2019 NJASBO Fall In-Service Programs Legislative and Case Law Update Voting Issues for Boards of Education Hilton Garden Inn – Rockaway 9/24/19 DoubleTree – Mt. Laurel 9/26/19 Michael F. Kaelber, Esq. NJASBO Education Law Consultant kaelbs1122@aol.com Portions of the material used in this presentation are copyrighted by the New Jersey School Boards Association and are used with its permission.

Voting Issues for Boards of Education Issues to be Considered Participation – Who can, Who can’t? Level of vote required Doctrine of Necessity Abstentions Miscellaneous Issues

Voting Issues for Boards of Education Participation in Voting Who Can? Who Can’t?

School Official Ethics School Ethics Act – N.J.S.A. 18A:12-21 Nepotism Regulation – N.J.A.C. 6A:23A-6.2 N.J.S.A. 18A:12-2 – Conflict of Interest Early in the 1990’s the School Ethics Act redefined the board for negotiations purposes. The SEC (agency) administers the Act. SEC has found that certain connections can raise public concerns about a board official’s objectivity in negotiating on behalf of the board. These connections are seen as creating a conflict of interest which preclude board members' or administrators' participation in negotiation. They are case-by-case determinations & are extremely fact sensitive – for that reason – as well as time constraints – we cannot consider each of your possible situations.

School Official Ethics Collective Negotiations Participation The case determinations are developing and evolving. The SEC has defined and redefined what constitutes a conflict in negotiations and who can and cannot participate in the process. We have included an Article in your binders discussing the topic and can discuss individual situations with you at breaks or lunch For now we are just going to look at the general principles involved. Under the Act, certain board members have been deemed to have a conflict which precludes their participation in negotiations. Also be aware of the restrictions in the nepotism policy mandated by the Accountability regs. Definitions of relatives more expansive.

Collective Negotiations Prohibitions Board Member or School Administrator with a “relative” or “other (?)” who is an employee in the school district in the bargaining unit of the contract under negotiations supervised by employees in the unit not in the unit, but terms of employment linked to unit, or board member’s endorsement by the union in election immediately preceding negotiation (?) CANNOT SERVE ON NEGOTIATIONS TEAM OR PARTICIPATE IN PLANNING OF NEGOTIATIONS CANNOT VOTE ON THE CONTRACT

Collective Negotiations Prohibitions "Relative" – individual's spouse, civil union partner…domestic partner…, or the parent, child, sibling, aunt, uncle, niece, nephew, grandparent, grandchild, son-in-law, daughter-in-law, stepparent, stepchild, stepbrother, stepsister, half-brother or half-sister, of the individual or of the individual’s spouse, civil union partner or domestic partner, whether the relative is related to the individual or the individual’s spouse, civil union partner or domestic partner by blood, marriage or adoption.

Collective Negotiations Prohibitions School Ethics Commission N.J.S.A. 18A:12-24 (b) No school official shall use or attempt to use his official position to secure unwarranted privileges, advantages or employment for himself, members of his immediate family or others.

Collective Negotiations Prohibitions N.J.S.A. 18A:12-24 (b) “Others” In-District A03-13 – Brother-in-law A22-13 – Father-in-law A10-14 – 1st Cousin (?) A15-13 – Cohabitating partner (?) A19-13 – Teacher town council member, board members municipal employees A09-15 – Niece, A16-15 – Daughter, Wife, Aunt A19-15 – Niece, Spouse’s Uncle, Son, 1st Cousin (?) A25-15 – Spouse, Relative A15-16 – Ex-Spouse (?) A35-17 – 1st Cousin (?) A07-18 - Spouse’s Cousin (?)

Collective Negotiations Prohibitions N.J.S.A. 18A:12-24 (b) “Others” In-District A24-17 – Board members with “relative” or “other” (?) employed in-district, members of a local union or receive benefit from CBA, are deemed conflicted under the School Ethics Act; all union matters and all aspects of collective negotiations process, including voting on the collective bargaining agreement. A10-14, A11-15, A16-15, A19-15, A25-15, A15-16, A35-17, A07-18

Collective Negotiations Prohibitions N.J.S.A. 18A:12-24 (b) “Others” In-District A07-18 – Board member with spouse’s cousin employed in-district, member of the LEA and NJEA, is not conflicted under the School Ethics Act. Cousins are neither “relatives” nor “immediate family members.” No presumption of conflict Board finance committee – salary guide analysis and development - OK A10-14, A11-15, A16-15, A19-15, A25-15, A15-16, A35-17, A07-18

