Voting Issues for Boards of Education

Voting Issues for Boards of Education
New Jersey Association of School Business Officials Mt. Laurel - November 14, 2017 Rockaway - November 16, 2017 © 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.

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.

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

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.

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 negotiations CANNOT SERVE ON NEGOTIATIONS TEAM OR PARTICIPATE IN PLANNING OF NEGOTIATIONS CANNOT VOTE ON THE CONTRACT 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
"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. These decisions are made on a case-by-case basis and are extremely fact-sensitive and the definition of the “board” for the purposes of negotiations continues to be a developing and evolving issue. Therefore, to address your specific district issues, we ask you to consult with your legal and labor relations resources.

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.

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

N.J.S.A. 18A:12-24 (b) “Others” In-District A24-17 (9/26/17) – 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. See A10-14, A11-15, A16-15, A19-15, A25-15, A15-16 A10-14 – Board member whose cousin was a teacher in the teachers’ bargaining unit could not negotiate the administrators’ (principals and supervisors) collective bargaining agreement; cousin/teacher was supervised by members of the administrators’ unit. A11-15 – No participation in negotiations when board member’s “relative” is a member of the in-district bargaining unit. N.J.A.C. 6A:23A-6.2 (a)(5). Consider school administrators, technical resource. Others - cousin, cousin-in-law A16-15 – Board members with daughter, wife and aunt in district may not participate in collective negotiations with the local bargaining unit of which the “relative” is a member, or receives the benefit of the collectively negotiated agreement. N.J.A.C. 6A:23A-6.2 (a)(5). Consider school administrators, technical resource. 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 collective negotiations if members of, or receive the benefit of the collectively negotiated agreement. Reaffirm A10-14 Cousin – Other, Spouse’s cousin’s daughter – no conflict

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. A10-14 – Board member whose cousin was a teacher in the teachers’ bargaining unit could not negotiate the administrators’ (principals and supervisors) collective bargaining agreement; cousin/teacher was supervised by members of the administrators’ unit. A11-15 – No participation in negotiations when board member’s “relative” is a member of the in-district bargaining unit. N.J.A.C. 6A:23A-6.2 (a)(5). Consider school administrators, technical resource. Others - cousin, cousin-in-law A16-15 – Board members with daughter, wife and aunt in district may not participate in collective negotiations with the local bargaining unit of which the “relative” is a member, or receives the benefit of the collectively negotiated agreement. N.J.A.C. 6A:23A-6.2 (a)(5). Consider school administrators, technical resource. 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 collective negotiations if members of, or receive the benefit of the collectively negotiated agreement. Reaffirm A10-14 Cousin – Other, Spouse’s cousin’s daughter – no conflict

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 – March 2000 These decisions are made on a case-by-case basis and are extremely fact-sensitive and the definition of the “board” for the purposes of negotiations continues to be a developing and evolving issue. Therefore, to address your specific district issues, we ask you to consult with your legal and labor relations resources.

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 – March 2000 These decisions are made on a case-by-case basis and are extremely fact-sensitive and the definition of the “board” for the purposes of negotiations continues to be a developing and evolving issue. Therefore, to address your specific district issues, we ask you to consult with your legal and labor relations resources.

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 These decisions are made on a case-by-case basis and are extremely fact-sensitive and the definition of the “board” for the purposes of negotiations continues to be a developing and evolving issue. Therefore, to address your specific district issues, we ask you to consult with your legal and labor relations resources.

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 - $ These decisions are made on a case-by-case basis and are extremely fact-sensitive and the definition of the “board” for the purposes of negotiations continues to be a developing and evolving issue. Therefore, to address your specific district issues, we ask you to consult with your legal and labor relations resources.

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” is an NJEA or LEA officer; leadership role in the union or district; same time contract negotiations; building “rep” CANNOT SERVE ON NEGOTIATIONS TEAM CANNOT PARTICIPATE IN ANY ASPECT OF NEGOTIATIONS MAY VOTE ON THE CONTRACT – after MOA, salary guides, ? These decisions are made on a case-by-case basis and are extremely fact-sensitive and the definition of the “board” for the purposes of negotiations continues to be a developing and evolving issue. Therefore, to address your specific district issues, we ask you to consult with your legal and labor relations resources.

N.J.S.A. 18A:12-24 (b) “Others” Out-of-District A24-17 (9/26/17) – Absent another conflict, Board Members and School Administrators 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) A11-15 – Board member whose “relative” outside the household is a member of the same statewide union in another school district does not per se violate the Act by participating in negotiations or vote on the LEA contract; must also have heightened union involvement. NJEA or LEA officer; negotiations team; leadership role in union or district; same time negotiations; building representative A11-15 – No participation in negotiations when board member’s relative is a member of the in-district bargaining unit. N.J.A.C. 6A:23A-6.2 (a)(5) A11-15 – No participation in negotiations when board member’s immediate family member is a member of the same statewide union in another school district. N.J.A.C. 6A:23A-6.2 (a)(6) Technical resource exception, Pannucci vote A16-15 – Board member whose out-of-household “relative” (sister, daughter) is a member of the same statewide union in another school district does not per se violate the Act by participating in negotiations or vote on the LEA contract; must also have heightened union involvement. NJEA or LEA officer; negotiations team; leadership role in union or district; same time negotiations; building representative A11-15 analysis A40-15 – A16-15 analysis applies to school administrators.

N.J.S.A. 18A:12-24 (b) “Others” 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.

NJEA – Out of District Conflicts A13-13 – Board member employee in special services school district, Board member NJEA field representative A09-14 – NJSFT/AFT similar to NJEA – share common traits and common goals A34-14 – Board member 26 year NJEA member, 20 year union president, retired NJEA employee; receives NJEA health benefits, conflicted in negotiations A non-dependent daughter in household, A03-15 – sister-in-law, outside of household (removed) A Board member employee in special services school district – NJEA member, Board member NJEA field representative A NJSFT/AFT similar to NJEA – share common traits and common goals A CSA with non-dependent daughter in household, para-professional in outside district; agency shop fee; daughter is an “other.” Technical information exception. A03-15 – Board member with sister-in-law ,who is NJEA member in another school district, cannot participate in any matter touching upon negotiations with the local education association, including the vote. Sister-in-law is an “other.” Removed

NJEA – Out of District Conflicts A26-15 – Board member, retired district employee, President of local NJEA affiliate, 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. A non-dependent daughter in household, A03-15 – sister-in-law, outside of household (removed) A Board member employee in special services school district – NJEA member, Board member NJEA field representative A NJSFT/AFT similar to NJEA – share common traits and common goals A CSA with non-dependent daughter in household, para-professional in outside district; agency shop fee; daughter is an “other.” Technical information exception. A03-15 – Board member with sister-in-law ,who is NJEA member in another school district, cannot participate in any matter touching upon negotiations with the local education association, including the vote. Sister-in-law is an “other.” Removed

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.

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.

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, 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

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.

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

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.

Doctrine of Necessity Common Areas of Application
Voting on collective bargaining agreement Participating on negotiations team Superintendent search Superintendent evaluation Vineland Board of Education SEC Decision, Commissioner Decision

Doctrine of Necessity 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. 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;

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.

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

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

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, …

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

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

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)

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

Superintendent Non-renewal N.J.S.A. 18A: Negron v. Bd. Of Ed. of South Plainfield App. Div. Dkt. No. A T1 December 3, 2012 Extension of contract Caffrey v. Bd. of Ed. Of Perth Amboy Commissioner Dkt. No /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 kaelbs1122@al.com 732-692-7237

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