Recently, along with John Burns, NJSBA counsel, I had the honor of presenting a program on changes in the NJSBA’s model policies on nepotism in the Critical Policy Reference Manual (CPRM) at NJSBA ’s Summer Leadership Conference.
In January the School Ethics Commission (SEC) released 36 previously unpublished advisory opinions that prompted the NJSBA legal and policy departments to review and revise the nepotism policies (4112.8 and 4212.8).
Additional Complexity
The quick takeaway from the SEC’s opinions is this: determining whether or not a board member has a disqualifying conflict of interest has become more confusing. In addition, the rules on whether a board member can take part in a board activity depends on the activity –employment decisions, participation in the collective negotiations process, voting on the negotiated agreement, the selection and hiring of the chief school administrator, the selection of a superintendent search vendor, and participation in the evaluation of the chief school administrator. It is so confusing that if you contact NJSBA with a policy inquiry and begin with a phrase like “my mother’s sister’s stepson…” your policy consultants will regale the many exemplary qualities of the fine NJSBA legal and labor relations department and politely transfer you over, while we wipe the sweat from our brows.
The policy update prepared by the policy and legal sections expands the section on definitions. While the definitions of “relative” and “immediate family member” are relevant to the nepotism regulations, the SEC, through advisory opinions and case law, has created a broader definition of conflicted relationships that goes beyond the regulations. Conflicted relationships defined in the SEC advisory opinions that are beyond the definitions of relative and immediate family member are categorized as “other” by the SEC and are similarly characterized in the revised policy. They include in-laws, cousin, cohabitating partner, and step daughter-in-law and any other personal or professional relationship that creates the justifiable impression that the public trust is being violated.
Therefore, in reading the policy, the phrases “conflicted member” and “conflicted relationship” include all the conflicted ties defined in the nepotism regulations for relatives and immediate family members, as well as the “other” connections that were the subjects of the rulings.
The policy was restructured and the different restricted activities are covered under subheadings which include: employment and supervision, exceptions regarding employment, participation in negotiations. We added a section on doctrine of necessity. The broader spectrum of conflicts, including any conflict that creates a justifiable impression that the public trust is being violated, may cause an increased incidence of boards that have a majority of the membership conflicted and the need to invoke the doctrine of necessity.
The nepotism policies at 4112.8 and 4212.8 are file coded in the staff section. They apply to board members but also apply to employment, to the chief school administrator and any administrator who has supervisory responsibilities over staff. When board members are concerned about a conflict, 4112.8 Nepotism (4212.8 is identical to 4112.8) and 9270 Conflict of Interest should be reviewed simultaneously.
It is unreasonable to expect that a board member will become an expert on the various ties that create a conflict and restrict participation in some important areas of board oversight. Reviewing the policies helps the board member determine if there is a possibility that he or she is conflicted, however, if the connection is remote or questionable in any way, it is advisable to consult your board attorney.
The accountability regulations govern the use of the board attorney and may require the approval of the board president before the board attorney may be consulted. This is one area where approval to consult the board attorney protects the member and the board and helps preserve the public trust in the district leadership.
Take a moment to test yourself on conflicts of interest with our 10 question-and-answer true and false quiz, and think about who you may be connected to with the quiz.
If you are interested in reading more about the advisory opinions that impact your ability to participate fully in board oversight areas related to employment and negotiations please see the article, “School Ethics Commission Issues Public Advisory Opinions,” prepared by the NJSBA legal department.
To access the CPRM, the policy update list and legal reference, go to the Policy webpage. You may download policies and legal references 4112.8 and 4212.8 Nepotism from the Policy Update List or the CPRM.
If you have questions, please contact Jean Harkness at (609)278-5268 or Steve McGettigan, policy manager at (609)278-5365.