Collective Negotiations Prohibitions N.J.S.A. 18A:12-24 (b) “Others” In-District A07-18 – Unwarranted privileges, advantages or employment – examples Spouse’s cousin not most qualified, no CSA recommendation; cousin employed Spouse’s cousin – disciplinary action before the board Spouse’s cousin coach – additional stipend Raises for all staff under CBA – not unwarranted privilege, advantage A10-14, A11-15, A16-15, A19-15, A25-15, A15-16, A35-17, A07-18

Collective Negotiations Prohibitions School Administrator Technical Information Exception A22-16 – A conflicted school administrator may serve as a technical resource to the negotiating team and provide technical information necessary to the collective bargaining process when no one else in the school district can provide that information; not full participation.

Collective Negotiations Prohibitions Advisory Opinion A15-18 – 4/25/18 Board member not precluded from serving on the negotiations committee or otherwise participating in negotiations or personnel matters because the Association supported her candidacy, and she expressed support for, and actively supported, the Association. Not “endorsed” by the Association.

Collective Negotiations Prohibitions Advisory Opinion A10-18 Board member not precluded from serving on the negotiations committee or otherwise participating in negotiations or personnel matters because the Association endorsed her candidacy. No per se conflict. Association financial contribution to campaign designed to influence decision-making as a board member would be a conflict. See N.J.S.A. 18A:12-24 (e).

Collective Negotiations Prohibitions Advisory Opinion A10-18 N.J.S.A. 18A:12-24 (e) No school official, or member of his immediate family, or business organization in which he has an interest, shall solicit or accept any … political contribution … based upon an understanding that the … contribution … was given or offered for the purpose of influencing him, directly or indirectly, in the discharge of his official duties.  This provision shall not apply to the solicitation or acceptance of contributions to the campaign of an announced candidate for elective public office, if the school official has no knowledge or reason to believe that the campaign contribution, if accepted, was given with the intent to influence the school official in the discharge of his official duties;

Collective Negotiations Prohibitions Advisory Opinion A10-18 Board member/candidate who is actively involved in campaign rallies with the union may have a conflict with negotiations participation. Quid pro quo? Active v. Passive endorsements See A 13-02 – Still valid.

Collective Negotiations Prohibitions Advisory Opinion A06-18 Newly elected school board member, 18 years old, student (senior) in school district May fully participate in negotiations, absent other conflicts. (Mother/nurse, Father/golf coach) No per conflict because he is a student. No discussions or votes on matters that would a personal or direct benefit No unwarranted privileges, advantages or employment to himself, immediate family or others Confidentiality, comply with all ethical standards https://www.nj.com/union/2019/05/nj-student-says-running-for-school-board-is-landing-him-in-detention.html

Collective Negotiations Prohibitions Advisory Opinion A06-18 Newly elected school board member, 18 years old, student (senior) in school district Board member status not diminished or limited because he is a student. May discuss and vote on budget, policy, payment of bills, hiring of professionals approval of various contracts. Eligible for senior awards, post-graduate scholarships selected by faculty and coaches

Collective Negotiations Prohibitions Advisory Opinion A06-18 Newly elected school board member, 18 years old, student (senior) in school district May participate in employment discussions and/or decisions regarding his current and former high school teachers and/or all high school teaching staff; discussion and voting on hiring, renewal/non-renewal of contracts, tenure charges, withholding of increments, transfers, approval of leaves of absence, tuition reimbursements, etc

Collective Negotiations Prohibitions Advisory Opinion A06-18 Newly elected school board member, 18 years old, student (senior) in school district May participate in same matters regarding siblings’ teachers and/or all teachers who are employed in siblings’ schools in the district; have access to student records; participate in the discussions and votes involving HIB matters and special education settlement agreements.

Collective Negotiations Prohibitions Board Member or School Administrator with themselves, a “relative” or “other (?),” an employee in another school district If the Board Member is employed in another district and is a member of a bargaining unit represented by a similar state-wide union, CANNOT SERVE ON NEGOTIATIONS TEAM CANNOT PARTICIPATE IN ANY ASPECT OF NEGOTIATIONS MAY VOTE ON THE CONTRACT – after MOA, salary guides, $ Pannucci State Board March 2000

Collective Negotiations Prohibitions Board Member or School Administrator with a “relative” or “other (?)” who is an employee in another school district If the Board Member or School Administrator has an immediate family member in the household, who is employed in another school district and is a member of a bargaining unit represented by a similar state-wide union CANNOT SERVE ON NEGOTIATIONS TEAM CANNOT PARTICIPATE IN ANY ASPECT OF NEGOTIATIONS MAY VOTE ON THE CONTRACT – after MOA, salary guides, $ Pannucci State Board March 2000

