Earlier this month, the School Ethics Commission (SEC) issued two public advisory opinions regarding board of education member conduct.

Conflict Question

In AO 19-15, the School Ethics Commission (SEC) was faced with the question of whether board of education members whose nieces, spouse’s uncle and spouse’s cousin’s daughter, were full-time employees in the school district, represented conflicts under the School Ethics Act. In addition, the question was posed as to whether one board member, whose son was a full-time student and part-time summer substitute, had a conflict under the Act as well.

In reaching its decision, the SEC advised that an individual who meets the definition of “relative” under the nepotism regulation of the Accountability Regulations, N.J.A.C. 6A:23A-6.2(a)(1) will be considered to be an “other” under N.J.S.A. 18A:12-24(b) of the School Ethics Act, which states that no school official shall use his official position to secure unwarranted privileges, advantages or employment for himself, members of his immediate family or others. “Relative,” as defined in the nepotism regulation, includes an individual’s spouse or the individual’s or spouse’s parent, child, brother, sister, aunt, uncle, niece, nephew, grandparent, grandchild, son-in-law, daughter-in-law, stepparent, stepchild, stepbrother, stepsister, half-brother or half-sister, whether the relative is related to the individual or the individual’s spouse by blood, marriage or adoption.

The commission concluded that if a board member’s relative may not be hired under the nepotism regulation policy, then he also may not use his position on the board to secure unwarranted privileges or advantages for that relative. This means that the board member cannot participate in any matter regarding the employment of his/her relative. This prohibition applies to board members whose relative was hired by the school district before the board member was seated and includes, but is not limited to, any discussion and votes on the collective bargaining agreement or any contracts affecting the employment of the relative and any discussion and vote concerning administrators who oversee the relative, including the supervisors of those administrators.

Applying these principles, the SEC determined that a board member who has a relative identified under the nepotism policy has a conflict under the Act. Given the executive authority of each member of the board, the commission considers it reasonable that members of the public might perceive a board member’s involvement in any matter in which a relative is an interested party as an attempt to benefit himself, his immediate family or others, including his relatives.

Board members with such a conflict must recuse themselves from participating in any involvement over any matter of the relative’s employment or supervision, and must abstain on any vote taken which is connected to the conflict, in this case generated through the employment of their relative. This includes the negotiation of and the vote on the collective bargaining agreement where the relative is a member of the local union or receives some benefit from the contract. The conflict also includes the evaluation, negotiation and engagement in other employment matters with the superintendent, as he or she oversees all staff in the district, as well as any other school administrators who are in the line of command over the board member’s relative. Should a matter come before the board where a majority of the seated board has a conflict arising under the Act, the board must invoke the Doctrine of Necessity.

In a footnote, the commission affirmed Advisory Opinion A10-14, in which the commission found a board member’s first cousin to be considered an “other” under the Act. However, absent additional information, the commission deemed it unreasonable for the public to view the relationship between a board member and the daughter of his spouse’s cousin to be a conflict. All other family relationships which were part of the Advisory Opinion request were deemed to be in conflict.

Board Member on a Education Foundation Board?

In decision A24-15, the School Ethics Commission was faced with the question of whether a board president could serve as a trustee on the Township Foundation for Educational Excellence in accordance with the foundation’s bylaw, which identified the president of the board as a trustee.

The foundation consists of approximately 20 trustees, from which an executive board is formed. Trustees include other education stakeholders in the township such as community members, retired and/or current district employees and local business owners. The mission of the foundation is to enhance the quality of education and educational opportunities and to generate and distribute financial and other resources for the benefit of the students of the district. The foundation is not directly affiliated with the board and is not overseen by the board.

Based on the facts presented, the SEC determined that the foundation was wholly independent from the board member’s role as president of the board and from board oversight. The commission found that the board member’s service as a trustee for the foundation was not incompatible with his role as board president and the requirements of the Act. The foundation was an outside organization of the school district, incorporated as a self-governing entity, separate from the board and school district, and was not under the control or management of the board, despite their shared goals of furthering education in the school district.

In making its determination, the SEC likened the foundation to other organizations such as a local “Pop Warner Football” or “Varsity” Cheerleading Camp, two well-known, private organizations. Those groups are similar to the foundation in that the board member’s presence and involvement with those organizations may put him in the company of current district employees, which may include teachers, supervisors, principals, assistant superintendents and the superintendent. As with the foundation, there is no prohibition on the board member’s involvement with a private organization which may have district employees, or the parents of students, likewise involved.

The commission, in rendering this advice, viewed the volunteering, as described in the advisory opinion request, as not in violation of the Act; however, should an issue involving the foundation come before the board in any manner, the board member must recuse himself from participation or involvement and abstain from the vote.