1. Whippany n Mt. Laurel n New York
Tel: n Fax:
Whippany n Mt. Laurel n New York

2. 100 South Jefferson Road  Suite 200
Pitfalls in Ethics and Board Governance for Board Members NEW JERSEY SCHOOL BOARDS ASSOCIATION April 16, 2016 Harrison, NJ
John G. Geppert, Jr.
100 South Jefferson Road  Suite 200
Tel:  Fax:
This presentation is designed to keep you aware of recent developments in the law. It is not intended to be legal advice, which can only be given after the attorney understands the facts of a particular matter and the goals of the client.

3. N.J. Stat. 18A:12-2 Inconsistent Interests or office prohibited
No member of any board of education shall be interested directly or indirectly in any contract with or claim against the board, nor, in the case of local and regional school districts, shall he hold office as mayor or as a member of the governing body of a municipality, nor, in the case of county special services school districts and county vocational school districts, shall he hold office as a member of the governing body of a county.
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4. N.J. Stat. 18A:12-24 Conflicts of Interest
a. No school official or member of his immediate family shall have an interest in a business organization or engage in any business, transaction, or professional activity, which is in substantial conflict with the proper discharge of his duties in the public interest;
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;
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5. c. No school official shall act in his official capacity in any matter where he, a member of his immediate family, or a business organization in which he has an interest, has a direct or indirect financial involvement that might reasonably be expected to impair his objectivity or independence of judgment. No school official shall act in his official capacity in any matter where he or a member of his immediate family has a personal involvement that is or creates some benefit to the school official or member of his immediate family;
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6. d. No school official shall undertake any employment or service, whether compensated or not, which might reasonably be expected to prejudice his independence of judgment in the exercise of his official duties;
e. No school official, or member of his immediate family, or business organization in which he has an interest, shall solicit or accept any gift, favor, loan, political contribution, service, promise of future employment, or other thing of value based upon an understanding that the gift, favor, loan, contribution, service, promise, or other thing of value was given or offered for the purpose of influencing him, directly or indirectly, in the discharge of his official duties.
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7. e. continued… 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;
f. No official shall use, or allow to be used, his public office or employment, or any information, not generally available to the members of the public, which he receives or acquires in the course of and by reason of his office or employment, for the purpose of securing financial gain for himself, any member of his immediate family, or any business organization with which he is associated;
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8. h. No school official shall be deemed in conflict with these provisions if, by reason of his participation in any matter required to be voted upon, no material or monetary gain accrues to him as a member of any business, profession, occupation or group, to any greater extent than any gain could reasonably be expected to accrue to any other member of that business, profession, occupation or group;
i. No elected member shall be prohibited from making an inquiry for information on behalf of a constituent, if no fee, reward or other thing of value is promised to, given to or accepted by the member or a member of his immediate family, whether directly or indirectly, in return therefor;
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9. j. Nothing shall prohibit any school official, or members of his immediate family, from representing himself, or themselves, in negotiations or proceedings concerning his, or their, own interests.
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10. N.J. Stat. 18A:12-24.1 Code of ethics for school board members
A school board member shall abide by the following Code of Ethics for School Board Members:
a. I will uphold and enforce all laws, rules and regulations of the State Board of Education, and court orders pertaining to schools. Desired changes shall be brought about only through legal and ethical procedures.
b. I will make decisions in terms of the educational welfare of children and will seek to develop and maintain public schools that meet the individual needs of all children regardless of their ability, race, creed, sex, or social standing.
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11. c. I will confine my board action to policy making, planning, and appraisal, and I will help to frame policies and plans only after the board has consulted those who will be affected by them.
d. I will carry out my responsibility, not to administer the schools, but, together with my fellow board members, to see that they are well run.
e. I will recognize that authority rests with the board of education and will make no personal promises nor take any private action that may compromise the board.
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12. f. I will refuse to surrender my independent judgment to special interest or partisan political groups or to use the schools for personal gain or for the gain of friends.
g. I will hold confidential all matters pertaining to the schools which, if disclosed, would needlessly injure individuals or the schools. In all other matters, I will provide accurate information and, in concert with my fellow board members, interpret to the staff the aspirations of the community for its school.
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13. h. I will vote to appoint the best qualified personnel available after consideration of the recommendation of the chief administrative officer.
i. I will support and protect school personnel in proper performance of their duties.
j. I will refer all complaints to the chief administrative officer and will act on the complaints at public meetings only after failure of an administrative solution.
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14. Advisory Opinions
A A board member’s participation in an exit interview would violate the Code of Ethics, NJSA 18A: (c) and (d) (confine my board action to policy making, planning, and appraisal; my responsibility not to administer the schools). See A31-15.
