Each year, school district policies are shaped by legal decisions by state and federal courts, the state’s education commissioner and other administrative agencies. Here are recent cases with which board members should be familiar. Below are some recent decisions of interest to educational officials.
Sunshine Law
In Opderbeck v. Midland Park Bd. of Educ., a trial court considered whether a citizen who attended his local school board meeting was entitled to receive all of the attachments associated with the meeting agenda, at the same time that the board members received them. The court determined that absent any exemptions or privileges that may apply to certain attachments, the public has a right to know and receive the full agenda prior to any meeting. The court reasoned that there is a significant public interest in ensuring the open, transparent, and public review of matters discussed by the board consistent with the legislative intent pursuant to the Open Public Records Act (OPRA), the Open Public Meetings Act (OPMA, or the Sunshine Law), and the common law right of access. This case is currently on appeal to the Appellate Division of Superior Court. NJSBA is participating in the case as amicus, or friend of the court, NJSBA’s concern is that the trial court’s determination exceeds what the law requires, placing an additional administrative burden on local boards of education.
In a reminder to boards of education concerning the importance of following the procedural requirements of OPRA and OPMA, a trial court determined in N.J. Foundation for Open Gov’t v. Island Heights Bd. of Education that a board of education needed to apprise the public of the “general nature” of the closed session discussion and the time when and the circumstances under which the confidential discussion could “be disclosed to the public.” Further, the board discussed matters that should have properly been addressed at the public session. In another determination in the dispute the court said that the board violated OPRA when it provided redacted nonpublic meeting minutes and failed to explain its redactions with specificity. The board fell short of its obligations under OPRA by asserting only that the redacted items in the minutes dealt with “legal, student or personnel issues.” This blanket statement does not allow members of the public to know or discern with any reasonable clarity what the board discussed in the nonpublic meetings or what actions the board took. Nor does it suggest what specific privilege the board seeks to invoke because it lists three different potential privileges. The board was ordered to provide the court with unredacted minutes for the requested closed sessions for an in camera review by the court.
Ethics
In its 2011 decision, Persi v. Woska, the School Ethics Commission (SEC) ruled that a board member violated the School Ethics Act by unilaterally directing the issuance of a Rice notice to the interim school superintendent without consulting any other board member. A “Rice notice” is the notification that must be provided to an employee prior to a board’s discussion of the employee’s employment at a closed meeting under the Open Public Meetings Act.
The board member appealed the ethics determination to the commissioner, who accepted the SEC’s finding that the board member violated the Act, and that a reprimand was the appropriate penalty.
As stated in the decision, the board member called the business administrator and told him he wanted a Rice notice prepared in order to discuss the superintendent’s employment at an upcoming board meeting. The commissioner determined that, in unilaterally directing the issuance of a Rice notice to a school superintendent without consulting any other board member, the board member took private action that had the potential to compromise the board, acted outside the scope of his authority and duties as a board member and that his conduct compromised the board because his actions resulted in litigation involving the superintendent’s contract. The board member appealed the decision to the Appellate Division of Superior Court.
The appellate panel ultimately sent the decision back to the commissioner to determine who had the authority to issue a Rice notice –an individual board member or the entire board, since the School Ethics Commission had not specified how that would be done. In sending the decision back to the commissioner, the appellate panel said, “We find this lack of clarity hampers our review on appeal. Even if we accept the principle, adopted by the Commissioner, that ‘private action’ equates to action ‘beyond the scope of the duties and responsibilities’ of a board member, the agency decision nonetheless fails to clearly delineate the respective authority of a board member, board president, and full board in determining how and when a school superintendent’s employment is reviewed. Only when the agency, drawing on its expertise, clarifies this issue, can it then properly determine whether [the board member] exceeded the scope of his authority and, if so, whether his issuance of the Rice notice, standing alone, was properly sanctionable.”
In a June 2014 decision, the commissioner found that a single board member is without authority to direct issuance of a Rice notice to the chief school administrator of a district. “Rather, that authority lies with the president of a district board of education or a majority of the full membership of a district board of education,” the decision stated.
