In a recently issued public Advisory Opinion, A05-15, the School Ethics Commission advised that three conflicted board members could not vote on a motion to advertise for the position of superintendent. The board members would violate the School Ethics Act if they were to participate in any matter related to the search, hiring of a selection agency, criteria, job description, or vote to advertise, as well as any personnel matters regarding the superintendent once he or she is seated.

The commission advised that the three conflicted members must recuse themselves from any discussions in executive session and abstain from all votes in public session pertaining to all matters regarding the position of superintendent. The conflicted board members may not be a part of any aspect of the vetting process or any evaluation and contract discussion post-hire and may not be in the room when executive session discussions occur.

Each conflicted board member must also not be privy to the minutes of such executive session discussions until such time as the minutes would be made available to the general public, such as with the adoption and publication of board minutes. In relation to all matters concerning the position of superintendent, the three conflicted members have rights as great as members of the public and no more.

Two of the board members had spouses who were employed by the board; “immediate family members” under the Act. One board member had a brother employed by the board; a “relative” under the Act and the Department of Education’s nepotism regulation and considered to be an “other” by the commission pursuant to N.J.S.A. 18A:12-24 (b).

The board maintains a quorum of non-conflicted members and does not require the votes of the conflicted members in order to successfully vote to advertise the position of superintendent. The use of the Doctrine of Necessity is neither necessary nor permitted in this instance.

Board members are encouraged to discuss the ramifications of this decision at their local board level and consult with their board attorney for advice as to how to proceed.