2018 NJASBO Fall In-Service Programs - PowerPoint Presentation

Slide1

2018 NJASBO Fall In-Service Programs

Voting Issues for Boards of EducationDoubleTree – Mt. Laurel 9/25/18Hilton Garden Inn – Rockaway 9/27/18Michael F. Kaelber, Esq.NJASBO Education Law Consultantkaelbs1122@aol.comPortions of the material used in this presentation are copyrighted by the New Jersey School Boards Association and are used with its permission.

1Slide2

Voting

Issues for Boards of EducationIssues to be ConsideredParticipation – Who can, Who can’t?Level of vote requiredDoctrine of NecessityAbstentionsMiscellaneous IssuesSlide3

Voting

Issues for Boards of EducationParticipation in VotingWho Can?Who Can’t? Slide4

School

Official EthicsSchool 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 InterestSlide5

Collective

Negotiations ParticipationSlide6

Collective Negotiations Prohibitions

Board Member or School Administrator with a “relative” or “other (?)” who is an employee in the school districtin the bargaining unit of the contract under negotiationssupervised 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

6Slide7

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.7Slide8

Collective Negotiations Prohibitions

School Ethics CommissionN.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. 8Slide9

Collective Negotiations Prohibitions

N.J.S.A. 18A:12-24 (b) “Others” In-District A03-13 – Brother-in-lawA22-13 – Father-in-lawA10-14 – 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 (?)

9Slide10

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, A07-1810Slide11

Collective Negotiations Prohibitions

N.J.S.A. 18A:12-24 (b) “Others” In-District A35-17 – Board members with cousins employed in-district, members of a local union or receive benefit from CBA, are not conflicted under the School Ethics Act, absent another conflict. Cousins are neither “relatives” nor “immediate family members.”A10-14, A11-15, A16-15, A19-15, A25-15, A15-16, A35-17, A07-18

11Slide12

Collective Negotiations Prohibitions

N.J.S.A. 18A:12-24 (b) “Others” In-District A07-18 – Board members with spouse’s cousin employed in-district, members of the LEA and NJEA is not conflicted under the School Ethics Act. Cousins are neither “relatives” nor “immediate family members.” No presumption of conflictBoard finance committee – salary guide analysis and development - OKA10-14

, A11-15, A16-15, A19-15,

A25-15, A15-16, A35-17, A07-18

12Slide13

Collective Negotiations Prohibitions

N.J.S.A. 18A:12-24 (b) “Others” In-District A07-18 – Unwarranted privileges, advantages or employment – examplesSpouse’s cousin not most qualified, no CSA recommendation; cousin employedSpouse’s cousin – disciplinary action before the boardSpouse’s cousin coach – additional stipendRaises for all staff under CBA – not unwarranted privilege, advantageA10-14, A11-15, A16-15, A19-15, A25-15, A15-16, A35-17, A07-18

13Slide14

Collective Negotiations Prohibitions

School Administrator Technical Information ExceptionA22-16 – 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. 14Slide15

Collective Negotiations Prohibitions

Advisory Opinion A15-18Board 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.15Slide16

Collective Negotiations Prohibitions

Advisory Opinion A10-18Board member not precluded from serving on the negotiations committee or otherwise participating in negotiations or personnel matters because the Association endorsed her candidacy or contributed to her campaign. No per se conflict.

16Slide17

Collective Negotiations Prohibitions

Advisory Opinion A10-18Board 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 endorsementsSee A 13-02 – Still valid.

17Slide18

Collective Negotiations Prohibitions

Board Member or School Administrator with themselves, a “relative” or “other (?),” an employee in another school districtIf 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

18Slide19

Collective Negotiations Prohibitions

Board Member or School Administrator with a “relative” or “other (?)” who is an employee in another school districtIf 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 unionCANNOT SERVE ON NEGOTIATIONS TEAMCANNOT

PARTICIPATE IN ANY ASPECT OF NEGOTIATIONS

MAY

VOTE ON THE CONTRACT – after MOA, salary guides,

$;

Pannucci

State Board March 2000

19Slide20

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 householdState Conflict of Interest Law – spouse, child, parent, sibling residing in household20Slide21

Collective Negotiations Prohibitions

Board Member or School Administrator with a “relative” or “other (?)” who is an employee in another school districtIf 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 - $

21Slide22

Collective Negotiations Prohibitions

Board Member or School Administrator with a “relative” or “other (?)” who is an employee in another school districtIf 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; andIf 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

22Slide23

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)

23Slide24

Collective Negotiations Prohibitions

NJEA – Out of District ConflictsA13-13 – Board member employee in special services school district, Board member NJEA field representativeA09-14 – NJSFT/AFT similar to NJEA – share common traits and common goalsA34-14 – Board member 26 year NJEA member, 20 year union president, retired NJEA employee; receives NJEA health benefits, conflicted in negotiations

24Slide25

Collective Negotiations Prohibitions

NJEA – Out of District ConflictsA26-15 – Board member, recently retired district employee, President of local NJEA affiliate, negotiated and signed last CBA conflicted; union activity, negotiations and votes, first term. A24-16 – Board member, retired teacher from receiving district, president and negotiator for local NJEA affiliate, not conflicted for negotiations. Retired for 15 years, member of NJEA retiree group. No other conflict presented. Consider NJEA retiree benefits.

25Slide26

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.26Slide27

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.

