitled to reasonable notice; hence the Rice Notice.

As a result, a Rice notice (along with the associated verbs ‘Ricing’ and ‘Riced’) requires that prior to discussion of personnel – which is covered as a closed session item – an employee who might be adversely affected must be given a Rice notice which gives the employee the right to request a public hearing. An actual letter, known as a Rice Letter, must be sent to the specific employee before any discussions are held in a closed session. If the employee does not respond in writing that he or she wishes to forgo personal privacy and have the matter discussed in open session, then the governing body can proceed having discussions about that employee in closed session and, thereby, preserve privacy. The section cited is NJSA 10:4-12(b)(8), which reads that:

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, 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.

In other words, personnel matters are covered as an exception to OPMA, but a Rice notice gives a particular employee adversely affected the opportunity to have those discussions in public during an open session of a meeting in order to allow the public to hear what exactly is being discussed.

As it relates to the February 18th meeting, there was no closed session item regarding the Borough Clerk so no Rice notice was needed. The simple mentioning an employee does not require a Rice notice. The clerk additionally stated that it is up to the employee to have the option to have a discussion in closed session. That is also incorrect since the closed session is to be called only by a governing body in line with OPMA.

In fact, in its decision the Court cited a 1962 Harvard Law Review article entitled “Open Meetings Statutes: The Press Fights for the Right to Know”:

When possible disciplinary action or dismissal is being considered, premature publicity can cause great and often unjustified damage to personal reputations. To be sure, secrecy in such matters may increase the likelihood or irresponsible character assassination or political favoritism, but a number of statutes afford the employee some protection by granting him an option to demand a public hearing.

Since no such disciplinary or dismissal was considered, which is covered under OPMA, then there was no requirement for a Rice Notice or Rice Letter.

During the public comment portion when the clerk left the dais leaving the governing body with a clerk nor anyone to make certain that public comment rules were being adhered to, Ms. Cali quoted NJSA 10:4-12(b)(8), but then added, “Those matters must be held in closed session unless that employee is Riced and the employee can make the determination to have that discussion in public. The council cannot make the decision to have a discussion about an employee in public unless that employee is Riced.”

If there was a violation, it came from Councilwoman-At-Large Charlene Storey who discussed the assigning of CAO duties to Ms. Cali, the Borough Clerk.

In a bizarre twist, if one were to follow the logic proposed by the clerk when she stated that the governing body is not allowed to discuss an employee without Ricing that employee, then there was a violation (again, according to the clerk) during the February 4th Mayor & Council meeting. If there was a violation, it came from Councilwoman-At-Large Charlene Storey who discussed the assigning of CAO duties to Ms. Cali, the Borough Clerk. Roselle Park News submitted an OPRA Request for a Rice Letter that was sent to Ms. Cali regarding discussion of her new assignment and increase in salary initiated by Councilwoman Storey. The Borough Clerk’s office responded that no such document existed.

And this is not the first time Ms Cali has leveled the charge of a Rice Notice violation against the governing body. In 2013, she filed a Notice of Claim against the municipality, in particular then 5th Ward Councilman Michael Yakubov, alleging – among other negligent or wrongful acts – that the councilman violated OPMA and did not provide a Rice Notice (link). Although a claim was filed, as is legally required within 90 days of an occurrence, research into court records show that no lawsuit has yet been filed by Ms. Cali against Roselle Park a little over two years later.

A Rice notice is a serious matter that affords an employee the right to forego personal privacy and have a public discussion on the matter that might adversely affect him or her. But in this instance, if one were to follow Ms. Cali’s flawed logic that the governing body cannot talk about her without Ricing her, the question that needs to be answered from the Borough Clerk is why such a charge was not leveled on February 4th when she was talked about in having duties of the CAO assigned to her by Councilwoman-At-Large Charlene Storey. Either that or the clerk will need to show case precedent that substantiates her claim – or understanding – of the requirements for a Rice notice.

The next scheduled Mayor & Council meeting is scheduled for tonight, March 3rd, at 7 p.m. in council chambers at the Roselle Park Municipal Complex located at 110 East Westfield Avenue.