The Board’s Role in Personnel

School board members are state officials. They are empowered by state law to perform a state function — governing the public schools at the local level. Their powers are derived from the legislature and they are representatives of their community to the state.

The role of a board of education is not to run the schools but to see that they are well run. In order to accomplish this, a board makes policies. Policies are the written expression of the board’s desires for the district’s students. A board of education is a policy-making body.

Board’s Role in Personnel One of the roles of the board of education is to ensure that schools have qualified staff. Much of the hiring and renewing of staff process takes place with the administration and is closely regulated under New Jersey statute and code. However, the board will have to vote on hiring of new personnel and/or renewing existing staff. To ensure the schools have qualified staff, the board is responsible for policies regarding hiring and renewal of personnel. The administration is responsible for the regulations that will go with those policies.

The interviewing process, while it can vary from district to district, is largely an administrative function and not a board member role. Typically, districts will have interview committees that an applicant will move through before reaching an interview with the superintendent and/or other administrators. These committees will review resumes and narrow the candidates down to whom they feel are best qualified and the best fit for the district. The superintendent must recommend the hiring and renewal of all personnel. The only person the board will hire, at the recommendation of the board and without the recommendation of the superintendent, will be a new superintendent.

Upon learning of vacancies in school staff, the board and superintendent may have discussions on the qualifications for the position, i.e., what qualities, education, experience and certifications are desired in the successful applicant. The board should also review the job description for the position(s) to ensure that it is up-to-date and truly reflects the responsibilities of the position.

Board members are responsible for overseeing the district, not running the district. The superintendent and administrative team are responsible for running the day-to-day operations of the district. The board then evaluates the superintendent on how well they run the district. The superintendent’s responsibility also requires interviewing, hiring and making employment contract renewal recommendations to the board. Board members hold the superintendent accountable for these decisions during the evaluation process.

It is very important to note that the superintendent/chief school administrator (CSA) cannot recommend, nor can the board approve, the initial hiring of “immediate family members or relatives” of any board member, or of the CSA. District application forms should include a question asking if the applicant is a relative of the CSA and/or board of education members. There may be circumstances where the CSA can ask the executive county superintendent (ECS) for permission to hire a relative or immediate family member of a board member, but those are generally in hard-to-fill positions. These would require ECS permission. The superintendent can recommend renewal of a board member’s relative or immediate family member, but the board member would need to abstain from that vote.

Who qualifies as an immediate family member or relative? Below are the definitions in state law and regulations:

• Immediate Family Member is defined by the School Ethics Commission (SEC) as a spouse or dependent child residing in the same household. (N.J.S.A. 18A:12-23).
• Relative is much broader and defined by the Accountability Regulations (N.J.A.C. 6A:23A-12) as a spouse/civil union or domestic partner, parent/stepparent, child/stepchild and son/daughter-in-law, grandparent, grandchild, siblings, stepbrothers/stepsisters, half brother/sister, aunt, uncle, niece, nephew whether related to the school official or board member by blood, marriage or adoption.

A board member would have a conflict of interest in participating in the discussion and/or voting on any renewal of any immediate family or relative who was employed prior to the board member’s election as defined above. The board member would need to abstain from the discussion and vote.

Hiring Staff By statute, employees may only be appointed or rehired with the CSA’s recommendation and by a recorded roll call majority vote of the full membership of the board. Only non-conflicted board members may participate. So for a board of nine, five members would have to vote to approve the hiring or the motion would fail. If only five of a nine member board can vote, then all five would have to approve the motion.

The School Ethics Act also states (N.J.S.A. 18A:12-24. 1 (h)) “I will vote to appoint the best qualified personnel available after consideration of the recommendation of the chief administrative officer.” The board shall not withhold its approval of the CSA’s recommendation for arbitrary and capricious reasons. The CSA is the educational leader of your district and has the education, certification and experience to make these important hiring recommendations. Board members do not have to rubber-stamp hiring, however, they must consider the CSA’s recommendations.

Renewal and Non-Renewal of Staff At the end of the school year, boards will likely have to make decisions about whether to rehire non-tenured teachers and other staff.

