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New JerseySchool Boards Association
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New JerseySchool Boards Association
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Telephone: 609-695-7600 Toll Free: 1-888-886-5722 Fax: 609-695-0413 Web site: www.njsba.org
FOR THE
FINAL REPORT OF THE
TO: GLENN B. EWAN, PRESIDENT
FROM: WENDY DOUGHERTY, CHAIRPERSON
DATE: NOVEMBER 16, 2002
I am pleased to submit the final report of the Ad Hoc Sending/Receiving Committee-2002 for consideration today.
The committee has completed its charge to study NJSBA’s existing policy position regarding representation of sending boards of education on receiving boards of education (File Code 9300) and three related resolutions submitted to the Delegate Assembly in May 2002, and to make a recommendation to the November 2002 Delegate Assembly.
I wish to thank the committee members who participated in the study for their valuable insights, thoughtful discussion, and hard work. On behalf of the committee, I wish to express appreciation to NJSBA staff members Pat Petracco, Senior Associate Director, Policy & Library Resources, Administrative Assistants, Joan Mancia and Barbara Deveney, for their research and secretarial support to the committee. And, thanks also to Donna Kaye, Senior Associate Counsel for sharing her legal expertise with us.
It was a pleasure to have had the opportunity to work with committee members on this important issue. I hope you will accept our report and policy recommendation.
FINAL REPORT
OF THE
AD HOC SENDING/RECEIVING COMMITTEE – 2002
BY
WENDY DOUGHERTY, CHAIRPERSON
Prepared for the Semiannual Delegate Assembly
November 16, 2002
Introduction
President Glenn B. Ewan appointed a nine-member panel of local school board members to study the issues raised at the May 2002 Delegate Assembly. The formation of the ad hoc Sending/Receiving Committee – 2002 was in response to a recommendation from the delegates in May to address the issues presented in three resolutions from local boards of education: Boonton (Morris County), Butler (Morris County) and Manasquan (Monmouth County). Each of the resolutions sought a change in NJSBA policy regarding the representation of sending boards of education on receiving school boards.
Current policy, File Code 9325.4, adopted by the Delegate Assembly in 1989 states, “NJSBA supports proportional representation of sending boards of education, including voting privileges, in receiving district boards of education.” Resolutions numbers 2, 2-A and 2-B (appended) asked that the NJSBA adopt policy language that would state that the Association would remain neutral on the issue of proportional representation or take a position in opposition to such representation by sending boards of education. The Resolution Subcommittee offered a Substitute Resolved clause recommending that NJSBA continue to support proportional representation for sending school boards, but with additional language that would seek a limitation on voting privileges that exceed the voting privileges of the receiving district’s representatives. The delegate representing the Boonton Board, however, moved the board’s original resolution that proposed the following policy language with regard to sending-receiving representation:
The NJSBA believes that no position should be taken by the Association that negatively impacts on the governance structure of the sending-receiving relationships of New Jersey.
Committee Charge
The ad hoc committee was appointed in mid-June and given the charge to:
Review existing NJSBA policy (File Code 9325.4) on sending-receiving relationships that supports voting privileges and proportional representation of sending districts on receiving boards. The committee will examine related issues presented to the Delegate Assembly in May, including modification of NJSBA policy to limit representation of sending districts or to have NJSBA remain neutral regarding the composition of boards in sending-receiving relationships. The committee will submit recommendations to the November 2002 Delegate Assembly.
Committee Activities
The ad hoc committee met twice during the summer on July 10 and August 7 to deliberate the issues and formulate a recommendation for the November Delegate Assembly.
In researching the issues, committee members referred to an extensive collection of informational documents including:
- Resolutions No. 2, 2-A, and 2-B from the May 18, 2002 Delegate Assembly (Appendix A)
- Pertinent NJSBA policies (3110, 3240, 3350, 6000, 6122, 9300, and 9325.4)
- Statutory references to sending/receiving relationships (N.J.S.A. 18A: 38-1 et.seq.)
- Recent U.S. Court Opinions regarding representation by sending boards of education (Branchburg/Somerville and Lincoln Park/Boonton)
- The Final Report of the ad hoc Committee to Study Sending to Level III Districts – 1989 that is the authority for current NJSBA policy language in filed code 9325.4
- NJSBA’s handbook, Sending/Receiving Districts – Partners in Education
Discussion
Committee members offered comments regarding sending-receiving issues from diverse perspectives in that they represented boards that send students to another district, those that receive students from another district, and a regional high school district that receives students from constituent elementary districts.
