                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although 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.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-5011-16T3

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, PC,  attorneys                 for
              respondents (Alicia D. Hoffmeyer, on                 the
              brief).

PER CURIAM

        Plaintiff,     R.D.A.,    appeals    from    a   June   27,   2017   order

dismissing with prejudice his complaint in lieu of prerogative
writs, which sought to vacate a decision by defendant Hunterdon

Central Regional High School District Board of Education (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 -21, and failed to give

him notice of those meetings in accordance with Rice v. Union

County Regional High School Board of Education, 155 N.J. Super.

64 (App. Div. 1977).    We affirm because the action in lieu of

prerogative writs was time-barred and otherwise lacks 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 Placement Chemistry (AP Chemistry) and College

Prep Chemistry (CP Chemistry).

     On May 6, 2016, a parent of a student taking plaintiff's AP

Chemistry class sent an email to plaintiff's supervisor.         The

student had informed the parent that plaintiff told the class that

he did not plan to teach for the remainder of the year because the

class already took the AP exam.       The student also informed the

parent that plaintiff told the class that he was going to have



                                 2                          A-5011-16T3
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 30th.

       In response, plaintiff sent his supervisor four emails, three

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, whom 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."          Plaintiff

also sent the fourth email to his wife, two school counselors, and

the parent.



                                    3                              A-5011-16T3
     The    high    school    principal,     district    superintendent,     and

president   of     the    Board   were   advised   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 Board

discussed plaintiff's suspension.            Before that meeting, plaintiff

was sent a Rice notice1 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 secretary 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 Department Supervisors have asked to meet
            with the Board of Education to address
            erroneous statements made during our last
            Board meeting.   They are scheduled to meet
            with the Curriculum Committee 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, in Rice we noted that N.J.S.A.
10:4-12(b)(8) authorized public bodies to discuss personnel
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. To give meaning to the right
to have a public meeting, we held that the affected employees must
be given advance notice. Id. at 74.

                                         4                              A-5011-16T3
           Curriculum meeting. As you know, a quorum of
           the Board 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 Curriculum Committee met at 6 p.m., with four Board members

attending.    The second meeting, attended by three different Board

members, was held at 7 p.m.         Also in attendance at the meetings

were district officials and school supervisors.            At both meetings,

plaintiff was discussed.         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 of 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

Commissioner of Education (Commissioner).

     The     Commissioner   in    turn    referred   the    charges   to     an

arbitrator.    Between September 2016 and March 2017, the arbitrator


                                      5                               A-5011-16T3
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 to 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, 2017, the arbitrator issued her opinion and award.

In a forty-eight-page written opinion, the arbitrator ruled that

plaintiff had engaged 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, 2017, 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, the

                                           6                                 A-5011-16T3
court explained its reasons. The trial court ruled that the tenure

charges   were   properly   pursued   in    compliance   with   the    Tenure

Employees Hearing Law (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

reasonable 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

the complaint is appropriate."             Ibid. (quoting 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.

                                      7                               A-5011-16T3
     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

     The    trial    court     did    not       base    its        ruling    on     the    time

limitation.       Nevertheless, defendants raised that as a basis for

dismissal    in    the    trial   court.           We       rely    on   the   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    an     action     in    lieu    of

prerogative writs.        N.J.S.A. 10:4-15(a); R. 4:69-6; see also Mason

v. City of Hoboken, 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.



                                            8                                         A-5011-16T3
     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 contends 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, in 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 documents 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 months after the June 6, 2016

meetings and more than 100 days after plaintiff was given documents

concerning the June 6, 2016 meetings.           No 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.



                                    9                                A-5011-16T3
       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.         Substantively,

plaintiff 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

was discussed at those meetings.              We disagree.

       To place these arguments in context, we briefly summarize the

relevant portions of OPMA, Rice notice, 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    be

                                         10                                   A-5011-16T3
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   fall    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" OPMA's

provisions is prohibited.      N.J.S.A. 10:4-11.       Any action taken by

a public body at a meeting that does not conform to OPMA's

requirements is voidable in a proceeding in lieu of prerogative

writs.     N.J.S.A.     10:4-15;    see   Allen-Dean   Corp.   v.   Twp.    of

Bedminster, 153 N.J. Super. 114, 120 (App. Div. 1977) (nullifying

any action taken at a nonconforming meeting under OPMA).                 OPMA

also provides for injunctive relief and establishes a penalty for

knowing 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

              any gathering . . . which is attended by, or
              open to, all of the members of a public body,
              held with the intent, on the part of the
              members of the body present, to discuss or act
              as a unit upon the specific public business
              of that body. Meeting does not mean or include
              any such gathering (1) attended by less than

                                     11                              A-5011-16T3
            an effective 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 any

way, directly or indirectly, to the performance of the public

body's functions or the conduct of its business."                   N.J.S.A.

10:4-8(c).

     In Rice, we construed section 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   entitled   to   reasonable   advance   notice    of   the

meeting.    Rice, 155 N.J. Super. at 74.


                                     12                              A-5011-16T3
      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 employee to respond in

writing; (4) a determination by a majority of the board that there

is probable cause to credit the evidence 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 Commissioner.

N.J.S.A. 18A:6-11.    The Tenure Act expressly states that a board'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 dismissal 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:6-17.1.     In addition, the Tenure Act

provides:      "The arbitrator'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).

                                    13                           A-5011-16T3
     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.                  The

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 notice.   See N.J.S.A. 10:4-8(b) (defining meeting, in



                                    14                             A-5011-16T3
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 Board 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.




                                15                         A-5011-16T3
