In almost all cases, the action taken by school boards is done by way of formal voting at public meetings. While this seems like a simple concept, there are many issues that can impact the voting process for school boards.

A school board gets its authority to vote from several different sources. Many board voting requirements are set through legislation, administrative rule-making, court decisions and agency opinions. Other sources of authority arise from a board’s own policies and by-laws, and still others are creatures of the board’s parliamentary authority, usually “Robert’s Rules of Order.”

All board members are well-advised to familiarize themselves with their local by-laws as well as basic parliamentary procedure. For more complicated questions, the board should consult with its board attorney. A guide to other topics follows.

Abstentions Historically, there has been a certain amount of confusion in New Jersey regarding the effect of an abstention by a board member. Robert’s Rules, or “Robert’s,” is actually quite clear on the subject. According to Robert’s, the phrase “abstention vote” is an oxymoron because an abstention is actually not a vote at all. Thus, Robert’s notes that in a situation where a simple majority vote is required, abstentions have no effect on the outcome because what is required is a majority of the votes cast.

The confusion likely arises because in some situations involving public school districts, an abstention does have the effect of a “no” vote. For instance, if a measure must pass by a majority of the full membership of the board, a specified number of affirmative votes is required for a motion to pass (for example, five votes for a nine-member board.) In that case, an abstention would have the same effect as a “no” vote.

In April 2011, the New Jersey Law Review Commission recognized the confusion surrounding the subject when it issued a report recommending passage of legislation to clarify that when a member abstains or fails to vote on a matter before the body, the member shall not be counted as voting either for or against the matter.

The issue was addressed by the Appellate Division of the Superior Court in two cases decided on the same day in July 2013. In those cases, the court favorably cited Robert’s Rules in concluding that abstentions are neither for nor against an item and should not be counted as votes at all.

Basic Voting RequirementAccording to Robert’s Rules, the basic requirement for approval of an action is a majority vote, which means more than half of the members present and voting on a particular issue. Robert’s clarifies that this means more than half of the votes cast by persons entitled to vote at a regular or properly called meeting, excluding non-votes or abstentions.

This basic voting rule applies in all situations unless a statute, administrative code provision, board policy or by-law imposes a different requirement, such as a majority of the full board; a requirement stating that a vote requires two-thirds of the members present; etc. These other scenarios are discussed later in this article.

Closed Session The only item permitted to be formally voted upon and approved in executive session is the certification of tenure charges and any related suspension of the charged employee. All other formal votes must occur in public.

Conflicts of Interest A member who has a conflict of interest with respect to a particular matter should recuse him or herself from consideration of or voting on that issue. The subject of conflicts is beyond the scope of this article, but see discussion below regarding the “doctrine of necessity” and quorum requirements as they relate to board member conflicts.

Doctrine of Necessity As indicated above, board members may not legally vote on a matter for which they have a conflict of interest. It sometimes happens that multiple members of a board are conflicted as to a particular issue. What happens if the majority of the whole board has disqualifying conflicts?

In some circumstances, a board may be able to invoke the doctrine of necessity to allow conflicted members to vote. In order to invoke the doctrine, a board must pass a resolution setting forth that they are invoking the doctrine, the reason for doing so, and the nature of the board member conflicts. The resolution must be read at a public meeting, posted for 30 days, and a copy sent to the New Jersey School Ethics Commission (SEC). However, the circumstances under which the doctrine may be invoked are quite limited.

In 1995, the SEC determined that three members without conflicts were enough to negotiate on behalf of a board. In a 2012 opinion, the SEC advised that a nine-member board with five conflicted members could not invoke the doctrine for the superintendent search process, since the four non-conflicted members could serve as the search committee. However, the doctrine would need to be invoked for the ultimate vote to appoint a superintendent.

In a 2014 opinion, the SEC advised that three board members without conflicts were enough to conduct final interviews for a superintendent position. In a 2015 advisory opinion, the SEC acknowledged that a board with a conflicted member may be more likely to end up deadlocked. Nevertheless, the SEC confirmed that frequently tied votes are not a basis for invoking the doctrine of necessity as long as the board maintains a quorum of non-conflicted members eligible to vote. The doctrine may only be invoked when the majority of the board is actually conflicted on a matter. This is an area where it is recommended that the board obtain the advice of counsel before acting.

Minimum Vote Required For some items, the number of votes required to pass an item is set by law (see special voting requirements on page 18). For other matters, what is required is a majority of those present and voting. But what if several members have conflicts or abstain with respect to a particular issue?

Let’s look at a quick example. Assume a nine-member board has four members who are conflicted from voting on a new contract with the teachers’ union. That leaves five board members eligible to consider the matter. When the time comes to vote, two members vote yes, one votes no, and the other two abstain. Does the resolution pass? Under Robert’s Rules, the answer is probably yes, since the two affirmative votes were the majority of those present and voting (the abstentions don’t count as votes).

However, even Robert’s Rules recognizes the danger of unrepresentative action by an unduly small number of voters. That is why the requirement for a quorum is so important. In this regard, the common law in New Jersey has generally recognized that taking board action requires the affirmative vote of at least a majority of the quorum. Thus, in the example above, two votes would not have been enough to pass the item.

President The board president, as a duly-elected board member, has the same voting rights and privileges as the other board members.