Collective Negotiations Prohibitions Immediate Family Member N.J.A.C. 6A:23A-1.2 – spouse, civil union partner, domestic partner, or dependent child residing in household State Conflict of Interest Law – spouse, child, parent, sibling residing in household

Collective Negotiations Prohibitions Board Member or School Administrator with a “relative” or “other (?)” who is an employee in another school district If the Board Member or School Administrator has a “relative” or “other” outside the household, who is employed in another district and is a member of a bargaining unit represented by a similar state-wide union; absent other conflicts CAN SERVE ON NEGOTIATIONS TEAM CAN PARTICIPATE IN ANY ASPECT OF NEGOTIATIONS CAN VOTE ON THE CONTRACT - $

Collective Negotiations Prohibitions Board Member or School Administrator with a “relative” or “other (?)” who is an employee in another school district If the Board Member or School Administrator has a “relative” or “other” outside the household, who is employed in another district and is a member of a bargaining unit represented by a similar state-wide union; and If the “relative” or “other” has a conflict such as being an NJEA or LEA officer; leadership role in the district union; same time contract negotiations; building representative CANNOT SERVE ON NEGOTIATIONS TEAM CANNOT PARTICIPATE IN ANY ASPECT OF NEGOTIATIONS MAY VOTE ON THE CONTRACT - after MOA, salary guides, $ Pannucci State Board March 2000

Collective Negotiations Prohibitions N.J.S.A. 18A:12-24 (b) “Others” Out-of-District A24-17 – Absent another conflict, Board members with out-of-household “relative” member of the same statewide union in another school district may fully participate in all aspects of negotiations including the vote on the CBA If out-of-household “relative” has a conflict such as NJEA or LEA officer; negotiations team; leadership role in district union; same time negotiations; building representative; no negotiations team, no participation in any aspect of negotiations, may vote on CBA after MOA and salary guides. A11-15, A13-15, A16-15, A19-15, A25-15, A40-15 (administrator)

Collective Negotiations Prohibitions Board Member Out-of-District A13-15 – Board member, employed in another school district as a supervisor, member of NJPSA affiliate union. No affiliation with NJEA. Board member may negotiate and vote on in-district NJEA contract when there is absolutely no linkage, in either district, between the respective NJEA affiliates and the NJPSA administrators union, which represents the board member.

Collective Negotiations Prohibitions Board Member Out-of-District A32-17 – Board member, member of the CWA, may participate in negotiations with the local education association. Board member is not part of a statewide teachers’ union. If financial relationship or nexus exists between the local education association and the union of which the Board member is a member, then the Board member would be unable to participate in any aspect of negotiations until the memorandum of agreement, including salary guides and the total compensation package, has been attained. Limited to information provided.

School Official Ethics Personnel Issues CSA/Supervisor/Principal

Personnel Issues CSA/Supervisor/Principal Board members may not participate in the hiring of a new CSA, supervisor or principal, if they have a “relative” or “other (?)” who is an employee in the school district who would be directly or indirectly supervised by the new hire.

Personnel Issues CSA/Supervisor/Principal Board members may not participate in any personnel decisions involving a CSA, principal, or supervisor who directly or indirectly supervises the board member’s “relative” or “other (?)” who is employed in the school district.

Personnel Issues CSA/Supervisor/Principal N.J.S.A. 18A:12-24 (b) “Others” In-District A03-13 – Brother-in-law A15-13 – Cohabitating partner (?) A10-14 – 1st Cousin (?) A22-13 – Father-in-law A08-14 – Stepdaughter, Stepdaughter-in-law, nephew A16-15 – Daughter, Wife, Aunt, Relative A19-15 – Niece, Spouse’s Uncle, Son, 1st Cousin (?) A25-15 – Spouse, Relative A15-16 – Ex-spouse (?) A35-17 - 1st Cousin (?) A07-18 - Spouse’s Cousin (?)

Personnel Issues CSA/Supervisor/Principal A05-15 – Board members with spouse, board member with brother employed in district; no vote on motion to advertise for CSA, hiring of selection agency, criteria, job description, search committee, evaluation and contract discussions post-hire, no closed session attendance, not privy to closed session minutes until they become public.

