SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A - 5011
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R . D. A. , Plaintiff
- Appellant,

v.
HUNTERDON CENTRAL REGIONAL HIGH SCHOOL DISTRICT BOARD OF EDUCATION and SUPERINTENDENT CHRISTINA STEFFNER, Defendants
- Respondents.

________________________________

Submitted May 30, 2018

– Decided June 29, 2018 Before Judges Hoffman and Gilson. On appeal from Superior Court of New Jersey, Law Division , Hunterdon County, Docket No. L - 0128
- 17. Brickfield & Donahue, attorneys for appellant (Joseph R. Donahue, on the brief). Comegno Law Group, P C , attorneys for respondents (Alicia D. Hoffmeyer, on t he brief).
PER CURIAM Plaintiff, R.D.A., appeals from a June 27, 2017 order dismissing with prejudice his complaint in lieu of prerogative NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court . " A lthough it is posted on the internet , this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36
- 3.2 A - 5011
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writs , which sought to vacate a decision by defendant Hunterdon Central Regional High School District Board of Educ ation (Board) to refer tenure charges against him to the Commission of Education , and to have those tenure charges dismissed . His complaint alleged that the Board held two meetings in violation of the Open Public Meetings Act (OPMA) , N.J.S.A. 10:4
- 1 to
- 2 1, and failed to give him notice of those meetings in accordance with Rice v. Union
C ounty Reg iona l High School B oard of Educ ation , 155 N.J. Super. 64 (App. Div. 1977). We affirm because the action in lieu of prerogative writs was time
- barred and ot herwis e lack s merit.
I. Plaintiff was a tenured teacher at Hunterdon Central Regional High School. He began teaching at the high school in 2004 , and was tenured in 2007. During the 2015
- 2016 school year, plaintiff taught Advanced P lacement C hemistry (AP C hemi stry) and C ollege
P rep Chemistry ( CP Chemistry) . On May 6, 2016, a parent of a student taking plaintiff's AP
C hemistry class sent an email to plaintiff's supervisor. The
student had informed the parent that plaintiff told the class that he did not plan t o teach for the remainder of the year bec ause the class already took the AP exam. The student also informed the parent that plaintiff told the class that he was going to have3 A - 5011
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them watch videos and do study halls. The parent wrote to question that plan. Plaintiff's supervisor forwarded the email to plaintiff stating: Do you have a response to this? I'm assuming

that you are trying to make a point. If not, understand that you are under contract (even if the new one hasn't been negotiated yet) until June 30 th . In response, plaintiff sent his supervisor four emails, t hree of which included the expletive " f *** , " and two of which stated that he was very "angry." In his fourth email, plaintiff responded in more detail. Plaintiff explained his lesson plan for the remainder of the year, which he described as "a sort of mini
- course of video lectures by college professors that would show the kids
real
- world & scientific research applications of the things we learned in class." He also stated that he had some trouble with two students, who m he named. Thereafter, he discussed the final grade of one of the students , and stated that he had raised her grade but now intended to lower her grade back down to the original

one . He then expressed his disappointment on how his supervisor handled this situation and stated: "Frankly, f*** you." P laintiff also sent the fourth email to his wife, two school counselors, and the parent .4 A - 5011
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The high school principal, district superintendent , and president of the Board were advise d of the email exchange. Plaintiff was suspended with pay and an investigation of his actions was commenced.
At a May 16, 2016 meeting , the entire nine
- member B oard discuss ed plaintiff's suspension . Before that meeting, plaintiff

was sent a Rice noti ce 1 informing him that his employment would be discussed at the Board meeting. Plaintiff requested that the discussion take place in an open session . Accordingly, students and parents attended the May 16, 2016 Board meeting, some of whom spoke on plaintiff' s behalf. Plaintiff also spoke at the meeting. On May 25, 2016, the Board's s ecretary sent all of the Board members an email inviting them to one of two meetings to be held on June 6, 2016. Specifically, that email stated:

The D epartment S upervisors ha ve asked to meet with the Board of Education to address erroneous s tatements made during our last B oard meeting. They are scheduled to meet with the C urric ulum C ommittee on Monday, June 6 , at 6 :00 p.m. and would like to meet with the remainder of the board at 7 :00 p.m. on that same evening to avoid a quorum at the

