                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-5481-14T3

KEAN FEDERATION OF TEACHERS,
JAMES CASTIGLIONE, and
VALERA HASCUP,                        APPROVED FOR PUBLICATION

                                         February 8, 2017
     Plaintiffs-Respondents/
     Cross-Appellants,                  APPELLATE DIVISION

v.

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

     Defendants-Appellants/
     Cross-Respondents.
___________________________________

         Argued October 6, 2016 – Decided February 8, 2017

         Before Judges Fuentes, Carroll, and Gooden
         Brown.

         On appeal from the Superior Court of New
         Jersey, Law Division, Ocean County, Docket
         No. L-306-15.

         James   P.  Lidon   argued   the cause   for
         appellants/cross-respondents       (McElroy,
         Deutsch, Mulvaney & Carpenter, attorneys;
         John J. Peirano, of counsel; Mr. Lidon, on
         the brief).

         Robert A. Fagella argued the cause for
         respondents/cross-appellants        (Zazzali,
         Fagella,   Nowak,   Kleinbaum   &   Friedman,
         attorneys; Mr. Fagella, on the briefs).

     The opinion of the court was delivered by
FUENTES, P.J.A.D.

       The Open Public Meetings Act ("OPMA"), N.J.S.A. 10:4-6 to

-21,    promotes       the     democratic         value     of    transparency        in

governmental     affairs      and    protects      the    public's     right    "to   be

present at all meetings of public bodies, and to witness in full

detail all phases of the deliberation, policy formulation, and

decision making."        Opderbeck v. Midland Park Bd. of Educ., 442

N.J.    Super.   40,     55    (App.   Div.)       (quoting      N.J.S.A.      10:4-7),

certif. denied, 223 N.J. 555 (2015).                      In this appeal, we are

required to examine two distinct obligations the OPMA imposes on

public bodies: (1) to make meeting minutes "promptly available"

to   the   public   as    required     by       N.J.S.A.    10:4-14;    and     (2)   to

provide    employees,        whose   employment      status      may   be    adversely

affected, with notice informing them of their right to compel

their   public   employer       to   discuss      their     employment      status    in

public.     N.J.S.A. 10:4-12b(8); Rice v. Union Cty. Reg'l High

Sch. Bd. of Educ., 155 N.J. Super. 64, 73 (App. Div. 1977).

       The matter before us originated in the Law Division as an

action in lieu of prerogative writs filed by plaintiffs Kean

Federation of Teachers ("KFT");1 KFT President James Castiglione;

and Valera Hascup, a Kean University faculty member.                        Plaintiffs

1
  KFT is a labor organization that represents                          all     of   Kean
University's full-time faculty members.




                                            2                                  A-5481-14T3
alleged the Board of Trustees of Kean University and Ada Morell

in    her    capacity      as    Chairperson2          (collectively     "the       Board")

violated the OPMA when they failed to make the Board's minutes

for    the     September      15,    2014    and       December   6,    2014      meetings

"promptly      available"       to   the    public,      as   required       by   N.J.S.A.

10:4-14.       Plaintiffs also claimed the Board terminated Hascup's

position without sending her the notice required by this court's

decision in Rice, supra, 155 N.J. Super. at 74.

       After joinder of issue, the matter came before the trial

court by way of cross-motions for summary judgment.                            Plaintiffs

argued the Board violated N.J.S.A. 10:4-14 when it took ninety-

four days to release the minutes of a meeting held on September

15,    2014,    and    fifty-eight       days     to    release   the    minutes       of    a

meeting held on December 6, 2014.                        The trial judge held in

plaintiffs' favor and concluded the Board failed to make these

minutes "promptly available[.]"                  N.J.S.A. 10:4-14.           To bring the

Board in compliance with this statutory requirement, the trial

court issued a permanent injunction requiring the Board to make

the    minutes    of    all     future     meetings      available      to    the    public

"within forty-five days[.]"

       With respect to the Rice notice issue, the trial judge

found the Board did not violate the OPMA when it voted in public

2
    N.J.S.A. 18A:64-4.



                                             3                                      A-5481-14T3
session not to retain Valera Hascup without first apprising her

in   writing     of    her     right         to     waive    the     privacy       protections

afforded to public employees under N.J.S.A. 10:4-12b(8).                                          The

judge     concluded         that        absent        any    discussion          of        Hascup's

employment status during closed session, or any stated intention

to engage in such discussion, the OPMA does not require the

Board to issue a Rice notice.

      The Board now appeals, arguing the trial court erred when

it found its meeting minutes were not made "promptly available"

in   accordance       with    N.J.S.A.            10:4-14.       The      Board    claims         the

motion     judge      did    not        properly        consider         the    circumstances

preventing the Board from releasing its minutes earlier.                                         The

Board    also    argues      that       a    permanent       injunction         requiring        the

release     of     official         minutes            within       forty-five          days       is

inconsistent       with      the        fact-sensitive          approach        reflected          in

N.J.S.A.     10:4-14         and    unduly            interferes         with     the       Board's

prerogative to manage its affairs.

      Plaintiffs       filed        a       cross-appeal        challenging           the       trial

judge's    ruling     that     Hascup         did     not    have    a    right       to    a    Rice

notice.     Plaintiffs argue that every personnel action scheduled

before    the    Board       involves         the      potential       for      discussion        of

private matters.            According to plaintiffs, N.J.S.A. 10:4-12b(8)

gives affected employees "the right to decide whether a public




                                                  4                                        A-5481-14T3
or private discussion is the preferred forum for consideration

of   a    reappointment    application."          Plaintiffs     assert    a   Rice

notice gives the affected employees an opportunity to exercise

this right to choose.

         Because the trial court decided these issues as a matter of

law, our review is de novo, State in Interest of K.O., 217 N.J.

83, 91 (2014); we employ the same standards used by the trial

judge.      Globe Motor Co. v. Igdalev, 225 N.J. 469, 479 (2016).

We are compelled to grant summary judgment if "the pleadings,

depositions, answers to interrogatories and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact challenged and that the

moving party is entitled to a judgment or order as a matter of

law."      R. 4:46-2(c).    See also Brill v. Guardian Life Ins. Co.

of Am., 142 N.J. 520, 540 (1995).

