With the New Jersey State Board of Education’s introduction of a 90-day requirement for newly elected or appointed board members and charter school trustees to complete Governance I, newly elected or appointed board members and charter school trustees (board members) must be prepared for some changes.
As of March 6, 2023, all new board members must complete mandated training within 90 days of taking office. This 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 Jr., general counsel of the New Jersey School Boards Association, spoke during a webinar on ethics training.
In this article, Tanksley shares some insights on topics and questions that came up during his presentation.
Why were these changes made?
The changes were based on grievances filed before the School Ethics Commission and the SEC’s experiences resulting from those grievances. In some cases, the changes were made to align with current practices.
There were issues with regard to regulations for a number of years, with various parties expressing concerns about how they were implemented. The changes streamlined 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 clarifies that 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 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 in 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. If a board member or trustee is appointed or elected to fill an unexpired term, the training obligation starts when the oath is administered.
What does the SEC consider to be 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.
Who notifies NJSBA of changes in board membership?
According to the regulations, N.J.A.C. 6A:28-4.2, the business administrator or designee is responsible for notifying NJSBA within 30 days of any changes in membership. This would include elections and appointments, resignations and removals, as well as term expirations.
If I fail to meet the training requirement within 90 days, when am I reported for being out of noncompliance? What happens next?
According to N.J.A.C. 6A:28-4.3, failure to complete training within the required timeframe will result in the SEC issuing an Order to Show Cause to the board member. What happens next depends on a variety of factors.
Unless good cause is shown or the board member has previously been the subject of an Order to Show Cause, where the board member completes training after the SEC issues an Order to Show Cause, but before it issues a decision, the board member’s failure to timely complete the training will result in a recommendation of censure from the SEC.
Unless good cause is shown, or the board member has previously been the subject of an Order to Show Cause, where the board member completes training after the SEC issues a decision but before the commissioner of education issues a final decision, the SEC will recommend that the commissioner of education suspend the board member for 30 days. However, the SEC will only recommend a 30-day suspension where the board member provides NJSBA and the SEC written notice of satisfactory completion prior to the commissioner of education’s issuance of a final decision. Where such notice is not timely provided, the SEC will recommend a 60-day suspension. 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 affirming the penalty, which must be read at the beginning of the next regularly scheduled public board meeting and noted in the board minutes. The approved 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. If the approved minutes are not forwarded to the SEC, the regulations authorize the SEC to take remedial action against the appropriate school official.
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 pertaining to the conflict 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 a high number of existing conflicts.
Take note that if you are conflicted, you should not have access to any confidential information pertaining to the conflict. 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.
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?
The SEC is authorized to issue advisory opinions for prospective conduct only. Requests for advisory opinions that detail prior conduct may be considered as a complaint by the SEC and acted upon as such. 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.
What should board members know about the disclosure statement process – and what are the penalties for individual board members who fail to file the statement?
The board secretary must file a list of school officials by each Feb. 1 for returning school officials. School officials are defined in the regulation as a board member, a member of the board of trustees, an administrator, or an employee or officer of NJSBA, except NJSBA’s secretarial, clerical, or maintenance staff. 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.
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.
Unless good cause is shown, the SEC will recommend that a school official who fails to complete and file the disclosure statements after the SEC issues its decision, and has not filed the disclosure statements as of the date the commissioner issues a final decision, be removed from the school official’s position.
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.