While the primary focus of discussion was to resolve the issue of what position, if any, the NJSBA should have regarding representation of sending boards of education on receiving boards of education, a plethora of issues emerged as members shared their experiences at the local level. The frustration of members of sending boards was evident as they shared the difficulty in obtaining information from the receiving boards and statutory limitations placed on their voting privileges. Because current statute places restrictions on the termination of sending/receiving relationships, it is very difficult to receive approval to end a sending-receiving agreement, sending boards may feel trapped in an unsatisfactory relationship in which they have a limited voice. While regionalization may seem to be an option for increased representation, that is often not feasible because it requires both the sending and receiving district’s voters to approve that step, and, there are no incentives to make regionalization desirable.
From the perspective of receiving boards of education, on the other hand, there are good reasons to limit the representation and voting power of members of sending boards of education. The primary one being that the nature of the sending-receiving relationship is a contractual one under which the ultimate responsibility for the school district, including bond indebtedness, rests with the receiving board. Whereas, a regional board of education is a statutorily defined governance body with elected officials from each constituent district. In a regionalized school district each constituent community shares all financial and administrative responsibilities to support the schools and the educational program of the regional school district.
Despite the difficulties that may exist in some sending-receiving relationships, there is evidence to suggest that amicable remedies are available to districts that are willing to work together to develop policies and procedures that promote trust and meaningful participation. It was noted that sending/receiving relationships can exist in absence of any formal contract other than an agreement of the sending board of education to pay tuition for their students. The opinion of the committee, however, is that one of the most effective ways in which sending-receiving relationships can be improved is with a written contract; even though it is possible for good working relationships to exist without one.
Currently by statute ( N.J.S.A.18A:38-1 et. seq.), sending districts whose students represent more than ten percent of the enrollment in the receiving district are entitled to one representative with limited voting privileges. Two or more districts whose students represent in excess of 15 percent may join together to appoint two representatives on a rotating basis. The statute specifies that representatives from the sending boards may vote on the following matters before the receiving district board of education:
- tuition to be charged the sending district by the receiving district and the bill lists or contracts for the purchase, operation or maintenance of facilities, equipment and instructional materials to be used in the education of the pupils of the sending district;
- new capital construction to be used by sending district pupils;
- appointment, transfer or removal of teaching staff members providing services to pupils of the sending district, including any teaching staff member who is a member of the receiving district’s central administrative staff; and
- addition or deletion of curricular and extracurricular programs involving pupils of the sending district.
One statutory exception exists regarding the number of representatives. That is N.J.S.A. 18A:38-4, adopted in 1999, that grants additional representation (up to three members if the students of the sending district comprises at least 40 percent of the total enrollment in grades 9 through 12 of the receiving district) to certain districts in counties of the sixth class bordering on the Atlantic Ocean. Within the parameters set forth in this special statute, only Upper Township (Cape May County) is eligible for increased representation. Currently, Upper Township has three representatives serving on the receiving board of education, increasing number of members of the Ocean City Board of Education to twelve (12).
Among the panel, four issues emerged as the most important concerns that are implicitly related to the issue of representation. They are: (1) make it easier for a sending board of education to end its agreement with a receiving board, (2) provide State incentives to encourage districts in sending-receiving relationships to regionalize, (3) use written contracts to specify the rights and responsibilities of each of the parties in the sending-receiving relationship, and (4) clarification and/or expansion of the voting rights of sending district representatives.
With regard to the specific charge of the committee, members debated the merits of maintaining a position of support for representation of sending boards of education on receiving boards. The four options considered were for NJSBA to: (1) continue to support the concept of proportional representation; (2) support some representation, but not proportional; (3) limit representation so that the receiving board has a majority; and (4) remain neutral on issues related to the governance structure of sending-receiving relationships.