         Applying this standard to the undisputed facts, we agree

with the trial judge that the Board failed to make its minutes

"promptly     available"   to     the   public,    as    required   by    N.J.S.A.

10:4-14.        However,    we     reverse    and       vacate   the     permanent

injunction     requiring    the    Board     to   make    all    future    minutes

available within forty-five days of each meeting.                   Although the

OPMA expressly authorizes the Superior Court to issue injunctive

relief as a means of enforcing its provisions, N.J.S.A. 10:4-16,




                                         5                                A-5481-14T3
the   forty-five-day           deadline         imposed       by   the     court    here    is

inconsistent          with    the    implicit,         fact-sensitive        approach       the

Legislature endorsed by using the words "promptly available" in

N.J.S.A. 10:4-14.            In this case, a judicially imposed permanent

deadline    for       the    release       of   the     minutes     usurps    one     of    the

Board's managerial prerogatives and invites continuous judicial

involvement in the form of enforcement by motion practice.

      With respect to plaintiffs' cross-appeal, we disagree with

the trial judge that a Rice notice was not required in this case

because    the    Board       did    not    discuss         Hascup's     reappointment      in

private    session.           Acceptance          of   the    Board's      position     would

sanction members of public bodies to take action on personnel

matters     without          discussion         or     deliberation,        for     fear     of

violating the affected employees' privacy rights.                            As plaintiffs

correctly    point       out,       the    fact      that    the   Board    voted     not   to

reappoint Hascup without discussion in order to avoid sending

her a Rice notice obscured the decision-making process.                              This is

precisely    what       the    Legislature           intended      to    prevent    when    it

adopted the OPMA.

      We hold that a public body is required to send a                                     Rice

notice whenever it intends to act on                           matters "involving the

employment, appointment, termination of employment, terms and

conditions       of    employment,         evaluation        of    the   performance        of,




                                                6                                    A-5481-14T3
promotion, or disciplining of any specific prospective public

officer    or     employee      or     current    public    officer   or    employee

employed or appointed by the public body[.]"                       N.J.S.A. 10:4-

12b(8).     Here, the Board violated the OPMA by failing to send a

Rice notice to all of the employees whose employment status was

scheduled to be affected by the action the Board took at its

December 6, 2014 meeting.

                                             I

    Kean        University      is    a   State-funded     institution     of     higher

education with campuses in Union County and Ocean County.                             The

Board     has    "general       supervision"       over    the   conduct        of    the

University and is vested with "the power and duty" to govern and

set policy over every aspect of the University's mission and

operation.         N.J.S.A.          18A:64-6.      Although     subject        to    the

regulatory authority of the State Commissioner of Education, the

Legislature        has     expressly         endorsed       a    policy     favoring

decentralization and autonomy, giving our public colleges and

universities       "a    high   degree     of    self-government[.]"        N.J.S.A.

18A:64-1.

    As a matter of law "each board shall have not less than

seven nor more than [fifteen] members."                   N.J.S.A. 18A:64-3.          The

record in this appeal does not include a description of the size




                                             7                                  A-5481-14T3
and composition of the Board during the relevant time period. 3

Defendant, Ada Morell, is the Chairperson.                 The Board has the

power to determine its size and composition.                Ibid.        The Board

is   statutorily    required   to    conduct     an    annual     organizational

meeting    during   the     second   week   of        September     to   elect      a

Chairperson and a Vice-Chairperson and "such other officers as

the [B]oard shall determine."          N.J.S.A. 18A:64-4.            Thereafter,

the Board "may meet at such other times and at such places as it

may designate."     Ibid.

      In academic year 2014-2015, the Board held the statutorily

mandated    organizational      meeting        on     September      15,      2014.

Thereafter, the Board met four more times: December 6, 2014,

3
   Kean University's official website describes the current
composition of the Board of Trustees as consisting of fourteen
members and one student-member. Board of Trustees Members, Kean
University      (last      visited      Jan.      23,      2016),
http://archive.is/b4bn6.   Student-members are not authorized to
participate in three statutorily specified matters, including:

           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
           officer or employee or current officer or
           employee employed or appointed by the board,
           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.         18A:64-3.1(d)(1)             (emphasis
           added).]



                                      8                                    A-5481-14T3
March 2, 2015, May 11, 2015, and June 29, 2015.                    The trial court

previously found the Board's annual meeting schedule dictated

how and when meeting minutes were made available to the public:

           [I]t has been the Board's practice to
           consider for approval at each meeting the
           minutes of the immediately previous meeting.
           In the case at hand, that practice resulted
           in the minutes of the December 7, 2013
           meeting being approved at the next regularly
           scheduled meeting of March 3, 2014 and
           released on March 11, 2014, which was six
           (6) days after the approval.

      The Board conducted the December 6, 2014 meeting at the

University's Ocean County campus.              The Board voted to approve

the   President's    reappointment      and    non-appointment         of   faculty

members   during     the    meeting's       public        session,    and   without

discussion or deliberation of any kind.                    It did not reappoint

Hascup.    The Board also approved the minutes for the meeting

held on September 15, 2014.

      On December 18, 2014, Castiglione requested the minutes of

the   September    15,   2014   and   December       6,    2014    meetings.      The

Board's   Executive      Director,    Audrey    M.        Kelly,   certified    that

"[o]n or about December 22, 2014, the Office of the University's

Custodian of Records advised the Board of Trustees['] Office of

an OPRA4 request for the minutes of the executive sessions of the


4
  "OPRA" refers to the "Open Public Records Act," N.J.S.A. 47:1A-
1 to -13.



                                        9                                   A-5481-14T3
Board's       September     15,    2014   and    December     6,   2014    meetings."

Kelly certified that she was on "leave" from the University from

December 15, 2014 through January 5, 2015, and thus did not

learn    of    the   request      for   copies   of   these    minutes     until   she

returned.       Kelly does not describe in her certification how many

employees are assigned to the Executive Director's office and

what measures, if any, the University has in place to ensure

that the office continues to function in her absence.

