1. THE BOARD MEMBER’S ROLE IN PERSONNEL EMPLOYEE HIRING & RENEWALS
NJASBO Academy Program
Basic School Law
Robbinsville - November 2, 2017
© 2017 New Jersey School Boards Association
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2. THE BOARD MEMBER’S ROLE IN PERSONNEL EMPLOYEE HIRING & RENEWALS
Portions of the material used in this presentation are copyrighted by the New Jersey School Boards Association and are used with its permission.
© 2017 New Jersey School Boards Association
    413 West State Street, Trenton, New Jersey 08618
All rights reserved. No part of this document may be reproduced in any form or by any means without permission in writing from NJSBA
   

3. “The quality of a teacher in front of the classroom is the most important in-school factor affecting student achievement.”
Shulman is assistant commissioner and chief talent officer, New Jersey Department of Education.
We will discuss your role as a board member in assuring that schools have the best staff.
Vacancies in staff positions occur throughout the year—someone retires, or leaves. They can be also be created when the non-tenured staff are not renewed or tenured staff are dismissed.
Much of the process takes place with your administration, and the process of hiring and renewing staff is closely regulated under our statute and code. But ultimately the board has to vote on whether to hire new people, or to renew existing staff.

4. 75%
Why so important?
Pure math. But also, teachers are your most important ingredient to achieve your mission.
New Jersey School Boards Association – Serving Local Boards of Education Since 1914

5. Personnel Issues Hiring and Renewals
Superintendent / Chief School Administrator (CSA) may not recommend, nor the board of education approve, initial hiring of “relatives” of any board member or the superintendent/CSA.
N.J.A.C. 6A:23A Nepotism Regs
Does not apply to renewals, transfers, promotions, stipend appointments

6. Who is a “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
OK:cousin and step-grandfather
Oddity about sister/brother in law. Definition covers your spouse’s sister (Holly), but not your sister’s spouse (Abraham)

7. 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.

8. 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 the in the school district.

9. Personnel Issues Participation
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.

10. Personnel Issues CSA/Supervisor/Principal
N.J.S.A. 18A:12-24 (b) “Others”
In-District
A03-13 – Brother-in-law
A 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, paraprofessional
A15-16 – Ex-Spouse
A16-15 – Board members with daughter, wife and aunt employed in district may not be involved in the hiring or evaluation of the Superintendent and any other officials or staff members who oversee the “relative”.
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 A st Cousin – Other
Spouse’s cousin’s daughter – no conflict

11. Personnel Issues CSA/Supervisor/Principal
N.J.S.A. 18A:12-24 (b) “Others”
In-District
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 public.

12. 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 A st Cousin – Other
Spouse’s cousin’s daughter – no conflict
See A25-14, A30-14, A25-15
“Substitutes” and…
A Board member’s spouse para-professional or substitute para-professional
A30-14 – Board member’s son, student summer worker, spouse per diem substitute
A25-15 – Board member’s spouse, para-professional

13. Personnel Issues Participation
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)
A (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.
A11-14 – Four non-conflicted board members sufficient to conduct evaluation of the superintendent.
A23-14 – Three non-conflicted board members sufficient to conduct final interviews for superintendent position.

14. Personnel Issues Participation
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.

15. Personnel Issues Participation
Doctrine of Necessity
Common Areas of Application
Voting on collective bargaining agreement
Participating on negotiations team
Superintendent search and evaluation
Supervisor and principal hiring
Vineland SEC, Commissioner Decisions
A05-14, A11-14, A23-14, A24-14, A08-15

16. Interview Committees
A04-12 – Board member’s participation on interview committee for high level administrative and supervisory positions would not violate the School Ethics Act. One or two board members; administrative staff coordinates; participation – observations and assessments; CSA recommendation.
A15-10 – Exit Interviews
N.J.S.A. 18A: (c) (d) “not to administer…”
Retracted A01-15 from public advisory status

