Farewell – and Thank You

Across the country, high schools, colleges and universities have been conducting their graduation ceremonies. On May 19, I celebrated my own passage – from being NJSBA’s president to its immediate past president.

My two-year term has been challenging, exciting and inspiring. I am proud of what NJSBA has accomplished during this time. A few of the highlights include:

We saved our member school districts money through NJSBA’s energy consortium—the Alliance for Competitive Energy Services. Over the past three years, ACES saved over 400 member school districts more than $62 million in electricity costs. Next year it will save an additional $41 million. NJSBA has also introduced other money-saving consortiums: NJEDge for technology purchasing, and USBAflex for district flexible spending accounts.

We launched several communications initiatives, including Education Matters, an internet video program that focuses on school governance issues; and a re-tooled, user-friendly NJSBA website. NJSBA’s social media enterprise has successfully employed Facebook, Twitter, and YouTube to reach members and non-members, and the Association has had continued success with Conversations on New Jersey Education, an internet radio show. We re-imagined Workshop to focus on the improvement of boards of education – not only as governmental policy makers but also as leaders in advancing student growth and learning.

Meanwhile, our Legal, Labor Relations and Policy staff continues to provide high levels of service in areas, such as teacher contract analysis, direct telephone assistance with staff attorneys, and our Critical Policy Reference Manual, while our field service representatives go onsite to local school boards over 1,500 times each year.

When I began my term as president, my goal was to move an affirmative agenda, part of which involved two-way – and not top-down – communication. Our members’ thoughts, concerns and ideas are every bit as important – every bit as interesting – as the messages we convey from the Association headquarters. That approach is represented in the online reader surveys and it’s a focus of our weekly political news blogs.

Looking ahead, there are challenges NJSBA will face, as well. I am concerned at what I see as an erosion of local governance over our schools. I lay out my thoughts in detail in an article beginning on page 29. Yet I believe that our new strategic plan, which was approved by the Board of Directors on May 18, outlines a bright future – one that is built on a successful past.

During my tenure as president it has been my privilege to work with our executive director, Marie Bilik. As you may know, Marie has given official notice of her retirement, effective Dec. 31. Although she will not be retiring for several months, I want to express my gratitude to her for her leadership, for the insight that she has provided to our Association’s officers, and for her sincere concern for the schoolchildren of New Jersey.

I also want to thank my fellow officers for their support and guidance. I look forward to working with NJSBA’s new president, John Bulina, as he takes the helm at the Association.

But most of all I want to thank the members of NJSBA for the opportunity to serve as your president. Over the past two years I have talked with countless board members at NJSBA training sessions, at Workshop, and at county school boards association meetings. I have been impressed by your dedication, your knowledge of education governance and your concern for the state’s schoolchildren. New Jersey has some of the finest public schools anywhere. That is no accident because it also has some of the finest school board members anywhere.

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Get Your Money's Worth

Two veteran board attorneys explain how to get the most out of your board’s legal counsel

By Brenda Liss and David B. Rubin

Every year at the reorganization meeting, the board of education appoints an attorney – and sometimes two or three – to serve as board counsel. Every month, the attorneys’ bills arrive and are paid. Every year, the district budget includes a substantial line item for legal fees.

In many districts, board counsel works behind the scenes and, unless an attorney is needed to discuss a specific issue with the full board, they never attend board meetings and board members might never even meet them. In some districts, only the superintendent and school business administrator are permitted to contact board counsel to request services or ask for advice. In order to control costs, board counsel is expected – like a good child – to speak only when spoken to, or – like the fire department – to come only when called.

In other districts, counsel attends and participates in every public board meeting and every closed session. In some, the board attorney is the district spokesperson in negotiations and other labor relations matters. In some, at least one administrator – the superintendent, business administrator, director of human resources, director of special services, or principal – consults with the board attorney almost daily. In some, counsel is brought in on any matter involving law enforcement and any matter in which another party – a parent, employee or vendor – is represented by an attorney.