A A board member would violate the Code of Ethics if the member surveyed the Board of Education, Superintendent and teachers in the District to evaluate the curriculum, professional development and preparedness of the teachers and students as they face educational assessments. NJSA 18A: (c) and (d).
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15. Advisory Opinions
A A board member would not violate the School Ethics Act by sending a letter to the editor expressing their opinion about the budget as long as, in the letter, you identify yourself as a board member and indicate that the letter is not authorized by nor written on behalf of the board, and you provide accurate information that is not confidential, and you ensure that your private action does not compromise the board.
A29-12 (2/20/13) – The public might reasonably perceive that a board member’s objectivity could be impaired where the board member’s daughter was appointed to a coaching position in the district. The board member may not discuss or vote on actions involving the superintendent’s employment. Further, the board member must recuse himself and abstain from any committee issue, policy discussion, or vote on any matter where his child would receive a direct or indirect financial benefit or where there is a potential benefit to the board member or his daughter as this is inextricably linked to the superintendent as an administrator.
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16. ADVISORY OPINIONS
A03-13 (5/1/13) – Board members must recuse themselves from any discussion, decision, vote or action related to the superintendent when a board member’s mother is employed by a community organization that independently sponsors an after-care program using district facilities.
Where a brother-in-law is employed by the district as a custodian, with an indirect chain of command leading to the superintendent, that board member may not participate in discussion, decision, vote or action related to the superintendent.
A11-13 (8/28/13) – A sitting board member whose board recently entered into a joint service agreement with a regional district must resign from the board to avoid a violation of N.J.S.A. 18A:12-24(c), if she were to accept employment with the regional district.
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17. ADVISORY OPINIONS
A15-13 (8/28/13) – A board member who is not married but who has been in a long-term personal relationship and cohabitates with the confidential secretary of the school business administrator, creates a conflict for the board member under N.J.S.A.18A:12-24(b). The board member may not participate in employment matters involving the school business administrator or superintendent of schools.
A08-14 (4/23/14) – A board member would violate N.J.S.A. 18A:12-24(b) if he were to participate in the interview and selection process for a new chief school administrator when a stepdaughter, stepdaughter-in-law and nephew are employed by the district as certified teachers.
A43-14 (11/26/14) – A superintendent who resides with a non-dependent child employed in another district, who, through an agency shop provision receives the benefit of the collective bargaining agreement in the other district, negotiated by the same statewide union with which the board is negotiating (NJEA), may not participate in negotiations between the board and local union (NJEA) affiliate.
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18. ADVISORY OPINIONS
A09-14 (April 23, 2014) - It is a violation of the School Ethics Act for a Board member who is a teacher in another district and member of its AFT-affiliated union to be involved in negotiations with the NJEA-affiliate of the district where he holds elected office. Although the NJEA and the AFT are not affiliated, they share common traits and goals in their efforts to negotiate contracts. They also often share the same personnel, negotiators, and labor relations officials. Due to these and other possible financial connections between these similar but separate unions, the benefits of any contract negotiated as a Board member could inure to that same Board member as a teacher in another district, thus creating a conflict.
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19. ADVISORY OPINIONS
A38-14 (10/29/14) – A Board member would not violate the School Ethics Act if he were to donate a large sum of money to the District. However, to avoid the appearance of attempting to secure unwarranted privileges, in violation of N.J.S.A. 18A:12-24(b), the Board member may have no control over the dispersal of the funds. If unable to be objective, he must recuse himself from relevant discussions and abstain from voting.
A36-14 (10/29/14) – It is not a violation of the School Ethics Act for a Board member to endorse candidates in a Board election; however, certain precautions are necessary. Any publications, lawn signs or social media sites (or similar media) created by the Board member must include a disclaimer making it clear that the endorsement is made as a private citizen, not on behalf of the Board. The language must be clear and visible.
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20. ADVISORY OPINIONS
A05-15 (4/28/15) – Board members with conflicts relating to the Superintendent or the position of Superintendent must not participate in a vote to advertise for applicants for the position of Superintendent, nor participate in any matter related to the search, hiring a selection agency, creating search criteria, developing a job description, or any matters with regard to the Superintendent once he/she is seated. Such conflicts include having a spouse or sibling who is employed by the District. To avoid violation of the School Ethics Act, the conflicted Board members must recuse themselves from all executive session discussions, must abstain from any and all votes in public session, and must not be privy to the minutes of such discussions until they would otherwise be made available to the general public.
