In this third of a four-part series detailing the action taken by the School Ethics Commission at its meeting on Nov. 26, 2024, we will review the remaining five advisory opinions made public by the SEC (A07-24; A09-24; A11-24; A13-24; and A14-24). In the final part of our series, we will discuss the five matters that were dismissed by the SEC (C122-22; C21-24; C24-24; C32-24; C34-24), and the six decisions that were adopted by the SEC for those school officials who failed to file their 2024 Personal/Relative and Financial Disclosure Statements (2024 Disclosure Statements) by April 30, 2024 (D01-24; D02-24; D03-24; D04-24; D05-24; and D06-24).
Remaining Public Advisory Opinions
A07-24: Board member A and board member B own an ice cream shop together, and it is the “only ice cream store in the municipality.” The board members have received inquiries about hosting fundraisers in which they would sell ice cream “during particular hours, with a percentage of sales during that period being donated to a local entity.” The board members have received inquiries from several district groups/clubs/teams to host fundraisers and have also been asked to advertise in the high school theater group’s playbill, in the yearbook and to contribute gift certificates from their shop to “Tricky Trays.” The board members are also interested in employing minors – who could be district students – in accordance with appliable laws. Advice was sought as to the permissibility of each issue set forth in the request.
According to the SEC, the board members would violate the Act if they and/or the shop were to host fundraisers for any district-related organization or team, regardless of whether the fundraiser was held at the shop or at a district location and would also violate the Act if they contribute gift certificates to “Tricky Trays.”
As for advertising in the high school yearbook and in the high school theater group’s playbill, the SEC advised that “general advertisement in these publications when sought by organizations … would not be a violation of the Act.” However, when responding to a general solicitation for an advertisement, the board members “must be treated equally and must not be given preferential treatment in the costs to advertise or be given a preferential location of their advertisement, absent paying a higher fee available to anyone who may wish to pay more for such placement.”
Finally, if a district student applies for employment at the shop, the board members should not provide that student any benefit, and should view their application as they would any other application. In addition, if a district student(s) is selected for employment, the board members must refrain from participating in all matters related to that student(s) that may come before the board.
A09-24: A board member has an adult child who resides with the board member and is employed by a “third-party provider” as a substitute teacher in the district. The adult child does not have, and has never had, a contract with the board. The adult child also “acted as a musical director, a stipend[ed] position,” for the 2022-2023 and 2023-2024 school years, and may apply for the same position in the 2024-2025 school year. Advice was sought as to whether the board member would violate the act if they participated in the evaluation of the superintendent.
The SEC advised that if the stipend is a “traditionally bargained-for line item during negotiations,” and if the board member’s adult child reports to an administrator who ultimately reports to the superintendent, then the stipend would be inextricably linked not only to the superintendent but also to the administrator who oversees the activity. In this situation, the board member would have a direct financial involvement that might reasonably be expected to impair their objectivity. As a result, the adult child’s stipend position would create a conflict for the board member sufficient to bar their involvement in matters related to the stipend, the superintendent and the administrator(s) who oversees the position, and the negotiations related to the position that comes with the stipend.
A11-24: While serving on the board, a board member accepted employment with a law firm. Before accepting this employment, the board member and another district employee were represented by the law firm in their respective lawsuits against the district. The board member’s lawsuit concerned a request for indemnification (attorney’s fees) from the board. Although the matters remain pending, the board member agreed to recuse from both matters. In addition, the law firm has “walled off” the board member from involvement in any matter(s) related to the district. Advice was sought as to whether the board member could vote to appoint an individual to fill a vacancy on the board.
After recognizing the board member’s efforts to “excuse themselves from executive session conversations regarding both cases,” the SEC advised that the board member “would not violate the Act if (they) were to continue to participate in the discussion and/or votes related to a candidate who is being considered to fill a board vacancy.”
The SEC additionally advised that the board member “should continue to recuse from any and all future matters concerning the employer and/or all discussions and votes concerning any legal advice/assistance that the employer could potentially provide to a district employee,” which presumably refers to any and all matters in which the board member’s employer is serving as counsel.
A13-24: A board member has an aunt who is employed by the district as an administrative assistant to the director of curriculum. The aunt’s position is not covered by the agreement with the local education association, and each administrative assistant negotiates their contract with the board as an individual employee. The director is also not a member of the local educational association, and instead is a member of a “standalone bargaining unit.” As for the benefits offered to all district employees, they are “no longer negotiated, but rather predetermined and set by an outside broker.” Advice was sought as to whether the board member has a conflict that would prohibit them from participating in negotiations with the local educational association.
The SEC advised that a board member who has a relative employed in the district cannot participate in any aspect of negotiations, including the vote on the collective negotiations agreement. Although the board member’s aunt is not a member of the local educational association, the SEC reasoned that “union contracts may be used by personnel who are not affiliated with the union, as a foundation to negotiate their own ‘non-unit/not covered’ contracts, which may share common traits and goals with the local bargaining unit including, but not limited to, similar salaries and monetary increments.”
Although not asked, the SEC also noted that the aunt’s employment prohibits the board member “from participating in any matters that touch upon the aunt’s employment, including but not limited to any and all discussions and votes related to the superintendent’s employment, and any other administrators who supervise the aunt.”
A14-24:The superintendent recently recommended a candidate for employment in the district. Before the vote, a board member asked to “review the resumes of all of the candidates who were within the candidate pool for that position.” Advice was sought as to whether a board member would violate the act if they were to personally review the resumes of all candidates before voting on the individual recommended for appointment by the superintendent.
The SEC advised that the request does not concern whether any specific prospective conduct would violate the act and, instead, “appears to be seeking the SEC’s position on a board member’s entitlement to resumes,” which is beyond its authority to regulate.
If it is determined that this is a permissible practice, the SEC advised that the board member’s role “would be limited to observation and assessment, with full knowledge that all final recommendations are wholly within the purview of the superintendent.” The SEC also cautioned that board members must “not become directly involved in selecting a candidate for the position, as that responsibility belongs solely to the superintendent (N.J.S.A. 18A:12-24.1(d)).”
Next Week’s Article
In the fourth part of our series, we will review the five matters dismissed by the SEC, and the 2024 Disclosure Statement decisions adopted by the SEC at its meeting on Nov. 26, 2024.
You can also look back at our earlier articles:
As a reminder, school officials who would like to request an advisory opinion regarding their own or another school official’s prospective conduct may do so through the SEC.
For further information about these matters, please contact the NJSBA Legal and Labor Relations Department at 609-278-5279, or your board attorney for specific legal advice.
