Many members of the public, and even board members, are unfamiliar with how the State Board works.  

The State Board of Education has a pivotal role in developing and enacting the regulations that provide the “flesh on the bones” to the laws that districts must follow.

Who is on the State Board? The board consists of 13 members who are appointed by the governor for overlapping terms of six years with the advice and consent of the Senate.  Members must be New Jersey citizens, who have resided in the state for not less than five years immediately preceding their appointment. By law, at least three State Board members must be women, and there may not be more than one member who is a resident of any single county. Each member’s term continues until a successor is appointed and qualified.  In event of a vacancy, the successor is appointed for the unexpired term only. Like local board of education members, the State Board members serve without compensation.

Meetings The State Board must meet publicly at least once each month at such time and in such places within the state as it may prescribe, and none of its meetings may begin later than 8 p.m. Typically, the board meets on the first Wednesday of each month, although this can vary.  Meetings are usually held in the first floor conference room at the New Jersey Department of Education at 100 River View Plaza, Trenton.

The State Board organizes at its first regular meeting following June 30 of each year and elects  a president and a vice president from its own members who serve for one year and until their respective successors are elected and qualified. The New Jersey Commissioner of Education serves as the secretary of the State Board.

Responsibilities and Duties The State Board is required to formulate plans and make recommendations for “the unified, continuous and efficient development of public education, other than higher education, of people of all ages within the state.”

To  do this, the State Board is given the power to make, enforce, alter and repeal rules for its own governance and for implementing and carrying out New Jersey’s education laws.

The State Board’s rulemaking authority is subject to the provisions of the state Administrative Procedures Act, which requires notice to the public and an opportunity for the public to weigh in on the rulemaking. The only exceptions to the above-mentioned notice and hearing requirements occur when:

  • The State Board adopts rules prescribing its internal organization or;
  • The State Board, with the written concurrence of the governor, determines that an imminent peril to the public health, safety, or welfare requires immediate adoption of a rule.

The State Board is also  given incidental powers as may be needed to perform its duties.

The State Board, by its presiding officer and each of its committees by its chairpersons, has the power to administer oaths and examine witnesses under oath in any part of the state  in  regard to any matter pertaining to schools. It also has the power to compel by order the production of any and all paper, books  and vouchers relating to the schools and the receipt or disbursement of school moneys. It may also compel the attendance of a board member or any person employed by a board of education and suspend from office anyone who refuses  to attend or to submit such written material.

No Public Comment Period at Meetings One of the ways that the State Board of Education is different from a local board is the manner in which it interacts with the public. Under the Open Public Meetings Act (OPMA), a board of education or municipality must provide for a period of comment by members of the public at its meetings. There is no similar obligation in OPMA for state bodies and agencies.

There are various ways, however, that local boards of education and members of the public can still be heard by the State Board of Education. As a regulatory proposal is developed, the State Board provides for public input at various stages.

The Regulatory Proposal Process  By State Board policy, the board has two discussions about a proposed regulatory action in which written comments are accepted. The first discussion of draft regulatory language is the first public opportunity for the State Board members to review and comment on the proposed text of the regulations. A summary memo from the state’s education commissioner outlines various aspects of the regulations regarding purpose and authority and is used as an introduction to the proposed action. The executive of the responsible division of the New Jersey Department of Education (NJDOE) is present at the State Board public meeting to provide an overview of the regulations and answer questions and receive the comments of the State Board members. There is no formal action taken by the State Board at this level.

A comment/response form is used to respond to questions and comments from State Board members and the public after the first and second discussion and public testimony sessions. The form is prepared by department staff and identifies the person or agency that presented a comment or question, the code citation, the issue being raised and the department’s response or recommendation. All questions and comments are listed on the comment/response form with a corresponding response from the department. The State Board uses the form to consider possible changes to the proposed text.

Following the second/final discussion of any code chapter, a public testimony session is held at the NJDOE. Oral testimony from the public and other stakeholders is presented to a panel of the State Board, and copies of the written comments are forwarded to all members for their review and consideration. The State Board has the option to discuss the code beyond the second discussion level. In such cases, additional discussion levels are scheduled and placed on future meeting agendas.

After the discussions, the proposed regulation moves to proposal level. It is at this stage that the official process required by the state Administrative Procedures Act begins. At proposal level, the comment/response form summarizes the changes to the code that are proposed in response to comments at the discussion levels and the public testimony session.

When the State Board is satisfied with the proposal-level code, a majority vote is required to publish the regulations in the New Jersey Register, the state publication where all notices of agency rulemaking are published.

The New Jersey Register gives the public notice of the proposed rulemaking and the opportunity to provide comments. Before a rule is adopted, the State Board must provide at least 30 days’ notice of its intended action. Such notice must be published in the New Jersey Register, mailed to all persons who have made timely request of the State Board for advance notice of its rule-making proceedings, filed with the president of the Senate and speaker of the General Assembly, and publicized in such a manner that those persons most likely to be affected will be informed.

At the proposal level of code development, the regulations are brought before the State Board for an official action. The proposal version of code language contains the commissioner’s final recommendations to the State Board and has been approved by the Office of Administrative Law (OAL). The OAL provides oversight of the processes for the adoption of regulations of all the state agencies in New Jersey, including the State Board.

Once the proposal has been published in the Register, stakeholders and the public have the opportunity to provide additional written comments to which the NJDOE must provide written response.

There is also an additional public testimony session prior to the completion of the written comment period. Department staff review all comments and testimony received and provide responses on a comment/response form in preparation for discussion with the State Board. When the regulations are ready for adoption, they are placed on the State Board agenda at the next monthly public meeting. The responsible department executive is again available to answer any further questions from the State Board or to review suggestions for modifying the proposed code based upon public comment.

If the State Board makes any changes to the language that was advertised for public comment at proposal level, the changes may need to be proposed as amendments and be readvertised in the Register.  Once the board is satisfied that the proposed regulations have been finalized, the regulations are adopted by majority vote.

The comment/response form is published in the Register at adoption level with the final text of the code language. The adopted regulations and comments are filed with the OAL for publication in the New Jersey Register. This informs the public of the input that was received, the State Board’s official action, and well as the effective date of the regulations.

Proposals from the Public Additionally, the state Administrative Procedures Act provides a pathway for the public to actually propose new regulations or amendments to existing rules that the State Board may not have even considered. Any member of the public may petition for rulemaking by the State Board. The State Board has three options. It may 1) deny the petition, in which case the commissioner provides to the petitioner a written statement of the reasons and includes the reasons in the notice of action; 2) grant the petition and initiate a rulemaking proceeding within 90 days of granting the petition; or, 3) refer the matter for further deliberations, the nature of which shall be specified to the petitioner and in the notice of action,  and which shall conclude within 90 days of the referral. Within 60 days of receiving the rulemaking petition, the NJDOE must mail to the petitioner a notice of action on the petition and file it with the OAL for publication in the New Jersey Register.

The New Jersey School Boards Association regularly keeps its members informed through School Board Notes about developments at the State Board meetings, about proposed regulations, the regulatory process and how and when comments may be solicited.  The NJSBA also submits its own comments on behalf of all local school boards on a regular basis.

Additional information on the State Board, including meeting dates, meeting agendas and minutes, is available on the group’s webpage on the NJDOE website.

John Burns is an NJSBA counsel.