What services should you expect of the board attorney? How can boards of education and district administrators take advantage of their attorneys’ knowledge and expertise, and utilize their services efficiently? What should boards not expect of their attorneys? The answer is that board counsel can play several roles – advocate, advisor, sounding board, spokesperson – but the attorney is not an educator or policy maker, and in the event of an internal board dispute, members should not expect board counsel to play the role of accomplice or mediator.

Advocate

First, board counsel should be a skilled and knowledgeable advocate. The attorney’s job is to present the best possible case, in whatever forum the case must be presented. The goal is to achieve the desired outcome. That means getting all the facts, understanding the context, identifying the legal issues, and presenting the best possible argument. It means recognizing that winning isn’t always possible, and when the desired outcome proves elusive, explaining what happened and why.

Advisor

Board counsel should be a trusted advisor. As Abraham Lincoln said, “A lawyer’s time and advice are his stock in trade.” These words are a good guide to what any client, including a board of education or school administrator, can and should expect of his or her attorney. Counsel should be available to provide legal advice on any of the myriad questions that arise in governing and administering a district. Those questions range from scheduling board meetings (“How much notice is needed?”) to conducting meetings (“Can we limit public comment?”) to school ethics (“Do these facts present a conflict?”) to personnel matters (“How much sick leave is this employee entitled to?”) to tenure (“When will this employee get tenure?”) and seniority (“If we cut staff, does this teacher “bump” that one?”) to employee discipline (is this “just cause”?) to student discipline (“Can we expel this student?”) to residency (“Is this student entitled to attend in this district?”) to special education (“Can we deny this request?”) to procurement (“Can we accept this bid?”).

Some questions require a quick response (“The police are on their way; should we call the parent?”). Counsel should be reachable and capable of providing at least preliminary advice on a moment’s notice. The answers will not always be clear, however. When they’re not, counsel should research the law, including relevant statutes, regulations, and decisions of the courts, the commissioner of education and other agencies. Legal research takes time – hence, Lincoln’s “time and advice…” You should expect counsel to take the necessary time to conduct thorough research to get the best possible answer, and to provide that answer reasonably promptly.

Sounding Board

The district administration should work as a management team, and board counsel should be part of the team. Administrators should call on the board attorney before emergencies arise, to help avoid crises. Often, the attorney’s perspective will differ from that of the superintendent or business administrator, and will be worth considering. The attorney may ask probing questions, such as “Do you have a legitimate pedagogical reason for that decision?” If an administrator can’t persuade board counsel of his reasoning, perhaps the decision should be reconsidered. The attorney may recommend a different course of action, and explain why the alternative is prudent or advisable. Clients often ask, “If they sue, will we win?” The attorney should give a realistic appraisal of the risks and likely outcome, and part of the answer should be, “The goal is not to win, but to avoid a lawsuit.” If possible, counsel should keep the board out of trouble.

Of course, lawyers don’t have all the answers, and they can’t always predict the future. Situations faced by school administrators are many-faceted, involving not only legal questions but fiscal, political, ethical and educational considerations. The more complex the situation, the more valuable the board attorney can be in the role of sounding board. Even without providing specific advice, the attorney’s insight and probing questions can provide invaluable assistance for an administrator.

Spokesperson

Typically, the attorney’s response to an inquiry from the public, the press or a potential adversary is “no comment.” That doesn’t always go over well, but sometimes the risk of providing too much information outweighs the public relations backlash. When the topic is complex or controversial, the board may wish to have counsel answer the questions. If the questions are being posed by a lawyer, the board is strongly advised to have its own counsel respond on its behalf.

Not a Decision-Maker

Counsel should be a trusted advisor, but not a decision-maker. Counsel can ask for the pedagogical reason behind a decision, but shouldn’t second-guess the pedagogy. The attorney can’t decide appropriate discipline (“Should the suspension be five days or ten?”), or standards (“Is this employee’s performance satisfactory?”), or exercise discretion in policy matters (“Should we charge activity fees?” “Should we move the school election?”), or allocate resources (“Where do we draw the line on salaries?”). All these questions involve legal issues, but ultimately they are questions of policy and administration rather than law, for the administration and board, not counsel.