      Because Castiglione requested the executive session minutes

for the meeting held on September 15, 2014, Kelly certified the

minutes were "reviewed with counsel" and redacted to comply with

the trial court's prior ruling.                  The minutes were released on

February 2, 2015.5          With respect to the executive session minutes

for December 6, 2014, Kelly acknowledged being "advised" of the

court's recommendation to release the minutes within thirty to

forty-five days; she was also aware of the court's suggestion to

explore the possibility of using technology to speed up the

approval and release of the minutes.

      Kelly certified, however, that after reviewing the OPMA,

she     did    not   find    any    legally      sustainable       means   of   using


5
  Kelly mentions in her certification that the minutes were
released "on the agreed upon extension date of February 2,
2015."   We infer this "extension" relates to the custodian's
obligations under OPRA. See N.J.S.A. 47:1A-5(i).



                                           10                                A-5481-14T3
technology to speed up the release of the minutes.                 According to

Kelly, the OPMA requires the Board to approve the release of the

minutes in a formal meeting, which would trigger the OPMA's

notice requirements.       Thus, under the Board's five meetings per

year schedule, the earliest the December 6, 2014 meeting minutes

could be approved was at the meeting scheduled for March 2,

2015.    The trial court found the "Board approved the two-page

executive session minutes of the December 6, 2014 meeting at its

March   2,   2015    meeting,    and   then   redacted      and   released     the

minutes to plaintiffs on March 4, 2015, which is fifty-eight

(58) business days or eighty-eight (88) calendar days after the

December 6, 2014 meeting."

                                       II

                         Availability of Minutes

      The Board argues the release of the minutes within this

timeframe    satisfied     the     "promptly      available"      standard      in

N.J.S.A. 10:4-14.       The Board notes that approval of the minutes

must be done in a formal public meeting.              Thus, to comply with

the trial court's forty-five-day timeframe, the Board would have

"to   schedule,     advertise    and   hold   a   minimum   of    four   to   five

additional meetings each year, resulting in an 80% to 100[%]

increase in the number of meetings[.]"




                                       11                                A-5481-14T3
    The trial judge rejected the Board's argument, finding any

inconvenience to the Board was outweighed by the public policy

in support of making its meeting minutes "promptly available" to

the public.     The judge provided the following explanation in

support of his ruling:

          The court is mindful that whether a public
          body satisfies its statutory obligation to
          make its minutes promptly available would
          depend on the circumstances of the case.
          Here,   the   Board   of   Trustees   at   Kean
          University consists of professionals who
          have met regularly on the same schedule over
          the past several years.         The executive
          session     minutes     eventually     produced
          consisted of two pages, which indicates to
          the court that the matters discussed in
          closed session were not lengthy nor required
          extensive redactions. Moreover, the subject
          matter of the minutes would be important to
          the faculty, student body, as well as the
          public, with respect to actions taken by the
          Board   of   Trustees   of   Kean   University.
          Considering these factors, the production of
          the minutes in question by the Board after
          ninety-four business days and fifty-eight
          business days did not satisfy the "promptly
          available" requirement of N.J.S.A. 10:4-14.

    Given     the    absence   of   any   published   decisions     addressing

this issue from either the Supreme Court or this court, the

trial   judge       decided    to   follow    the     multifactor    analysis

articulated in Matawan Reg'l Teachers Assoc. v. Matawan-Aberdeen

Reg'l Bd. of Educ., 212 N.J. Super. 328, 333 (Law Div. 1986).

Although the approach in Matawan contains a number of useful

common sense suggestions, we decline to adopt it as the standard



                                      12                              A-5481-14T3
to follow in deciding when a public body has made the official

minutes of its meetings "promptly available" to the public under

N.J.S.A. 10:4-14.

    We apply instead the well-settled principles of statutory

construction our Supreme Court has reaffirmed numerous times.

In interpreting a statute, our goal is to ascertain and enforce

the intent of the Legislature.                     Cashin v. Bello, 223 N.J. 328,

335 (2016).          "In most instances, the best indicator of that

intent is the plain language chosen by the Legislature."                                   Ibid.

(quoting State v. Gandhi, 201 N.J. 161, 176 (2010)).                                   Unless a

different       meaning     is   expressly         indicated,           we    must     read   and

construe    words     in    a    statute      by       giving      them      their     generally

accepted meaning.           N.J.S.A. 1:1-2.                 Finally, we must construe

the OPMA liberally "in order to accomplish its purpose and the

public policy of this State as set forth in [N.J.S.A. 10:4-7]."

N.J.S.A. 10:4-21.

    The 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.                                    It

requires    a    public     body    to   adopt          a     protocol       that    makes    the

availability of its meeting minutes a priority.                               The approval of

meeting     minutes        cannot   be     treated            as    a     mere      ministerial




                                              13                                        A-5481-14T3
function, or worse yet, a technical annoyance.               The expeditious

release of meeting minutes is a vital part of the OPMA's promise

to bring public affairs from obscurity to the light of day.

This requires those who agree to serve on public bodies to act

without delay and take the action required to make the meeting

minutes promptly available to the public.

    The argument advanced by the Board to justify delaying the

approval   of   its   minutes   by   as    much   as   eighty-eight   days   is

unpersuasive.     The position of trustee of a public university

governing board carries great responsibilities.

    Trustees are entrusted with the power and duty to:

           b. Determine the educational curriculum and
           program of the college consistent with the
           programmatic mission of the institution
           . . . ;

           c. Determine policies for the organization,
           administration  and   development  of   the
           college;

           d. Study the educational and financial needs
           of   the  college;   annually  acquaint  the
           Governor and Legislature with the condition
           of the college; and prepare and present the
           annual budget to the Governor, the Division
           of Budget and Accounting in the Department
           of the Treasury and the Legislature in
           accordance with law;

           e. Disburse all moneys appropriated to the
           college by the Legislature and all moneys
           received   from  tuition,   fees, auxiliary
           services and other sources;