As pointed out in the background write-up for the resolutions from Boonton, Manasquan, and Butler at the May 2002 Delegate Assembly, two recent challenges in federal district court to the statutory sending-receiving formula may alter the balance of representation and voting privileges afforded in favor of sending district representatives (English v. Boonton Board of Education, 161 F. Supp. 2d 344 (D.N.J. 2001 and Branchburg Board of Education v. Board of Education of Somerville, No. 98-5557 (AET) and 9-822 (AET) Consol.) (May 22, 2001). In each of these challenges, the District Court ordered additional representation on the receiving board to reflect the proportionate resident population, applying the “one-man, one-vote” principle. In the case of English v. Boonton Board of Education, the court ordered three new members (based on student enrollment) from the sending district Lincoln Park, thereby bringing the total number of board members to 13. A court-ordered weighted voting scheme would provide Lincoln Park with a majority vote (53%). In August, the U.S. Court of Appeals for the Third Circuit, reversed that decision upholding the New Jersey statute governing a sending district representation, N.J.S.A. 18A: 38-8.2 that limits the number of representatives from a sending board of education to one.
In the Branchburg litigation, under the Court’s order, Branchburg has appointed six (6) members to the Somerville Board each with one vote, giving Branchburg control of 40% of the votes on matters affecting their high school students while enabling Somerville to maintain a majority vote. This case was still in the appeal process when the committee completed its deliberations.
These Court decisions have stirred up controversy and emotions among districts that currently have sending/receiving agreements. Receiving districts do not want to lose a majority voting privilege in their home districts; which is why the three receiving districts submitted resolutions to the May 2002 Delegate Assembly. In their resolutions these boards of education requested that NJSBA adopt a position of “neutrality” on the governance structure of sending-receiving relationships or “opposition” to the concept of proportional representation by sending district boards of education. The rationale they set forth for their position was that all school boards are members of the NJSBA and the Association must represent the interest of all of its members boards. Association policy should not put NJSBA in a position of supporting one board, or group of boards, over others. In this case, a policy supporting proportional representation rights for sending boards of education was viewed as favoring the rights of the sending board over those of the receiving board.
Conclusions
Because sending-receiving relationships can be complex and emotions tend to run high when unresolved issues flare up, a base of NJSBA policies have developed over the years as a result of local district resolutions or committee reports adopted by the Delegate Assembly. This collection of policies attempts to provide guidance for effective sending-receiving partnerships and to seek appropriate State-level relief for problems encountered in the sending/receiving relationship.
The committee reviewed all of the relevant NJSBA policies in light of the four major concerns members had identified. It was concluded that current policy adequately addresses those concerns from both a state-level and local-level perspective. For example:
File Code 6122 supports adequate articulation of curriculum between sending and receiving boards of education, joint meetings of the boards, and citizen participation within the respective communities.
File Code 9300 states several beliefs regarding the governance structure of sending-receiving relationships:
Duration of Sending-Receiving Relationships seeks legislation to provide that a sending-receiving relationship be defined as to its terms and obligations and be of a fixed, definite duration according to statute.
Contractual Relationships expresses the belief that all sending and receiving relations should operate under a term-specific negotiated written contract that would guarantee the rights of each of the parties during the contractual term.
Termination of Sending-Receiving Relationships seeks legislative authority for termination of a sending-receiving relationship when the contract term has expired, one year’s notice is given and the sending district has an appropriate alternative education program for its students.
Dispute Resolution Process supports a regulatory dispute resolution process for issues that cannot be resolved locally by sending and receiving boards of education.
Availability of Receiving District Information supports meaningful communication between sending-receiving districts to include: periodic re-evaluation of the sending-receiving relationship by a neutral party; regularly scheduled meetings between the boards and administrative staff of the districts involved in the relationship; and use of NJSBA resources.
NJSBA policy also states the belief that the delivery of the following materials by the receiving district upon the request of the sending district should be required: a copy of the budget submitted to the county superintendent, board minutes, curriculum guides, district goals and objectives, audits, the master plan, and Middle states and monitoring reports.
One of the recommendations from the 1998 Sending-Receiving subcommittee of the School Finance Committee was for NJSBA to continue serve as a resource for boards operating within a sending-receiving relationship. To that end the Association was committed to develop a sending-receiving handbook to assist both sending and receiving districts, to collect and disseminate best practices information, and providing related training opportunities for boards of education and their administration; all of which are ongoing. (An updated version of The Sending/Receiving Districts – Partners in Education handbook will be available soon.)
File Code 9325.4 Proportional Representation is the policy under consideration as set forth in this committee’s charge. It states, “NJSBA supports proportional representation of sending boards of education, including voting privileges, on receiving district boards of education.” This was a legislative goal of the Association that was achieved with enactment of N.J.S.A. 18A: 38-8, Chapter 8, P.L. 1995.