Not an Accomplice

“Split boards” pose special challenges for the board attorney. There is nothing improper or unhealthy about board members aligning themselves along philosophical lines, or a majority faction exerting its will over the minority. This is the norm for public bodies at all levels, and too much unanimity can earn the board a reputation as a “rubber stamp.” Parliamentary procedure allows for fair and efficient decision-making by majority rule with respect for minority rights. But when the majority attempts to enlist the board attorney as an accomplice in excluding others from decision-making, ethics problems can arise.

Board attorneys are bound by the Rules of Professional Conduct, the ethics code governing the practice of law. These rules provide that attorneys for institutional clients, like corporations or public bodies, owe their professional duty to the entity itself, not to any faction or member of the leadership team. The board attorney may have day-to-day contact only with the superintendent, business administrator or board president, but those dealing with the attorney must be mindful that the attorney deals with them solely in their capacity as agents of the client, the board. Attorneys have an ethical obligation to assure that board members and administrators are aware that the client is the board, not them, when necessary to avoid confusion. In a split board scenario, a board attorney who takes up sides with one faction against another creates an unethical conflict of interest.

Dealings between the board attorney and members of a split board also have implications for the attorney-client privilege. New Jersey law generally protects the confidentiality of communications between an attorney and her client. This privilege belongs to the client which is the board as a whole, not any individual member or faction. A member who communicates with the board attorney on district business has no reasonable expectation of privacy in that conversation vis-à-vis the rest of the board.

Board members who forget that the client is the board, and attorneys who fail to remind them when necessary, can face embarrassing consequences. A case in point is a 1976 opinion, New Jersey Advisory Committee on Professional Ethics Opinion 327 (Apr. 8, 1976), involving a board member who sought the attorney’s help in drafting a resolution censuring a fellow board member, but asked the attorney to keep it confidential as he was not sure he was going to introduce it. The attorney did as requested, and the resolution was never introduced but, when the board later got wind of it and directed the attorney to share what he had drafted, he sought guidance from state attorney ethics authorities.

The ethics panel observed that “the board member did not consult [the board attorney] as his individual attorney, but rather as the attorney for the board, to have the attorney draft a resolution for the board[,]” and held that “[t]he member was not, therefore, in a position to demand secrecy or confidential treatment as to matters germane to the board’s business. If the attorney had understood that the member was demanding secrecy or confidential treatment as against the board, he should have made it clear that he could not accept such confidences.”

Split board majorities also should be mindful of a School Ethics Commission case, In the Matter of Paul Schaeder, New Jersey School Ethics Commission Docket Nos. C03/C04/C06/C07/C12-03 (September 23, 2003), where the chairperson of a three-member charter school board confronted the school’s director with a severance agreement that he demanded she sign or face termination. The chairperson had instructed the board attorney to prepare the agreement in advance, and had shared his intentions ahead of time with one other board member, but not with the third member, whom he did not trust to keep the matter confidential. The Commission held that “under New Jersey’s Code of Ethics for School Board members, one board member does not have the right to determine that another board member will be denied access to the same information as the other board members.” Although the board attorney’s behavior was not directly implicated, he clearly placed himself in a position of peril by unwittingly aiding the board chairman in the commission of an ethics violation.

Attorneys for split boards may learn of actions by the majority or the minority that are unlawful or contrary to the interests of the board as a whole. An attorney’s right or obligation to blow the whistle on a client’s misconduct has received much attention in the wake of corporate scandals over the past few decades, and the Rules of Professional Conduct reflect this. Board members should know that, under the rules, the board attorney may disclose confidential attorney-client information to outside authorities when the board “has acted to further the personal or financial interests of members of [the board] which are in conflict with the interests of the organization,” and “revealing the information is necessary in the best interest of the organization.”

In summary, the board attorney is the board attorney. Members and administrators should utilize counsel’s skills and knowledge to their full advantage for the benefit of the board, bearing in mind the attorney’s proper role and relevant ethics considerations.

