In a recently issued public Advisory Opinion, A08-15, the School Ethics Commission advised that a board member, whose spouse was employed as a per diem elementary school lunch aide, must recuse himself from participation, including discussion and voting, on the superintendent’s evaluation and contract. The board member would similarly be precluded from participation on matters regarding the elementary principal who supervised his spouse, and other administrators supervising the spouse, including the supervisors of those administrators. Failure of the board member to recuse himself from every matter touching upon the superintendent’s position and that of other relevant supervisors would represent a violation of the School Ethics Act.

The board member’s spouse was an “immediate family member” under the School Ethics Act. She was hired in 2008 as a per diem employee, worked 2.5 hours per day and had her employment renewed each year by the board upon recommendation of the superintendent.

A concern was expressed by the requesting party that the inability of the conflicted board member to vote in many instances would likely result in a number of 2-2 tie votes on this five-member board of education. The commission advised that, without this conflicted member, the board maintained a quorum of four non-conflicted members, which could vote on matters related to the superintendent and other school administrators. The board could not invoke the Doctrine of Necessity simply because a vote on one of those matters would result in a tie. The Doctrine of Necessity may only be invoked when a majority of the board is conflicted on a matter, which was not the case here.

School officials are advised to consider this opinion in conjunction with public Advisory Opinion A05-15, in which the commission advised that conflicted board members must recuse themselves from all discussions in executive session and abstain from any votes in public session pertaining to all matters regarding the position of superintendent. The conflicted board members may not be a part of any aspect of the vetting process or any evaluation and contract discussion post-hire and may not be in the room when executive session discussions occur. Each conflicted board member must also not be privy to the minutes of such executive session discussions until the minutes are made available to the general public. In matters concerning the position of superintendent, conflicted members have rights as great as members of the public –and no more.

Board members are encouraged to discuss the ramifications of this decision at their local board level and consult with their board attorney for advice as to how to proceed.

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