The School Ethics Commission recently released 10 new advisory opinions. Through advisory opinions, the SEC opines on whether a board member’s prospective conduct would violate the School Ethics Act. This article is the second of a two-part series discussing these new advisory opinions.

Advisory Opinion 13-21 In this opinion, a board member was being considered by their employer for a new job as a “public-facing community liaison.” The job duties of this position included, among other things, “forg[ing] strong links between the employer and local schools, businesses, and nongovernmental organizations.” The board member sought guidance from the SEC as to whether the potential job responsibilities would create a conflict under the act, and whether it was sufficient to avoid possible conflicts by recusing themselves from board and internal employer conversations about financial contributions to public schools. The commission determined that the potential job responsibilities would not be a per se conflict of interest.

However, the SEC advised that if the member accepted the new position, the member must recuse themselves from discussions and votes regarding: (1) the employer and/or any financial assistance or services that the employer could potentially provide to the district, and (2) “competing entities” offering the same or similar services and financial assistance as the employer. The member could not represent the employer in the district were the board to obtain financial assistance and/or services via the employer. If the member represents the employer in other districts to provide financial assistance or services, they could not use or otherwise rely on their board membership to promote that assistance or those services. Finally, as an employee, the member “should not be involved in any discussions or decisions, which could possibly relate to, or otherwise involve, the provision of financial assistance and/or services to the District.”

Advisory Opinion A16-21  The SEC reviewed a request from a board member whose ex-spouse is a teacher in the district and a member of the local union. The member and the ex-spouse share custody of their children and the member pays the ex-spouse reduced child and spousal support. The board member sought guidance as to whether they had a conflict preventing involvement in matters related to the superintendent, the union and personnel issues related to administrators in the ex-spouse’s supervisory chain of command.

The SEC determined that the ex-spouse is deemed to be an “other” under N.J.S.A. 18A:12-24(b), which states: “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.” The member would violate the Act if they participated in matters related to the superintendent and the ex-spouse’s supervisory chain of command, as they would “have (whether actual or perceived) an ‘indirect personal or financial involvement that might reasonably be expected to impair [their] objectivity’” due to their ongoing child and spousal support contributions. On similar grounds, participating in matters related to the local union, such as the local union’s contract negotiations, would violate the act, though the board member could vote on the memorandum of agreement (absent another conflict).

Advisory Opinion A19-21  A board voted to accept the resignation of the superintendent effective shortly thereafter and, at the same meeting, voted down a resolution approving the superintendent’s “successful completion of three quantitative merit goals.” Two board members’ spouses were employed in the district and as a result, they were recused from discussion and voting regarding the superintendent’s merit goals. Another board member asked the SEC if the two conflicted board members still had a conflict that would prevent them from voting on the merit goals resolution after the superintendent left the district.

The SEC first noted that the activity the board member was asking about already occurred because the vote on completion of the merit goals took place at a meeting prior to the effective date of the superintendent’s resignation. Setting that aside, the commissioner reiterated that the two board members were conflicted on “any and all matters related to the [s]uperintendent” due to their spouses’ employment in the district. Moreover, these conflicts would apply while the superintendent was employed by the district as well as after their employment, and to the current superintendent who was subsequently employed by the district.

Advisory Opinion A20-21  The SEC considered whether two board members’ familial relationships to district employees would prevent them from participating in (1) negotiations with the local union and (2) employment decisions and matters related to the superintendent. Board member A’s “aunt-in-law,” who is married to the board member’s spouse’s uncle, is a teacher in the district. Board member B’s “distant cousin” is also employed as a teacher. The requestor of the opinion noted that the fiscal accountability regulation at N.J.A.C. 6A:23A-1.2 has a more expansive definition of “relative” than under the act.

In the opinion, the SEC decided that Board member A’s “aunt-in-law” and board member B’s “distant cousin” fall into the category of “others” under N.J.S.A. 18A:12-24(b), discussed above. The SEC noted that it did not have the authority to make a final determination about whether the aunt-in-law fell under the definition of a “relative” under the regulation, but because this relationship was not specifically included in the regulation, the SEC did not view the aunt-in-law as a “relative” under either the act or the regulation. Therefore, board members A and B could participate in negotiations and matters related to the superintendent as well as vote on the memorandum of agreement as long as no “unwarranted privilege” was extended to the aunt-in-law and distant cousin, respectively.

Advisory Opinion A03-22  The board member requesting the opinion informed the SEC that they are employed in another district (District B) as a bus driver, and the local education association represents employees in his position in District B. The member is “not a member of the ‘collective bargaining unit by choice,’” and is not a dues-paying member of the union. The board on which the member serves (District A) was about to begin contract negotiations with its local education association, and the member wanted to know if they were conflicted from participating in negotiations.

The local education associations in the two districts are affiliates of the same statewide union (the New Jersey Education Association). The SEC opined that  Advisory Opinion A24-17, which it issued in September 2017, addresses the question raised in the request. It noted that even though the board member was not a dues-paying union member in District B, District B’s local education association still negotiates on behalf of anyone included in the same position as the board member. Thus, in keeping with A24-17, because the two associations are affiliates of the same statewide union, the member is prevented from participating in negotiations with the local education association in District A, though they may vote on the memorandum of agreement absent another conflict.

As noted in the first article in this series, the SEC issues these advisory opinions based on the particular facts presented before it. For more information about these advisory opinions as well complying with the SEA, board members should consult with their board attorney or call the NJSBA Legal and Labor Relations Department at 609-278-5279.  Board members can learn more information about how to request an advisory opinion here.

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