1 As discussed in more detail later, i n Rice we noted that N.J.S.A. 10:4
- 12 ( b )(8) authorized public bodies to discuss person ne l matters in executive sessions "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 [ . ] " 155 N.J. Super. at 70. T o give meaning to the r ight to have a public meeting, we held that the affected employee s must be given advance notice. Id. at 74.5 A - 5011
- 16T3 Curriculum meet ing. As you know, a quorum of the B oard may not convene outside an advertised meeting. Please respond to this email to let me know your preference of 6 :00 or 7 :00 p.m. on Monday, June 6. We have up to two open spots at 6:00. Two meetings were then held on June 6, 2016. Neither the public nor plaintiff was given prior notice of those meetings.
The C urriculum C ommittee met at 6 p.m. , with four Board members
attend ing . The second meeting , attended by three different Board members, was held at 7 p.m. Also in attendance at the meetings
were d istrict officials and school supervisors . At both meetings, plaintiff was discu ssed. There was not a quorum of the Board at either meeting , because a quorum would have involved five Board
members. On June 15, 2016, plaintiff was served with tenure charges and informed that his employment would be discussed at a non
- public meeting o f the Board. Plaintiff submitted a written response to the tenure charges on June 24, 2016. Thereafter, on June 30, 2016, the Board met in executive session. At that meeting, the Board voted to certify the tenure charges against plaintiff to the Commiss ioner of Education (Commissioner) . The Commissioner in turn refer red the charges to an arbitrator. Between September 2016 and March 2017, the arbitrator6 A - 5011
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heard thirteen days of testimony from twenty - eight witnesses, including plaintiff. On March 30, 2017 , after all of the evidence had been submitted to the arbitrator, but before the arbitrator had issued her ruling, plaintiff filed his complaint in lieu of prerogative writs. He alleged that the Board violated his due process rights, OPMA, and his right t o notice under Rice . Plaintiff sought to enjoin the Board from continuing the tenure arbitration. He also sought to declare the Board's action on June 30, 2016 void and to enjoin the Board from filing new tenure charges against him. The Board responded by moving to dismiss plaintiff's complaint for failure to state a claim . On June 7, 201 7 , the arbitrator issued her opinion and award. In a forty
- eight
- page written opinion, the arbitrator ruled that plaintiff had engag ed in conduct unbecoming a public employee by threatening retaliation against a student, directing profanity at his supervisor, and violating the confidentiality and privacy of students. The arbitrator then ruled that the Board had just cause to terminate plaintiff's employment. On June 12, 201 7 , the trial court heard oral argument on the Board's motion to dismiss plaintiff's complaint. Shortly thereafter, on June 27, 2017, the court entered an order granting the motion. In an oral decision rendered on June 27, 2017, the7 A - 5011
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court explained its reasons . The trial court ruled that the tenure charges were properly pursued in compliance with the Tenure Employees Hearing La w (Tenure Act), N.J.S.A. 18A:6
- 10 to - 18.1 . The court also ruled that OPMA did not apply to the meetings held

on June 6, 2016 , 2 and the Board was not required to send plaintiff

a Rice notice of those meetings. Plaintiff appeals from the June 27, 2017 order dismissing his complaint with prejudice.
II. We review de novo an order dismissing a complaint for failure
to state a claim. State ex rel. Campagna v. Post Integrations,
Inc. , 451 N.J. Super. 276, 279 (App. Div. 2017). "When reviewing a motion to dismiss under Rule 4:6
- 2(e), we assume that the allegations in the pleadings are true and afford the pleader all

reas onable inferences." Sparroween, LLC v. Twp. of W. Caldwell , 452 N.J. Super. 329, 339 (App. Div. 2017) (citation omitted). "Where, however, it is clear that the complaint states no basis for relief and that discovery would not provide one, dismissal of
th e complaint is appropriate." Ibid. ( q uoting J.D. ex rel. Scipio
- Derrick v. Davy , 415 N.J. Super. 375, 397 (App. Div. 2010)).