17. Interview Committees Summary
A31-15 – SEC does not support board member participation in interview process; personnel committees – CSA role
A04-12– Board Member Limited Participation – Higher level administrative positions
A15-10 – No Exit Interviews
N.J.S.A. 18A: (c) and (d) “not to administer the schools”
N.J.S.A. 18A: – CSA recommendation
A01-15 – Boards of education may, by policy, establish committees to conduct interviews for positions other than superintendent or school business administrator. In sending-receiving relationships, sending district representatives may not be committee members for positions other than for the high school. Removed.
A15-10 – Exit Interviews
N.J.S.A. 18A: (c) – “not to administer…”
N.J.S.A. 18A: – CSA recommendation
A04-12 – Board member’s participation on interview committee for high level administrative and supervisory positions would not violate the School Ethics Act. One or two board members; administrative staff coordinator; participation – observations and assessments; CSA recommendation.
N.J.S.A. 18A: (c) (d) “not to administer…”
Retracted A01-15 from public advisory status

18. Personnel Issues Hiring and Renewals
N.J.S.A. 18A:27-4.1
Superintendent/CSA recommendation
Roll call majority vote of full board
May not withhold approval of superintendent/CSA recommendation for arbitrary and capricious reasons
Rotondo v Carlstadt-East Rutherford BOE App. Div. 1994
DK: Law states that the board can’t withhold its approval of the CSA recommendation for arbitrary and capricious reasons. Implicit is recognition that CSA is your professional educator--should give deference to his/her recommendations and judgment. However, law also recognizes that there may be valid circumstances where you disagree, and it is not a violation of law or ethics if you don’t vote in support of the recommendation if you have a good reason.
(See Cores v. Callaway; 6A:28-6.4) See N.J.S.A. 18A: (h)I will vote to appoint the best qualified personnel available after consideration of the recommendation of the chief admin officer. “
There was an ethics case (Hankerson) where board president had board vote to appoint someone not recommended by CSA, and violated (h). “Section (h) of the Code of Ethics allows board members to reject the recommendation of the Superintendent, but implicitly requires that the board give the Superintendent an opportunity to present another recommendation. “
While board member should recognize that the CSA recommendation is based on his/her best educational judgment—and that’s what you hired him for……nonetheless, board member’s don’t have to rubber stamp blindly.
FSR: Yes. A board member may want certain information prior to voting on a candidate and it is appropriate to ask the CSA for this info. (as noted earlie, listed on the supplementary material: FORM FOR STAFF/HIRING RECOMMENDATIONS)
Sometimes a board member wants to see the resumes of candidate who were not recommended for review. What do you think about that, Donna?
DK: There is a Commissioner decision that holds that the CSA should not deny access to a board member who requests copies of resumes of any of the candidates. Again, this is not to suggest that this is necessarily something that board members should routinely request. However, in a particular circumstance access should be provided by the CSA.
FSR: And discussions of candidates would take place at a closed session, and the candidate would have to be given Rice notice that he/she is being discussed.
DK: Sometimes we get a question about what happens if the board does not vote to accept the CSA recommendation because the majority of the board has a different candidate in mind. Is there any way they can hire the person without the CSA recommendation. The answer is no. The CSA may bring forth another candidate if the board doesn’t like the first one recommended, but ultimately, unless the person is recommended by the CSA, the board cannot hire.
Some boards get caught up in politics, which is unfortunate. Maybe the board members won’t accept CSA recommendations because of a feud with the CSA, and not based on the candidate. Or they are hoping that instead, the CSA would have recommended that their in-district relative would be recommended for promotion by the CSA.