It was the opinion of the committee the most critical issue as yet unresolved is the termination of sending/receiving contractual agreements when that is desirable. The committee noted that while NJSBA policy supports the ability of a board of education to sever a sending/receiving relationship at the end of a contractual period, current law gives strong authority to the commissioner of education in these cases often making termination virtually impossible. Being bound in a relationship that is no longer working well, inhibits boards of education (both sending and receiving) in making decision that are in the best interest of each community and the education of its children. Therefore, the committee recommends that NJSBA keep the issue a priority in its legislative agenda, seeking a fair and equitable way for sending and receiving districts to terminate a relationship.
There was consensus from the start that when the percentage of students warrants it, having at least one representative from the sending board of education on the receiving board, which is current law, is good public policy. Additional or “proportional” representation, however, was more controversial, particularly in a case where such proportional representation shifted the balance of power to the sending board or boards. As pointed out in the background write-up presented to the May 2002 Delegate Assembly, there are many possible scenarios that could produce unfair results, particularly in decisions regarding central administrative staff and school construction, if representatives of sending boards of education or a combination of sending boards were to comprise a majority. Such a shift in voting power would be particularly egregious if proportional representation was to be based on community population rather than a pupil enrollment factor.
It was concluded that proportional representation, based on the number of students being sent, was fair as long as the receiving district was able to retain a majority voting privilege. A practical reason for limiting the number of sending district representatives is the fact that these board members must do double duty, serving both their local board of education and the receiving board of education. Having a large number of representatives to the receiving board may be detrimental to the board’s operations in the sending districts because its members are overburdened.
Whether proportional representation should be legislated or negotiated locally as part of the sending-receiving contractual agreement, was debated. The conclusion reached was that while many important rights and obligations can and should be incorporated into the contract, it would not be appropriate to negotiate the number of representatives. This should be determined statutorily and applied in the same way for all districts in sending-receiving districts.
Recommendation
The ad hoc Sending/Receiving Committee – 2002 recommends that the following replacement policy language be approved for inclusion in File Code 9325.4 of the NJSBA Manual of Positions and Policies on Education:
The NJSBA believes that sending boards of education should have proportional representation, including voting privileges, on receiving districts’ boards of education. Representation should be determined by the percent of enrollment that students from the sending district(s) comprise among the student population in the grades for which a sending/receiving relationship exists. Representation and voting privileges of a sending board of education or combination of sending boards should be limited to ensure that a receiving district board of education always retains the majority voting privilege.
Name Board/County
Dougherty, Wendy (Chair) Upper Township (Cape May)
Allen, Samuel Millville (Cumberland)
Alpert,Eileen Ho-Ho-Kus (Bergen)
Coffey, Patricia Millstone Township (Monmouth)
Dabrowski, Stanley Wallkill Valley Regional (Sussex)
Jones, Thomas Pittsgrove Township (Salem)
Krajewski, Lili Somerville (Somerset)
Le Febvre, Irene Boonton Town (Morris)
Stauts, William Oaklyn (Camden)
Ex-Officio
Glenn B. Ewan, President
Maurice River Township (Cumberland)
NJSBA Staff
Patricia Petracco, Senior Associate Director, Policy & Library Resources
Joan Mancia, Administrative Assistant
Barbara Deveney, Administrative Assistant
G:DA\November 2002\Committee Reports/ SR Final Report
APPENDIX
Proportional Representation RESOLUTION NO. 2
NEW JERSEY SCHOOL BOARDS ASSOCIATION
P.O. Box 909 413 West State Street
1-888-886-5722 Trenton, NJ 08605-0909
ANNUAL DELEGATE ASSEMBLY
May 18, 2002
The following resolution was received from the
Boonton Board of Education (Morris County):
WHEREAS, N.J.S.A. 18A:6-45 establishes the New Jersey School Boards Association “all boards of education of the various school districts in this State shall be members of the association”; and
WHEREAS, N.J.S.A. 18A:6-46 requires each district board of education to annually select one of its members as a delegate to the association; and
WHEREAS, N.J.S.A. 18A:6-49 allows the association, “to make, amend and repeal rules, regulations and by-laws for its own government and guidance not inconsistent with this title”; and