Certificated Staff (Non-tenured) and Paraprofessionals  The staff members who have been employed since the preceding September must be provided a written offer of employment or a notice of non-renewal by May 15. Your board may have a negotiated agreement with an earlier date, but the date cannot be later than May 15.

Non-Certificated Staff There is no statutory deadline for notice, however a deadline is likely outlined in your district’s negotiated agreement. This category will likely include most custodians, secretaries, maintenance, and cafeteria staff.

Renewal of staff will be an action item on the board’s agenda. Non-renewal is not an action item as these employees have a one-year contract. Typically, the superintendent will have a conversation with the board in executive session, having provided each staff member with a Rice Notice. A Rice Notice is a notification from the board that it is going to discuss an individual’s employment in an upcoming meeting. He or she will identify those staff members who are not being recommended for renewal and what the reason(s) may be. A good practice is to require the CSA to provide some general information regarding all personnel decisions. Failure to notify staff of non-renewal by May 15 will automatically be considered a job offer for the next year if the employee writes back before June 1 and accepts.

The renewal of staff requires both the CSA’s recommendation and a recorded roll call majority vote of the full membership of the board. Only non-conflicted board members may vote.

Can a Board Member Review a Personnel File When There is a Recommendation Before the Board? A board member may ask to see personnel information if there is imminent board action to be taken. This request needs to go through the CSA who should provide specific information relevant to the decision that will be before the board. The district should place restrictions on the time and place of review of the documents to assure that confidentiality is not breached and limited to truly pertinent documents such as an evaluation or a letter in the file. The state has warned against board members going on fishing expeditions. The confidentiality of personnel documents must be ensured.

Non-Renewal If the CSA does not want to renew, the employee is non-renewed. There is no motion on the board’s agenda to non-renew staff. Before notifying an employee of non-renewal, the CSA shall notify the board of their recommendation and reasons. You have probably heard many times from NJSBA, the “no surprises” rule. As previously stated, this would be a conversation the CSA would have with the board, prior to May 15, in executive session, with staff having received a Rice notice. The board may ask questions during that discussion.

Once a staff member has received a written statement of non-renewal, they may, within 15 days,  request a written statement of reasons. They are entitled to receive that written statement within 30 days of asking (N.J.S.A. 18A:27-3.2). When the employee has received the written statement of reasons, they have 10 days to request a Donaldson Hearing if they so choose.

Donaldson Hearing A Donaldson Hearing is an informal appearance before the board to permit a non-tenured employee an opportunity to convince the board to offer re-employment. It is not for the board to prove its reasons for non-renewal. The board does not present witnesses, but the employee may bring an attorney, a representative from the local bargaining unit and may bring witnesses to speak on their behalf. The board does not cross-examine or ask questions of the employee or their witnesses. It is highly recommended that the board’s attorney be present if there is a Donaldson Hearing and that the board’s attorney facilitate the process.

The board will then caucus and can decide not to vote and the CSA’s recommendation would stand, or can decide to vote and the CSA’s recommendation could be overturned with a majority roll call vote of the full membership of the board. If the motion is made for renewal and the motion fails, the employee remains non-renewed. Notification to the employee must be provided within three days of the hearing.

It is well-settled that a school board has virtually unlimited discretion in the hiring or renewal of non-tenured teachers. The non-renewal decision must not be arbitrary, capricious or based on illegal motives. The employee would have the burden of proving that the board had acted in such a way.

Resources Available  Your field service representative (FSR) has several documents available as resources for  board members, such as “Format for Staff Hiring Recommendations,” and “Format for Tenure Recommendations” which provide questions that board members may ask of the CSA when hiring and tenure recommendations are before them. Please contact your FSR for these resources.

The authors are NJSBA Field Service Representatives and former board of education members. Mary Ann Friedman serves boards in Hudson, Middlesex and Ocean (partial)  counties; Gwen Thornton serves Hunterdon, Somerset and Union counties; and Kathy Winecoff serves Monmouth and Ocean (partial) counties.