                                      14                              A-5481-14T3
f. Direct and control expenditures and
transfers of funds appropriated to the
college and tuition received by the college,
in accordance with the provisions of the
State budget and appropriation acts of the
Legislature, reporting changes and additions
thereto   and   transfers  thereof  to   the
Director of the Division of Budget and
Accounting in the State Department of the
Treasury and as to funds received from other
sources, direct and control expenditures and
transfers in accordance with the terms of
any applicable trusts, gifts, bequests, or
other special provisions. All accounts of
the college shall be subject to audit by the
State at any time;

g. In accordance with the provisions of the
State budget and appropriation acts of the
Legislature,    appoint    and   fix    the
compensation of a president of the college,
who shall be the executive officer of the
college and an ex officio member of the
board of trustees, without vote, and shall
serve at the pleasure of the board of
trustees;

h. Notwithstanding the provisions of Title
11, Civil Service, of the Revised Statutes,
upon nomination by the president appoint a
treasurer    and   such    deans    and   other
professional    members   of   the    academic,
administrative and teaching staffs . . . as
shall be required and fix their compensation
and terms of employment in accordance with
salary ranges and policies which shall
prescribe     qualifications     for    various
classifications     and   shall     limit   the
percentage of the educational staff that may
be in any given classification;

i.   Upon   nomination   by  the   president,
appoint, remove, promote and transfer such
other officers, agents or employees as may
be required for carrying out the purposes of
the   college   and   assign  their   duties,



                      15                          A-5481-14T3
              determine   their  salaries  and  prescribe
              qualifications for all positions, all in
              accordance with the provisions of Title 11,
              Civil Service, of the Revised Statutes;
              [and]

              j.   Grant    diplomas,   certificates                   and
              degrees[.]
              [N.J.S.A. 18A:64-6 (emphasis added).]

       We have highlighted subsections (i) and (j) to make clear

the         interrelationship        between        these        two         important

responsibilities the Legislature entrusted to the trustees of

our    State's     public   colleges   and       universities:    to     employ     and

retain faculty capable of transmitting to future generations the

immeasurable gifts of intellectual enlightenment.                       The men and

women who have willingly agreed to serve on these Boards and

donate their time and talents without compensation have shown

the metal of their character.               We expect them to fulfill their

responsibilities consistent with the values and public policy

embodied in the OPMA.           If this requires the Board to meet ten

times per year to make the minutes of its meetings "promptly

available" to the public, so be it.

                               Injunctive Relief

       In    the   companion   opinion      we   release    simultaneously         with

this    opinion,     the    trial   judge     was   also   required      to   address

whether the Board made its meeting minutes available to the

public in a prompt fashion as required by                     N.J.S.A. 10:4-14.




                                         16                                   A-5481-14T3
Kean Fed'n of Teachers v. Bd. of Trs. of Kean Univ., No. A-2332-

14 (App. Div. Feb. ____ 2017) ("Kean II").                In a letter-opinion

dated September 18, 2014, the judge made the following findings:

           Here, the court finds that the "promptly
           available" requirement of N.J.S.A. 10:4-14
           was not met by releasing the approved closed
           session minutes ninety-seven (97) days after
           the meeting. The court is mindful that OPMA
           provides no temporal framework to public
           bodies regarding their statutory obligation
           to make approved minutes of their meeting
           "promptly available."

                  . . . .

           In   light    of   no   specific   statutory
           requirement, the custom and practice of a
           particular public body must be afforded some
           consideration,   as   long   as   they   are
           reasonable.

                  . . . .

           Nevertheless, it is the court's view that
           the passage of ninety-seven (97) days fails
           to   satisfy   the   "prompt  availableness"
           requirement.   If a public body meets only
           once or twice a year, then arguably some
           steps need to be taken to generate approved
           minutes in a more timely fashion.   Although
           such is not the case here, the delay of
           ninety-seven (97) days is simply not prompt
           under the circumstances here.    The minutes
           at issue contain[] subject matters that are
           important to the teachers directly affected
           by the Board[']s action[s].

      Under    these   circumstances,      the   court    suggested     that   the

Board release its meeting minutes "within 30 to 45 days."                       As

the   record   shows,   the   Board   did    not   heed   the   trial    court's




                                      17                                 A-5481-14T3
suggestion.         Plaintiffs     argued      to    the    trial    court     that   the

Board's ninety-four-day delay in releasing the minutes of the

September     15,     2014      meeting       and    fifty-eight-day         delay     in

releasing the minutes of the December 6, 2014 meeting amounted

to   a   "willful        and    deliberate"         disregard       of   the    court's

authority.     Plaintiffs initially requested that the court void

the outcome of the December 6, 2014 meeting, impose monetary

sanctions    against      the    Board    and       its    Chairperson,      and   award

counsel fees.         Plaintiffs withdrew their application for the

imposition of monetary sanctions at the oral argument session

held on April 24, 2015.

     After considering the "nature, quality, and effect of the

noncompliance       in   fashioning       a   corrective       remedy,"      the   court

concluded injunctive relief was "the appropriate remedy in this

case."      The court provided the following explanation for its

decision:

            Plaintiffs do not allege specific adverse
            effects of defendants' past violations nor
            provide sufficient evidence to show that
            defendants'   violations    were   intentional.
            The concern of the court is the Board's
            future   compliance.       Injunctive    relief
            provides the best assurance of defendants'
            future compliance.      Therefore, the court
            orders that the Board conform in the future
            to   N.J.S.A.   10:4-14   by   making   meeting
            minutes available to the public within
            forty-five days.




                                          18                                    A-5481-14T3
       The     Supreme      Court    has     recognized          that      the        Legislature

provided       "three    forms      of     remedy        for     an   OPMA       violation:        a

prerogative writs action seeking to void any action taken at a

meeting that did not meet OPMA's requirements, N.J.S.A. 10:4-15;

injunctive relief to assure future compliance, N.J.S.A. 10:4-16;

and     imposition       of   fines,       N.J.S.A.        10:4-17."                 McGovern     v.

Rutgers, 211 N.J. 94, 112 (2012).                        The Court in McGovern also

noted    that    injunctive         relief    under        N.J.S.A.            10:4-16    may     be

appropriate       if      "'a       pattern        of     non-compliance               has      been

demonstrated.'"           Ibid. (quoting Burnett v. Gloucester Cty. Bd.

of    Chosen    Freeholders,         409    N.J.        Super.    219,         246    (App.     Div.

2009)).

       The Supreme Court has also cautioned judges to fashion a

remedy that considers "the nature, quality and effect of the

noncompliance of the particular offending governmental body[.]"

