By Michael Kaelber, Esq., Coordinator of Continuing Legal Education and Research
Navigating the school official ethics landscape can be a challenge for school administrators, not only for their own conduct but for that of board of education members in their school district. Areas such as collective negotiations participation, personnel decisions, board member volunteerism, social media use and board voting are areas where conflict of interest questions can arise. An informed school administrator, working in concert with an informed board attorney, can keep the board of education and individual school officials out of trouble; saving time, money and anxiety for all concerned.
One of the most important aspects of the work of the School Ethics Commission (SEC) is its issuance of Advisory Opinions requested by school officials. The School Ethics Act, states at N.J.S.A. 18A:12-31:
“A school official may request and obtain from the commission an advisory opinion as to whether any proposed activity or conduct would in its opinion constitute a violation of the provisions of this act. Advisory opinions of the commission shall not be made public, except when the commission, by a vote of at least six members, directs that the opinion be made public. Public advisory opinions shall not disclose the name of the school official.”
It should be noted that on occasion the SEC will make several advisory opinions public at a single meeting, usually because the Commission did not have requisite six of the nine member votes necessary at a particular prior meeting.
This article will review some of the most recent public advisory opinions of the School Ethics Commission. It is hoped that a review of these opinions will assist school administrators in making decisions that are legal and ethical. School administrators are encouraged to share these opinions with their fellow school administrators and board of education members.
Click here for a full summary of School Ethics decisions over the past two years.
Advisory Opinion A03-23 (1/31/2023)
Question Posed – Can a Board member become a member of the school district Special Education Parent Advisory Group (SEPAG) and serve as a special education advocate for families in the school district?
SEC advised that it would be a conflict of interest for board member to serve as a SEPAG advocate in the district while also serving as a board member. Board member status may cause the public to view the advocate role to be in substantial conflict with the duties and responsibilities as a board member. It could be perceived that SPEAG would be a mechanism through which the board member could use or attempt to use the official position to secure unwarranted privileges or advantages for others; and/or as service which might reasonably be expected to prejudice the board member’s independence of judgment in the exercise of official duties as a board member. Moreover, in advocating for a district student(s) and family, the board member could be doing so in opposition, whether directly or indirectly, to district staff and administration, and in opposition to the board itself.
Advisory Opinion A05-23 (5/23/2023)
Question Posed – May two board members, one of whom is the board president, with various family and employment relationships in and outside of the school district, have involvement in the appointment to and service on board committees?
Board member A has a child who is an instructional aide in the district, a child-in-law who is an instructional assistant and coach in the district and a child who is a teacher in a neighboring school district. Board member B has a spouse who is employed in the district Technology Department
SEC advised that board member A, as board president, may not choose the members of, chairs of, and/or serve as an ex-officio member of any committee that even remotely touches upon or directly relates to board members A’s family members’ employment including, but not limited to, the personnel committee, the negotiations committee, the instructional committee, and the finance committee.
Because the Vice President does not appear to have a conflict, the Vice President may choose the committee members of, and serve as the ex-officio member of, those committees for which board member A, as the board president, has a conflict.
SEC advised that board member B (spouse employed in district) cannot be involved in any and all matters, including service on committees, that remotely touch upon or directly relate to the spouse’s employment including, without limitation, the personnel committee, negotiations committee, and/or finance committee.
See A24-17 for comprehensive analysis of conflict principles when Board members have familial relationships with Board employees and/or who are members of same statewide unions.
Advisory Opinion A06-23 (4/25/2023)
Question Posed – May a board member, whose sister-in-law (brother’s spouse) is secretary to the middle school principal, participate in the hiring process for a new superintendent when the middle school principal is a candidate?
Board member’s sister-in-law (brother’s spouse; sibling-in-law) is not a relative or immediate family member, but an “other” for purposes of N.J.S.A. 18A:12-24(b). Board member may not use or attempt to use his/her official position to secure an unwarranted privilege, advantage, or employment for “others” such as his “sister-in-law.” Board member’s sister-in-law’s (not a relative) employment in-district, creates no per se limitations on board member’s involvement in contract negotiations with the local education association, or in any superintendent matters, absent other conflicts.
SEC advised that because the board member’s sister-in-law currently works for, and reports directly to, the middle school principal, board member’s involvement in middle school principal’s appointment to superintendent could be perceived as securing an unwarranted privilege, advantage or employment for an “other,” and could create a justifiable impression among the public that their trust was being violated. Board member may not “participate in deliberations and actions relative to the hiring of the middle school principal as Superintendent.”