27Slide28

School Official Ethics

Personnel Issues CSA/Supervisor/Principal28Slide29

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.

29Slide30

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.

30Slide31

Personnel Issues CSA/Supervisor/Principal

N.J.S.A. 18A:12-24 (b) “Others” In-District A03-13 – Brother-in-lawA15-13 – 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

, paraprofessionalA15-16 – Ex-spouse (?)A35-17 – 1st Cousin (?)A07-18 –

Spouse’s Cousin (?)

31Slide32

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. 32Slide33

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 – OtherSpouse’s cousin’s daughter – no conflictSee A25-14, A30-14,

A25-15,

A24-17

But see A35-17, A07-18 - Cousin not per se conflict

33Slide34

Doctrine

of NecessityA quorum of the board is in conflictThere is a pressing public need for actionNo alternative forum which can grant reliefBody is unable to act without the conflicted members taking partAllen v. Toms River Regional Board of Education,233 N.J. Super. 642 (Law Div. 1989)

34Slide35

Doctrine

of NecessitySchool Ethics Commission Resolution on Adopting the Doctrine of NecessityFebruary 25, 2003Board 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.35Slide36

Doctrine

of NecessityCommon Areas of ApplicationVoting on collective bargaining agreementParticipating on negotiations teamSuperintendent searchSuperintendent evaluationVineland SEC, Commissioner DecisionsA03-98, A05-14, A11-14, A23-14, A24-14, A08-15, A19-17, A28-17

36Slide37

Doctrine

of NecessityA03-98 (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.

37Slide38

Sending

Representatives on Receiving Boards of EducationN.J.S.A. 18A:38-8.1Tuition 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;Slide39

Sending

Representatives on Receiving Boards of EducationN.J.S.A. 18A:38-8.1Appointment, 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; andAddition or deletion of curricular and extracurricular programs involving pupils of the sending district.Slide40

Sending

Representatives on Receiving Boards of EducationN.J.S.A. 18A:38-8.1Lincoln Park v. Boonton, Little Ferry v. Ridgefield Park, Green v. Newton; Commissioner 1997 Bloomingdale v. Butler; Commissioner 2004Evans v. Atlantic City; Appellate Division 2008Slide41

Sending

Representatives on Receiving Boards of EducationP.L. 2017, c. 140 (Sweeney)Extends voting rights of representatives of sending districts on receiving district board of educationAny 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

pupilsSlide42

Sending

Representatives on Receiving Boards of EducationP.L. 2017, c. 140 (Sweeney)Extends voting rights of representatives of sending districts on receiving district board of educationAny 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, …Slide43

Sending

Representatives on Receiving Boards of EducationP.L. 2017, c. 140 (Sweeney)Extends voting rights of representatives of sending districts on receiving district board of educationthe 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

.Slide44

Number

of Votes RequiredBoard 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)Slide45

Meeting

QuorumDetermination of quorum for meetings of public body where one or more vacancies existAttorney General Formal Opinion No. 3 (1991)Slide46

Meeting

QuorumQuorum remains unchanged regardless of vacancies when Act prescribes:Specific minimum number of members constitutes a quorumMajority of “all of the members”Majority of the “authorized membership” Slide47

Meeting

QuorumQuorum is a majority of the actual current membership after subtracting any vacancies when:Act is silentAct establishes quorum as “ a majority of the members”Ross v. Miller 115 N.J.L 61 (Sup. Ct. 1935)Slide48

Meeting

QuorumN.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;Slide49

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, 176Slide50

Meeting

QuorumWhat 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.Slide51

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; superintendentApproval of a collective bargaining agreementCertifying tenure chargesApproving the budgetSlide52

Number

of Votes RequiredSupermajority Votes Established by the LegislatureMajority of the full/authorized membership of the boardTwo-thirds of the full/authorized membership of the boardThree-quarters of the members present NJSBA Board Voting RequirementsSlide53

Number

of Votes RequiredSupermajority VotesBoard 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) Slide54

Number

of Votes RequiredHiring employeesTerminating employeesAdopting a budgetApproving a collective bargaining agreementApproving board policyFilling a board vacancy Approving a reduction in forceNon-renewal of a teacherNon-renewal of a superintendentSlide55

Number

of Votes RequiredSuperintendent Non-renewalN.J.S.A. 18A:17-20.1Negron v. Bd. Of Ed. of South PlainfieldApp. Div. Dkt. No. A-4406-10T1 December 3, 2012Extension of contractCaffrey v. Bd. of Ed. Of Perth AmboyCommissioner Dkt

. No. 122-5/12 May 8, 2012

Administrative LeaveSlide56

Abstentions

How to Count AbstentionsRussell 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.Slide57

Abstentions

How to Count AbstentionsRussell 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. Slide58

Abstentions

New Jersey Law Revision CommissionEffect on AbstentionsFinal Report April 2011Member shall not be counted as voting either for or against the matterIf the member is legally entitled to vote and has not recused herself, the member shall be deemed present for the purpose of determining a quorumSlide59

Abstentions

New Jersey Law Revision CommissionEffect on AbstentionsFinal Report April 2011If 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 voteSlide60

Miscellaneous

Voting IssuesProxy VotingRemote VotingPaper Ballots / Secret BallotsVoting Sequence – Who Votes First?Slide61

Miscellaneous

Voting IssuesClosed 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 PresidentSlide62

Questions?

62