Polillo v. Deane, 74 N.J. 562, 579 (1977).                                     In our view, a

permanent injunction requiring the Board to prospectively make

their meeting minutes available within forty-five days of the

conclusion      of    the     meeting,      regardless           of   the       circumstances,

undermines      the     Board's     autonomy       by     usurping         a    quintessential

managerial       prerogative.              This     approach          is        also     facially

inconsistent with the fact-sensitive standard the Legislature

adopted in N.J.S.A. 10:4-14.                   The imposition of a judicially




                                              19                                         A-5481-14T3
crafted deadline to make the minutes of Board meetings available

to the public invites enforcement by motion practice under Rule

1:10-3.

    Judges are ill suited to micromanage the internal affairs

of a Board entrusted by the Legislature with the "government,

control, conduct, management and administration" of our State's

public colleges and universities, N.J.S.A. 18A:64-2, and whose

members    are    appointed      by    the       Governor,           with    the      advice   and

consent    of    the   Senate,     N.J.S.A.            18A:64-3,          and    serve    without

compensation,       N.J.S.A.      18A:64-5.                As   a    matter      of    comity,    a

judicial remedy should strive to strike a balance between the

public     policy      codified       in    the        OPMA         and    respect       for   the

prerogatives of independent public bodies.

    The Board is now on notice that five meetings per year will

not allow it to make its meeting minutes "promptly available" to

the public.       We agree with the trial judge that waiting two or

three months to release the minutes does not comply with the

mandate of the statute.               However, an inflexible forty-five-day

deadline    for     the   release          of        the    minutes         is   managerially,

logistically, and legally unsound because it leaves the door

ajar to permanent judicial entanglement.                             Having said this, we

urge the Board to seriously consider increasing the number of




                                                20                                       A-5481-14T3
times it meets annually.           It is clear that the continuation of

its present meeting schedule is legally untenable.

                                      III

                                 Rice Notice

    In Rice, we held that the personnel exception codified in

N.J.S.A.    10:4-12b(8)    could    only        be    waived    "if    all    employees

whose rights could be adversely affected decide to request a

public hearing[.]"       Rice, supra, 155 N.J. Super. at 73.                    To give

the affected employees the opportunity to invoke this inchoate

right, we imposed upon the public body employer the obligation

to provide the affected employees with reasonable advance notice

"to enable them to (1) make a decision on whether they desire a

public discussion[;] and (2) prepare and present an appropriate

request in writing."       Ibid.

    Hascup's appointment as an Associate Professor of Nursing

was scheduled to expire at the end of academic year 2014-2015.

In her role as the Board's Executive Director, Kelly submitted a

certification     that    described        the        process    for      reappointing

faculty members whose terms of employment expire at the end of

the academic year.        According to Kelly, the process "culminates

in a determination by the [University] President [on] whether to

recommend    to   the    Board     that        each    such     faculty      member   be

reappointed."     "[A]pproximately three weeks in advance" of the




                                          21                                   A-5481-14T3
Board's public meeting, the Board sends a letter to the affected

faculty members notifying them if the President has recommended

their reappointment.

    Here,      plaintiffs'      counsel    sent    a    letter    to    the   Board's

attorney advising the Board that it must send Rice notices at

least two weeks before the scheduled meeting to ensure that

affected faculty can exercise their rights under the law.                            The

Board   did    not    comply.     Instead,    as       Kelly    described       in   her

certification,        President   Dawood     Farahi      sent    a     letter    dated

November 14, 2014, informing Hascup that he had decided not to

recommend her reappointment.         The letter reads as follows:

              After    careful     examination     of     your
              application     for      reappointment       and
              consideration     of     your    appeal      and
              accompanying   documents,    I  will    not   be
              recommending to the Kean University Board of
              Trustees that your contract be renewed for
              the academic year 2015-2106.

              This    letter is formal notification that I
              will    not nominate you for reappointment to
              the    Board of Trustees at the December 6,
              2014   meeting.

              [(Emphasis added).]

    Kelly described in her certification what transpired after

President Farahi sent this letter to Professor Hascup.

              A meeting of the Board is held in early
              December of each year to consider, among
              other items, applications for reappointment
              of faculty members whose appointments to the
              faculty would be expiring at the end of the



                                      22                                      A-5481-14T3
               current academic year absent a resolution by
               the Board . . . granting reappointment. In
               the 2014-2015 academic year, that meeting
               was held on December 6, 2014.

               Prior to the early December Board meeting at
               which the Board considers the reappointment
               of faculty, a subcommittee of the Board[,]
               known as the Academic Policy and Programs
               Committee[,]    meets    to   consider   the
               recommendations of the President concerning
               reappointments and to reach a consensus
               concerning   the   recommendations   of  the
               President and the recommendations that the
               Academic Policy and Programs Committee will
               provide to the full Board at the early
               December meeting.     The recommendations of
               the Academic Policy and Programs Committee
               are presented to the Board at its early
               December meeting in the form of a personnel
               report entitled Faculty Reappointments and
               Faculty Non-Reappointments.

               [(Emphasis added).]

    Kelly attached to her certification a copy of the agenda

for the Board meeting held on December 6, 2014.                       According to

Kelly,    on    November    29,   2014,   the       tentative     agenda     for   the

Board's December 6, 2014 meeting was posted on the University's

website   and     emailed   to    the   KFT       and    other   groups   having    an

interest in the University.

    The "report" containing the recommendations of the Academic

Policy    and    Programs   Committee        is    not    part   of   this   record.

However, the trial court addressed this issue in the course of

oral argument.




                                        23                                   A-5481-14T3
        THE COURT: And, am I correct then that when
        . . . Dr. Hascup as one of a slate of non-
        tenured [t]eachers came up, there was simply
        a vote by the Board? Do we know that?

        ATTORNEY   FOR  THE   BOARD:  There   was  a
        Resolution to adopt the recommendations of a
        subcommittee of the Board that had . . . the
        names and proposed either reappointment or
        non-reappointment for . . . all the faculty
        people that were at issue.

        THE COURT:   And as I read the Agenda, the
        way it was structured, this took place
        before they retired into Executive Session?