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Brenda Liss is counsel in the school law group at Riker Danzig. David B. Rubin is an attorney based in Metuchen.

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Creating an Atmosphere of Growth

By Mary Ann Friedman

Think about the last time you attended a great training program. You probably left the program feeling very motivated to use the new information you had been given. You probably couldn’t wait to share the things you’d learned with someone else. That was a great feeling, wasn’t it?

I’ve just finished reading The Happiness Project by Gretchen Rubin, a book I’d recommend to everyone. Rubin wrote about her need to develop an ‘atmosphere of growth.’ Creating an atmosphere of growth will provide your board with training opportunities and professional development that can focus on the board’s specific needs, such as team building, effective committee/board meetings, board governance, ethics, communicating with your public, and goal-setting.

Wouldn’t it be wonderful to create an atmosphere of growth at the board level so that boards could truly model continuous improvement?

Mandatory Training Requirements

Most board members, both new and seasoned, agree that there is always more to learn.

Newly elected or appointed board members must attend New Board Member Orientation during the first year of their first term. In the second and third years of their first term, they must attend Governance I and Governance II; in the first year of any re-elected or reappointed term they attend Governance IV, which is an update on school law. NJSBA conducts all of these training several times during the course of the year.

Veteran board members also acknowledge a need to “keep current” with new initiatives and are required to receive training in the first year of a re-elected or re-appointed term.

All stakeholders in education are focused on the need for continuous improvement for our students. Boards will often include clauses in contracts for professional development for administrators, teachers and staff. How often do board members consider professional development for the board? Is training attended only when it’s mandatory, or would we consider developing an atmosphere of growth for our board as well?

Board members are very busy with personal lives and work commitments, not to mention all the other things they are involved in besides their board responsibilities. So it’s easy to feel that there’s not enough time for professional development. As your board begins to schedule goal-setting sessions to develop district and board goals, consider creating an atmosphere of growth as a board of education goal for the upcoming year.

When the board actively participates in ongoing training, it models its commitment to professional development and continuous improvement for administrators, staff, students and the community. Many boards make the commitment to begin their meeting an hour early for training purposes several times a year. Your NJSBA field service representative (FSR) can provide this training on topics that are relevant and speak to current issues affecting your board or district.

Additional Training Opportunities

There are many ways that you can attend or receive training to continually educate yourself, create an atmosphere of growth and provide continuous improvement at the board level.

NJSBA’s Board Member Academy Established in 1992, NJSBA’s Board Member Academy provides an opportunity for board members to receive individual and board academy credit for classes/workshops. Programs focus on the core aspects of effective board governance, leadership, collective bargaining/negotiations, school law, public relations, policy development, etc.

Academy Credits can be used to achieve three levels of individual board member certifications: Certificated Board Member (CBM), Master Board Member (MBM), and Certified Board Leader (CBL). Each requires a prescribed number of academy credits to be earned.

In addition to individual board certification programs, full boards can also achieve certification by achieving Board Certification (BC), Board Recertification and the Carole E. Larsen Master Board Certification (MBC). Boards earn certification by having NJSBA staff conduct programs designed especially for them that address core areas of board governance. Your field service representative will be happy to work with your board to design a plan to achieve certification.

Detailed information on the above certification programs is available by visiting our website: www.njsba.org and clicking on the “Training” tab.

Education and Training Each time you invite your FSR to come into the district and work with the board, Academy Credits are received by the board toward achieving certification. Field service representatives are available to assist in developing programs specifically designed to meet your board’s needs. Your FSR will be happy to provide your board with a list of training programs and review the certification programs available. Locate your FSR on our website under the “Resources” tab and click on “Field Services” or call (609) 278-5255.

County Association Meetings Each county in the state has a County School Boards Association with meetings held several times per year. The county meetings provide an opportunity to network with other board members, provide legislative updates and training sessions on interesting and relevant topics. Individual academy credits are earned. County programs can be found on our website under the “Training” tab; click on “County Programs.”