In the Matter of Montiero, Jr. involved a board member who violated N.J.S.A. 18A:12-24(c) of the School Ethics Act when he voted to reappoint the auditing firm for the board of education when his business partner is a principal in that firm. The SEC recommended the penalty of reprimand. The SEC said it was of no moment that the respondent did not intend to vote for the firm. The commission has determined that it is the responsibility of a board member to know the items to be voted on in any given meeting and to recuse himself from any vote in which he has a conflict at the time of the vote.
In Messner and Condo v. Gray and Berglund v. Gray, the education commissioner upheld the reprimand of the board member who breached the confidentiality of the board’s deliberation during the executive session by sharing her recording of the closed meeting with two individuals who would not have been permitted to attend the executive session – notwithstanding her argument that sharing her recording with her attorneys did not have the potential to compromise the board because her attorneys had a professional obligation not to violate the board’s right to confidentiality and fact that the contents of the recording were never shared with the public.
No Ethics Violations Found
Not every ethics case results in a finding of a violation of the School Ethics Act.
In Boyle v. Giannakis, the SEC found no proof that a board president, a seven year employee of the food services division of a large institutional services company, violated the School Ethics Act when he was in the school business administrator’s office immediately prior to a meeting between the school business administrator and a representative of the custodial services division of the same company that he worked for. Testimony of the school business administrator, superintendent and respondent indicated that no company business was discussed between the school business administrator and the board president, the meeting with the company representative was fortuitous and not planned and only pleasantries were exchanged. No business interest, no “business transaction or professional activity” which was in substantial conflict with the proper discharge of his duties as a board member, no proof that the board president participated in or engaged in any discussion regarding the company that he works for so as to potentially violate the School Ethics Act.
In another case, In the Matter of Moiso, the SEC dismissed a complaint where it was alleged that the board member voted to pay a company for which she worked. However, findings were made that she voted to accept a food services report, which acknowledged and memorialized all payments to cafeteria vendors, which were approved and paid earlier by the food services director and the school business administrator. Consequently, the board member never had the opportunity to vote for payment because the vendors’ invoices never came before the board for a vote.
Superintendent Searches
The School Ethics Commission also issued some advisory opinions that may change the way that boards conduct superintendent searches, if there are a majority of members with conflicts. In Advisory Opinion A11-14, the SEC determined that four non-conflicted board members are sufficient to conduct an evaluation of the superintendent. The use of the doctrine of necessity is unnecessary, as a majority of board members are not required to conduct the evaluation of the superintendent.
In Advisory Opinion A23-14, the SEC determined that when it comes to the superintendent search process, a board could not invoke the doctrine of necessity to participate in final interviews for the finalists seeking the superintendent’s position where three non-conflicted board members were available to do so.
In Advisory Opinion A24-14, the SEC reminded board members of its ruling in Martinez v. Albolino in which it directed that, “conflicted Board members may not participate in any discussion pre- or post-hire, may not be a part of any aspect of the vetting process or any evaluation and contract discussion post-hire. That would include voting on who should be on the selection committee or which firm will conduct the search. These conflicted Board members may not be in the room when discussions are underway, and they should not be privy to any information regarding those discussions. In short, they have rights only as great as the public does and no more.”
Labor Relations and Employment
In 2014, the Appellate Division of Superior Court upheld the non-renewal of a non-tenured custodian for excessive absenteeism. In Glassboro Bd. of Educ. v. Glassboro Educ. Support Professionals Ass’n, No. A-5276-12T1 (App.Div. June 11, 2014) the court determined that the contract between the board and the union was clear and unambiguous that the board did not agree to arbitrate non-renewals. The board retained the right to decide whom to employ. No provision in the contract permitted the arbitration of the non-renewals of nontenured employees who were subject to fixed-term contracts.
