Three advisory opinions intended to clarify the school ethics landscape in New Jersey, by addressing the issue of board member conflicts of interest, were released by the School Ethics Commission (SEC) this summer. The three decisions are A20-11, A19-17, and A24-17
In the most recent decision, A24-17, the SEC determined a board member was prohibited from becoming involved in issues related to his sister or his sister’s employer where the sister worked for an on-call substitute service as a classroom aide. The sister was occasionally assigned to schools in the district by the substitute service, which had full control over her schedule. The SEC advised that under these circumstances, the board member had a conflict of interest in matters involving his sister and had a similar conflict with respect to his sister’s employer, and the public could reasonably perceive that the board member was in a position to use his board seat to benefit his sister, either through direct hiring decisions, or indirectly through approving contracts favoring her employer.
However, that prohibition did not extend to the board member’s involvement in issues related to the superintendent or a building principal, when there was no indication that those individuals had influence over the sister’s employment in the district, or that her salary was affected by contract negotiations with the local union. On these facts, the SEC determined that while the board member was conflicted in employment matters involving the sister or her employer, the substitute service, the board member was not prohibited from discussing personnel issues, the superintendent, or the district budget.
In addition, the SEC clarified that a board member whose sister was employed with a substitute placement service with whom the district had a contract, was required to list that company on the statutorily mandated personal disclosure form. The information the board member had previously received to the contrary was erroneous.
The advisory opinion then references In the Matter of Pannucci, a 1997 decision, as the starting point for a brief summation of voting restrictions as they pertain to collective negotiation agreements (CNAs).
In the Pannucci decision, the State Board of Education determined that a board member, who is a teacher and member of the same statewide union with which he or she is negotiating in his local district, does not have a per se conflict of interest preventing the board member from voting on the collective bargaining agreement between the board and local union. Subsequent decisions expanded and/or clarified that basic holding, including the prohibition on negotiating with the union until after the memorandum of agreement (MOA) has been executed. In 2009, Pannucci and its progeny were codified in the “Accountability Regulations,” specifically N.J.A.C. 6A:23A-6(a)(5) and (6).
The regulations, which delineate a difference between potential conflicts pertaining to “immediate family members” and “relatives,” prohibit a board from receiving state aid unless the board has adopted a policy that includes:
- A provision prohibiting a school district administrator or board of education member, whose relative is a member of the bargaining unit, from discussing or voting on the proposed collective bargaining agreement with that unit; or from participating in any way in negotiations, including, but not limited to, being a member of the negotiating team; nor should that school district administrator be present with the district board in closed session when negotiation strategies are being discussed.
- A provision prohibiting a school district administrator or district board of education member who has an immediate family member who belongs to the same statewide union, in another school district, from participating in any way in negotiations… prior to the district board attaining a tentative MOA with the bargaining unit that includes a salary guide and total compensation package.
The definition of “immediate family member” is the person’s spouse, civil union partner, domestic partner, or dependent child, residing in the same household, while a “relative” is an individual’s spouse, civil union partner, domestic partner, or the parent, child, sibling, aunt, uncle, niece, nephew, grandparent, grandchild, son-in-law, daughter-in-law, stepparent, stepchild, stepbrother, stepsister, half-brother, or half-sister of the individual or of the individual’s spouse, civil union partner, or domestic partner, whether the relative is related to the individual or the individual’s spouse, civil union partner or domestic partner by blood, marriage, or adoption.
In concluding A24-17, the SEC points out several salient points: first, a board member with an immediate family member or relative who is employed in the district may not participate in any aspect of negotiations, nor may that board member vote on the approval of the MOA. To do so would amount to a violation of N.J.S.A.18A:12-24(b) and (c).
Second, the ruling emphasizes that board members who belong to a statewide teachers union in a different district, or who have immediate family members who are members of a statewide teachers union in a different district, may not participate in any aspect of negotiations until the memorandum of agreement, including salary guides and total salary package, has been attained. That board member may then vote upon the collective negotiations agreement, in the absence of any other conflict.