WHEREAS, N.J.S.A. 18A:6-50 requires all boards of education to “defray the necessary expenses of the association, the various districts boards shall pay the necessary expenses incurred by the delegates, and shall appropriate annually such sums for dues…”; and
WHEREAS, The Boonton Board of Education is a member of the New Jersey School Boards Association and a district which provides Lincoln Park Board of Education with a contractual service through tuition payment to educate all of its 9-12 students pursuant to N.J.S.A. 18A:38-8. et seq.; and
WHEREAS, The New Jersey School Boards Association Delegate Assembly authorized a policy File Code 9325.4 supporting proportional representation of sending boards of education, including voting privilege on receiving boards of education in June 1989 and reaffirmed its policy in November 1998; and
WHEREAS, The U.S. Federal District Court of New Jersey found N.J.S.A. 18A:38-8 et seq. unconstitutional and in applying the legal maxim “one man, one vote” has significantly altered the balance of voting representation at the high school level in favor of the sending district; and
WHEREAS, It is believed that the delegates when adopting File Code 9325.4 on proportional representation did not envision the circumstance of the receiving board being relegated to a voting minority; and
WHEREAS, This position negatively impacts on the governance structure of the sending-receiving relationships of New Jersey by effectively forcing regionalization by a proportional representation; and
WHEREAS, The New Jersey School Boards Association represents 611 school districts in New Jersey and 216 sending-receiving school districts in operation in New Jersey; and
WHEREAS, The Delegate Assembly is the official policy-making body of the New Jersey School Boards Association; and
WHEREAS, Education-related policies from prior Delegate Assembly and Board of Directors actions are codified in the NJSBA’s Manual of Positions and Policies on Education; now, therefore, be it
RESOLVED, That the Boonton Board of Education proposes the following revised policy language for adoption by the Delegate Assembly and inclusion in NJSBA’s Manual of Positions and Policies on Education File Code 9325.4:
The NJSBA believes that no position should be taken by the Association that negatively impacts on the governance structure of the sending-receiving relationships of New Jersey; and, be it further
RESOLVED, That this resolution be placed on the agenda for consideration at the May 18, 2002 Delegate Assembly.
Approved at a regular meeting of
the Boonton Board of Education
on February 25, 2002.
_____________________________
Juanita A. Petty
Board Secretary
g/da/a10Boonton_m02
Proportional Representation RESOLUTION NO. 2-A
NEW JERSEY SCHOOL BOARDS ASSOCIATION
P.O. Box 909 413 West State Street
1-888-886-5722 Trenton, NJ 08605-0909
ANNUAL DELEGATE ASSEMBLY
May 18, 2002
The following resolution was received from the
Manasquan Board of Education (Monmouth County):
WHEREAS, N.J.S.A. 18A:6-45 establishes the New Jersey School Boards Association “all boards of education of the various school districts in this State shall be members of the association”; and
WHEREAS, N.J.S.A. 18A:6-46 requires each district board of education to annually select one of its members as a delegate to the association; and
WHEREAS, N.J.S.A. 18A:6-49 allows the association, “to make, amend and repeal rules, regulations and by-laws for its own government and guidance not inconsistent with this title”; and
WHEREAS, N.J.S.A. 18A:6-50 requires all boards of education to “defray the necessary expenses of the association, the various districts boards shall pay the necessary expenses incurred by the delegates, and shall appropriate annually such sums for dues…”; and
WHEREAS, The Manasquan Board of Education is a member of the New Jersey School Boards Association and a district which provides Belmar, South Belmar, Brielle, Sea Girt, Spring Lake and Spring Lake Heights Boards of Education with a contractual service through tuition payment to educate all of its 9-12 students pursuant to N.J.S.A. 18A:38-8. et seq.; and
WHEREAS, The New Jersey School Boards Association Delegate Assembly authorized a policy supporting proportional representation of sending boards of education, including voting privilege on receiving boards of education in June 1989 and reaffirmed its policy in November 1998; and
WHEREAS, The New Jersey School Boards Association represents 611 school districts in New Jersey and 216 sending-receiving school districts in operation in New Jersey; and
WHEREAS, This position negatively impacts on the governance structure of the send-receive relationships of New Jersey by effectively forcing regionalization in a “taking of the Manasquan Board of Education” by a proportional representation; now, therefore, be it
RESOLVED, That the Delegate Assembly amend its current policy affecting said “proportional representation” to a position of neutrality or opposition to such “taking of one’s chosen governance structure;” and, be it further”
RESOLVED, That this resolution be placed on the agenda for consideration at the May 18, 2002 Delegate Assembly
Approved at a regular meeting of
the Manasquan Board of Education
on February 26, 2002.
