The 2015 calendar year brought about the most sweeping changes in school official ethics in more than two decades. It began in January when the School Ethics Commission (SEC) made public 36 advisory opinions, dating back to February 2013.
Any school official who has questions as to whether some particular future conduct would violate the School Ethics Act may request an advisory opinion from the SEC. When the commission believes that its advice on a particular matter will provide guidance to the larger community of school officials, the SEC can make that advisory opinion public by a vote of six of its nine members; in such cases the name or district of the person requesting the opinion will not be publicly disclosed. The almost two-year delay in issuance of public advisory opinions was due to vacancies on the School Ethics Commission; with only five members, the commission could not summon the six votes necessary for public advisory status.
It is important to remember that each opinion is based on the specific facts before the School Ethics Commission and may not be comparable with a specific situation in another school district. Board members and school administrators are encouraged to discuss the new opinions and their impact on school official ethics law with their board counsel. The full opinions may be found on the New Jersey Department of Education (NJDOE) website at the School Ethics Advisory Opinion section.
Negotiations: In-District Conflicts
At this point in time, the status of school official participation in collective negotiations is as follows:
A board of education member or school administrator can have a collective negotiations participation conflict when a family member or “other” is an employee in the school district. That conflict arises when the employee in question is:
- In the bargaining unit of the contract under negotiations;
- Supervised by employees in the unit;
- Is not in the bargaining unit in question, but whose terms of employment are linked to the unit; or
- The board member has been endorsed by the union in the election immediately preceding negotiations.
When one of these circumstances has occurred, the board member may not participate in any matter touching upon negotiations, including but not limited to, establishing negotiations parameters, selecting a professional negotiator, selecting or serving on the negotiations team, hearing closed-session updates on negotiations progress, voting on the proposed agreement, participation in grievance proceedings related to the contract. School administrators are similarly precluded from negotiations participation, but have historically been permitted to provide technical information when no one else in the district can provide that information. Typically that means that the school administrator will not sit at the negotiations table but will be in another room, available for consultation on the impact of negotiations proposals.
So what changed in 2015? First, the School Ethics Commission issued several rulings that expanded its group of family relationships that created in-district negotiations conflicts for board members and school administrators. Prior to this year’s decisions, the group of SEC conflicts was generally the School Ethics Act definition of “relative” – spouse, child, parent and sibling. This was more limiting than the nepotism regulation (N.J.A.C. 6A:23A-1.2) definition of “relative”–
…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 an attempt to get closer to the nepotism regulation definition, the School Ethics Commission used a provision of the School Ethics Act Code of Conduct to find additional conflict situations beyond its own definition, N.J.S.A. 18A:12-24 (b):
No school official shall use or attempt to use his official position to secure unwarranted privileges, advantages or employment for himself, members of his immediate family or others.
The following six public advisory opinions created additional in-district negotiations conflicts: A03-13 – Brother-in-law; A15-13 – Cohabitating partner in a long-term personal relationship; A22-13 – Father-in-law; A10-14 – Cousin; A09-15 –Niece; A 16-15-Daughter, Wife, Aunt.
While brother-in-law, father-in-law, niece, daughter, wife and aunt were consistent with the nepotism regulation definition of relative, and as such were not new for board members and school administrators, the relationships of cousin and cohabitating partner were new to the field and have raised the question as to how far the SEC will go in expanding the use of the term “other” beyond any definitions set forth in statute or administrative code. Stay tuned.
For now, board members with these family members or others may not participate in any aspect of collective negotiations with the local bargaining unit, including the vote on the agreement, when the family member or “other” is a member of or receives the benefit of the collectively negotiated agreement. School administrators with these in-district conflicts are similarly precluded from negotiations participation, but have traditionally been permitted to provide technical information when no one else in the district can provide that information. Typically that means that the school administrator will not sit at the negotiating table but will be in another room, available for consultation on the impact of negotiations proposals.
The second significant change was that brought about by public advisory opinion A10-14. In A10-14, the SEC determined that a board member, whose cousin was a teacher in the school district and a member of the teachers’ union, could not participate in negotiations regarding the administrators (principals and supervisors) collective negotiations contract. This decision was significant not only for the relationship of cousin, as previously described, but also for the fact that, for the first time, the determined conflict jumped union lines without any contract linkage. The determinative fact was that, while the cousin was not a member of the administrators unit, the members of the administrators unit supervised and evaluated the members of the teachers’ unit, of which the cousin was a member, creating a conflict for the board member. Previously cross-unit conflicts were found only where the terms and conditions of employment in one unit were linked to the other. Before this decision, absent linkage of some sort, the board member in question would have been able to negotiate the administrators’ unit contract.