        ATTORNEY FOR THE BOARD: Correct. And . . .
        there's evidence confirming that in the
        record and the Certifications.6
        THE COURT: Do we know when the deliberative
        process,   if   any,  occurred   among   Board
        [m]embers with respect to their decision to
        appoint   or   not   appoint   a   non-tenured
        [t]eacher?

        ATTORNEY FOR THE BOARD: The deliberative
        process largely is centered in . . . the
        University through the academic ranks[;] the
        Administration gives recommendations to the
        Committee.     The   Committee  studies   the
        recommendations and evaluates and agrees, or
        agrees with them, and . . . then makes its
        recommendation to the Board. So, the . . .
        deliberation over the credentials of these
        people is in the academic ranks in there.

        In terms of the full Board, in a public
        meeting, the extent of discussion is . . .
        here is the report of the Committee in
        public session.

        THE COURT:   The report of the Subcommittee?

6
   We infer the   Board   Attorney   is   referring   to   the   Kelly
certification.



                               24                            A-5481-14T3
ATTORNEY   FOR   THE   BOARD:   I'm   sorry,   yes.
Yeah.

THE COURT: And . . . am I correct, then,
that   the   Subcommittee  [report],   which
apparently is for the purpose of evaluating
the   reappointment   or  non-reappointment,
. . . was also . . . brought out in public
session?

ATTORNEY FOR THE BOARD: [W]ell, I think the
report, as we've seen last time, is an oral
situation.     But   there  is   a   . .   .
presentation of the Resolution that contains
the substance to the recommendations.

THE COURT: So we really don't know what was
said during a public session absent a
transcript;   in   other  words,  how   this
process, . . . the Board of [Trustees],
which I think we all agree, elected not to
go into Executive Session on this particular
issue on December 6[,] [2014].   A slate of
non-tenured [t]eachers, I'm inferring from
this record, were not reappointed.    Do we
have any idea what, if anything, was
discussed with respect to the decision by
the Board to adopt the Resolution not to
appoint . . . or reappoint?

ATTORNEY   FOR   THE  BOARD:  [T]here   [are]
Minutes.   .   .   .  They're  not   verbatim
transcription[s] of what occurred.    And so,
I don't know the specifics of what was said.
But it was in public session.      Plaintiffs
are . . . making allegations about public
session.   And the thing that they have not
alleged, which leaves this privacy-based
argument hanging in the wind, is that there
was any unwarranted invasion of privacy
under Section 7 of OPMA, that occurred.

I mean, I think what happened, based upon
what we can see from the Minutes, is
essentially what would have happened after



                        25                            A-5481-14T3
          closed session, in the sense that, . . .
          there [were] brief comments, and then [an]
          introduction of a Resolution[.]

    From this point forward, the colloquy between the court and

the Board's attorney followed the same line of reasoning.               The

trial   judge   summarized   the    Board's   legal   position   in     the

following statement to the Board's attorney:

          THE COURT:   The legal argument you[] [are]
          advancing for the University is that there
          were   no  Rice   Notices   needed   in this
          particular instance, because there was no
          intention on the part of the Board to
          discuss personnel which could implicate
          privacy interests in closed session.

          ATTORNEY FOR THE BOARD: Correct.

          [(Emphasis added).]

    Plaintiffs'    counsel   also    summarized   his   clients'      legal

position while addressing the trial judge at oral argument:

          PLAINTIFFS'     COUNSEL:     [The     Board's
          attorney's] argument is an after-the-fact
          argument.   He's saying to you, [addressing
          the trial court] you know what, my Board
          didn't have any discussion.         So, what
          unwarranted invasion of privacy is involved?

          That's the problem. The notice is to go out
          in advance, because the discussion might
          trigger that.   So, unless this is a Kabuki
          play, where . . . everybody's just going
          through the motions, and maybe they are.
          That's what I'm concerned about. This Board
          apparently doesn't want to discuss anybody.
          And we cannot make them do that.    If they
          want to be a rubberstamp organization, I
          guess that's the way it will be.




                                    26                           A-5481-14T3
            But the question is, at the        time that that
            recommendation is going to           go [to] the
            Board, is it possible . . .        that maybe one
            Board [m]ember might actually      want to assert
            some authority and have a           discussion on
            what's submitted to them[?]

            And, you cannot say, well, it turned out
            after   the   fact, we don't  talk  about
            anything.     We have a Committee.    The
            Committee gives us their recommendation.
            And we rubber stamp it in public.  What's
            your problem?

            The problem is that supposedly, or at least
            theoretically, . . . we are not supposed to
            know what the discussion of that Board will
            be. And we would never know until after the
            fact.

            So what [the Board's attorney] is telling
            you [addressing the trial court] is, well,
            if we absolutely know that you'd have to
            talk about somebody's medical condition,
            then we would give them    . . . a notice.
            Well, how would anybody know, what any
            intelligent and rational Board [m]ember
            might want to ask about somebody before the
            meeting is even conducted?   The notice is
            because of potential, not what happened
            after the fact.

            [(Emphasis added).]

      We   conclude   plaintiffs'   argument       correctly   captured    the

disturbing incongruity that results from the approach the Board

adopted here.     As the Board's Executive Director described in

her   certification,    the   Board's    Academic    Policy    and   Programs

Committee met prior to the December 6, 2014 Board meeting "to

consider    the   recommendations       of   the     President   concerning




                                    27                               A-5481-14T3
reappointments       and     to     reach       a     consensus          concerning          the

recommendations of the President[.]"                       (Emphasis added).                This

subcommittee     then      presented      its       recommendations            to    the    full

Board at the public session of the meeting in the form of a

resolution containing the names of the faculty members who would

be reappointed.

     The    record     shows      that   the    actual           discussion         concerning

whether to appoint a faculty member occurs in private with the

members    of    this      subcommittee.              As       Kelly     stated       in     her

certification, "[t]he recommendations of the Academic Policy and

Programs   Committee       are    presented         to     the    Board    at       its    early

December meeting in the form of a personnel report entitled

Faculty    Reappointments         and    Faculty         Non-Reappointments."                The

Board's    attorney       acknowledged      that         the     deliberative         process

largely is centered in the University's "academic ranks" and the

subcommittee.     The only role the Board plays in this process is

approving the report of the subcommittee in public session.