_____________________________
Margaret M. Hom
Business Administrator/Board Secretary
Proportional Representation RESOLUTION NO. 2-B
NEW JERSEY SCHOOL BOARDS ASSOCIATION
P.O. Box 909 413 West State Street
1-888-886-5722 Trenton, NJ 08605-0909
ANNUAL DELEGATE ASSEMBLY
May 18, 2002
The following resolution was received from the
Butler Board of Education (Morris County):
WHEREAS, N.J.S.A. 18A:6-45 establishes the New Jersey School Boards Association “all boards of education of the various school districts in this State shall be members of the association”; and
WHEREAS, N.J.S.A. 18A:6-46 requires each district board of education to annually select one of its members as a delegate to the association; and
WHEREAS, N.J.S.A. 18A:6-49 allows the association, “to make, amend and repeal rules, regulations and by-laws for its own government and guidance not inconsistent with this title”; and
WHEREAS, N.J.S.A. 18A:6-50 requires all boards of education to “defray the necessary expenses of the association, the various districts boards shall pay the necessary expenses incurred by the delegates, and shall appropriate annually such sums for dues…”; and
WHEREAS, The Butler Board of Education is a member of the New Jersey School Boards Association and a district which provides Bloomingdale Board of Education with a contractual service through tuition payment to educate all of its 9-12 students pursuant to N.J.S.A. 18A:38-8. et seq.; and
WHEREAS, The New Jersey School Boards Association Delegate Assembly authorized a policy supporting proportional representation of sending boards of education, including voting privilege on receiving boards of education in June 1989 and reaffirmed its policy in November 1998; and
WHEREAS, The New Jersey School Boards Association represents 611 school districts in New Jersey and 216 sending-receiving school districts in operation in New Jersey; and
WHEREAS, This position negatively impacts on the governance structure of the send-receive relationships of New Jersey by effectively forcing regionalization in a “taking of the Butler Board of Education” by a proportional representation; now, therefore, be it
RESOLVED, That Mr. Gilbert Grieder, Butler’s delegate to the New Jersey School Boards Association, be authorized to request of the said Delegate Assembly to amend its current policy affecting said “proportional representation” to a position of neutrality or opposition to such “taking of one’s chosen governance structure;” and, be it further”
RESOLVED, That this resolution be placed on the agenda for consideration at the May 18, 2002 Delegate Assembly
Approved at a regular meeting of
the Butler Board of Education
on February 25, 2002.
_____________________________
Debra Naley-Minenna
School Business Administrator/Board Secretary
RESOLUTION NO. 2
SYNOPSIS
Resolution No. 2 from the Boonton Board of Education (Morris County) proposes revised policy language that would reflect a belief by NJSBA that no position should be taken by the Association that negatively impacts on the governance structure of the sending-receiving relationships of New Jersey. Similar resolutions were submitted by the Manasquan Board of Education (Monmouth County) and the Butler Board of Education (Morris County). These resolutions propose revised policy language stating that NJSBA will adopt a position of neutrality or opposition to a “taking of one’s chosen governance structure” by proportional representation in the sending-receiving relationships.
A sending-receiving relationship is a contract between two districts for educational services to be provided in exchange for a fixed tuition payment. Termination of such relationships is subject to the approval of the Commissioner of Education. N.J.S.A. 18A:38-13.
Prior to 1995, districts that sent their pupils to a receiving district under a sending-receiving contract, had no voice on the board of education of the receiving district. During that time, NJSBA adopted policy expressing its position on the question of representation and voting by sending districts on receiving districts boards of education.
File Code 9325.4, Proportional Representation, was adopted by the June 1989 Delegate Assembly, and reflects the recommendation of the Committee Report of the Committee to Study Sending to Level III Districts. The policy was reaffirmed by the November 1998 Delegate Assembly.
File Code 9325.4 states:
NJSBA supports proportional representation of sending boards of education including voting privileges, on receiving district Boards of Education.
Several years after the adoption of NJSBA’s policy, L. 1995, c. 8 was passed. Under that law, sending boards obtained representation on the receiving district’s board, according to a formula based on proportional pupil enrollment. N.J.S.A. 18A:38-8.2. Board members from sending districts became statutorily eligible to vote, but only on specific matters. N.J.S.A. 18A:38-8.1.