Proxy Voting Voting by proxy occurs when someone who does not attend a meeting authorizes someone else to vote for them, or attempts to cast their vote in advance of the meeting. Proxy voting is not compatible with the philosophy of open public meetings and is not permitted in the school board setting.

Quorum A quorum is the number of members of a board required to hold a meeting or take action. Absent a specific provision to the contrary, both the common law and Robert’s Rules define a quorum as a majority of the members. Furthermore, the Open Public Meetings Act provides that a gathering attended by less than an effective majority of the members of a public body does not constitute a meeting.

However, in a board with vacancies, it can be argued that a quorum is less than a majority of the fully authorized membership of the board. For example, if a nine-member board has two vacancies, then four members would be a majority of the sitting board members. If four of the members were to convene a meeting, they might be able to pass certain resolutions that don’t require the votes of a super-majority or the majority of the full membership of the board.

However, there are many items that do require a specific number of votes; see the discussion of Special Voting Requirements below. For all of those items, a quorum would require the presence of a majority of the full membership of the board. In order to avoid confusion, the best practice is to treat the quorum requirement as being a majority of the full membership of the board.

Regional Boards The vote to be cast by each member of a regional district board of education is determined by a formula which involves dividing the number of inhabitants per member in the district from which the member is elected, by the representative votes for the regional district and rounding off the quotient to the nearest tenth of a full vote. Whenever a statute or by-law requires a vote by the majority of the board members, or the majority of members present, it means a majority of the “weighted” votes of all members, or of the members present, as the case may be.

Remote Voting It is possible for a board member to participate in a meeting and vote remotely, for example by speaker phone, provided adequate steps are taken to ensure that the public can hear the remote board member participate in the meeting and he or she can hear the other board members and members of the public. A board that wishes to allow remote voting should first adopt a policy to set forth the conditions and procedures under which it would be permitted. For example, it would not be appropriate for a majority of the members participating in a meeting to do so remotely. This is another topic where it is appropriate to consult with board counsel before acting.

Sending District Voting Rights Until earlier this year, a sending district representative was statutorily permitted to vote on only the following specific matters before the receiving district board of education:

  • The tuition charged to the sending district, and bill lists or contracts for purchase, operations or maintenance of facilities, equipment and instructional materials to be used in the education of the pupils of the sending district;
  • New capital construction to be utilized by sending district pupils;
  • The appointment, transfer or removal of teaching staff members providing services to pupils of the sending district, including any teaching staff member who is a member of the receiving district’s administrative staff; and
  • The addition or deletion of curricular and extra-curricular programs involving pupils of the sending district.

These restrictions were strictly interpreted by the courts, and receiving boards were not permitted to expand their sending representative’s voting rights and permit them to vote on matters not specifically authorized by statute.

This summer, in a bill championed by the NJSBA, the voting rights of sending district representatives on receiving district boards of education were expanded to include the following additional items:

  • Any matters directly involving the sending district pupils or programs and services utilized by those pupils;
  • Approval of the annual receiving district budget;
  • Any collectively negotiated agreement involving employees who provide services utilized by sending district pupils;
  • Any individual employment contracts not covered by a collectively negotiated agreement, if those employees provide or oversee programs or services utilized by sending district pupils; and
  • Any matters concerning governance of the receiving district board of education including, but not limited to, the selection of the board president or vice-president, approval of board by-laws, and the employment of professionals or consultants such as attorneys, architects, engineers, or others who provide services to the receiving district board of education.

The new law, which significantly broadens the voting rights of sending district representatives, became effective on July 21, 2017.

Special Voting Requirements As noted earlier in this article, some matters require only a simple majority vote while others require something more. The NJSBA has an excellent resource available on its website titled Board Voting Requirements (see https://www.njsba.org/services/legal/topical-school-law-information/) which details the votes required for various matters.

To briefly summarize, some actions require a recorded roll call vote and passage by an affirmative vote of a majority of the full membership of the board, meaning the number of members when all seats on the board are filled. These include: appointing and fixing the term of a superintendent of schools, appointing a teaching staff member, transferring a teaching staff member, withholding an increment and adopting a course of study.

Other actions require an affirmative vote of the majority of the full membership of the board, but do not require a roll call vote. These include: certification of tenure charges, filling a vacancy on an elected board of education, disqualifying a bidder and approving employee and board member travel.

There are also matters that require the affirmative vote of two-thirds of the membership of the full board, or, in the case of calling an emergency board meeting without providing adequate prior notice, three quarters of the members present.

Straw Polls Straw polls are permitted in order to reach consensus in executive session as long as they relate to a proper subject for executive session discussion and provided that any formal action occur by way of a public vote.

Type of Vote On some matters, boards have the option of conducting a simple voice vote. Typically, the board president in such a situation calls for those in favor of a matter to simultaneously vote “aye” or “yes” and those opposed to vote “no.” The president then judges whether more members called out yes or no and announces the result.

This practice is fine for routine matters that do not require a roll call or a specific number of votes. The best practice is for boards to use a recorded roll call vote for all matters that require a super-majority or majority of the full board and reserve a “voice vote” only for matters without a specific voting requirement.

John E. Croot Jr., is a partner with Adams Gutierrez & Lattiboudere, LLC. He can be reached at [email protected].