19. Personnel Issues Hiring and Renewals
School Ethics Act N.J.S.A. 18A: (h) I will vote to appoint the best qualified personnel available after consideration of the recommendation of the chief administrative officer.
DK: Law states that the board can’t withhold its approval of the CSA recommendation for arbitrary and capricious reasons. Implicit is recognition that CSA is your professional educator--should give deference to his/her recommendations and judgment. However, law also recognizes that there may be valid circumstances where you disagree, and it is not a violation of law or ethics if you don’t vote in support of the recommendation if you have a good reason.
(See Cores v. Callaway; 6A:28-6.4) See N.J.S.A. 18A: (h)I will vote to appoint the best qualified personnel available after consideration of the recommendation of the chief admin officer. “
There was an ethics case (Hankerson) where board president had board vote to appoint someone not recommended by CSA, and violated (h). “Section (h) of the Code of Ethics allows board members to reject the recommendation of the Superintendent, but implicitly requires that the board give the Superintendent an opportunity to present another recommendation. “
While board member should recognize that the CSA recommendation is based on his/her best educational judgment—and that’s what you hired him for……nonetheless, board member’s don’t have to rubber stamp blindly.
FSR: Yes. A board member may want certain information prior to voting on a candidate and it is appropriate to ask the CSA for this info. (as noted earlie, listed on the supplementary material: FORM FOR STAFF/HIRING RECOMMENDATIONS)
Sometimes a board member wants to see the resumes of candidate who were not recommended for review. What do you think about that, Donna?
DK: There is a Commissioner decision that holds that the CSA should not deny access to a board member who requests copies of resumes of any of the candidates. Again, this is not to suggest that this is necessarily something that board members should routinely request. However, in a particular circumstance access should be provided by the CSA.
FSR: And discussions of candidates would take place at a closed session, and the candidate would have to be given Rice notice that he/she is being discussed.
DK: Sometimes we get a question about what happens if the board does not vote to accept the CSA recommendation because the majority of the board has a different candidate in mind. Is there any way they can hire the person without the CSA recommendation. The answer is no. The CSA may bring forth another candidate if the board doesn’t like the first one recommended, but ultimately, unless the person is recommended by the CSA, the board cannot hire.
Some boards get caught up in politics, which is unfortunate. Maybe the board members won’t accept CSA recommendations because of a feud with the CSA, and not based on the candidate. Or they are hoping that instead, the CSA would have recommended that their in-district relative would be recommended for promotion by the CSA.

20. Personnel Issues Renewal and Non-Renewal of Staff
N.J.S.A. 18A:27-10, 10.2
Certificated Staff & Paraprofessionals employed since the preceding September 30
must be provided a written offer of employment or a notice of non-renewal by May 15.
Non-certificated staff– no statutory deadline for notice—see contract, policy, collective bargaining agreement
In order to renew a certificated or noncertificated employee ’s contract, there must be BOTH the chief school administrator’s recommendation and a recorded roll call majority vote of the full membership of the board. You need both.
If the CSA does recommend the employee for renewal, the board does not have to agree and can vote that down. However, the board may not withhold its approval for arbitrary and capricious reasons—as we discussed before, with respect to a board member’s ability to disagree with the CSA’s hiring recommendation. Recognize that CSA is hired for his expertise in making these type of decisions.
(Beatty, Ciambrone; see also Cores v. Callaway—voting against CSA recommendation did not violate SEA)

21. Personnel Issues Renewal and Non-Renewal of Staff
N.J.S.A. 18A:27-4.1
Renewal – CSA recommendation, roll call majority vote of full board, no withholding of approval for arbitrary and capricious reasons
Non-renewal – CSA determines, notifies board of recommendation prior to notifying employee; no vote
In order to renew a certificated or noncertificated employee ’s contract, there must be BOTH the chief school administrator’s recommendation and a recorded roll call majority vote of the full membership of the board. You need both.
If the CSA does recommend the employee for renewal, the board does not have to agree and can vote that down. However, the board may not withhold its approval for arbitrary and capricious reasons—as we discussed before, with respect to a board member’s ability to disagree with the CSA’s hiring recommendation. Recognize that CSA is hired for his expertise in making these type of decisions.
(Beatty, Ciambrone; see also Cores v. Callaway—voting against CSA recommendation did not violate SEA)