Negotiations: Out-of-District Conflicts
A board of education member or school administrator can have a collective negotiations participation conflict when the board member or a family member or “other” is an employee in another school district. That conflict arises when:
- The board member is employed in another school district and is a member of a bargaining unit represented by a similar statewide union, or
- The board member or school administrator has a family member or “other” who is employed in another school district and is a member of a bargaining unit represented by a similar statewide union.
Similar to the in-district conflict, when one of these circumstances has occurred, the board member may not participate in any matter touching upon negotiations, including but not limited to, establishing negotiations parameters, selecting a professional negotiator, selecting or serving on the negotiations team, hearing closed -session updates on the negotiations progress, voting on the proposed agreement, and participating in grievance proceedings related to the contract. School administrators are similarly precluded from negotiations participation, but have historically been permitted to provide technical information when no one else in the district can provide that information.
Prior to 2015, a board member with an out-of-district statewide union affiliation conflict would be out of the process until the tentative agreement with all compensation issues, including salary guides, was established. Once established, the conflicted board member could fully participate in the process, including discussions and voting on the agreement. This parameter was established through the 2000 State Board decision in In re Pannucci and the subsequent School Ethics Commission public advisory opinion A14-00.
Frank Pannucci was a board member in Brick Township, Ocean County, who was a teacher and NJEA member in East Orange, Essex County. Frank voted on the NJEA collective bargaining agreement in Brick Township and was found by the SEC to have violated the School Ethics Act. The State Board overturned the decision of the SEC, finding that the distance between East Orange and Brick Township was too far to be a conflict.
So what changed? The first significant change in out-of-district conflicts came about through public advisory opinion A09-14. In that decision, the SEC determined that a board member who was a school district employee in another school district and a member of the New Jersey State Federation of Teachers (NJSFT), an affiliate of the American Federation of Teachers (AFT), could not participate in negotiations regarding the NJEA affiliate in which he served as a board member. In so holding, the SEC opined that the two unions shared common goals and objectives for their members, school district employees. Previously, if the unions were different, there would be no out-of-district conflict and the board member or school administrator could fully participate in the collective negotiations process.
So now the questions. NJSBA research has uncovered a number of other statewide unions which represent school district employees, which may be eligible for similar statewide union status. For example:
- AFSCME represents cafeteria workers in Jersey City and several union employee groups in Newark.
- United Auto Workers (UAW) represents custodians and paraprofessionals in Vineland.
- Teamsters represent bus drivers in Mt. Olive.
- International Union of Operating Engineers represent custodians in East Rutherford.
- NJPSA represents a significant number of administrator (principal and supervisor) units.
Each of these unions could be deemed a similar statewide union like the NJSFT/AFT. While the number of board members and family members who are members of these and/or other additional unions may be small, the number of board members who are NJEA members is not, with some estimates being as high as 30 percent of board of education members. The issue for board members who are also NJEA members is their ability to negotiate these other union contracts or for board members who are members of these other unions that represent school employees, to negotiate NJEA agreements. While the answer would appear to be no, the SEC has not ruled on any other unions other than the NJSFT/AFT. Add to that the supervisory union concept established by A10-14 and a plethora of unanswered negotiations participation questions emerge.
One of those questions was partially answered with the issuance of A13-15.
A board member, who was employed in another school district as a supervisor was a member of an NJPSA affiliate union. In the facts of this advisory opinion, the NJPSA affiliate had no connection with the NJEA. The SEC opined that the board member could negotiate and vote on the in-district NJEA contract when there was absolutely no linkage, in either district, between the respective NJEA affiliates and the NJPSA administrator’s union, which represents the board member.
The second significant out-of-district collective negotiations conflict change for 2015 is that of the scope of conflict relationships. Similar to the in-district collective negotiation conflict area, the SEC established an increased group of conflict relationships through the use of the term “other.” Prior to 2015, the School Ethics Act term of art for out-of-district conflicts was immediate family member; spouse, civil union partner, domestic partner or dependent child residing in the household under the SEC definition or spouse, child, parent or sibling residing in the household under the nepotism regulation definition.