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21. ADVISORY OPINIONS
A08-15 (6/30/15) – A Board member whose spouse is employed as a part-time lunch aide at a District school is conflicted under N.J.S.A. 18A:12-24(c), which requires that “No school official shall act in his official capacity in any matter where he or a member of his immediate family has a personal involvement that is or creates some benefit to the school official or member of his immediate family.” The Board member must recuse him/herself from all discussions or votes pertaining to the performance evaluations and contracts of the Superintendent, the Principal at the school where the spouse works, the administrators supervising the spouse, and those administrators’ supervisors.
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22. ADVISORY OPINIONS
A09-15 (7/28/15) – It is a violation of the School Ethics Act for a Board member whose niece is a teacher in the District to participate in any discussion, negotiation, or other matters involving the local teachers’ union contract. A niece is considered an “other,” within the meaning of N.J.S.A. 18A:12-24(b) and, as such, the public may view the Board Member’s participation in matters concerning the contract as attempts to secure unwarranted privileges or advantages, in violation of the public trust.
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23. ADVISORY OPINIONS
A10-15 (7/28/15) – A Board member who is the volunteer leader of a school club is in violation of the Code of Ethics for School Board Members because Board members must “confine … board action to policy making, planning, and appraisal ,” N.J.S.A. 18A: (c); “carry out [their] responsibility, not to administer the schools, but, together with [their] fellow board members, to see that they are well run. . . ,” N.J.S.A. 18A: (d); and, “recognize that authority rests with the board of education and will make no personal promises nor take any private action that may compromise the board. . . ,” N.J.S.A. 18A: (e).
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24. ADVISORY OPINIONS
As the club leader, the Board member’s duties included overseeing students, giving out performance-based awards, and having regular contact with school administration and personnel, students, and parents. This level of engagement is “inconsistent with [a Board member’s duty] to develop rules and principles that guide the management of the District.” The factors considered by the Commission in making its determination include the frequency of the volunteer activity and the level of interaction and control of the club. However, the Commission makes it clear that there is no prohibition on Board members volunteering. Generally, infrequent non-executive activities (such as chaperoning a school trip which the Board member’s child is attending or taking part in) present no conflict, providing that the Board member clears such activity with the relevant administration and staff.
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25. ADVISORY OPINIONS
A11-15 and A16-15 (10/27/15) -  Without additional information regarding the situation, a Board member may participate in the collective bargaining process even if he has relative(s) employed in other districts, provided: the relative is not an officer in the NJEA or local association; not in a leadership role in the local association; not on the negotiating team for his district; and not involved in contract negotiations at the same time.
A13-15 (10/27/15) - A Board member, employed in another district as an administrator and represented by an administrators’ union, may negotiate with the in-district local NJEA affiliate when there is no linkage, in either district, between the local NJEA affiliate and the administrators’ union which represents the Board member.
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26. ADVISORY OPINIONS
A17-15 (10/27/15) - A Board member may volunteer on a limited basis for activities within the district when the Board member’s volunteering is non-executive (e.g. the Board member has no ability to direct staff, personnel, or students, his involvement in the activity is limited, and he is not subject to the widespread oversight of the Board member’s volunteer activities by school officials, staff or other personnel.)
A18-15 (10/27/15) - A Board member with an interest in a business may not solicit business from district staff members. Staff may choose to patronize the business at their own discretion.
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27. ADVISORY OPINIONS
A19-15 (12/15/15) - Nepotism policies identify relatives of Board members as individuals who cannot be hired by the Board.  Thus, if a Board member cannot hire a relative under the Nepotism policy, that relative is an “other” under the Act, and the Board member may not be involved in any aspect of that relative’s employment in the District.  Note that if the relative’s employment predates the Board member’s service, the member must recuse themselves from discussion and abstain from any vote regarding the relative’s employment.
A24-15 (12/15/15) - A Board member may sit on the Board of Trustees of an unaffiliated Foundation which supports the District on which the Board member serves.  However, the Board member must be alert to a conflict that may arise stemming from the interaction of the Foundation and the Board.
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28. Request For Advisory Opinions
If there is doubt as to whether a proposed activity violates the School Ethics Act, the best and safest course of action is often to request an advisory ruling from the School Ethics Commission based on the specific facts at issue. N.J.A.C. 6A: provides that “any school official may request and obtain an advisory opinion from the Commission as to whether any proposed conduct or activity of a school official would in its opinion constitute a violation of the provisions of the School Ethics Act.” A request for an advisory opinion must clearly set forth, in detail, the specific conduct or activity proposed and the exact role the school official will play in that activity. N.J.A.C. 6A:28-5.2(a). Requests for advisory opinions are not made public and once an advisory opinion is issued the name and district requesting the opinion are deleted. The Commission is generally fairly quick in issuing their rulings.
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29. Whippany n Mt. Laurel n New York
Tel: n Fax:
Whippany n Mt. Laurel n New York