2 The trial court referenced two meetings

–– the first on June 6, 2016 , and a second on June 9, 2016. Plaintiff correctly points out that both meetings were held on June 6, 2016.8 A - 5011
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We affirm the order dismissing plaintiff's action in lieu of prerogative writs on two grounds. First, the action is time
- barred. Second, there was no violation of the OPMA or the requirements of Rice . A. The Statute of Limitations
T he trial court did not base its ruling on the time limitation . Nevertheless, defendants raise d that as a basis for dismissal in the trial court. W e rely on th e statute of limitations as an alternative grounds for affirming the order of dismissal. See State v. Williams , 444 N.J. Super. 603, 617 (App. Div. 2016) ("It is well
- established that a reviewing court can affirm a decision on different grounds than those authorities offered by the court being reviewed."). Actions taken at a meeting in violation of OPMA are to be challenged within forty
- five days in a n action in lieu of prerogative writs. N.J.S.A. 10:4
- 15(a) ; R . 4:69
- 6; see also Mason v. City o f Hob o ken , 196 N.J. 51 , 68
- 69 (2008 ) (applying the forty
- five
- day limitation for actions brought under OPMA , to actions brought under OPRA) . While Rule 4:69
- 6 (c) provides that

a " court may enlarge the period of time . . . where it is manifest that the interest of justice so requires[,]" no such interest applies here.9 A - 5011
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Plaintiff complains about two meetings that took place on June 6, 2016. His action in lieu of prerogative writs was filed on March 30, 2017. Plaintiff cont ends that his delay was due to the Board's efforts to conceal the existence of the meetings on June 6, 2016. The record does not support that contention. On December 5, 2016, i n response to a request for documents under the Open Public Records Act (OPRA) , N.J.S.A. 47:1A
- 1 to
- 13 , plaintiff was given document s showing that there were meetings on June 6,
2016. Plaintiff , thereafter, continued to fully participate in the arbitration concerning his tenure charges . Indeed, plaintiff raised the June 16, 2016 meetings in the arbitration and his counsel questioned several witnesses about those meetings. Plaintiff, however, waited to file his action in lieu of prerogative writs until after all of the evidence was submitted to the arbitrator

–– more than nine mon ths after the June 6, 2016 meetings and more than 100 days after plaintiff was given document s concerning the June 6, 2016 meetings. N o manifest interest of justice supports an enlargement of the forty
- five
- day limitation period under these circumstances . To the contrary, the record here demonstrates that plaintiff was seeking to pursue both the arbitration and an action in lieu of prerogative writs at the same time.10 A - 5011
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B. OPMA and Rice Although we hold the action time
- barred , we nevertheless
address the appeal on the merits , because that was the basis on which the trial court dismissed the action. S ubstantively,
p laintiff makes two primary arguments on this appeal. First, he contends that the Board was required to give public notice of the meetings on June 6, 2016, and the Board's failure to do so was a violation of OPMA. Second, he argues that he was entitled to a Rice notice of the meetings on June 6, 2016, because his employment

w as discussed at those meetings. We disagree. To place these argume nts in context, we brief ly summari ze the relevant portions of OPMA, Rice noti ce , and the Tenure Act. We also point out that plaintiff has not appealed from the arbitrator's decision and, thus, that final, binding ruling is not
before us. See N.J.S.A. 18A :6
- 17.1 (e). OPMA addresses the right of the public "to have adequate advance notice of and the right to attend all meetings of public bodies at which any business affecting the public is discussed or acted upon in any way," with certain exceptions. Times of Trenton Publ'g Corp. v. Lafayette Yard Cmty. Dev. Corp. , 183 N.J. 519, 529 (2005) (quoting N.J.S.A. 10:4
- 7) . To protect that right, OPMA establishes requirements for public bodies regarding adequate notice to the public of scheduled meetings and items to be11 A - 5011
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discussed and acted upon. N.J.S.A. 10:4
- 9 to - 10,
- 18 to - 19. OPMA also requires that meetings be open to the public, unless they fa ll within exceptions under N.J.S.A. 10:4
- 12(b). In addition, the minutes of the meetings must be available to the public. N.J.S.A. 10:4
- 14. The failure to invite a portion of the members of a public body to a meeting "for the purpose of circumventing" OP MA's provisions is pro hibited. N.J.S.A. 10:4
- 11. Any action taken by a public body at a meeting that does not conf o rm to OPMA's requirements is voidable in a proceeding in lieu of prerogative writs. N.J.S.A. 10:4
- 15; s ee Allen
- Dean Corp. v. Twp. of
Bedm inster , 153 N.J. Super. 114, 120 (App. Div. 1977) (nullifying any action taken at a nonconforming meeting under OPMA). OPMA also provides for inju nctive relief and establishes a penalty for
kno wing violations. N.J.S.A. 10:4
- 16 to
- 17. The scope of OPMA is defined by the terms "public body," "meeting," and "public business." Here, there is no dispute that the Board is a public body. See N.J.S.A. 10:4
- 8(a). Under OPMA, a " meeting" means

