Recently, New Jersey’s School Ethics Commission (SEC) made public 36 advisory opinions, dating back to February 2013.
School Board Notes has provided summaries of the newly released opinions in the past two issues of the online edition. In the Jan. 21 issue, decisions on collective bargaining, negotiations and contracts were covered; the Jan. 28 issue included summaries of cases involving search, hire and participation in employment decisions for chief school administrator and other administrative positions. This week, the third and final installment of the series on the advisory opinions covers board member involvement in other ventures and businesses, the doctrine of necessity, board member speech, and other items.
Advisory Opinion Procedures Any school official who has questions as to whether some particular future conduct would violate the School Ethics Act may request an advance opinion (called an advisory opinion) from the School Ethics Commission.
When the SEC believes that its advice on a particular matter will provide guidance on an issue of importance to board members, the SEC can make that advisory opinion public by a vote of six of its nine members; in such cases the confidentiality of the name or district of the person requesting the opinion will not be publicly disclosed.
It is important to remember that each opinion is based on the specific facts before the School Ethics Commission and may or may not be comparable with a specific factual situation in another school district. Board members and school administrators are encouraged to discuss the new opinions with board counsel as to local district applicability.
The full opinions may be found on the New Jersey Department of Education (NJDOE) website at the School Ethics Advisory Opinion section. The case number at the beginning of each summary is also linked to the full text of the specific opinion.
A22-13(3/7/14) A board member would violate N.J.S.A. 18A:12-24(b) and (c) if he were to participate in negotiations with the local education association when his father-in-law is a custodian in the district and the board member lives with the father-in-law and co-owns his home with the father-in-law. Although “father-in-law” is not considered a “relative” under the Act, it is considered to be an “other” within the meaning of N.J.S.A. 18A:12-24(b), and as such, the public may view the board member’s participation in negotiations as an attempt to secure unwarranted advantages for him.
The fact that the board member and his father-in-law co-own and reside in the same house, creates a “personal involvement.” A school official shall not participate in a matter in which he has a “personal involvement” that is or creates some benefit to the school official or member of his immediate family. While the father-in-law is not a part of the board member’s immediate family under the definition set forth at N.J.S.A. 18A:12-23, co-owning a home and sharing a close familial bond establishes a sufficient dual nexus to suggest that there is a personal as well as financial benefit to the board member.
Moreover, participation in employment discussions involving the superintendent may also create a justifiable perception that the public trust has been violated. Since the superintendent evaluates and makes recommendations about the father-in-law’s continued employment, the School Ethics Commission determined that the board member’s participation would be in violation of the Act and would foster the perception that the public’s trust has been violated as he may gain some privilege or advantage.
A04-13 (5/1/13) The School Ethics Commission determined that multiple violations of the School Ethics Act would occur if a board member were to survey the board and superintendent, anonymously survey all teachers in the school district, or conduct focus groups with teachers to fulfill a requirement of the board member’s doctoral program research. Such conduct exceeds the scope of a board member’s duties.
A08-13 (6/25/13) A board member who offers pro bono counseling services to students in the local high school would violate multiple provisions of the School Ethics Act whether the services are offered on a volunteer or for-profit basis. The public could reasonably believe that the board member used his position to acquire new clients. The board member was also advised to recuse himself from discussion of, and abstain from voting on, any other vendor offering similar services.
A10-13 (6/25/13) Where the district has entered into a shared services agreement providing for professional security and a civilian safety program, a board member who works for the local police department or who has a spouse working in the department must recuse him or herself from any discussion or vote on any matter regarding the shared services agreement. Additionally, the board member may not vote on any non-itemized bills for payment to the police department for the services in the shared services agreement. The above actions would be a potential violation of N.J.S.A. 18A:12-24(c).
A11-13(7/31/13) A sitting board member, whose board recently entered into a joint services agreement with a regional school district, must resign from the board to avoid a violation of N.J.S.A.18A:12-24(c) if she were to accept an offer of employment with the regional district, even where her job search began prior to the effective date of the agreement with the regional district.
A12-13 (7/31/13) A board member whose spouse works for a government authority which does business with the board, and who himself was formerly employed by the government authority, must recuse himself from matters involving the government authority to avoid violating N.J.S.A.18A:12-24(c).
A19-13 (12/20/13) Board members, who are municipal employees affiliated with a municipal union whose collective bargaining agreements are voted upon by the municipal town council, must recuse themselves from negotiations, employment discussions and voting on teacher contracts when a teacher is a member of the municipal town council. Similarly, the board members must recuse themselves and abstain from voting on all individual issues involving the teacher/council member underN.J.S.A. 18A:12-24(b) and (c).
A11-14 (4/23/14) Four non-conflicted board members are sufficient to conduct an evaluation of the superintendent. The use of the doctrine of necessity is unnecessary in this situation.
