With the New Jersey State Board of Education’s recent introduction of a 90-day requirement for new board members to complete Governance I, newly elected trustees must be prepared for some changes.
As of Feb. 1, 2023, all new board members must complete the mandated training within 90 days of taking office. This new requirement, initiated by the School Ethics Commission, is aimed at ensuring that all board members have up-to-date knowledge and understanding of their roles and responsibilities as they begin their respective terms of office.
The updated requirements also clarify a number of definitions and obligations for newly elected and veteran board members alike.
In an effort to help board members understand what the new requirements mean and how they can remain in compliance, Carl Tanksley, general counsel of the NJSBA, spoke on an April 5 webinar on ethics training.
School Board Notes recently caught up with Tanksley, who spoke about some of the topics and questions that came up during his presentation.
Why are these changes being made?
The changes are based on grievances filed before the School Ethics Commission and the SEC’s experiences resulting from those grievances. In some cases, the changes have been made to align with current practices.
There have been some issues with regard to regulations for a number of years, with various parties expressing concerns about how they are implemented. These changes have been made to streamline the process while making it easier to administer the School Ethics Act.
Who is considered a newly elected or appointed board member?
N.J.A.C. 6A:28-1.2 defines who is considered a board member as well as who is a newly elected or appointed board member.
The regulations clarify board member status is only achieved after the member accepts the oath of office. This clarification helps to address common questions we receive regarding a new board member’s access to district records and executive session materials.
A newly elected or appointed board member is defined as any board member who has never served as a member of either an elected or appointed school board or who has never served as an elected or appointed board member in New Jersey or has not previously completed a training program prepared and offered by the NJSBA.
The regulations also define what it means to be a school administrator and school official, which you can learn about in more detail on the webinar.
When does the clock start for completing the training? Is it 90 days from the date of the election or 90 days from being sworn in?
The clock starts upon being sworn in – not the date of the election.
How long does the SEC consider a day?
The new regulation aligns with the New Jersey Rules of Court and in both the rules and the new regulation, a day is defined as a business day when the action being considered must be completed in less than seven days, and a calendar day when the action specified is due in seven days or more.
The regulations note that the last day of a period of time is the next business day when the last day falls on a Saturday, Sunday, or a holiday.
The regulations also clarify that holidays are those identified by the state.
If I fail to meet the training requirement within 90 days, when am I reported for being out of noncompliance? What happens next?
Failure to complete training within the required timeframe will result in an order to show cause. What happens next depends on a variety of factors.
Absent good cause, if the board member completes training after the order but before the SEC issues a decision, it will result in censure.
Absent good cause, if the board member completes training after the SEC decision but before the commissioner issues a final decision, the board member will be suspended for 30 days. Good cause, while not defined in the regulation, usually means a reasonable excuse for missing a deadline and usually depends on personal issues.
Absent good cause, if the board member waits to complete the required training until after the commissioner issues a final decision, they will be removed from the board.
If the commissioner issues a penalty, the SEC will adopt a resolution, which must be read at the next regularly scheduled public board meeting and noted in the board minutes. The board minutes must be forwarded to the SEC and publicly posted. If the district has a website, the resolution must be posted there for 30 days.
What do the updated requirements say about when you should recuse yourself as a board member, and what does recusing mean?
Recuse means to formally disqualify and remove oneself from participating in a matter, including discussions and/or votes due to a conflict of interest.
Conflicted members should not have access to closed session materials and should not be present when such items are discussed. They should also abstain from voting unless authorized by law, such as when the board is obliged to resort to the doctrine of necessity due to existing conflicts.
Let me emphasize that if you are conflicted you should not have access to any confidential information. Moreover, beyond not voting, you should not be in the room when a vote is taken – nor present in closed session. The theory is that you could sway the vote one way or the other just by being there. The best practice is to remove yourself from any participation or giving the appearance that you could be exerting influence over the matter.
What does the SEC mean when it references an “otherwise” benefit?
A benefit can be direct or indirect and can be personal, financial, or “otherwise.”
The most common example of a direct benefit involves money that comes to you directly. An example of an indirect benefit could be money that goes to a family member or other close person. But these benefits, of course, need not be monetary. A benefit could involve something like buying campaign signs and donating them to a candidate – or doing a favor for a family member.
An “otherwise” benefit is a bit harder to define, but it can be almost anything that benefits you. Typically, these “otherwise” benefits come up in the area of goodwill. For instance, if you buy a sign and donate it to the high school and it has your name on it, that could result in a goodwill benefit. When people drive by the sign, they may think about what a great person you are and vote for you in the next election.
What do the updated requirements say about the duties of the board secretary?
The board secretary must file a list of school officials by each Feb. 1 for returning school officials. The list shall include each person’s name, telephone number, email address and filed by office and position.
The board secretary must notify the NJSBA and SEC of any new appointments or elections and of any removals or resignations within 30 days.
Why shouldn’t I use my personal email address for board business?
We recommend you use your district supplied email address, because if you use your personal email, it could be subject to search if someone files an Open Public Records Act request. It is best practice to keep your official correspondence and your personal correspondence separate.
Have the regulations changed with regard to seeking advisory opinions?
When seeking an advisory opinion, board members must now certify that they have reviewed all prior applicable public advisory opinions and declare that the issue has not been addressed by the SEC. The SEC may decline the request for an advisory opinion where the question was previously issued, the request is procedurally deficient, or where the SEC has insufficient time to answer the question before the contemplated action occurs.
Do the updated requirements change anything surrounding the disclosure statement process – or the penalties for failing to timely file the statement?
Failure to timely file a disclosure statement will result in an order to show cause. However, it is better to file a late statement than not file at all. While a late filing may result in a sanction, failure to file may result in removal.
If a board member files the mandatory personal/relative or financial disclosure statement after an order to show cause is issued, a board member will be censured unless they can show there was good cause for the late filing. If the board member has already been the subject of such an order, a sanction may be enhanced. In essence, if you have previously received an order to show cause, in certain circumstances the SEC could enhance the censure to a suspension or even removal.
If the board member completes the disclosure statement after the SEC issues its decision but before the commissioner’s decision, they will be suspended for 30 days. If the SEC, however, issues its decision and is not notified of late compliance in writing, the board member will be suspended for 60 days.
The board secretary must review disclosure filings for completeness. If errors are found, the board member has 20 days to correct them. Failure to correct any errors within 20 days will result in an order to show cause.
You can find more information about the new requirements here.
Get more insights from Tanksley, including how the updated regulations affect how board members should ask for advisory opinions from the SEC, by listening to the full webinar.