The School Ethics Commission recently issued two public advisory opinions and one case law determination regarding board of education member conduct.
Advisory Opinion 15-16 – The School Ethics Commission (SEC) was faced with a question regarding a board of education member whose spouse was employed in the school district. The board member and spouse would soon be divorced; the question presented was whether the board member would continue to have a conflict in his board activities due to the ex-spouse’s employment in the school district.
The SEC advised that the divorce did not remove all possible conflicts under the School Ethics Act. The final divorce agreement and decree, which was pending, would be instructive as to the nature of the continuing conflicts for the board member. Issues such as alimony and child support would inform the extent of the continuing conflict.
While the ex-spouse would no longer be a member of the board member’s “immediate family” as the ex-spouse would no longer be in the board member’s household, the ex-spouse would still be considered an “other” for purposes of analysis under N.J.S.A. 18A:12-24(b).
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 board member was advised not to engage in any board activity in which the board member’s official position is used to extend any unwarranted privilege or advantage to the ex-spouse. The SEC advised the board member to exercise caution and be reasonable in evaluating his conflict and limit his participation in board activities which may violate N.J.S.A. 18A:24(b) and/or violate the public trust.
Advisory Opinion 22-16 – The School Ethics Commission (SEC) was faced with a question regarding a superintendent whose spouse was employed in a neighboring school district and was a member of the local union affiliate of the NJEA. The question presented was the extent of the role that the superintendent could play in collective negotiations.
The SEC advised that the nature of the conflict for the superintendent was detailed in Advisory Opinion A16-15. Applying the analysis in A16-15 to the facts presented, it was clear that the superintendent could not participate in negotiations, because the spouse, an immediate family member, was a member of the NJEA in another district; a statewide union similar to that with which the board was negotiating. The union which represented teachers in the superintendent’s school district was an affiliate of the American Federation of Teachers (AFT). The SEC had previously advised, in Advisory Opinion AO9-14, that the NJEA and AFT were similarly situated unions for the purpose of conflict of interest analysis.
Acknowledging the conflict, the school district inquired about the “technical exception” and whether the “technical exception” applied in this situation for the superintendent whose knowledge, access and/or expertise is necessary to assist with and support the negotiations process between the board and the local union. Pursuant to the “technical exception” found at N.J.A.C. 6A:23A-6.2(a)6:
[A] district administrator who has an immediate family member who is a member of the same Statewide union in another district may serve as a technical resource to the negotiating team and may provide technical information necessary to the collective bargaining process when no one else in the district can provide such information.
The SEC advised that the technical exception exists only for those unique situations during labor negotiations when only the conflicted administrator can provide the technical information necessary to the collective bargaining process. The exception does not permit a conflicted administrator to be involved in every facet of the negotiations, but only to serve as a resource in those areas where the administrator possesses expertise, knowledge or access to information that cannot be provided by another person. It does not permit a conflicted administrator to fully participate in negotiations with the local union.
The SEC acknowledged that the superintendent was responsible for operational, budgetary and other sensitive matters within the district, and if access to these issues were necessary for aspects of negotiations, and no one else was able to supply it to the negotiations committee, the committee must seek the information from the superintendent. This is the very purpose of the exception. The school district represented that no one else had the operational or business-related information that the superintendent possessed. Based on that representation, the SEC advised that the technical exception would apply. The superintendent could participate in the negotiations process for the limited purpose of providing technical information, restricting his comments and involvement to providing the information requested by the board members and administrators, without violating the School Ethics Act.
C07-16 – The School Ethics Commission (SEC) found no probable cause to credit the allegation that a board of education member, whose sister was an on-call non-contract substitute teacher in the school district, violated the N.J.S.A. 18A:12-24(b) of the School Ethics Act when he participated in various aspects of the search for and hiring of the district’s superintendent, including serving as chair of the search committee.
The complainant argued that a previously issued advisory opinion, A41-14, and the SEC decision in Martinez v. Albolino controlled. In Advisory Opinion A4 l-14, the SEC indicated that, pursuant to Martinez, conflicted board members “may not participate in any discussion pre-or post-hire, may not be a part of any aspect of the vetting process or any evaluation and contract discussion post-hire of a superintendent candidate.” However, A41-14 did not indicate which provision(s) of the School Ethics Act a board member would violate if he/she engaged in such conduct.
In Martinez v. Albolino, the SEC determined that a board member who had an immediate family member or a relative employed in the district may not participate in the search, selection and/or vote for a new superintendent, irrespective of whether there was an in-house candidate being considered for the position, because the 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) (emphasis added).
Because the SEC’s prior determination in Martinez was limited to a finding of a violation of N.J.S.A. 18A:12-24(c), and the complainant here has alleged a violation of N.J.S.A. 18A: 12-24(b), the SEC determined that complainant’s reliance on Advisory Opinion A4l-14 and Martinez was misplaced.
Based on the information submitted by respondent, there was no individual or administrator charged with the duty of making on-call substitute teacher assignments. The SEC found no information that the respondent secured for himself or his sister an “unwarranted” privilege, advantage or employment which would have violated N.J.S.A. 18A: 12-24(b). Therefore, the commission found no probable cause to credit the allegation that respondent violated N.J.S.A. 18A: 12-24(b) of the act. The complaint was dismissed.
Commissioner Decision The commissioner of education recently concurred with the penalty recommendation of the School Ethics Commission (SEC). The respondents were censured as school officials found to have violated the School Ethics Act.
The SEC had concurred with an administrative law judge (ALJ) determination that board members violated certain sections of the Code of Ethics for School Board Members and recommended the penalty of censure. The board members were found to have:
- Failed to limit their board action to policy making, planning and appraisal, exceeding their authority, failing to consult with other board members to ensure that a proper investigation occurred. Board members pursued an investigation, determined guilt and sought punishment without waiting for the results of a proper investigation.
- Failed to report information received to a constituent to the superintendent for her to investigate rather than concluding prematurely that criminal wrongdoing had occurred.
- Brought their accusations to the prosecutor for investigation after the board as a whole accepted the results of the investigation that nothing untoward had occurred.
- Provided false information and false impressions to the public about the board and its handling of a confidential matter, leading the public to believe that some criminality had occurred and that administration had handled the matter inappropriately.
- Accused a school employee and the superintendent of criminal conduct without evidence and aired their accusations at a public board of education meeting, undermining and compromising school personnel in the proper performance of their duties.
- Attempted to resolve a constituent’s complaint prior to referral to the superintendent and prior to the failure of administration to fashion a solution.