Personnel Issues CSA/Supervisor/Principal N.J.S.A. 18A:12-24 (b) “Others” In-District A19-15 – Board members with nieces, spouse’s uncle, full time employees and son, full-time student, part-time summer substitute, as “relatives” are “others”; may not participate in any matter involving the relative’s employment or supervision including employment matters with superintendent and supervising administrators. Reaffirm A10-14 1st Cousin – Other Spouse’s cousin’s daughter – no conflict See A25-14, A30-14, A25-15, A24-17, A07-18

Personnel Issues CSA/Supervisor/Principal N.J.S.A. 18A:12-24 (b) “Others” In-District A07-18 3/28/18 Wife’s cousin an “other;” not a per se conflict No unwarranted privileges, advantages or employment Not the most qualified candidate, not recommended by CSA; secured employment Additional stipend for cousin/coach, not other coaches All staff receive negotiated raises - OK

Allen v. Toms River Regional Board of Education, Doctrine of Necessity A quorum of the board is in conflict There is a pressing public need for action No alternative forum which can grant relief Body is unable to act without the conflicted members taking part Allen v. Toms River Regional Board of Education, 233 N.J. Super. 642 (Law Div. 1989)

Doctrine of Necessity School Ethics Commission Resolution on Adopting the Doctrine of Necessity February 25, 2003 Board states publicly that it is invoking the doctrine, the reason for doing so and the specific nature of the conflicts of interest. Board reads the resolution at a regularly scheduled public meeting, post the notice for 30 days and provide the SEC with a copy.

Common Areas of Application Vineland SEC, Commissioner Decisions Doctrine of Necessity Common Areas of Application Voting on collective bargaining agreement Participating on negotiations team Superintendent search Superintendent evaluation Vineland SEC, Commissioner Decisions A03-98, A05-14, A11-14, A23-14, A24-14, A08-15, A19-17, A28-17

Doctrine of Necessity A03-98 (4/28/98) - Conflicted board members may serve on the negotiating team and vote on the collective bargaining agreement pursuant to the Doctrine of Necessity when four of the five voting board of education members have a conflict of interest. A19-17 (7/27/17) – Doctrine of necessity may be invoked when a quorum of the board of education has conflicts of interest on a matter upon which the board must vote.

Sending Representatives on Receiving Boards of Education N.J.S.A. 18A:38-8.1 Tuition to be charged the sending district by the receiving district; bill lists for the purchase, operation or maintenance of facilities, equipment and instructional materials to be used in the education of the pupils of the sending district; New capital construction to be utilized by sending district pupils;

Sending Representatives on Receiving Boards of Education N.J.S.A. 18A:38-8.1 Appointment, transfer or removal of teaching staff members providing services to pupils of the sending district, including any teaching staff member who is a member of the receiving district’s central administrative staff; and Addition or deletion of curricular and extracurricular programs involving pupils of the sending district.

Sending Representatives on Receiving Boards of Education N.J.S.A. 18A:38-8.1 Lincoln Park v. Boonton, Little Ferry v. Ridgefield Park, Green v. Newton; Commissioner 1997 Bloomingdale v. Butler; Commissioner 2004 Evans v. Atlantic City; Appellate Division 2008

Sending Representatives on Receiving Boards of Education P.L. 2017, c. 140 (Sweeney) Extends voting rights of representatives of sending districts on receiving district board of education Any matter directly involving the sending district pupils or programs and services utilized by those pupils; Approval of the annual receiving district budget; Any collectively negotiated agreement involving employees who provide services utilized by sending district pupils

Sending Representatives on Receiving Boards of Education P.L. 2017, c. 140 (Sweeney) Extends voting rights of representatives of sending districts on receiving district board of education Any individual employee contracts not covered by a collectively negotiated agreement, if those employees provide or oversee programs or services utilized by sending district pupils; Any matter concerning governance of the receiving district board of education including, but not limited to, …

Sending Representatives on Receiving Boards of Education P.L. 2017, c. 140 (Sweeney) Extends voting rights of representatives of sending districts on receiving district board of education the selection of the board president or vice-president, approval of board bylaws, and the employment of professionals or consultants such as attorneys, architects, engineers, or others who provide services to the receiving district board of education.