SEC further advised that if and when the middle school principal is appointed to the position of Superintendent, and the board member’s sister-in-law no longer directly reports to the middle school principal, board member will, absent other conflicts, be able to participate in any and all matters related to the superintendent, including evaluations. If board member’s sister-in-law were regarded as a “relative,” then board member would have been precluded from being involved in any and all matters related to the Superintendent.
Advisory Opinion A07-23 (4/25/2023)
Question Posed – May Board members A, B, and C, who have family members working in the school district, participate in negotiations and matters involving the superintendent?)
SEC advised that board member A’s sister-in-law (spouse’s sister), is a “relative.” Board member A is prohibited from being involved in discussions and votes regarding the Superintendent, and also prohibited from being involved in negotiations with the local education association while the sister-in-law is employed in the school district and a member of the association. Board member A’s sister-in-law (spouse’s sister) is regarded as an “other” for purposes of N.J.S.A. 18A:12-24(b), and board member A may not use or attempt to use their official position to secure an unwarranted privilege, advantage, or employment for his “sister-in-law.”
Board member B’s child resides at an out of state college during school year, returns to the family home during college breaks and intends to work as a per diem substitute in the district. Board member B’s child as an immediate family member. N.J.A.C. 6A:23A-6.3(b), Board may and has excluded “per diem substitutes” from scope of its nepotism policy. Board member B’s child may be hired as a per diem substitute teacher in the district while board member B is a board member.
SEC advised that if board member B’s child is hired as a per diem substitute and becomes a member of the school district’s local education association, board member B would be prohibited from being involved in contract negotiations with the local education association and would also be prohibited from being involved in any and all matters related to the Superintendent of schools, including the Superintendent’s evaluation. See A24-17
SEC further advised that if board member B’s child is hired by the school district as a per diem substitute but is not a member of the school district’s local education association, then the prohibitions in A24-17 would not apply.
SEC advised that since board member C’s spouse works in the school district, board member C is conflicted with respect to issues involving the superintendent, including the superintendent’s evaluation. Once the superintendent’s evaluation has been completed by the other non-conflicted board members, board member C is still not permitted to have access to the contents/results of the finalized evaluation. Board member C’s ability to access the superintendent’s evaluation is akin to that offered to any other member of the public.
Advisory Opinion A08-23 (4/25/2023)
Question Posed – May a board member’s company serve as a subcontractor on a six tennis courts upgrade at the school district’s middle school, four of six courts owned by the board, that is part of a shared services agreement between the board and the town.
SEC advises that board member would not violate the School Ethics Act if his company bids on, and is awarded, a contract with the town to “serve as a subcontractor on the tennis court job.” Should board need to review, discuss, and/or approve the selection of the subcontractors, the subcontractor agreements/contracts, and/or payments, the board member is prohibited from participating in discussions and votes.
SEC further advised that the board member may not be privy to the minutes on such discussion or votes until such time as they would otherwise be made available to the general public. In all matters related to the shared services agreement between the town and the board, the board member only has rights as great as those of the public, and may not use any knowledge not known to or accessible by the public to assist in business ventures.
If the board member’s company is selected as a subcontractor, it is preferable, to the fullest extent possible, that someone other than the board member physically perform the required work on the school district’s premises. If board member’s physical presence cannot be avoided, and another employee cannot perform required work, while on district grounds, the board member must be zealous in remembering that he is not representing the board, has no authority over district personnel, and is not entitled to receive any unwarranted privilege or advantage. If board member encounters an issue while working on district grounds, board member, like any business or guest who may be present on district property, may not personally act to resolve an issue or matter, and must follow the appropriate chain of command.
SEC further advises that, prior to arrival on district property, board member should advise the Superintendent so that Superintendent can communicate to relevant staff members who may need to interact with board member that board member’s presence is as the owner of the company, and not as a board member.
Advisory Opinion A09-23 (4/25/2023)
Question Posed – The superintendent and board secretary/school business administrator have been in a personal relationship since 2022. Both were employed in the school district before the relationship began. Are the alternative supervision and evaluation mechanisms that have been put in place by the school district sufficient to address the conflict?
SEC advised that because the superintendent and SBA/BS are not married, but in a “personal relationship,” they are regarded as “others.” As such, neither can use or attempt to use their official position in order to secure an unwarranted privilege, advantage, or employment for the other without running afoul of N.J.S.A. 18A:12-24(b).