The Commissioner has determined that the sending board’s representative may vote on purely procedural/organizational board matters, such as electing board officers. Little Ferry Bd. of Ed. v. Ridgefield Park Bd. of Ed, 97 S.L.D. (July 24). Pursuant to N.J.S.A. 18A: 38-8.1 they may also vote on:
According to the statutory representation formula, no single sending district may have more than one representative on the receiving board. There is one statutory exception, N.J.S.A. 18A:38-8.4, under which a 9-12 district in a city of the sixth class with a resident enrollment of between 2400 and 2600 pupils, may have up to 3 representatives where the sending district’s pupils make up 40% of the receiving district’s total enrollment. This statute was tailored to meet the needs of the Ocean City/Upper Township sending-receiving relationship.
There have been two recent challenges in federal district court, to the statutory send-receive formula, one of them involving the Boonton Board, and the Lincoln Park Board’s challenge to its representation thereon. The other matter involves the Branchburg Board’s challenge to its representation on the Somerville Board. In each of these matters, the sending district claimed that the statutory formula providing for only one representative, deprived it of an effective voice. In each case the district asked the Court to declare that the statutory formula deprived it of the equal protection, constitutional right to “one-person, one-vote.”
This “one-person, one-vote” principle had never been applied before to render a sending-receiving relationship unconstitutional. However, regional representational schemes have been deemed unconstitutional for failure to assure one-person, one-vote. Franklin Township v. Board of Ed. of North Hunterdon Regional High School, 74 N.J. 345 (1977) cert. den. 435 U.S. 950; Marlboro v. Board of Ed of Freehold Regional High School, D. N.J. 1998, 992 F. Supp. 756, supplemented 9 F. Supp. 2d 500.
In each of these challenges to the sending district’s representation, the District Court ordered additional representation on the receiving board to reflect the proportionate resident population.
In Boonton’s matter, the Court asked the Commissioner to fashion a solution. The Commissioner proposed a solution similar to that contained in N.J.S.A. 18A:38-8.4, wherein the maximum number of representatives from the sending district would be three. The Court, finding that this solution did not rectify the unconstitutionality, ordered a weighted voting system. English v. Boonton Board of Education, 161 F. Supp. 2d 344 (D.N.J. 2001). The Court ordered three new members from Lincoln Park to the Boonton Board, bringing the total to 13. The weight of the votes of these representatives would be determined by “using the student composition of the Boonton school district as a proxy for the relative interests of the citizens of Lincoln Park and Boonton.” The votes would be weighted so that on issues affecting only the high school, Lincoln Park would have 53% of the total vote. For district-wide issues, where the Lincoln Park students represented a lesser proportion of the total school population, the Lincoln Park citizens would be represented by approximately 23% of the Lincoln Park members’ votes. However, a stay of the District Court’s order was granted by the Third Circuit Court of Appeals pending a full hearing; therefore the weighted voting scheme is currently on hold and the Boonton Board is operating with only one member from Lincoln Park.
In the Branchburg litigation, the United States District Court ordered a remedial plan whereby Branchburg would appoint six (6) members to the Somerville board each with one vote, giving Branchburg control of 40% of the votes on matters affecting their high school students while enabling Somerville to maintain a majority vote. Branchburg Board of Education v. Board of Education of Somerville, et al., No. 98-5557 (AET) and 99-822 (AET) (Consol.) (May 22, 2001). Somerville's motion to stay the remedial plan was denied because under the plan Somerville maintained the majority vote. That matter, too, is on appeal.
DISCUSSION
The legal parameters of sending board representation on a receiving board are currently in litigation. The Court of Appeals will consider whether the district court was correct to rule that the Constitution requires proportional representation by the sending board on the receiving district’s board. The Court will also consider whether such proportional representation must be effectuated even where it would tip the balance of voting power on the receiving board.
The litigation aside, the Committee to Study Sending to Level III Districts found practical and equitable justification for providing a sending board with proportional representation on its receiving district’s board. Proportional representation would afford a sending district meaningful representation and participation in discussions and/or decisions that directly affect the sending district’s pupils. That justification rings as true today as it did in 1989. In many sending-receiving districts, pupils from the sending district represent a substantial proportion of the receiving district’s school population. Permitting greater representation than the one seat, one vote that is currently permitted by statute, affords a sending district meaningful participation in decisions that have an impact on its pupils, including decisions involving staffing, supervision and discipline of students, curricula, extracurricular activities, tuition and construction.
