School Ethics Act

An individual served as a board of education member for an initial term. During his candidacy for reelection, the local education association and statewide education association decided to endorse the individual. The individual was reelected. Is this a conflict of interest and a violation of the School Ethics Act? Not necessarily, said the School Ethics Commission (“SEC”) in Advisory Opinion A10-18 issued on June 26, 2018.

The local education association (“LEA”) offered financial support to the individual, which he did not accept. On its own accord, the New Jersey Education Association (“NJEA”) circulated printed material endorsing the individual’s candidacy. The individual serves on the board of education’s negotiations team. He also received notice that the LEA President may file a lawsuit against him.

In its advisory opinion, the SEC explained that a local and/or statewide union’s endorsement of a candidate does not automatically create a future conflict unless  financial contribution is given and is intended to influence the individual in the discharge of his duties as a board member. Legitimate political activity by itself does not violate the School Ethics Act and does not per se create a conflict.

Based on the individual’s circumstances, the SEC found that the board member in question did not have an automatic conflict. The SEC cautioned the board member to not surrender his independent judgment to any special interest group. The SEC also advised that if the LEA President initiates a lawsuit against him, he should recuse himself from any matter related to the LEA.

In January, numerous individuals took the oath of office to officially begin their service as a school board member. Potential conflict of interest issues are never ending. On January 3, 2018, the New Jersey School Ethics Commission (“SEC”) issued Advisory Opinion 36-17 which addressed questions pertaining to a newly elected board of education member who is also a current student within the same school district.

The individual in question is an eighteen year old, twelfth grade student currently enrolled in the school district. The individual also serves as the Senior Class President and is a member of the Principal’s Advisory Council. Based on these facts, the SEC explained that the individual’s status as a current student does not by itself limit his involvement in board activities or diminish his status as a board member. To that end, the SEC advised that so long as there is no other conflict under the School Ethics Act, this newly elected board member may engage in the following:

(1) participate in personnel discussions and vote on personnel matters;

(2) participate in collective negotiations with the District’s teachers’ association;

(3) participate in grievance hearings;

(4) serve as a volunteer for school related activities and functions in the same manner as any other Board member;

(5) participate in student suspension/expulsion hearings;

(6) participate in closed session discussions where a particular pupil matter is being discussed;

(7) participate in residency hearings where the Superintendent is seeking removal of a currently enrolled pupil;

(8) vote for class trips, club trips and/or competitions involving student travel for District clubs or activities;

(9) vote for the establishment of new clubs, sports or activities at the high school; and

(10) vote on policies related to pupils or personnel.

However, the SEC emphasized that this board member/student, like any other school board member, must constantly evaluate whether different situations create a conflict of interest that would preclude his participation. For instance, the board member must avoid being involved in matters which would create a personal and direct benefit to him and/or create an unwarranted privilege, advantage or employment to himself, a member of his immediate family or others.

On September 11, 2017, the New Jersey Commissioner of Education (“Commissioner”) affirmed six decisions by the New Jersey School Ethics Commission (“SEC”) that various board of education members violated the School Ethics Act for failing to timely complete school board member training. These board members received penalties ranging from suspensions to reprimands.

N.J.S.A. 18A:12-33 of the School Ethics Act requires, in relevant part, the following for members of a board of education or charter school board of trustees:

(a) Each newly elected or appointed board member shall complete during the first year of the member’s first term a training program…regarding the skills and knowledge necessary to serve as a local school board member. The training program shall include information regarding the school district monitoring system…and the five key components of school district effectiveness on which school districts are evaluated under the monitoring system: instruction and program; personnel; fiscal management; operations; and governance. The board member shall complete a training program on school district governance in each of the subsequent two years of the board member’s first term.

(b) Within one year after each re-election or re-appointment to the board of education, the board member shall complete an advanced training program[.]

…

(d) Within one year after being newly elected or appointed or being re-elected or re-appointed to the board of education, a board member shall complete a training program on harassment, intimidation, and bullying in schools[.]

In three of these cases, the SEC found that the board members failed to complete the mandatory training required by statute despite receiving notification of noncompliance. The Commissioner upheld the penalty recommended by the SEC, which included a thirty-day suspension and ordering that the board members complete an online training program within thirty days. Further, the Commissioner ordered removal of the individuals as board members if they do not complete the online training program within thirty days.