In a case that may have an impact on boards of education, in County of Atlantic and PBA Local 243, the Public Employments Relations Commission (PERC) rejected its former stance that an employer had to pay increments to employees on the salary guides of certain expired agreements prior to settlement of a new agreement. With this recent decision PERC adopted a “static” status quo doctrine, and rejected the “dynamic” model that had been used for many years. The principle of paying increments on expiration of a contract is dubbed the “dynamic status quo doctrine.” Under this doctrine, rather than maintain the current salary, boards of education have had to pay increases to employees who continue to move through the salary guide of an expired contract. Then, salaries are adjusted retroactively when a successor agreement is reached.
There is one notable exception to the dynamic status quo doctrine. Under a 1996 case from Neptune that is familiar to many board members, the state Supreme Court determined that boards of education were not obliged to, and in fact did not have the authority to, pay increments after the expiration of a three-year agreement, since by statute a board may not adopt salary policies for teachers that exceed three years. (Note that recent amendments permit collective bargaining agreements of up to five years’ duration.) The court found that paying increments would effectively extend the salary policy for teachers beyond the maximum three years allowed. However, this limited exception to the paying-increments doctrine only applied to districts with teachers’ three-year contracts.
As may be anticipated, automatically applying the dynamic status quo doctrine makes it difficult for a board to negotiate a raise lower than that which employees would receive by way of a step increase under an expired contract. It also serves as a disincentive for teachers to negotiate when they can wait for the more generous increments under the expired collective bargaining agreement.
In this litigation, Atlantic County determined that it would not pay increments when its bargaining agreements with the police representative organizations expired. The police unions filed unfair labor charges against the county. In defending its position, the county maintained that the dynamic status quo doctrine was no longer useful because the entire negotiations landscape has undergone major changes that render continued salary guide movement impractical and unduly burdensome.
PERC agreed with the county, and dismissed the unfair labor charge. PERC noted that legislative initiatives, such as the 2 percent property tax levy cap and other public policies designed to control the rate of growth in government spending, have significantly impacted the way increments are treated during negotiations. PERC looked to developments in labor negotiations in New Jersey over the last 30 years and concluded in sweeping language that the doctrine is no longer effective.
The decision stated, “The dynamic status quo no longer fulfills the needs of the parties in that it serves as a disincentive to the prompt settlement of labor disputes, and disserves rather than promotes the prompt resolution of labor disputes. While public employers will continue to be bound by the strictures of maintenance of the status quo, that will be defined as a ‘static’ rather than a ‘dynamic’ status quo.”
As a result of this ruling, PERC will no longer require that a board pay increments to the union under an expired labor contract prior to the negotiation of a successor contract. The police unions have filed an appeal to the State Superior Court Appellate Division.
Special Education Decisions There were also some decisions concerning special education that may be of interest to board members. In J.T. v. Dumont Public Schools, the U.S. Third Circuit Court of Appeals upheld a lower court determination that the Dumont School District and district administrators did not discriminate when they sent kindergarteners who require special education services to a school in the district other than their neighborhood school.
The lower court reasoned that the transporting of students to schools in the district that were not the neighborhood school was educationally appropriate, lawful, economical and administratively convenient and did not discriminate against the special education students that were involved in the program. As a result of the court’s determination, a law was enacted,N.J.S.A.18A:46-54, that requires that school districts have in place plans to establish stability in special education programming. The plans shall take into account the consistency of the location, curriculum, and staffing in the provision of special education programs and services. Additionally, IEP teams shall consider, among other factors, the consistency of the location of services when determining in-district special education placements.
In another case, C.P. v. Fair Lawn Bd. of Educ., the federal district court determined what an individualized education plan (IEP) must do in order to ensure that the student is receiving a free and appropriate public education (FAPE). In this case, the parent unilaterally removed the student from the local district and placed the student in a private school for the disabled. The parent then sought reimbursement from the school district for the cost of the private placement. The court denied the reimbursement. The court reasoned that school districts can give a FAPE to disabled students by designing and administering individualized instructions that are memorialized in the IEP. The IEP need not “maximize the potential” of the disabled student. Instead, all that is required to provide a disabled student with a FAPE is an IEP that is “‘reasonably calculated’ to enable the child to receive ‘meaningful educational benefits’ in light of the student’s ‘intellectual potential.’”