Executive Order 173 (EO 173), issued by Gov. Phil Murphy on Aug. 3, tightened restrictions on indoor gatherings, but exempted legislative bodies from the revised limits. An analysis by the NJSBA Legal and Labor Relations Services Department, however, indicates that school boards are not exempt from the new restrictions. 

GenerallyEO 173 rescinded the first paragraph of Executive Order 156, issued in June, and re-imposed certain restrictions on indoor gatherings. Executive Order 156 had limited the number of individuals attending indoor gatherings to the lesser of 25% of the room’s capacity or 100 personsEO 173, with certain exceptions, reduces the limit to 25 persons.  

EO 173 makes an exception to the new limit for “[l]egislative proceedings of state, county, or local government.” It states that such proceedings are exempt from the capacity limits of EO 173 or any other applicable executive order. 

The above language raises the question of whether board of education meeting would qualify as a legislative proceeding, exempting it from the capacity limits set by EO 173. 

NJSBA’s legal staff reviewed the matter. 

The state Constitution, in Art. IV § I, provides that the legislative power shall be vested in a Senate and a General Assembly. A reasonable interpretation of this clause leads to the conclusion that the Legislature conducts a legislative proceeding when it exercises its constitutional authority. 

However, it is less clear that other entities also engage in legislative proceedings when they take official action. The Constitution authorizes the Legislature to delegate certain of its constitutional authority to enact legislation. The Legislature has explicitly done so with respect to authorizing local municipalities to adopt zoning ordinances, but it has not done so with respect to boards of education.  

Pursuant to N.J.S.A. 18A:11-1, a board of education has the authority to make, amend, and repeal rules that are consistent with Title 18A and the state Administrative Code. Those rules must be for its own governance, for the management of the schools and school property, and to regulate the conduct of employees. Finally, the statute authorizes the board to “do all things, consistent with law…for the lawful and proper conduct… of the public schools of the district.” 

Notably, the statute does not explicitly authorize the board to adopt legislation or ordinances, thereby limiting the board adopting of rules, i.e. policy. Arguably, had the Legislature intended to enable boards to adopt legislation, N.J.S.A. 18A:11-11 would have explicitly conveyed such authority. By analogy, had Governor Murphy intended to exclude school districts from the capacity limits of EO 173, he simply could have stated as much in the order. 

No exclusion for boards of education is expressed in EO 173, nor can such an exclusion be reasonably inferred because boards do not engage in legislative proceedings. Therefore, a conservative reading of the order does not support a conclusion that boards are exempt from the capacity limits established in that order.  

For more information, school districts are advised to consult with the board attorney concerning the impact of EO 173 on board meetings. Further information is available from the NJSBA Legal and Labor Relations Department at (609) 278-5254.