In the remaining three cases, the board members completed the requisite training after an order to show cause was filed against them but before the SEC issued a final decision. Those board members received a written reprimand as a school official who violated the School Ethics Act.

The individual Commissioner and SEC decisions can be found here.

On May 22, 2017, the New Jersey Appellate Division in Lowell v. Smallwood affirmed the Commissioner of Education’s decision that a board of education member violated various provisions of the School Ethics Act (“Act”) for her dealings with a potential candidate for superintendent. Specifically, the board member violated N.J.S.A. 18A:12-24.1(c) and (e) for acting beyond the scope of her authority and making personal promises.

Felicia Simmons, Geneva Smallwood, and Corey Lowell were members of the Asbury Park Board of Education (“Board”). Lowell initiated a complaint with the School Ethics Commission (“SEC”) asserting that Simmons and Smallwood violated the Act. Lowell testified before the SEC that in November 2013, the Board appointed a superintendent. However, the State fiscal monitor for the school district determined that the candidate was unqualified and overturned the Board’s decision. In February 2014, during a closed meeting, the Board discussed the possibility of hiring that candidate as an interim superintendent. The personnel committee, which included Simmons and Smallwood, were directed to meet with the State monitor to discuss the appointment.

Lowell further testified that at another closed Board meeting, Smallwood stated that she and Simmons met with representatives of the former employer of the potential candidate to discuss his qualifications. This action was contrary to the Board’s instructions. Lowell also stated that the remaining board members were unaware of the visit. Several documents were admitted into evidence before the SEC, including emails scheduling a meeting among Simmons, Smallwood, and the candidate’s representatives. Simmons and Smallwood did not testify.

In March 2015, the SEC issued a decision finding that Simmons and Smallwood violated N.J.S.A. 18A:12-24.1(c) and (e) of the Act, which states as follows:

1. I will confine my board action to policy making, planning, and appraisal, and I will help to frame policies and plans only after the board has consulted those who will be affected by them.
2. I will recognize that authority rests with the board of education and will make no personal promises nor take any private action that may compromise the board.

The SEC found that Simmons and Smallwood acted beyond the scope of their authority when they made the site visit because they did not have approval of the Board or the State monitor. Further, the SEC found that Simmons and Smallwood improperly made personal promises to the potential candidate by advancing the possibility of employment. As a result of these violations, the SEC recommended a penalty of censure.

Simmons appealed the SEC’s decision to the Commissioner of Education (“Commissioner”). Smallwood did not file an appeal. The Commissioner upheld the SEC’s decision. Simmons further appealed to the Appellate Division.

The Appellate Division found the SEC and Commissioner’s decisions to be supported by substantial evidence and affirmed their decisions. Specifically, the Appellate Division rejected Simmons’ argument that hearsay evidence should not have been considered, as the administrative regulations allow for hearsay. Further, Lowell’s testimony was supported by documentary evidence, such as email correspondences. Importantly, Lowell’s testimony was not contradicted, as no other witnesses testified. In short, the Appellate Division affirmed the SEC and Commissioner.

In November 2016, the New Jersey Commissioner of Education (“Commissioner”) upheld three decisions by the School Ethics Commission that various board members violated the School Ethics Act for failing to timely file their Personal/Relative and Financial Disclosure statements.

N.J.S.A. 18A:12-25 and 26 require school board and charter school board members to annually file with the School Ethics Commission disclosure statements regarding their employment, financial interests, and sources of income. Moreover, these provisions of the School Ethics Act mandate that board members also disclose similar information regarding their relatives. Financial disclosure statements must be filed on or before April 30 of each year.

In a matter involving a board member from the Gray Charter School, the Commissioner found that the board member violated the School Ethics Act by filing incomplete disclosure statements and by failing to correct those statements in violation of N.J.A.C. 6A:28-3.4. The Commissioner agreed with the School Ethics Commission to suspend the board member for 30 days or until she corrects her disclosure statements. The Commissioner further advised that the board member will be removed from her position as a school official if she fails to correct her disclosure statements within 30 days.