NJSBA Annual Workshop Held in Atlantic City in October, NJSBA’s Annual Workshop is the largest training and information conference for New Jersey public school officials and provides the information you need to excel in your board leadership role. NJSBA conducts sessions of board member mandatory training courses, as well as Action Labs and Group Sessions on a variety of education topics. Board Member Academy credits are earned for many of the training sessions.

There is no shortage of opportunities for school board members to learn boardsmanship skills and to become more knowledgeable about current education issues of the day by undertaking their own professional development. Doing so will yield a valuable bonus: you’ll help to foster an “atmosphere of growth” in your own district.

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Mary Ann Friedman is an NJSBA field service representative.

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A Winning Program in Lumberton

By Janet Bamford

A program for eighth grade students in the Lumberton schools gained national attention in April when it was honored with a honorable mention in the Magna Awards from the National School Boards Association.

The awards recognize innovative programs that advance student learning, promote a district’s mission, are developed or actively supported by the school board, and can be replicated by other school boards with similar conditions and resources.

The Men of Distinction/Girls in Action program at Lumberton Township school district in Burlington County meets all those qualifications. The program was designed to help eighth grade students with issues of leadership, empowerment and social status through mentoring from teachers and from other students.

Men of Distinction began in September 2010 when Peter DeFeo, was a new assistant principal at Lumberton Middle School. “I deal with discipline issues, and we were getting boys in the office who were mistreating girls,” said DeFeo. “They just didn’t know how to act, so I figured we could put together this program to teach boys how to be real men – not the men like they see on MTV.”

DeFeo, along with Eric Brown, a social studies teacher, and James Cummings, a social studies and science teacher, meet once a month with about 20 boys. DeFeo asked each eighth grade teacher to “nominate” one boy he or she thought needed the program, and one who was already a leader. “It’s important for the kids who struggle to have peer role models, and it’s good for the positive peer role models to hear the opinions of the kids who struggle. Everyone has something to contribute.”

The educators use several resources in planning their meetings, including the book “Season of Life,” by Jeffrey Marx. The book is about Joe Ehrmann, a former Baltimore Colts football player, who became a minister and a volunteer football coach known for imparting valuable life lessons to players.

The after-school meetings include team-building activities and discussions. “We talk about what real manhood is, and how you should treat people with respect,” says DeFeo. “We talk about peer pressure and self-respect. At the first meeting we taught them how to shake hands. It sounds elementary, but we told them when you shake someone’s hand, you give a firm handshake, you say their name and look them in the eye and you show them respect.”

The boys organized a Talent Showcase for all students, and raised money for a foundation that helps returning soldiers. “We have seen some kids’ behavior improve drastically,” says DeFeo. “We have had some kids stay pretty much the same, but we have definitely seen improvement in many kids in both behavior and in their grades and school work.”

Girls in Action includes about 15 eighth – grade girls. The program was started five years ago by two social studies teachers, Sue Brennan and Debbie Bruhn. “A primary goal of Girls in Action is to teach young girls leadership and empowerment strategies so they have the tools to create their own paths and achieve any goal,” says Sue Brennan.

The students are recommended for participation by their teachers. “We ask the staff for recommendations regarding girls that they see as having an interest in female-based issues,” says Brennan. The program meets every other week after school.

Among the topics covered in the group: developing a personal leadership style, honoring different perspectives, obstacles that female leaders must navigate through, and how to handle harassment or disrespect.

“There is a major emphasis on applied leadership,” says Brennan. “The girls planned and led an assembly for the entire eighth grade on the women’s rights movement, and they planned and delivered lessons to the fifth grade classes on empowerment.” The girls also organized a community-wide walk-a-thon that benefitted Lance Armstrong’s Livestrong Foundation.

The Girls in Action advisers consistently see their students learning strategies and gaining lifelong skills. “These girls leave this experience truly feeling they can achieve anything and that they have the power within themselves to completely set the world on fire,” says Brennan.

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Janet Bamford is managing editor of School Leader.