A13-14 (4/23/14) A board member, who is a freelance journalist, would not violate N.J.S.A. 18A:12-24(f) as long as the member does not report on board of education discussions or issues. Additionally, the board member must ensure that no information is disclosed through the freelancer reporting to the public on matters solely discussed in board executive sessions.
A20-14 (5/28/14) A board member, who owns a company which does business with the school district, must recuse himself or herself from all matters related to that relationship. If the relationship is contractual, the contract may run its course but not be renewed. If the relationship consists of separate individual transactions, the board must find a new company for future business needs. Failure to do so would implicate N.J.S.A. 18A:12-24(c).
A23-14 (5/28/14) Three non-conflicted board members are sufficient to conduct an evaluation of the superintendent. The use of the doctrine of necessity is unnecessary in this situation.
A24-14 (6/25/14) Conflicted board members may not participate in the board’s search for a new superintendent, including any aspect of the vetting process or any evaluation of the superintendent.
A27-14 (7/23/14) – A superintendent lacks the standing to request an advisory opinion regarding the actions of a school official in the school district in which the superintendent was formerly employed. As a former employee, the superintendent no longer has authority to control board action in the original school district.
A29-14 (9/2/14) A board member, who owns and operates a business, may not continue to offer, in partnership with the local educational foundation, an annual fundraiser, where students are charged a fee ($20) and the profits are split between the foundation (20 percent) and the business (80 percent). Given the financial and personal involvement, the public could reasonably perceive that the board member’s ownership in the business would take precedence over the best interests of the school district. Additionally, the board member must cease distribution of the advertisement and general solicitation of the business through leaflet distribution in the schools, as that avenue is not generally available to the public. The board member may resume these activities at the end of his or her term of office.
A32-14 (8/27/14) A board member would violate multiple subsections of the Code of Ethics for School Board Members if he were to serve as a volunteer in certain school-sponsored theatrical events. The board member’s spouse is employed in the district as a teacher and theater advisor. The board member’s spouse would be responsible for supervising, directing and managing the board member, as he would be subject to the supervision, management and direction of other board personnel, supervisors and administrators. The board member/volunteer would be in regular contact with students, parents and staff and would maintain an active presence in the school. Such activity would be inherently inconsistent with the board member’s executive role as an elected official, would exceed his scope of authority as a board member, would involve day-to-day administration of the schools, and would have the potential to compromise the board and the integrity of its decisions.
A33-14 (8/27/14) A board member, employed as a director of product management by an educational resource company which sells vocabulary workbooks to the school district, would not violate the School Ethics Act by participating in board actions including pre- and post-hire employment issues regarding the superintendent, principal, supervisor of curriculum/instruction or any other administrative position in the school district. The board member is a salaried employee with no interest in the company and is not responsible for sales or presales contacts with customers. Given that the company’s contractual relationship predates his becoming a board member and the board member is not involved in the section of the company which sells workbooks to the school district, the School Ethics Commission found no interference with the ability to conduct board business. The board member’s independence of judgment and objectivity must remain unquestioned, requiring recusal on all discussions, contract negotiations, purchase or payment to his employer. Should some benefit accrue to the board member from the company’s contract, the board member must refrain from participating from the personnel decisions set forth above.
A35-14 (8/27/14) Only individuals who meet the definition of “school official” pursuant to N.J.S.A. 18A:12-23 may request, obtain and/or be the subject of advisory opinions from the School Ethics Commission. The School Ethics Commission does not have jurisdiction to consider advisory opinions regarding individuals who do not meet the definition of “school official.”
A36-14 (10/29/14) – A board member may endorse candidates up for election to the board, so long as the endorsement is clearly made as a private citizen and not as a board member or on behalf of the board. Any publications created by the endorsing board member, be they print or electronic, must contain a disclaimer, making it clear that the board member’s endorsement is as a private citizen and not as a member of the board or on behalf of the board. Any use of electronic or social media must be on the board member’s own personal account and not that of the board.
A38-14 (10/29/14) – A board member may donate funds to the county special services district to be “applied towards capital improvements and technology” so long as the member receives no benefit as a result and exerts no special control over how the donated funds are spent. The board member should not use his donation to advocate for his reappointment to that board.
A44-14 (11/26/14) – A board member, who is employed as an aide by a private day care center which contracts with the board/district to provide pre-kindergarten services, must recuse him/herself from any and all participation related to the contract between the board and the center, the pre-kindergarten program, including issues pertaining to curriculum, facilities inspection or supervisors going to the center to monitor the program. Recusal must be as broad as possible in order to prevent public perception that the board member’s independence of judgment would be affected.
Information on how to request an advisory opinion from the School Ethics Commission is online at the NJDOE website.