On the other hand, permitting a sending district to have a controlling majority on a receiving district’s board could seriously impact the rights of voters in the receiving district. The following scenarios serve as examples of how a sending district in control of the majority could produce unfair results:
· Because the basis for the one-person, one-vote principle is on district population, a situation could arise where the sending district’s voting population outnumbers the receiving district’s voting population, but the sending district sends very few pupils to the receiving district’s school. The sending district would have a controlling majority on the board because of its resident population, and could then direct the outcome of staffing and other issues that have a disproportionately large effect on the receiving district’ pupils.
· A situation could arise where even though the high school pupils of a K-8 sending district constitute a majority of high school pupils in the receiving district, they only constitute a minority of pupils when added to the entire receiving district. Yet the sending representatives could control issues such as whether to hire or fire central administrative staff including the CSA, who serve all levels of the school.
· In the area of school construction, a sending district’s majority could require that the question of construction be placed before the receiving district’s voters, over the objections of the receiving district’s board members. This decision to place the question on the ballot would belong to the sending district, even though the receiving district’s taxpayers would have to approve the measure, even though the construction costs would be absorbed by the taxpayers of the receiving district (except for debt service which may be passed on through tuition charges to the sending district, see N.J.A.C. 6A:23.3.1) and even though the sending district could later seek the Commissioner’s approval to withdraw from the sending-receiving relationship thereby leaving the receiving district with buildings that it may not need (and except as it may have agreed to remain in the relationship for a certain term of years pursuant to N.J.S.A.18A:38-20).
Given the contractual nature of the sending-receiving relationship, a fair accommodation of the interests of each party to a sending-receiving contract would include a system of proportional voting, but only to the extent that it does not vest control of the board in the sending district. Such a balance of the interests of the parties recognizes that a sending district may have to make certain concessions and compromises in exchange for obtaining the educational services of a receiving district for its pupils. It is reasonable for a sending district to forego attaining a majority voice on the receiving district’s board, in exchange for obtaining the educational services of the receiving district.
A school district that feels disenfranchised by this arrangement may, alternatively, form a regional school district with other area school districts. N.J.S.A. 18A:13-4, 13-5, 13-8. A regional school district is jointly controlled by its constituent districts. The costs of operating the regional district are borne by the taxpayers in all of the constituent districts. The one-person, one-vote standard is applicable to regional school districts.
Existing NJSBA policy, File Code 9325.4, was written in 1989 at a time when the sending district had no vote at all on the receiving district’s board, and does not address the situation of proportionate voting that tips the balance of power on the board. Informal discussions with the NJSBA staff liaison assigned to the Committee to Study Sending to Level III Districts reveal that, while the Committee recognized that a change in the controlling majority could occur under a proportionate voting scheme leading to a possible adverse impact on the receiving district’s taxpayers, the Committee neither discussed nor resolved what its position would be under such circumstances.
STATEMENT OF REASONS
1. Sending boards should have greater representation than the one seat, one vote that is currently permitted by statute.
2. Proportional representation affords a sending district meaningful representation and participation in discussion and/or decisions that directly affect the sending district’s pupils.
3. Permitting a sending district to have a controlling majority on a receiving district’s board could have a serious impact on the rights of voters in the receiving district.
4. It is reasonable for a sending district to be prevented from attaining a majority voice on the receiving district’s board in exchange for obtaining the educational services of the receiving district.
5. A system of proportional voting, but only to the extent that it does not vest control of the board in the sending district, fairly accommodates the interests of each party to a sending-receiving relationship.
6. A school district that thinks it has been disenfranchised by this arrangement may, alternatively, join a regional school district, where it will be entitled to proportional representation.
7. Existing Association policy regarding proportional representation does not address the situation of a sending district’s representatives obtaining majority control on the receiving district’s board.
RECOMMENDATION
The Resolutions Subcommittee recommends that these resolutions be approved with the following substitute resolved clause for adoption by the Delegate Assembly and inclusion in the NJSBA Manual of Positions and Policies on Education which would replace existing policy for File Code 9325.4:
RESOLVED, The NJSBA believes that sending districts should have proportional representation on receiving boards of education, but any proportional representation should not include voting privileges that exceed the voting privileges of the receiving district’s representatives.