Number of Votes Required Board action requires a majority vote of the members of the board constituting a quorum. Common law rule in New Jersey and elsewhere is that “a majority of a public body constitutes a quorum.” Barnert v. Paterson 48 N.J.L. 395 (Sup. Ct. 1886)

Meeting Quorum Determination of quorum for meetings of public body where one or more vacancies exist Attorney General Formal Opinion No. 3 (1991)

Quorum remains unchanged regardless of vacancies when Act prescribes: Meeting Quorum Quorum remains unchanged regardless of vacancies when Act prescribes: Specific minimum number of members constitutes a quorum Majority of “all of the members” Majority of the “authorized membership”

Ross v. Miller 115 N.J.L 61 (Sup. Ct. 1935) Meeting Quorum Quorum is a majority of the actual current membership after subtracting any vacancies when: Act is silent Act establishes quorum as “ a majority of the members” Ross v. Miller 115 N.J.L 61 (Sup. Ct. 1935)

Vacancies in the membership of the board shall be filled as follows: Meeting Quorum N.J.S.A. 18A:12-15b  Vacancies in the membership of the board shall be filled as follows: … b. By the county superintendent, to a number sufficient to make up a quorum of the board, if by reason of vacancies, a quorum is lacking;

Beckhausen v. Rahway Bd. Of Ed. Meeting Quorum "Because the statutory provision, N.J.S.A. 18A:12-15b., insures that each local board of education shall consist of a quorum of the full membership under all circumstances, the common law rule that a quorum shall consist of a majority of the occupied seats, as stated in Ross v. Miller, supra, does not apply.” Beckhausen v. Rahway Bd. Of Ed. 1973 S.L.D. 167, 176

What is Your Meeting Quorum? Your board of education has nine members when fully constituted. You have two vacancies on the board. Your board of education has seven members when fully constituted. You additionally have one sending representative. Your five member board of education has two members who have disqualifying conflicts for negotiations. You will be voting on the CBA.

Do You Have a Voting Quorum? Your board of education has 9 members when fully constituted, 2 vacancies and 3 members with relatives employed in the school district. Appointment of staff; superintendent Approval of a collective bargaining agreement Certifying tenure charges Approving the budget

Number of Votes Required Supermajority Votes Established by the Legislature Majority of the full/authorized membership of the board Two-thirds of the full/authorized membership of the board Three-quarters of the members present NJSBA Board Voting Requirements

Number of Votes Required Supermajority Votes Board may not require supermajority vote unless statute specifically provides; thwarts the will of the majority to require a greater vote than required by statute. Matawan Teachers Assn v. Bd of Ed. 223 N.J. Super. 504 (App Div. 1988)

Number of Votes Required Hiring employees Terminating employees Adopting a budget Approving a collective bargaining agreement Approving board policy Filling a board vacancy Approving a reduction in force Non-renewal of a teacher Non-renewal of a superintendent

Number of Votes Required Superintendent Non-renewal N.J.S.A. 18A:17-20.1 Negron v. Bd. Of Ed. of South Plainfield App. Div. Dkt. No. A-4406-10T1 December 3, 2012 Extension of contract Caffrey v. Bd. of Ed. Of Perth Amboy Commissioner Dkt. No. 122-5/12 May 8, 2012 Administrative Leave

Abstentions How to Count Abstentions Russell Weiss, Jr., Esq. and Donna M. Kaye Esq. Mount v. Parker 32 N.J. 341 (Sup. Ct. 1867) Abstentions may not be counted as affirmative votes, if, without the abstentions, there is not a sufficient number of votes for passage as required by a specific statute. Abstention may not be counted as an affirmative vote where the abstaining person states her desire that it not be counted with the affirmative votes.

Abstentions How to Count Abstentions Russell Weiss, Jr., Esq. and Donna M. Kaye Esq. The vote of a person who abstains due to a conflict of interest may not be counted with the affirmative votes. Best practice – boards should adopt policies which state that abstentions shall not be counted as a yes or no vote; they should be non-votes.

New Jersey Law Revision Commission Abstentions New Jersey Law Revision Commission Effect on Abstentions Final Report April 2011 Member shall not be counted as voting either for or against the matter If the member is legally entitled to vote and has not recused herself, the member shall be deemed present for the purpose of determining a quorum

Abstentions New Jersey Law Revision Commission Effect on Abstentions Final Report April 2011 If the member is not legally entitled to vote because of conflict of interest or otherwise has recused herself, the member shall not be counted as present for the purpose of determining a quorum. Abstention is neither an affirmative nor a negative vote

Miscellaneous Voting Issues Proxy Voting Remote Voting Paper Ballots / Secret Ballots Voting Sequence – Who Votes First?

Miscellaneous Voting Issues Closed Session – Straw Poll In Re Cole 194 N.J. Super. 237 (App. Div. 1984) Closed Session Voting – Tenure charges and ? Voting for President and Vice President

Questions?