SEC further advised, given that the Superintendent and the SBA/BS are two of the highest-ranking administrators in the district, and ultimately oversee the full breadth of the district’s operations, including finances and personnel, ensuring that clear boundaries are implemented and adhered to is of critical importance, both for the district, and for the superintendent and SBA/BS.
SEC agrees with the “alternative supervision” put in place by the board for the SBA/BS while the superintendent and SBA/BS remain in a personal relationship; SBA/BS “formal annual evaluation will be performed by another administrator in the district that holds a School Administrator Certificate, namely the high school principal,” and that the high school principal will also “address any routine day-today supervisory issues that may arise such as leave requests, disciplinary issues, etc.” for the SBA/BS.
SEC advises that the superintendent should not be involved in supervising any aspect of SBA/BS employment, including those that “may be necessary for District operations” as suggested by the board. Superintendent’s involvement in any aspect of SBA/BS supervision is riddled with potential ethical violations, and could lead to the filing of ethics complaints. Superintendent must recuse from any and all aspects of SBA/BS employment, including the evaluation and the supervision of work, regardless of whether it is “necessary” for District operations.
SEC recognizes that these limitations may make it difficult for superintendent and SBA/BS to perform their duties and responsibilities efficiently and effectively. This is, unfortunately, the consequence of entering into a personal relationship in the workplace. Of course, in recognition of these limitations, either is free to pursue employment opportunities in other school districts so as to avoid conduct which is, or may appear to be, violative of the Act.
Advisory Opinion A10-23 (6/27/2023)
Question Posed – May a board member whose child is a student employee in the school district after care program participate in employment decisions and matters related to the superintendent, including evaluation of performance and labor negotiations? What is the minimum number of non-conflicted board members required to conduct the superintendent’s evaluation?
SEC advises that the board member’s child is an immediate family member. Board policy, as per N.J.A.C. 6A:23A-6.2(b), excludes student employees from the scope of its nepotism policy, allowing the board member’s child to be hired as a student employee in the school district after school care program.
Because the directors of the after-care program are employees of the school district, the board member has a conflict with the immediate supervisor of the board member’s child, and a conflict with other employees and administrators up the chain of command over that supervisor, up to and including the Superintendent. Therefore, for the duration of board member’s child’s student employment and to protect against a violation of the Act, as long as board member’s child remains a student employee in the after-care program, board member must recuse from all matters concerning the Superintendent and other supervisors in the chain of command over board member’s child’s employment and abstain from any vote on same. This includes any and all matters related to the local union because a teacher serves as the director and directly supervises board member’s child.
Board member’s child should be treated no differently by the board than any other student employee; no unwarranted privileges or advantages.
As per A19-17, a minimum of two (2) non-conflicted Board members can negotiate the Superintendent’s contract. To the extent these non-conflicted Board members need assistance, they may consult with Board counsel, hire an outside consultant and/or obtain assistance from the Business Administrator or another administrator as appropriate. Board may invoke the Doctrine of Necessity when the board has so many conflicts on a matter that it is unable to establish a voting quorum to act; such as voting on the superintendent’s contract. See A19-17 and the SEC Resolution on Invoking the Doctrine of Necessity.
Advisory Opinion A11-23 (6/27/2023)
Question Posed – Board member’s mother-in-law is employed in the school district as a paraprofessional and regular substitute in the principal’s office. May the board member participate in matters involving the superintendent, school principal search, selection and interviews, principal and local association contract negotiations and personnel committee discussions that may affect paraprofessionals? SEC Opines – Board member’s mother-in-law is a “relative” under the SEC’s more expansive definition. See Chart and definition
SEC advises that so long as the board member’s mother-in-law (relative) is employed in the school district, the board member is prohibited from participating in any matters that touch upon the mother-in-law’s employment, including
- discussions and votes related to the Superintendent, including those detailed in your request,
- school principal search, selection committee, candidate interviews, and the contract negotiations
- collective negotiations with local NJEA union affiliate
- routine personnel committee discussions that affect mother-in-law’s scheduling or employment
- staff annual contract appointment voting that includes the mother-in-law
- budget discussion that may affect paraprofessional staffing counts or responsibilities
It is hoped that this review of several recent School Ethics Commission public advisory opinions will assist school administrators in making decisions that are legal and ethical. School administrators are encouraged to share these opinions with their fellow school administrators and board of education members.