Finally, the SEC notes that a board member with a relative employed in a different district, and who is a member of a statewide teachers union, may participate in all aspects of negotiations, including the vote on the MOA, absent other conflicts. Examples of other conflicts include acting in any capacity with the ability to affect union negotiations, include the union president, negotiations chair, and grievance committee.
In essence, A24-17 makes the determination of a conflict a simpler process. Board members must know whether the person in question is an immediate family member or a relative, and whether the person is employed in-district or in a different school district; as well as whether that person is a member of a statewide teacher’s union. The following guidelines then apply:
- If the person is an immediate family member or a relative and employed in-district, the board member cannot participate in any aspect of negotiations nor can the board member vote to approve the MOA.
- If the person is an immediate family member, employed in a different school district, and a member of a statewide teacher’s union, the board member may not participate in negotiations, but they may vote to approve the MOA.
- If the person is a relative, employed in a different school district and a member of a statewide teacher’s union, the board member may participate in negotiations and may vote on the CNA, absent any other conflicts.
Late in August, the School Ethics Commission (SEC) also issued two other advisory opinions, that further clarify board member obligations concerning conflicts of interest.
A20-11 – This recently released advisory opinion provides clarification on the use of the doctrine of necessity during both negotiations and voting on a collective negotiations agreement after the memorandum of agreement has been signed.
In this advisory opinion, a board member informed the SEC that on a seven-member board, five members were perceived to have conflicts of interest. One member’s spouse was employed in the district and was a member of the New Jersey Education Association (NJEA). Three other members were employed as teachers in nearby districts and were also members of the NJEA. A fifth board member had two financially-independent children employed as teachers in other school districts, who were also members of the NJEA. The final two members were not in conflict and were therefore, designated as the negotiations committee.
In the decision, the SEC defined the emancipated children as relatives and determined the public could reasonably perceive that a board member would have a great interest in his child’s well-being, and therefore concluded that the board member’s participation in negotiations would constitute a violation of the School Ethics Act. But the decision also noted that the member would be free to vote on the CNA after the MOA was executed. (Please note that A24-17 above supersedes this aspect of A20-11.)
In that ruling, the SEC reiterated its belief that a board with two non-conflicted members may not invoke the doctrine of necessity in order to form a negotiating committee. While acknowledging that a two-member negotiating committee was not ideal, the SEC declined to authorize the application of the doctrine in this circumstance. The opinion also noted that because three board members worked outside of the district, their conflict was limited to negotiating the contract; only the board member whose spouse was employed in the district was precluded from voting on the contract. Accordingly, because the remaining board members were not prohibited from voting on the contract after the MOA was signed, the SEC declined to advise the doctrine’s use in voting on the CNA. As a final note, the decision indicated that while board members with relatives working in nearby districts may voluntarily choose to abstain from voting on the matter, this was not required by prior advisory opinions, and therefore the SEC could not recommend application of the doctrine if these board members were to voluntarily abstain from voting on the CNA after the MOA had been attained.
And finally, in A19-17, the SEC again addressed a seven member board, four of whom had conflicts of interest. The three non-conflicted members served as the negotiations committee until one non-conflicted member resigned. The advisory opinion notes that one of the remaining non-conflicted members was unable to consistently attend negotiation sessions due to professional and personal commitments.
In responding, the SEC noted that the doctrine of necessity may be invoked where a quorum of the board has conflicts of interest on matters requiring a majority of the full membership of the board. The SEC cautioned that the board may not invoke the doctrine of necessity in order to allow conflicted members to join the negotiating committee because the selection of committee members is not a matter required to be voted on. The SEC then noted that the two non-conflicted members were permitted to obtain the assistance of the superintendent or business administrator, or they could hire an outside consultant.
The SEC concluded by advising the board to wait to invoke the doctrine until it was necessary by law, for a majority of the seated board to ratify the CNA. In a footnote, the SEC noted that regardless whether the board consisted of six or seven seats, the majority of the quorum remained four.
For more information about conflicts of interest pertaining to negotiations and personnel items, board members should reach out to their local board attorney.