With the November school election season underway, board candidates may have questions concerning endorsements. The following will provide information about the interaction between New Jersey’s school ethics law and candidate endorsements.
Can sitting board members endorse school board candidates? Yes. Current board members who wish to endorse a candidate should comply with School Ethics Commission (SEC) Advisory Opinion A02-06 (3/10/06) and A36-14 (10/29/14) concerning the expression of personal opinions. These opinions require a board member to indicate that such endorsement is their personal view and not that of the board of education; to provide accurate information that is not confidential; and to ensure that this private action does not compromise the board. Furthermore, regardless of whether hard copy, electronic or social media postings are contemplated, appropriate disclaimers must be included in each medium.
Can a board member endorse other types of candidates? Yes, but they must be mindful that to adhere to the SEC’s requirements for endorsement. For instance, in In the Matter of DeMeo, the school board president publicly endorsed a candidate running for the local municipal council through a mailing to the community. The envelope bore the board member’s official title, “President, Board of Education” under his name followed by his law office address. The SEC found that the respondent violated N.J.S.A. 18A:12-24(b) of the School Ethics Act in that “[t]he totality of the endorsement including the letterhead, the content of the letter, and the nature of the return address on the envelope, could lead someone reading the letter to reasonably assume that the endorsement was made” by the board member in his official capacity as the president of the board.
What if the improper use of an endorsement of a candidate violates the School Ethics Act? While the board member may not have technically committed a violation, the SEC has cautioned board members that they may have a responsibility to correct the improper use of their endorsements when they become aware of them. In Kasmark v. Despee, the SEC examined whether board members violated the act when a mayoral candidate misused a board member’s endorsement by printing a picture with the board member with the caption “board member” underneath. The SEC determined that the board member did not make any personal promises or take any action compromising the board, thus finding no violation of the act. However, the SEC also cautioned that, while the board members offered their endorsement as private citizens to the mayoral campaign, “it is perfectly plausible that a campaign would publish literature without conferring with those who endorse the candidate, apparently neither board member, upon the discovery of the text used in the campaign literature, took measures to confront the fact that [the] campaign literature was potentially problematic, as would have been good practice.”
Can candidates be endorsed by a local school employees’ union? Yes. However, accepting such an endorsement may restrict the candidate’s ability to participate fully in certain discussions and votes of the board of education. The School Ethics Commission has ruled that it would be a violation of the School Ethics Act for board members who are endorsed by the local union to participate in current negotiations with that union. Additionally, even if the board is not currently in negotiations, an endorsement by the union may have an impact on upcoming negotiations depending on the time that has elapsed between the endorsement and the start of negotiations. See SEC Advisory Opinion A13- 02 (12/2/02). Board members should consult with the board attorney concerning any potential or actual ethical conflicts arising under the school laws.
Can union endorsement have an impact on other board activities besides negotiations? The SEC has advised that “endorsement of a candidate by a local and/or statewide union does not create a per se future conflict unless a financial contribution is given and is intended to influence the board member in the discharge of his/her duties as a board member. Legitimate political activity, without any greater involvement (such as a campaign contribution intended to influence a board member in the discharge of his/her duties), does not violate the Act, and does not create a per se conflict under the Act.” However, the SEC stressed that this is a general rule and every matter that comes before it is dependent on the facts presented. See SEC Advisory Opinion A10-18 6/26/18. In this particular case, the local teachers’ union endorsed the board member and sent flyers to its members endorsing the candidate. The union also offered its financial support but the board member refused. Furthermore, negotiations on the current union contract had already been completed and the contract would not expire for another three years.
What if the candidate expresses support for the union and the union supports the candidate, but does not formally endorse the candidate? Without more involvement, there is no ethics violation. A board member may serve on the negotiations committee without restriction. See SEC Advisory Opinion A15-18 4/25/18
For further information, contact the NJSBA Legal and Labor Relations Department at (609) 278-5254 or your local board attorney.