a ny gathering . . . which is attended by, or open to, all of the me mbers of a public body, held with the intent, on the part of the members of the body present, to discuss or a c t as a unit upon the specific public business of that body. Meeting does not mean or include any such gathering (1) attended by less than12 A - 5011
- 16T3 an effe ctive majority of the members of a public body, or (2) attended by or open to all the members of three or more similar public bodies at a convention or similar gathering. [N.J.S.A. 10:4
- 8 ( b).] Public business is defined as "all matters which relate in an y way, directly or indirectly, to the performance of the public body's function s or the conduct of its business." N.J.S.A.
10:4
- 8(c).
In Rice , we construed s ection 12 (b) of OPMA. N.J.S.A. 10:4
- 12 ( b ) . That provision , in relevant part, states that a public body may exclude the public from a 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 the matter or matters be discussed at a public meeting [ . ] [N.J.S.A. 10:4
- 12 ( b )(8) .] To give meaning to the provision that affords affected public employees the right to a public discussion, we held that the employees were entitle d to reasonable advance notice of the meeting. Rice , 155 N.J. Super. at 7 4 .13 A - 5011
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The Tenure Act establishes the grounds and procedures for dismissing or reducing the compensation of tenured employees . N.J.S.A. 18A:6
- 10. In terms of procedure, the Tenure Act requires : (1) the charge be filed with the secretary of the board in writing; (2) a written statement of evidence under oath submitted in support of the charge ; ( 3 ) an opportunity for the em ployee to respond in writing; (4 ) a determination by a majority o f the b oard that there is probable cause to credit the ev idence in support of the charge ; (5) notification to the employee of the board's determination; and ( 6 ) if credited, the charge to be forwarded to the C ommissioner.
N.J.S.A. 18A:6
- 11. The Tenure Act expressly states that a b oard's consideration and action "as to any charge shall not take place at a public meeting." Ibid. If the Commissioner determines that " the charge is sufficient to warrant dismissa l or reduction in salary . . . he [ or she ] shall refer the case to an arbitrator . . . ." N.J.S.A. 18A:6
- 16. The Tenure Act then prescribes certain procedures for the arbitration . N.J.S.A. 18A:6
- 1 7.1 . In addition, the Tenure Act provides: "The arbitra tor's determination shall be final and binding and may not be appealable to the [C] ommissioner or the State Board of Education. The determination shall be subject to judicial review and enforcement as provided pursuant to [ N.J.S.A.
2A:24
- 7 to - 10] ." N.J. S.A. 18A:6
- 17.1(e).14 A - 5011
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Here, plaintiff was charged with unbecoming conduct , a recognized grounds for dismissal under the Tenure Act. N.J.S.A.
18A:6
- 10. The Board conducted an investigation and prepared charges supported by a written statement of evidence, certified to by the superintendent. Plaintiff was given a copy of the statement of tenure charges on June 15, 2016. He responded in writing on June 24, 2016. The full Board considered the tenure charges in a non
- public meeting held on June 30, 2016. Th e majority of the Board found probable cause to credit the evidence supporting the charges. The Board then gave notice to plaintiff and certified the charges to the Commissioner. All of those actions and procedures were in compliance with the Tenure Act. The meetings on June 6, 2016, did not taint the tenure charges against plaintiff. No action was taken by the Board at those meetings . While we assume that plaintiff's employment was discussed, no vote was taken on the tenure charges. Indeed, no
quorum of Board members was present at either meeting . See Gandolfi v. Town of Hammonton , 367 N.J. Super. 527, 539
- 40 (App. Div. 2004) ( holding that a planning board's closed meeting did not violate OPMA where there was not a quorum and no action was taken). In addition, since there was no quorum, there was no requirement
for a Rice noti ce . See N.J.S.A. 10:4
- 8(b) (defining meeting, in15 A - 5011
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part, as requiring "an effective majority of the members of a public body").
Just as importantly, following the June 6, 2016 meetings, on June 30, 2016 , the entire Board met, considered, and voted on the tenure charges against plaintiff. Plaintiff was given notice of the June 30, 2016 B oard meeting. The meeting on June 30, 2016 complied with the Tenure Act and did not violate OPMA or Rice . Consequently, there is no basis to void the action taken by the Board on June 30, 2016. There is also no basis to enjoin or void the arbitration on the tenure charges. Affirmed.