Earlier this month, the School Ethics Commission (SEC) made public three advisory opinions which it had approved for public status at its Jan. 26 meeting. Advisory opinions are made public by the SEC when six of its nine members vote to make them public. Board members and school administrators are encouraged to review these opinions with their school board attorney to determine the impact that they may have on their particular local board operations.
NJSBA has been closely monitoring the many School Ethics Commission advisory opinions that have been released in recent months. “We understand that the School Ethics Commission is working to promote public trust, which we, of course, support,” said Dr. Lawrence S. Feinsod, NJSBA executive director. “While the commission is well-intentioned, many of their opinions have unfairly curtailed the management rights that boards of education must have to effectively represent their communities and perform their oversight functions.”
Details of the latest advisory opinions are below.
Board Members with Relatives in School Districts
In opinion A25-15, the SEC responded to a request regarding several board of education members who had relatives who either were full-time employees and members of the local NJEA affiliate union in either their own district or another. The relatives included:
- Board member’s spouse, NJEA member employed in another school district
- Board member, New Jersey Principals and Supervisors Association (NJPSA) member employed in another school district
- Board member’s spouse, paraprofessional in-district, NJEA affiliate union member
- Board member’s sister, NJEA member employed in another school district.
The SEC advised that the board members should review recently issued public advisory opinions A11-15, A16-15 and A19-15, which addressed these topics.
The SEC further advised that board members with relatives employed in-district, who are members of an NJEA affiliated union, are considered to have a conflict under the School Ethics Act. The conflict extends to all matters involving the union and all aspects of the collective negotiations process, including voting on the collective bargaining agreement. The conflict further extends into the personnel area as to the relative and the relative’s supervisors, and other superiors in the chain of command ending with and including the superintendent. No participation in personnel matters regarding these individuals is permitted, including, but not limited to discussion, evaluation and voting.
Board members who have immediate family members (spouse, child, parent, sibling) in their household, who are employees in another school district and members of a similar statewide union with which the board is negotiating, are also deemed conflicted under the School Ethics Act. The conflict extends to all matters involving the union and all aspects of the collective negotiations process, including voting on the collective bargaining agreement. School administrators who are conflicted in this manner may provide technical information to the board of education when no one else in the school district can do so.
Board members who have out-of-household relatives who are union members employed by a different board of education, have a different analysis to perform. Employment with union membership in another school district is not automatically a conflict for out-of-household relatives. The conflict analysis turns on the relatives’ involvement with the union in their district of employment. If the relative has a heightened union role (officer, bargaining team member, union building representative) the board member is conflicted, with the conflict extending to all matters involving the union and all aspects of the collective negotiations process, including voting on the collective bargaining agreement. School administrators who are conflicted in this manner may provide technical information to the board of education when no one else in the school district can do so.
For board members who are employed in another school district as school administrators and are members of the NJPSA, the SEC referred them to previously issued public advisory opinion A13-15. A board member, in this circumstance, may negotiate with the in-district local NJEA affiliate when there is absolutely no linkage, in either district, between the respective NJEA affiliates and the administrators’ union which represents the board member. Board members should consult with their school board attorney as to whether similar statewide union status may create a linkage as NJEA does represent supervisor units in certain school districts and likely has the same goals and objectives for its members as does NJPSA.
Former District Employee and Union President
The SEC responded to a request regarding a newly-appointed board of education member, a 28-year former employee in the school district who served as union president for 13 years. In advisory opinion A26-15, the question was what, if any, involvement the new board member could have with respect to issues and matters involving the union, including possible collective negotiations and votes on contracts between the board and the union, without violating the School Ethics Act.
The SEC determined that the board member’s prior employment in the school district and prior service as union president was not a bar to her service on the board of education. However, it did create a conflict of interest for purposes of collective negotiations participation. The SEC considered it reasonable for members of the public to believe that, as a new board member, having so recently been an employee of the school district and union president, she would be unable at this time to separate her past union involvement from her new role on the board. In order to avoid a violation of the Act and to preserve the public trust, the SEC advised that the new board member must recuse herself from any union matters and must abstain from any union-related votes for the duration of her initial term of office. The SEC did not consider this conflict to be in perpetuity, but only for the new board member’s initial term on the board, as she becomes acclimated to her new role of serving the public. After her first term, there would no longer be the appearance that the board member’s independence of judgment and objectivity with regard to the union would be impaired.
Should she serve a second term, the new board member, while not possessing a presumption of conflict, must continue to be cognizant of her responsibility to protect the public trust and her obligation to serve the interests of the public and board.
Participation in District Staff Interviews
In A31-15, the SEC responded to a request for clarification regarding a perceived conflict between the exit interview prohibition of A15-10 and the limited participation in higher level administrative employee interviews of A04-12; each of which was analyzed under N.J.S.A. 18A:12-24.1 (c) and (d) of the Code of Ethics for School Board Members, but with seemingly different results.
In issuing this advisory opinion, the SEC advised that it does not support board members conducting interviews for positions below that of superintendent. However, the SEC’s jurisdiction does not extend to actions of the board of education, only to actions of individual board of education members. Accordingly, each individual board of education may determine if it wants to have an interview committee for high-level administrative positions, pursuant to A04-12. As set forth in A04-12, if a board forms an interview committee, no more than one or two board members may participate, the committee would be coordinated by a member of the administrative staff and the board members’ role would be limited. The board members may not conduct the interview, but may offer observations and assessments, with full knowledge that final recommendations are wholly within the purview of the superintendent. For boards of education choosing to have an interview committee, the committee should function with the approval of the superintendent. It is the superintendent’s authority to recommend hires to the board. An interview committee cannot supersede or usurp that authority.
The SEC noted that N.J.S.A. 18A:12-24.1(h) establishes that it is a board member’s role to vote to appoint the best-qualified personnel available after consideration of the recommendation of the superintendent. The role of interviewing is an administrative function not generally within the authority of the board or its members. Accordingly, the SEC does not advocate for board member involvement in any interview process, prior to candidates first being recommended for hire by the superintendent, except for the limited purpose outlined in A04-12.