     It    is   entirely     proper      for    the        Board    to    delegate         to   a

subcommittee     the    responsibility          of       reviewing       the    President's

recommendations concerning the appointments and non-appointments

of   faculty      members         and     thereafter             reporting           its     own

recommendations      to    the    full    Board.           This     approach,        however,

cannot operate to substitute a Board member's duty to make his




                                           28                                         A-5481-14T3
or her own independent decision on such matters.                           The OPMA is

expressly intended to promote meaningful citizen participation

in governmental affairs.         When a public body acts on a personnel

matter     without    prior     discussion        of    any     kind,      the    silent

unexplained vote cast by the Board member reduces the event to a

perfunctory      exercise,     devoid      of   both    substance         and    meaning.

That is the antithesis of what the Legislature intended when it

adopted the OPMA.       N.J.S.A. 10:4-7.

      It is clear to us that the Board uses this approach to

avoid sending a Rice notice.            To accomplish this, the Board has

delegated its core responsibility to discuss personnel matters

to   the   Faculty    Reappointments        and    Faculty      Non-Reappointments

report.     At oral argument before the trial court, the Board's

attorney    represented      that    the    subcommittee's           "report"     to   the

full Board consisted only of the resolution containing the names

of   the   faculty    members       recommended        for   reappointment.            The

agenda for the December 6, 2014 meeting also reflects the opaque

nature     of   the   public   session.           Agenda      Item    9   states       only

"Faculty Reappointments and Faculty Non-Reappointments."                               Item

9.1 simply states "Personnel Action-Faculty."                    These two cryptic

notations are the only information the Board revealed to the

public concerning this critically important phase of the public

session.




                                           29                                    A-5481-14T3
    Sending a Rice notice to all employees whose employment

status may be adversely affected is the only means of creating

an environment in which the members of public bodies are free to

carry out their responsibilities in a manner that guarantees to

the public that their ultimate decisions are the product of a

thoughtful   and   deliberative    process.    N.J.S.A.     10:4-12b

authorizes a public body to exclude "the public only from that

portion of a meeting at which the public body discusses" any one

of nine specifically enumerated matters:

         (1) matter which, by express provision of
         federal law, State statute, or rule of court
         shall be rendered confidential or excluded
         from the provisions of subsection a. of this
         section;

         (2)   matter  in   which  the   release  of
         information would impair a right to receive
         funds from the Government of the United
         States;

         (3)   material    the   disclosure    of   which
         constitutes   an    unwarranted    invasion   of
         individual privacy such as any records,
         data, reports, recommendations, or other
         personal   material    of    any    educational,
         training, social service, medical, health,
         custodial, child protection, rehabilitation,
         legal defense, welfare, housing, relocation,
         insurance,     and    similar     program     or
         institution   operated    by   a   public   body
         pertaining   to    any    specific    individual
         admitted to or served by an institution or
         program, including but not limited to,
         information relative to the individual's
         personal and family circumstances, and any
         material pertaining to admission, discharge,
         treatment, progress, or condition of any



                                  30                        A-5481-14T3
individual, unless the individual concerned
(or, in the case of a minor or an
incapacitated individual, the individual's
guardian) shall request in writing that the
material be disclosed publicly;

(4) collective bargaining agreement, or the
terms and conditions which are proposed for
inclusion   in  any  collective   bargaining
agreement, including the negotiation of the
terms and conditions thereof with employees
or representatives of employees of the
public body;

(5) matter involving the purchase, lease, or
acquisition of real property with public
funds, the setting of banking rates, or
investment of public funds, if it could
adversely affect the public interest if
discussion of the matters were disclosed;

(6) tactics and techniques utilized in
protecting the safety and property of the
public, provided that their disclosure could
impair that protection, or investigations of
violations or possible violations of the
law;

(7) pending or anticipated litigation or
contract    negotiation    other   than    in
subsection b.(4) herein in which the public
body is, or may become, a party, or matters
falling     within     the    attorney-client
privilege,     to     the     extent     that
confidentiality is required in order for the
attorney to exercise his ethical duties as a
lawyer;

(8)   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



                     31                         A-5481-14T3
            employees or appointees whose rights could
            be adversely affected request in writing
            that the matter or matters be discussed at a
            public meeting; or

            (9) deliberations of a public body occurring
            after a public hearing that may result in
            the imposition of a specific civil penalty
            upon the responding party or the suspension
            or loss of a license or permit belonging to
            the responding party as a result of an act
            or omission for which the responding party
            bears responsibility.

            [(Emphasis added).]

    A careful reading of the statute reveals that with the

exception of subsections (3), (8), and (9), the remaining six

subsections      involve   matters   touching     upon   the   Board's   legal

privileges and obligations.          For example, N.J.S.A. 10:4-12b(4)

authorizes the Board to discuss in executive session matters

involving collective bargaining agreements.              Similarly, N.J.S.A.

10:4-12b(7) authorizes an executive session to discuss matters

involving or implicating attorney-client communications.

    Conversely, N.J.S.A. 10:4-12b(3) authorizes the Board to

exclude    the   public    to   protect    "the   disclosure   of   [material]

which     constitutes      an   unwarranted       invasion     of   individual

privacy[.]" (Emphasis added).             N.J.S.A. 10:4-12b(9) authorizes

the Board to go into executive session when "deliberations of a

public body occurring after a public hearing . . . may result in

the imposition of a specific civil penalty upon the responding




                                      32                              A-5481-14T3
party[.]"       These subsections protect the individual's right to

privacy.

       The language the Legislature used in N.J.S.A. 10:4-12b(8)

is equally clear on this point.                       This is the basis for our

decision in Rice.           We recognized that the personnel exception

codified in N.J.S.A. 10:4-12b(8) could only be waived "if all

employees whose rights could be adversely affected decide to

request a public hearing."              Rice, supra, 155 N.J. Super. at 73.

Only    those    who     possess   a    legal        right       have   the   commensurate

authority to waive that right.

       The   overarching        public     policy           of    the    OPMA   seeks    to

encourage, promote, and enhance the public's participation in

the democratic process.                This arises from our State's "long

'history of commitment to public participation in government and

to     the   corresponding         need        for     an        informed     citizenry.'"