22. Personnel Issues Renewal and Non-renewal of Staff
If I want to review the evaluations and performance history of a staff member who the CSA recommended for renewal, do I have a right to see it?
Your CSA is the educator on whose judgment you should be able to rely, and we don’t suggest that board members review personnel information every time there is a recommendation. A good practice is to require the CSA to provide some general information underlying all personnel decisions.
However, a specific situation may arise where a board member may feel that it is important to review the files.
General rule is that a board member who sees the agenda and wants to become better informed about whether to renew a particular individual has the right to ask to review personnel information that is directly related to the issue before the board. Board members may access personnel files of those employees recommended to the board for specific employment action “to the extent that such files are relevant to the specific action to be taken or deemed pertinent by the CSA in response to the Board’s directive to provide information essential for performance of a specific, officially assigned Board duty.” They should be accessed by a request through the CSA who should provide it. The district should place restrictions on the time and place of review of these documents to assure that confidentiality is not breached.
The State warns against board members going on “fishing expeditions” which means just asking for teacher files when there is not employment action before the board.
Cases:
1. Horner v. Kingsway Regional, 1990 S.L.D Applicants: Board members may access official files of all applicants for
employment.
Employees: Board members may access personnel files of those employees recommended to the board for specific employment action “to the extent that such files are relevant to the specific action to be taken or deemed pertinent by the CSA in response to the Board’s directive to provide information essential for performance of a specific, officially assigned Board duty.”
2. Beatty v. Chester Bd. of Ed., 1999 S.L.D. (August 31). Board may not limit access only to those candidates considered by
personnel committee. May place reasonable restrictions on times and places for review of material.
3. Ciambrone v. Bloomingdale Bd. of Ed., 2000 S.L.D. (May 7) Access to personnel materials: Board must ensure that individual board members’ access to personnel information is confined to that necessary for the performance of essential board member duties; however, Commissioner has no jurisdiction over teacher’s invasion of privacy claim for sanctions against individual board member who accessed her personnel records. Query: might the School Ethics Commission have jurisdiction under new code of ethics?

23. Personnel Issues Renewal and Non-Renewal of Staff
Qualified “Yes”; Information necessary to make an informed decision.
Generally accessed through the Lead Person
Horner v. Kingsway Regional 5/1/90
Beatty v. Chester 8/31/99
Ciambrone v. Bloomingdale 5/7/00
In order to renew a certificated or noncertificated employee ’s contract, there must be BOTH the chief school administrator’s recommendation and a recorded roll call majority vote of the full membership of the board. You need both.
If the CSA does recommend the employee for renewal, the board does not have to agree and can vote that down. However, the board may not withhold its approval for arbitrary and capricious reasons—as we discussed before, with respect to a board member’s ability to disagree with the CSA’s hiring recommendation. Recognize that CSA is hired for his expertise in making these type of decisions.
(Beatty, Ciambrone; see also Cores v. Callaway—voting against CSA recommendation did not violate SEA)

24. Personnel Issues Renewal and Non-Renewal of Staff
Open Public Records Act N.J.S.A. 47:1A-10 …an individual's name, title, position, salary, payroll record, length of service, date of separation and the reason therefor, and the amount and type of any pension received shall be a government record;
In order to renew a certificated or noncertificated employee ’s contract, there must be BOTH the chief school administrator’s recommendation and a recorded roll call majority vote of the full membership of the board. You need both.
If the CSA does recommend the employee for renewal, the board does not have to agree and can vote that down. However, the board may not withhold its approval for arbitrary and capricious reasons—as we discussed before, with respect to a board member’s ability to disagree with the CSA’s hiring recommendation. Recognize that CSA is hired for his expertise in making these type of decisions.
(Beatty, Ciambrone; see also Cores v. Callaway—voting against CSA recommendation did not violate SEA)

25. Personnel Issues Renewal and Non-Renewal of Staff
Rights of Non-Renewed Staff
Statement of Reasons
N.J.S.A. 18A:27-3.2
Informal Appearance Before the Board
N.J.S.A. 18A:27-4.1, N.J.A.C. 6A:10-8.1
Post- Appearance Board Actions
Not Vote, Vote, Notification to employee within 3 days
Appeal – Commissioner, Arbitration
In order to renew a certificated or noncertificated employee ’s contract, there must be BOTH the chief school administrator’s recommendation and a recorded roll call majority vote of the full membership of the board. You need both.
If the CSA does recommend the employee for renewal, the board does not have to agree and can vote that down. However, the board may not withhold its approval for arbitrary and capricious reasons—as we discussed before, with respect to a board member’s ability to disagree with the CSA’s hiring recommendation. Recognize that CSA is hired for his expertise in making these type of decisions.
(Beatty, Ciambrone; see also Cores v. Callaway—voting against CSA recommendation did not violate SEA)

26. QUESTIONS