School board members and charter school trustees are reminded that the Doctrine of Necessity can only be invoked in very specific circumstances, and that certain procedures must be followed.
The Doctrine of Necessity can only be invoked when a quorum of the board has conflicts of interest that prevent the board from acting on a matter required to be voted upon, such as a collective bargaining agreement or superintendent evaluation. For example, where a board had one non-conflicted member who could conduct negotiations, the School Ethics Commission agreed that the Doctrine of Necessity was needed in order to allow the other board members to participate in negotiations.
Most importantly:
- Boards that must invoke the Doctrine of Necessity are required to adopt a resolution at a regularly scheduled public meeting stating:
- That the board is invoking the Doctrine of Necessity;
- The nature of each of the existing conflicts of interest; and
- The reason that such action is necessary.
- The resolution must be posted for 30 days prior to invoking the doctrine consistent with existing procedures for posting public notices.
- The School Ethics Commission must be provided with a copy of the resolution.
The quorum issue must be actual and in existence at the time of the meeting, and not simply speculative or anticipated. Additionally, a board cannot invoke the doctrine simply to allow it to act on something upon which no vote is required, such as selection of committee members. Nor may a board invoke the doctrine in order to attempt to break a tie vote. The board may only invoke where a majority of the board is conflicted in a matter.
During this busy budget season it is also notable that it is not necessary for a board to invoke the Doctrine of Necessity where a business administrator is conflicted from participation in negotiations, so long as his or her participation is limited to technical assistance and limits all comments to financial information in his or her possession.
Advisory Opinions Two recent SEC Advisory Opinions provide helpful guidance on the Doctrine of Necessity but caution against premature invocation: A19-17 and A28-17. The process for invoking the Doctrine is clearly outlined by the School Ethics Commission online. Finally, school officials may request an advisory opinion from the School Ethics Commission to determine whether or not they may invoke the Doctrine.
Asked & Answered is prepared by the staff of NJSBA’s Legal and Labor Relations Services Department. It reflects information, data and guidance available to NJSBA members through this important Association unit.