McGovern,       supra,    211   N.J.      at    99     (citation        omitted).       The

Legislature codified the right of the public "to be present at

all meetings of public bodies, and to witness in full detail all

phases of the deliberation . . . and decision making of public

bodies[.]"       N.J.S.A. 10:4-7 (emphasis added).                       The Legislature

also declared that "secrecy in public affairs undermines the

faith of the public in government and the public's effectiveness

in fulfilling its role in a democratic society[.]"                              Ibid.     To




                                           33                                     A-5481-14T3
strike a proper balance between the values favoring openness and

meaningful access in public affairs and the protection of the

privacy rights of individuals, the Legislature codified the nine

specifically enumerated exemptions in N.J.S.A. 10:4-12b.

      We now hold that a public body is required to send out a

Rice notice any time it has placed on its agenda any matters

"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[.]"

N.J.S.A. 10:4-12b(8).         This approach will provide all of the

affected employees with the opportunity to: (1) decide whether

they desire a public discussion, and (2) prepare and present an

appropriate request in writing.              Rice, supra, 155 N.J. Super. at

73.

      The    notice     requirement     in    Rice        is     predicated     on    the

presumption      that   members    of   public    bodies             discuss   personnel

matters that come before them, question the underlying basis for

the course of action recommended by the staff, and deliberate

before reaching an ultimate decision that reflects the views of

the members.      As Justice Stein eloquently noted:

            [T]he personnel exemption focuses on free
            and uninhibited discussion about matters



                                        34                                      A-5481-14T3
              relating to the hiring, firing, performance,
              compensation,    and   discipline   of   public
              employees.    Such   discussions    necessarily
              involve subjective comments and evaluations
              of employees by members of the public body,
              and their willingness to comment openly and
              freely about such matters would obviously be
              inhibited if the discussion were to be
              conducted publicly. The statutory exemption
              for   personnel    matters,   recognizing   the
              potentially-inhibiting     effect   of   public
              debate      about      the      qualifications,
              performance, merit, and shortcomings of
              specific employees, allows that debate to
              occur in executive session.

              [S. Jersey Pub. Co. v. N.J. Expressway, 124
              N.J. 478, 493 (1991) (emphasis added).]

    Here,      the     record    shows      that    not    sending       a    Rice    notice

stifles the Board's deliberative process and inhibits the robust

discussion      by    individual       Board       members       that    Justice        Stein

described as the hallmark of informed decision-making.                             Only the

Board has the authority to decide when to go into executive

session.       N.J.S.A.        10:4-13.       Conversely,         only       the   affected

employees      have    the     right   to    waive        the    privacy      protections

afforded to them by the Legislature in N.J.S.A. 10:4-12b(8).                                  A

decision not to send Rice notices in which personnel matters are

listed   as    an     agenda    item   implies       the     Board      has    decided      in

advance of the meeting that executive session discussion is not

warranted.       A    silent     unexplained       vote     to    approve      a     list   of

preapproved candidates in public session gives the impression

that the Board colluded to circumvent the OPMA's requirements.



                                            35                                       A-5481-14T3
       This court is bound to liberally construe the OPMA "to

accomplish its purpose and the public policy of this State[.]"

N.J.S.A. 10:4-21.         Therefore, we hold that Rice notices must be

provided in advance of any meeting at which a personnel decision

may     occur.         This    protocol     provides         the     Board      with     the

flexibility       to    discuss       matters    in      executive        session      when

necessary and affords the affected employees the opportunity to

request that any proposed discussion occur publicly.

       We recognize that requiring a Rice notice may not produce

the type of decision-making process the Legislature envisioned

when    it   adopted     the    OPMA.       We    are    also       mindful     that     the

judiciary     plays     no     role   in   selecting         the    makeup    of    public

bodies.      The judiciary, however, is entrusted with enforcing the

OPMA,    which    requires      public     bodies       to   conduct      the    public's

business in the light of day, "hence its unofficial moniker,

'the Sunshine Law.'"           Opderbeck, supra, 442 N.J. Super. at 55.

                                           IV

       We now address the question of remedy.                      With respect to the

release of the meeting minutes, the record shows the trial court

previously       gave    the     Board     an    opportunity         to    satisfy       the

"promptly available" requirement under N.J.S.A. 10:4-14 without

imposing any sanctions.               When the court's "suggestion" proved

ineffective, the court imposed the permanent injunction we have




                                           36                                      A-5481-14T3
vacated here.       Thus, fairness dictates that we impose some form

of sanction.        N.J.S.A. 10:4-16 authorizes the court to impose

"such remedies as shall be necessary to insure compliance with

the    provisions      of    this       act."        We    are     satisfied    that    the

following sanctions will promote the public policy of the OPMA

without    unduly       interfering             with       the     Board's     managerial

prerogatives.

       This court orders the Board of Trustees of Kean University

to adopt a meeting schedule for academic year 2017-2018 that

will    enable    them       to     make       its     meeting      minutes    "promptly

available" under N.J.S.A. 10:4-14.                     This meeting schedule shall

enable the Board to formally consider, approve, and release the

meeting minutes to the public within a timeframe of thirty to

forty-five      days    of    the       last      meeting,        unless    extraordinary

circumstances     prevent         the    Board     from     meeting.        Extraordinary

circumstances shall include, but are not limited to, extreme

weather,   public      emergencies,          and     any    other    unforeseen      events

that would make gathering to meet unreasonable.                        This court does

not    retain    jurisdiction           to   enforce       this    order.      Any    party

aggrieved by the Board's failure to carry out this order will be

required to file an action in lieu of prerogative writs in the

Superior Court, Law Division, Civil Part pursuant to Rule 4:69-

1.     In the event of any future violations of the OPMA by the




                                             37                                   A-5481-14T3
Board, the trial court may consider the history of the Board's

noncompliance in fashioning an appropriate remedy.

    We declare the actions taken by the Board at the December

6, 2014 meeting regarding personnel matters null and void.   Such

relief is clearly authorized under N.J.S.A. 10:4-16.   The public

policy of transparency and accountability in the OPMA demand

that we hold the Board accountable for failure to adhere to both

the text and the values underlying the OPMA.

    Affirmed in part and reversed in part.     We do not retain

jurisdiction.




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