Recently New Jersey’s School Ethics Commission (SEC) made public 36 advisory opinions, dating back to February 2013.
Any school official who has questions as to whether some particular future conduct would violate the School Ethics Act may request an advance opinion (called an advisory opinion) from the School Ethics Commission.
When the SEC believes that its advice on a particular matter will provide guidance on an issue of importance to board members, the the commission can make that advisory opinion public by a vote of six of its nine members; in such cases the name or district of the person requesting the opinion will not be publicly disclosed.
It is important to remember that each opinion is based on the specific facts before the School Ethics Commission and may or may not be comparable with a specific factual situation in another school district. Board members and school administrators are encouraged to discuss the new opinions with board counsel as to local district applicability.
Over the next few editions of School Board Notes, NJSBA will be providing summaries of the newly released public advisory opinions. Each week will cover a particular conflict area, starting last week with collective bargaining, negotiations and contracts and moving this week to search, hire and participation in employment decisions for the chief school administrator/superintendent and other administrative positions.
The full opinions may be found on the New Jersey Department of Education (NJDOE) website at the School Ethics Advisory Opinion section. The case number at the beginning of each summary is also linked to the full text of the specific opinion.
A29-12 (2/20/13) – The SEC found that the public might reasonably perceive that a board member’s objectivity could be impaired where the board member’s daughter was appointed to a coaching position in the district. The board member may not discuss or vote on actions involving the superintendent’s employment. Further, the board member must recuse and abstain from any committee issue, policy discussion, or vote on any matter where his child would receive a direct or indirect financial benefit or where there is a potential benefit to the board member or his daughter, as this is inextricably linked to the superintendent as an administrator. The question of whether the board member’s child was a dependent was set aside by the School Ethics Commission as the child is a “relative” under the School Ethics Act.
A02-13 (5/1/13) Board members who are involved with pending outside litigation with the superintendent must recuse themselves from any discussion, decision, vote or action related to the superintendent or violate N.J.S.A. 18A:12-24(b). The superintendent is a party to a complaint in one matter, fact witness in a criminal complaint lodged against a board member’s child, and the complaining witness in another matter.
A03-13 (5/1/13) – The SEC determined that board members must recuse themselves from any discussion, decision, vote or action related to the superintendent when a board member’s mother is employed by a community organization that independently sponsors an after-care program using district facilities. The board issues a paycheck to the board member’s mother and annually approves her re-appointment. The conduct is a potential violation of N.J.S.A. 18A:12-24(c).
Similarly, despite the fact that “brother-in-law” is not included in the definition of “relative” in N.J.S.A. 18A:12-23, the School Ethics Commission determined that where a brother-in-law is employed by the district as a custodian, with an indirect chain of command leading to the superintendent, that board member may not participate in discussion, decision, vote or action related to the superintendent. The conduct is a potential violation of N.J.S.A. 18A:12-24(b). Participation would constitute use of the board member’s official position to secure unwarranted privileges, advantages or employment for herself, members of her immediate family or others. The brother-in-law would be considered an “other” in this context. Conflicted board members would not violate the Act by attending public discussion of matters involving the superintendent’s contract.
A06-13 (7/31/13) – Where a board member of a constituent school district is employed as a coach in the regional school district, which includes the constituent district, that board member would violate the School Ethics Act if she voted on the appointment of a shared superintendent; the public would reasonably believe that the board member’s objectivity may be impaired. Moreover, the board member may not retain both employment and board membership, even on a part-time basis. This dual role violates N.J.S.A.18A:12-24(c).
A11-13 (7/31/13) – A sitting board member whose board recently entered into a joint services agreement with a regional district must resign from the board to avoid a violation of N.J.S.A.18A:12-24(c), if she were to accept offer of employment with the regional district, even where her job search began prior to the effective date of the agreement with the regional district.
A15-13 (8/28/13) – A board member who is not married but who has been in a long-term personal relationship and cohabitates with the confidential secretary of the school business administrator, creates a conflict for the board member underN.J.S.A.18A:12-24(b). The board member may not participate in employment matters involving the school business administrator or superintendent of schools.
A06-14(4/23/14) A board member who is employed in a regional school district may participate in discussions involving the superintendent’s contract and vote in the election of a new board president in a local constituent district where the member’s direct employment supervisor is also a member of the local constituent board. No benefit would inure to either board member, as his employment evaluations are performed by other school officials. In the future, should the facts change creating a benefit to the board member or his supervisor, either member may have to recuse himself or herself from such involvement.
A08-14(4/23/14) A board member would violate N.J.S.A. 18A:12-24(b) if he were to participate in the interview and selection process for a new chief school administrator when a stepdaughter, stepdaughter-in-law and nephew are employed by the district as certified teachers. Although not considered “relatives” under the Act, these members of the board member’s family are considered an “other” within the meaning of this subsection, and as such, the public may view your action as an attempt to secure unwarranted privileges or advantages for them in violation of the public trust.
A16-14 (4/23/14) A board member, who is aware he has conflicts, is directed to the Martinez v. Abolino (C45-11) decision, which prohibits the board member’s participation in pre- and post-employment decisions involving the superintendent and other administrators. Martinez held that where a board member who has an immediate family member (as defined in N.J.S.A. 18A:12-23) or a relative (as defined in N.J.S.A. 18A:12-23) employed in the district, the board member may not participate in the search, selection and/or the vote for a new superintendent, irrespective of whether there is an in-house candidate being considered for the position because the School Ethics Commission maintains that the board member’s involvement in the search, discussion and/or vote for a new superintendent under such circumstances would constitute a violation of N.J.S.A.18A:12-24(c). He retains the rights of the public, however, and may attend the public session of board meetings where those matters are discussed.
A10-14 (4/23/14) A board member must limit certain board activity when the member’s spouse is the mayor of the local municipality or the board member’s cousin is employed by the school district. The board member would violate N.J.S.A.18A:12-24(b) if he were to participate in the pre-hire and post-hire board functions in selecting and discussing personnel matters involving the Superintendent. The official actions of this board member may be seen as an attempt to secure unwarranted privileges or employment for her cousin, an “other” under this section. Such participation in employment discussion involving the superintendent, who supervises the principals or the agreement, that sets salary guides, benefits and other emoluments, may also create a justifiable perception that the public trust has been violated. The conduct is a potential violation of N.J.S.A.18A:12-24(b), (c) and (f).
A25-14 (6/25/14) – The School Ethics Commission declined an advisory opinion request, citing an existing opinion, Martinez v. Abolino. The commission noted that a board member whose spouse is a district paraprofessional or substitute-paraprofessional employee may not participate in any employment or personnel issues of those who have influence over or affect the spouse’s employment in any manner. Such involvement would reasonably be expected to impair the board member’s objectivity or independence of judgment. This includes, but is not limited to, participation in any discussion pre-hire or post-hire, selection of a search committee or firm, the vetting process, evaluation or contract discussion regarding the superintendent.
A30-14 (8/27/14) – A board member whose son is employed as a summer student worker or whose spouse is employed as a substitute in the school district may not participate in any employment or personnel issues of those who have influence over or affect the son or spouse’s employment in any manner. Such involvement would reasonably be expected to impair the board member’s objectivity or independence of judgment. This includes, but is not limited to, participation in any discussion pre-hire or post-hire, selection of a search committee or firm, the vetting process, evaluation or contract discussion regarding the superintendent. These limitations will exist for as long as the son is employed with the district as a summer student worker or the spouse is employed as a substitute teacher in the district.
Information on how to request an advisory opinion from the School Ethics Commission is online at the NJDOE website.