Recently, the School Ethics Commission (SEC), the agency charged with enforcing the School Ethics Act, revisited the topic of employment of relatives to clarify the obligations of board members and administrators who must avoid creating the appearance of impropriety.    

In A13-20, an advisory opinion adopted in July of this year but not immediately posted to the School Ethics Commission website, the commission determined that a superintendent could not recommend a relative employed in the district for a promotion.   

In the opinion, the superintendent reported to the commission that his sister-in-law was employed in the district as a lunch aide and was a member of the local education association. According to the information contained in the request, the sister-in-law’s employment pre-dated the superintendent’s employment in the district by more than a year.  

According to the advisory opinion, the sister-in-law applied for a secretarial position in the district and seemed well qualified. In providing the advisory opinion, the SEC specifically noted the following information from the superintendent’s request:  

“You further inform the Commission that your sister-in-law has applied for a secretarial position within the District, ‘went through a complete vetting process with both building principals,’ and ‘was selected as the finalist based on being most qualified and job ready.’ In addition, ‘[b]oth principals have knowledge of [her] prior work ethic and attendance from their evaluations’ in her role as a lunch aide, and you note ‘all [are] superb.’”  

The superintendent also advised that he did not supervise his sister-in-law in her current position and would not supervise her if she were to be employed as the secretary in the middle school. 

The request for an advisory question included a simple question: “Is it fair to a current in-house employee and member of the local association [to not] be given the opportunity as qualified and vetted to move into another job description/role within the same local association ONLY because her brother-in-law is now [superintendent], even though she was hired by the district prior to the superintendent’s hire?”  

The SEC determined that recommending his sister-in-law for a promotion to a secretarial position would violate the School Ethics Act, including N.J.S.A. 18A:12-24(b) and (c), which provide, respectively:    

  1. No school official shall use or attempt to use his official position to secure unwarranted privileges, advantages or employment for himself, members of his immediate family or others;
  2. No school official shall act in his official capacity in any matter where he, a member of his immediate family, or a business organization in which he has an interest, has a direct or indirect financial involvement that might reasonably be expected to impair his objectivity or independence of judgment. No school official shall act in his official capacity in any matter where he or a member of his immediate family has a personal involvement that is or creates some benefit to the school official or member of his immediate family.

The SEC concluded that the public would reasonably perceive his sister-in-law’s promotion as securing an unwarranted privilege, advantage, or employment for an “other,” and that the sister-in-law was free to pursue secretarial positions in other school districts or at a time when the requestor was not the chief school administrator. In closing, the SEC noted that as superintendent, the requestor has direct or indirect supervisory authority over every employee in the district and therefore had an obligation to recuse himself from any employment actions involving the sister-in-law as a lunch aide, including her evaluation, retention, and possible future promotions, and he may not make any recommendations relative to these issues.  

Interestingly, the Advisory Opinion makes no mention of N.J.A.C. 6A:23A-6.2(a)(i). That regulation indicates that as a condition of receiving state aid, the board must adopt a nepotism policy that contains a provision preventing any relative of a district board of education member or chief school administrator from being employed in the school district. However, this regulation also contains a pertinent exception. Sub paragraph (i) provides, “[a] person employed by the school district on the effective date of the policy or the date a relative becomes a district board of education member or chief school administrator shall not be prohibited from continuing to be employed or to be promoted in the school district… .”    

For more information, board members are encouraged to discuss this matter with the board attorney to the extent permitted by board policy. Board members may also feel free to call the NJSBA Legal and Labor Relations Department at (609) 278-5254.   

 

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