In A43-14, the School Ethics Commission found a negotiations conflict for a chief school administrator (CSA) who had a non-dependent daughter residing in the household. The daughter was employed in another school district as a paraprofessional, was not a member of the union, but paid an agency shop fee and received the benefit of the collective negotiations contract. The SEC determined that the issue of dependency under its definition was of no moment as the daughter was considered an “other” and as such, the daughter’s non-dependency was not an issue. This determination was not inconsistent with the nepotism definition of immediate family member where dependency is not a factor and as such, was not a significant departure from existing standards for board members and school administrators. It should be noted that the issue of the technical information exception for school administrators was neither asked nor answered in the public advisory opinion.
In A03-15, probably the most significant 2015 public advisory opinion for board members and school administrators, greatly expanded the scope of out-of-district conflicted relationships. The School Ethics Commission found that a board member, whose sister-in-law was an NJEA member in another school district could not participate in any matter touching upon negotiations with the local educational association, as the sister-in-law was deemed an “other” under the School Ethics Act. By so doing, the SEC overruled a number of previous public advisory opinions and case law determinations which had limited the scope of conflicted relationships to the SEC’s definition of immediate family member; spouse, civil union partner, domestic partner or dependent child residing in the household. The sister-in-law did not live in the household and was beyond the definition of immediate family member, knocking down two long-standing parameter walls of out-of-district conflict law.
How expansive is this “other” group of conflicts for out-of-district collective negotiations conflicts? Given the rulings in the in-district collective negotiations conflicts, it seemed likely that the group would include at least the nepotism regulation and state ethics conflict of interest definition of relative, as sister-in-law is part of that definition, and perhaps also the relationships of cousin and cohabitating partner. This decision had the potential to drive the vast majority of school districts into the use of the doctrine of necessity in order to do their collective negotiations business.
The doctrine of necessity is a judicially-created doctrine that permits conflicted public officials to participate in governance activities when a majority of the public body is in conflict.
In Advisory Opinions A11-15 and A16-15 the SEC provided some clarifications:
- A board member who is employed in another school district and is a member of a bargaining unit represented by a similar statewide union, or receives the benefit of that agreement, may not participate in negotiations or vote on the LEA contract
- A board member or school administrator whose immediate family member (spouse, child, parent, sibling in the household) is employed in another school district and is a member of a bargaining unit represented by a similar statewide union or receives the benefit of that agreement, may not participate in negotiations or vote on the LEA contract. The technical information exception applies for school administrators.
- A board member or school administrator whose “relative,” not living in the household, is employed in another school district and is a member of a bargaining unit represented by a similar statewide union is not per se conflicted. The conflict exists only if the “relative” is a statewide or local union officer, serves in a leadership capacity in the state or local union or has some union involvement greater than being a dues-paying rank and file union member. If conflicted, the board member or school administrator may not participate in negotiations or vote on the LEA contract. The technical information exception would apply to school administrators.
While these opinions narrow the out-of-district conflicts to some degree, they create more work for the potentially conflicted board member or school administrator. Relatives who work for other school districts will need to be contacted to determine their level of union involvement.
The third significant out-of-district collective negotiations conflict change for 2015 also came out of A03-15 and that is a board member’s inability to vote on the collective bargaining agreement when that board member has an out-of-district conflict. It was unclear from A03-15 initially the Pannucci decision had been overruled and the vote on the collective negotiations agreement was no longer permissible. A03-15 advised that the board member could not participate in any matter touching upon negotiations with the local education association, but did not specifically mention the vote. Later, the SEC revised the A03-15 blurb on its website to include the vote, but did not change the opinion itself. The SEC website was later revised to state that the matter was currently under review. While under review the opinion remained good law until otherwise stated, and board members, school administrators and school attorneys were advised to proceed accordingly.
The recently issued A11-15 and A16-15 clarified A03-15 by expressly extending the conflicted family member class to the nepotism definition of “relative” and adding the concept of enhanced union involvement for relatives out-of-district to reach conflicted status. The opinions also raised a question, however, as, while repeatedly expressly stating that the conflicted school official could not participate in negotiations and vote, the opinions referenced N.J.A.C. 6A:23A-6.2(a)(6), the nepotism regulation which applies to out-of-district similar statewide conflict. N.J.A.C. 6A:23A-6.2(a)(6) codifies the Pannucci standard; board members with out-of-district conflicts could participate in the collective negotiation process including the vote once the tentative agreement with all compensation issues, including salary guide, was established. To vote or not to vote, that is the question. More likely than not the vote is still prohibited, but time will tell.
Given the sweeping changes in collective negotiations participation for board members and school administrators, board members and school administrators are encouraged to discuss the ramifications of these opinions at their local board level and consult with their board attorney for advice as to how to proceed.
