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Board of education interview committees are an interesting phenomenon. It is beyond dispute that the superintendent is the personnel gatekeeper. As per statute (N.J.S.A. 18A:27-4.1), no employee may be appointed, transferred or removed without the recommendation of the superintendent and a recorded roll call majority vote of the full membership of the board of education. With some very limited exceptions, before a board of education can even consider a personnel action, it must come through the superintendent and have the superintendent’s recommendation. No superintendent recommendation, no board discussion, no board vote.

That being said, many boards of education have interview committees that assist in the personnel process. In collaboration with school administration, they are typically involved in upper-level, high-profile administrative positions such as a school business administrator, assistant superintendent, director of special services or high school principal. While the ultimate recommendation lies with the superintendent, board member insight and expertise can play a valuable role in the process.

In the past few months, the School Ethics Commission (SEC) has ruled several times on the issue, providing guidance to board members as to when their interview committee activities have crossed the line and guidelines to follow in the future. That guidance can be a bit confusing; it is our hope that the explanation below helps boards of education understand the limitations of board member participation in interview committees.

Advisory Opinion A01-15 The SEC advised that board members would not violate the School Ethics Act if the board of education were to conduct employment interviews for positions in addition to the superintendent and/or the school business administrator. Each local board of education could determine, by its own policy, whether or not to establish board committees to conduct such interviews. As this matter involved a sending-receiving relationship, the SEC further advised that the sending district representative to the receiving board could not be a member of such committees for positions other than for the high school. The commission further cautioned that membership of such committees should be kept small so as not to meet or exceed the minimum number of board members to meet a quorum, which would implicate the Open Public Meetings Act.

In reporting on this matter in the May 5, 2015 online edition of School Board Notes, NJSBA strongly advised boards of education to discuss A01-15 with their superintendent and board attorney, recommending that boards consider:

Advisory Opinion A15-10 in which the SEC found that participation in exit interviews was inconsistent with the role of a board member.

N.J.S.A. 18A:12-24.1 (c) of the Code of Ethics for School Board Members, which advises that a board member is “not to administer the schools, but together with my fellow board members, to see that they are well run.”

N.J.S.A. 18A:27-4.1, which states that the board of education may appoint, transfer or remove an employee only with the recommendation of the chief school administrator.

NJSBA was concerned that A01-15 could lead to a too-expansive use of interview committees, and the Association reaffirmed its belief that the practice of boards of education interviewing employment candidates for positions other than higher-level management positions, is contrary to board governance best practices.

It is important to note that the SEC later withdrew A01-15 from its list of public advisory opinions. (More on this below.)

Advisory Opinion A04-12 The SEC advised that a board member’s participation on an interview committee, which was established to interview candidates for high-level administrative and supervisory positions, would not violate the School Ethics Act. Originally issued as a private advisory opinion in 2012, the SEC made this opinion public at its May 26, 2015 meeting. The commission provided the following caveats for committee interview participation: the interview committee should not have more than one or two board members; the interview committee should be coordinated by a member of the administrative staff; board member participation should be strictly limited to offering observations and assessments; and the final recommendations are wholly within the purview of the superintendent.

The commission reasoned that participation on such an interview committee was fairly considered “board action” and would be within a board member’s policy making, planning and appraisal duties, as provided by N.J.S.A. 18A:12-24.1 (c) and (d).

In reaching this decision, the commission retracted opinion A01-15 from its public advisory list. While there is no express statutory or regulatory procedure for “depublicizing” an advisory opinion, the SEC followed its public advisory opinion procedure, casting six votes of nine members to remove it from the website. The commission found A04-12 to provide a better explanation of its position on employee interviews and was of a more general application for school districts.

Advisory Opinion A31-15 The SEC responded to a request for clarification regarding a perceived conflict between the exit interview prohibition of A15-10 and the limited participation in higher-level administrative employee interviews of A04-12; each of which was analyzed under N.J.S.A. 18A:12-24.1 (c) and (d) of the Code of Ethics for School Board Members, but with seemingly different results.

The SEC advised that it does not support board of education members conducting interviews for positions below that of superintendent. However, the SEC’s jurisdiction does not extend to actions of the board of education, only to actions of individual board of education members. Accordingly, each individual board of education may determine if it wants to have an interview committee for high-level administrative positions, pursuant to A04-12.

If a board of education forms an interview committee, no more than one or two board members may participate, the committee should be coordinated by a member of the administrative staff and the board members’ role should be limited. The board members may not conduct the interview, but may offer observations and assessments, with full knowledge that final recommendations are wholly within the purview of the superintendent. For boards of education choosing to have an interview committee, the committee should function with the approval of the superintendent. It is the superintendent’s authority to recommend hires to the board. An interview committee cannot supersede or usurp that authority.

It should be noted that Advisory Opinion A31-15 contains the following express language: “For Boards choosing to have a personnel committee, the Committee must be established and function with the approval of the Superintendent.”

The establishment of personnel or interview committees is a governance function of the board of education; committees are established through board policy, approved by the board. The SEC has determined that a board president, who issued a Rice notice to a school business administrator, acted beyond the scope of his authority and crossed the line from board governance into administration of the school district. In a similar fashion, to have a superintendent exert control over whether a board of education would create a personnel or interview committee would seem to be beyond the scope of the superintendent’s authority, crossing the line from administration of the school district into board of education governance.

The SEC noted that N.J.S.A. 18A:12-24.1(h) establishes that it is a board member’s role to vote to appoint the best-qualified personnel available after consideration of the recommendation of the superintendent. The role of interviewing is an administrative function not generally within the authority of the board or its members. Accordingly, the SEC does not advocate for board member involvement in any interview process, prior to candidates first being recommended for hire by the superintendent, except for the limited purpose outlined in A04-12.

So what is a board member to do? What are the parameters for boards of education which choose to form interview committees as set forth by the School Ethics Commission? Here’s what we can take from the SEC public advisory opinions to date:

A board member’s participation on an interview committee for high-level administrative and supervisory positions, does not violate the School Ethics Act.

The SEC does not support board of education members conducting interviews for positions below that of superintendent. However, the SEC’s jurisdiction does not extend to actions of the board of education, only to actions of individual board of education members. Accordingly, each individual board of education may determine if it wants to have an interview committee for high-level administrative positions, pursuant to A04-12.

For those boards of education which choose to have an interview committee, the SEC has provided the following caveats: the interview committee should not have more than one or two board members; the interview committee should be coordinated by a member of the administrative staff; board member participation should be strictly limited to offering observations and assessments; and the final recommendations are wholly within the purview of the superintendent.

Participation in exit interviews is inconsistent with the role of a board member as per Advisory Opinion A15-10.

N.J.S.A. 18A:12-24.1 (c) of the Code of Ethics for School Board Members, advises that a board member is “not to administer the schools, but together with my fellow board members, to see that they are well run.”

N.J.S.A. 18A:27-4.1, states that the board of education may appoint, transfer or remove an employee only with the recommendation of the chief school administrator.

As with any situation, a change in facts could lead to a different result. Board members should seek the advice of their board attorney before volunteering in school district and community activities.

Michael Kaelber is director of NJSBA’s Legal and Labor Relations Services department.