In the Matter of Alex Janklowicz (Lakewood Township Board of Education) and In the Matter of Ronald Murphy (Beverly City Board of Education), the Commissioner upheld the School Ethics Commission’s decision to reprimand two board members for untimely filing their disclosure statements. Only after Orders to Show Cause were filed on July 26, 2016 did the board members submit the required paperwork. While the board members filed the disclosure statements prior to the School Ethics Commission’s August 23, 2016 meeting, the board members were admonished for causing “unnecessary expenditure of administrative and adjudicative resources.”

These decisions serve as a reminder to Board members that they must timely file their Personal/Relative and Financial Disclosure statements or otherwise risk losing their position.

Many boards of education have personnel committees in which one or two board members, in a limited capacity, participate in the committee. May a board member be involved in the interview process of a candidate seeking employment with the board? The New Jersey School Ethics Commission (“Commission”) advises no.

In Advisory Opinion A31-15 issued on January 26, 2016, the Commission determined that a board member would likely violate the New Jersey School Ethics Act (“Act”) if he involved himself in the interview process of potential candidates. The specific provisions of the Act which would be violated are N.J.S.A. 18A:12-24.1(c) and (d):

c. I will confine my board action to policy making, planning, and appraisal, and I will help to frame policies and plans only after the board has consulted those who will be affected by them.

d. I will carry out my responsibility, not to administer the schools, but, together with my fellow board members, to see that they are well run.

The Commission emphasized that final recommendations for personnel hires are “wholly within the purview of the Superintendent.” In its analysis, the Commission highlighted its decisions in Advisory Opinion A15-10 and A01-12, which stated that a board member may not participate in exit interviews and his role in serving on a personnel committee is strictly limited to offering observations and assessments.  The Commission also pointed to N.J.S.A. 18A:12-24.1(h), which states that a board member’s role is to vote for the best qualified candidate after consideration of the recommendation of the Superintendent.

As such, board members, even when serving on a personnel committee, should be cognizant of whether their actions interfere with or limit the Superintendent’s role.

By: Kelly E. Adler, Esq.
Editor: Sanmathi (Sanu) Dev, Esq.

Negotiations are a hot topic in New Jersey right now; specifically, which Board members can and cannot participate in negotiating with teachers, administrators and staff is a question Board solicitors are constantly fielding.  In an attempt to clarify this issue, the School Ethics Commission (“Commission”) released three separate Advisory Opinions regarding this very issue.

The School Ethics Act, N.J.S.A. 18A:12-24 et seq., governs New Jersey School Board members as well as school officials.  Generally speaking, the School Ethics Act prohibits school officials and Board members from using or attempting to use their official position to secure unwarranted privileges, advantages or employment for him or herself, members of his or her immediate family or others.  N.J.S.A. 18A:12-24(b).  Due to continuing inquiries to the Commission regarding how to handle negotiations when a Board member has a relative that works out-of-district, the Commission published several Advisory Opinions that are detailed below.

In Advisory Opinion A11-15, the School Ethics Commission attempted to clarify how a Board member with a relative working in another district is impacted during the negotiation process.  In this Advisory Opinion, two different Board members had relatives working in different districts.  Board member one had a first cousin working in another district and Board member two had a cousin-in-law working in another district.  The School Ethics Commission focused on N.J.S.A. 18A:12-24(b), which prohibits a school official from using or attempting to use his or her official position to secure unwarranted privileges, advantages or employment for him or herself, members of his or her immediate family or others.  The Commission reviewed different definitions surrounding the terms “relative” and “member of the immediate family,” and determined that Board members may not use their official position to secure unwarranted privileges, advantages or employment for any individual meeting the definition of relative covered by the nepotism policy required in N.J.A.C., 6A:23A-6.2(a)(1).   N.J.A.C., 6A:23A-6.2(a)(1) defines relative as an individual’s or spouses’ parent, child, brother, sister, aunt, uncle, niece, nephew, grandparent, grandchild, son-in-law, daughter-in-law, stepparent, stepchild, stepbrother, stepsister, half brother or half sister, whether the relative is related to the individual or the individual’s spouse by blood, marriage or adoption.  The Commission noted that a Board member cannot participate in negotiations or vote on a proposed contract when a relative, as defined in N.J.A.C., 6A:23A-6.2(a)(1), is a member of the bargaining unit of the same district.  A Board member is also prohibited from participating in negotiations or voting on a proposed contract when an immediate family member is a member of the same or similar Statewide union.  An immediate family member is defined as a spouse or dependent child of a school official residing in the same household.  N.J.S.A. 18A:12-23.  Since a cousin and cousin-in-law did not fall under the definition of a “member of the immediate family,” the Commission determined that “without evidence of additional circumstances,” there would be no violation of N.J.S.A. 18A:12-24(b).  However, Board members were cautioned to evaluate the following three criteria before participating in negotiations or voting on a proposed contract:

