On Oct. 27, the School Ethics Commission (SEC) released two new advisory opinions that affect board member participation in negotiations.
In the first, Advisory Opinion A11-15, the SEC advised that where two board members had relatives who were members of the same statewide union that worked in other school districts, those out-of-district conflicts were not an automatic bar to the board members’ participation in negotiations or vote on the negotiated agreement.
One board member had a first cousin employed in another district. A second board member had a first cousin-in-law (the first cousin of the board member’s spouse) employed in another district. Both relatives were members of the local education association in their districts and members of the NJEA. The SEC has stated on many occasions that “others” includes relatives as defined in the School Ethics Act, but has also determined that the term is flexible enough to encompass extended family and non-family members, such as the cousins and cousins-in-law at issue in its advisory opinion.
Out-of District Conflicts
The SEC reasoned that a board member’s potential to influence contract negotiations in another district is generally too remote to assume that it would automatically have the effect of securing unwarranted privileges, advantages or employment for the relative. Further, a board member has no direct influence on how another district may negotiate a contract with its own local bargaining unit. Another district may rely on information in the contract on which a board member voted (for example, in looking at comparable settlement rates), but that in-district board member has no involvement in the other district’s contract development. Moreover, according to the SEC, any suspicion that the board member is able to advance the cause of an out-of-district family member is further quelled by the enactment of the statewide property tax cap, which limits negotiators on both sides of a contract to how much salary or reimbursement rates may rise.
Further Inquiry Required
While the SEC concluded that while board members with relatives in the same statewide union in other districts were not automatically barred from participating in negotiations or voting on the contract, board members must inquire if, and to what extent, their out-of-district relatives are involved in out-of-district negotiations or union activities. The SEC recommended that board members who have relatives that work in other districts begin by asking the following questions, among others:
- Is the out-of district relative an officer in the NJEA or local education association?
- Is the out-of-district relative on the negotiating team for that district?
- Does the out-of-district relative have some other leadership role in his or her union or district which may influence the outcome of negotiations in the other district?
The answers to these questions would be required to help the board member determine whether their participation in contract negotiations would reasonably lead to the securing of unwarranted privileges, advantages or employment in violation of the public trust and in violation of the Act as a result of his familial relationship with an out-of district employee.
On the same day, the SEC issued another advisory opinion reiterating the holdings and determinations of A11-15. In A16-15, an inquiry was made about seven of nine board members who had either an in-district or out-of-district involvement that could affect their participation in negotiations. Following the holdings of A11-15, the SEC determined that, while out-of district conflicts with the same statewide union were not an automatic bar to participation in negotiations or voting on the contract, the board members must inquire about their relatives’ involvement in the out-of district union or its negotiations in order to determine if the individual circumstances of that involvement would bar the board member from negotiations or voting on the final contract. For example, if the relative in the other district were a leader in that district’s union affiliate or a member of the negotiations team for that union, it would be more reasonable for a member of the public to believe it possible for the board member to discuss negotiation strategies with the relative or to provide other information which could lead to a benefit for the relative. In such a scenario, the commission finds there would be a violation of the Act and the public trust would be breached.
Neither A11-15 nor A16-15 impact the SEC’s previous decisions concerning board members who may have relatives that work in-district. Board members may not participate in any matter touching upon the relatives’ employment, including negotiations with the local bargaining unit of which the relative is a member or, if not a member, who receives the benefits of the bargaining. (i.e. a teacher who declines to be in the local union but nonetheless receives the same contract negotiated by the union.) In addition, a board member may not be involved in the hiring or evaluation of the superintendent or any other officials or staff members who oversee the relative.
There is no automatic recusal required from participation in labor negotiations and vote on the contract when a board member’s relative is a member of the same statewide union in another district. If a board member has an out-of district conflict, the member must conduct an inquiry into the nature of that involvement by the relative as the ultimate determination will necessarily turn on the facts for the specific situation.
NJSBA urges affected board members to discuss these opinions with their board attorneys concerning how these decisions may impact their individual circumstances.