Personnel Issues: Superintendents, Supervisors and Principals
A board of education member can have a personnel participation conflict with respect to superintendents, supervisors and principals when the board member has a family member or “other” who is an employee in the school district and who is directly or indirectly supervised by the administrator in question. The restrictions include:
- Board members may not participate in the hiring of the superintendent if they have a family member or “other” who is an employee working in the school district.
- Board members may not participate in the hiring of a new supervisor or principal if they have a family member or “other” who is an employee in the school district who would be directly or indirectly supervised by the new hire…and there are internal candidates.
- Board members may not participate in any personnel decisions involving a superintendent, principal, or supervisor who directly or indirectly supervises the board member’s family member or “other” who is employed in the school district.
Prior to this year, the restricted group of family members was limited to the School Ethics Commission’s definition of relative: spouse, child, parent or sibling. In fact, there were several public advisory opinions from the SEC which found no conflict in personnel participation when the board member had an in-law who worked in the school district, as in-laws were not part of the relative definition.
So what changed in 2015? First, similar to what it did in the collective negotiations area, the School Ethics Commission issued several rulings that expanded its group of family relationships that created in-district negotiations conflicts for board members and school administrators, using a provision of the School Ethics Act Code of Conduct to find additional conflict situations beyond its own definition, N.J.S.A. 18A:12-24 (b):
No school official shall use or attempt to use his official position to secure unwarranted privileges, advantages or employment for himself, members of his immediate family or others.
The following six public advisory opinions created additional in-district administrative personnel participation conflicts:
- A03-13 – Brother-in-law
- A15-13 – Cohabitating partner in a long term personal relationship
- A22-13 – Father-in-law
- A08-14 – Stepdaughter, Stepdaughter-in-law, nephew
- A10-14 – Cousin
- A16-15 – Daughter, Wife, Aunt
All of these relationships were new to the administrative personnel conflict field, went beyond and, in some instances, reversed previous SEC advisory opinion and case law determinations. These decisions have raised the question as to how far the SEC will go in expanding the use of the term “other” beyond any definitions set forth in statute or administrative code; beyond the SEC definition of relative, beyond the nepotism regulations definition of relative. The nepotism regulation definition of relative seems to be a good guideline and/or starting point for the analysis, but even recent decisions with identified conflicting relationships such as cousin, step-daughter-in-law and cohabitating partner, go beyond that list. As in the area of collective negotiations, these decisions have the potential to drive many more school districts into the use of the doctrine of necessity in order to do their administrative personnel business.
Second, in addition to expanding the family relationship group, the SEC expanded the type of employment positions in the school district which would create an administrative personnel conflict, reversing several prior public advisory opinions which advised that substitutes and summer student workers were exempt from administrative conflicts.
A25-14
– A board member whose spouse was a paraprofessional or substitute paraprofessional could not participate in any employment or personnel decisions regarding employees who have influence over or influence the spouse’s employment. The level of the employment position does not affect the potential conflict.
A30-14
– A board member whose son was employed as a summer student worker or whose spouse was employed as a substitute in the district could not participate in any discussion pre- or post-hire, may not engage in any aspect of the vetting process, evaluation, contract discussion or vote regarding the superintendent’s employment. The prohibition includes the selection committee or firm which will conduct the search for the superintendent. These limitations would exist as long as: 1) the son is employed with the district as a summer student worker; or, 2) for the duration of time that the spouse is employed as a substitute teacher in the district.
Clarifying the level of prohibited activities, the SEC further advised in public advisory opinion A05-15 that a board member with a spouse, and a board member with a brother employed in school district could not vote on motion to advertise for a new CSA, could not vote on the hiring of CSA selection agency, could not establish CSA criteria or job description, could not serve on the CSA search committee, could not participate in CSA evaluation and contract discussions post-hire, could not be present in closed session when these matters would be discussed and would not be privy to closed-session minutes until they were made public. Essentially they were out of the process entirely. A05-15 provides an excellent review of school official conflicts in the area of CSA personnel actions, including hiring and evaluation and is readily extrapolated to other supervisory administrators such as school business administrators, assistant superintendents, principals and directors.
Given the sweeping changes in administrative personnel participation, board members and school administrators are encouraged to discuss the ramifications of these opinions at their local board level and consult with their board attorney for advice as to how to proceed.
The advisory opinions have the potential to dramatically increase the use of the doctrine of necessity. We will examine that topic further in a subsequent issue of School Leader.