1. Is the out-of-district relative an officer in the NJEA or local education association?
2. Is the out-of-district relative on the negotiating team for that district?
3. Does the out-of-district relative have some other leadership role in his or her union or district which may influence the outcome of negotiations in the other district?

The Commission noted that if there were facts at play, such as the out-of-district relative being involved in contract negotiations at the same time as the in-district Board member, then it would be more reasonable for the public to believe it possible for the Board member to discuss negotiation strategies with the relative or to provide other information that would lead to a benefit for the relative.  The take-away from this Advisory Opinion is that there is no automatic recusal from participation by a Board member when a Board member’s relative (as opposed to a member of the immediate family) is a member of the same statewide union.  A more detailed analysis is necessary to make the determination of whether recusal from participating in negotiations or abstention from voting is necessary.

Advisory Opinion A16-15 requested an opinion about seven out of nine Board members and whether these seven Board members could participate in negotiations and/or vote on a proposed contract.  The Advisory Opinion was split into an analysis of Board members with in-district relatives and out-of-district relatives.  Five Board members had relatives that were members of the NJEA and worked in the district.  Those Board members were automatically prohibited from participating in negotiations and/or voting on the proposed contract because the School Ethics Act prohibits the Board members from participating or voting on any issues that touch upon the relative’s employment with the district.  These Board members are also prohibited from participating in the evaluation of the Superintendent and any other staff member or official that oversees the relative.

The evaluation of whether the remaining Board members could participate in negotiations and/or vote on the proposed contract was a bit more complicated with regards to the Board members with relatives working out-of-district.  One Board member had a sister who was a member of the NJEA, but worked out-of-district.  The second Board member had a daughter who was a member of the NJEA, but worked out-of-district.  An analysis of the definitions surrounding “immediate family member” and “relative” ensued.  As a result, the Commission determined that without evidence of additional circumstances, a Board member with a relative who works in another district and is a member of the same or similar statewide union would not violate N.J.S.A. 18A:12-24(b).  The Commission cautioned, however, that the Board members should evaluate the criteria as set forth in Advisory Opinion A11-15 (described above) to determine whether there are any circumstances at play that would create a violation of N.J.S.A. 18A:12-24(b).

Finally, Advisory Opinion A13-15 dealt with the question of whether a Board member could participate in negotiations or vote on the proposed contract.  However, this Advisory Opinion turned on an evaluation of N.J.S.A. 18A:12-24(c).  This particular Board member was employed in another district as a supervisor and represented by the New Jersey Principals and Supervisor’s Association (“NJPSA”), which was in no way affiliated with the NJEA, although the supervisor’s district did have a local NJEA affiliate.  N.J.S.A. 18A:12-24(c), states:

No school official shall act in his official capacity in any matter where he, a member of his immediate family, or a business organization in which he has an interest, has a direct or indirect financial involvement that might reasonably be expected to impair his objectivity or independence of judgment.  No school official shall act in his official capacity in any matter where he or a member of his immediate family has a personal involvement that is or creates some benefit to the school official or member of his immediate family.

Based on the facts provided, the Commission determined that there did not appear to be violation should the Board member participate in negotiations or vote on the proposed contract.

As can be seen from the analysis of these three Advisory Opinions, whether a Board member can participate in negotiations or vote on a proposed contract is a very fact specific inquiry.  If there is any question as to whether a Board member can participate or vote, the Board should contact their solicitor and/or request an Advisory Opinion.