In a continuing effort to ensure that all school officials are aware of, and comply with, the requirements of the School Ethics Act, the School Ethics Commission voted to make eight advisory opinions public at its meeting on June 27, 2023.
Simultaneous Service on Charter School Boards of Trustees. In A04-23, a school official inquired whether they could simultaneously serve on two different charter school boards of trustees without violating the act. The SEC advised that it did not have the authority to determine whether such dual office holding violated Fischer v. Attorney General of N.J., N.J.S.A. 19:3-5.2, or N.J.S.A. 40A:9-4, but if such a determination was rendered by the appropriate court of law or other administrative agency, a violation of the act could then be sustainable. The SEC further advised that if the charter school trustee chose to serve in both positions simultaneously, they would need to recuse themselves from discussions and votes concerning the other charter school’s board of trustees.
Board President with Conflicts and Selection of Committees. In A05-23, a school official advised that the board president is a retired district employee receiving a pension; has a child and child-in-law employed in the district; and a child employed in a neighboring school district. Considering the board president’s conflicts, the school official inquired whether the board president can select members of the board’s committees, including who will serve as the chairperson of those committees. The SEC advised that because the board president’s pension comes from a state pension fund, and not from local district funds, receipt of a pension is not a conflict. However, because the board president has at least one immediate family member or relative employed in the district, the SEC advised that the board president could not choose the members of, or the chairpersons for, any board committee involving or relating to their immediate family member or relative’s district employment. The SEC noted that because the vice president was not conflicted, the vice president could choose the committee members of, and serve as the ex-officio member of, those committees for which the board president has a conflict. The SEC also addressed the conflict of another board member who had a spouse that worked in the district, and reiterated that the conflict analysis from A24-17 applied.
Employment of the Spouse of a Board Member’s Brother in the District. In A06-23, a board member asked whether they could participate in the process to appoint a new superintendent when the candidate to be appointed presently supervises the spouse of the board member’s brother. Although the SEC advised that there was no per se conflict because the spouse of the board member’s brother is an “other” for purposes of N.J.S.A. 18A:12-24(b), and is not a “relative” within the meaning of the act, the facts and circumstances necessitated the board member’s recusal from the appointment process because of the direct supervisory relationship between the candidate for the superintendent position and the spouse of the board member’s brother. However, once appointed, the SEC advised that the board member could participate in the evaluation of, and in other employment decisions concerning, the superintendent.
Importantly, and as part of this advisory opinion, the SEC published a chart detailing the familial relations that do, and do not, fall within the scope of its newly expanded definition of “relative.” In delineating these relationships, the SEC emphasized it is the school official’s marriage that determines whether an individual is a relative, and the marriage of a school official’s relatives to others will not expand the breadth of such relatives.
Employment of Sister-in-Law, Child, and Spouse in the District. In A07-23, board counsel inquired about the limitations that apply to board member activities when they have family members employed in the district. First, regarding the board member whose sister-in-law (the sister of the board member’s spouse) worked in the district, the SEC advised that although the board member’s sister-in-law was an “other” for purposes of N.J.S.A. 18A:12-24(b), she was a “relative” within the meaning of the act. Therefore, A24-17 governed the limitations on the board member’s activities with respect to matters involving the superintendent and the local education association. Second, concerning the board member whose child was employed in the district as an intermittent per diem substitute, the SEC advised that the limitations would turn on whether the child was regarded as a member of the local education association and, again, would be governed by the guidance in A24-17. Finally, for the conflicted board member who sought access to the superintendent’s evaluation once completed by the other nonconflicted board members, the SEC advised that recusal is absolute in all matters, and that the access of conflicted members is “akin to that offered to any other member of the public.”
Service as a Subcontractor. In A08-23, a board member wanted to know whether his company could bid on a public contract stemming from a shared services agreement between the board and the town. Of importance, and if selected, the contractual agreement would be between each subcontractor(s) and the town, and not with the board. Based on the facts and circumstances presented, the SEC advised that the board member’s company could bid on the public contract. However, if the board needed to review, discuss, or approve any matter(s) related to the subcontracting agreement or the work to be performed on district property, the board member would need to recuse themselves from all such discussions and votes, and was cautioned against using any information that was not publicly available for their own or their business’s gain. The SEC further advised that, if the board member’s company was awarded the contract, the board member should, to the extent possible, not personally perform the work. However, if their physical presence was unavoidable, the board member was cautioned as to how to conduct themselves while on district property.
Personal Relationship between Superintendent and Board Secretary/Business Administrator. In A09-23, board counsel inquired whether the superintendent and the board secretary/business administrator have, due to their “personal relationship,” a conflict and, if so, what prophylactic measures should be taken, beyond those already in place, to avoid a violation(s) of the act. The SEC confirmed, as suggested, that the superintendent and the board secretary/business administrator are an “other” to each other, and that neither can provide the other with an unwarranted privilege, advantage, or employment. In addition, although the evaluation of, and the supervision of, the board secretary/business administrator was nearly entirely delegated from the superintendent to others, the superintendent still retained the ability to supervise the board secretary/business administrator “as may be necessary for” district operations. However, the SEC advised that the superintendent should not, because of the nature of their personal relationship, be involved in any aspect of the board secretary/business administrator’s evaluation or supervision, including as would be “necessary” for district operations. The SEC acknowledged this advice could make it difficult for each to perform their duties and responsibilities, but advised they could seek employment elsewhere, and that such limitations were the “consequence of entering into a personal relationship in the workplace.”
Employment of a Child in an Afterschool Program. In A10-23, board counsel asked whether a board member is prohibited from being involved in matters related to the superintendent when their child is employed as a student employee in an afterschool care program, and is supervised by a district employee (a teaching staff member) who is ultimately supervised by the superintendent. The SEC advised that the board member has a conflict with respect to the immediate supervisor of their child, and to all other employees and administrators “up the chain of command,” including the superintendent. In addition, because the board member’s child is supervised by a member of the local education association, the board member also had to recuse themselves from all matters related to the local education association.
Board counsel also sought clarification on whether there was a minimum number of nonconflicted members needed to evaluate the superintendent. As to this inquiry, the SEC advised that two nonconflicted board members were sufficient, and that the nonconflicted board members could consult with board counsel, hire an outside consultant, or obtain assistance from an appropriate administrator(s) as necessary.
Employment of Mother-in-Law in the District. In A11-23, a board officer sought clarification on the limitations that apply to a fellow board member’s activities when their mother-in-law is employed in the district as a paraprofessional, and also regularly serves as a substitute in the principal’s office. Although considered an “other” for purposes of N.J.S.A. 18A:12-24(b), the SEC advised that the board member’s mother-in-law is a “relative” within the meaning of the act. Therefore, and pursuant to A24-17, the board member is precluded from being involved in all matters related to the superintendent, all matters related to negotiations with the local education association, and to all matters relating to the mother-in-law’s employment including, without limitation, the scheduling of the mother-in-law’s employment and/or budget discussions, which could possibly implicate the position(s) held by the board member’s mother-in-law.
For further information about these advisory opinions, please contact the NJSBA Legal and Labor Relations Department at 609-278-5279, or your board attorney.
