1. ____________________________________________ Voting Issues for Boards of Education NJASBO Workshops Mt. Laurel and Rockaway December 9,11, 2014

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

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

4. Collective Negotiations Participation 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

5. Collective Negotiations Participation Board Member or School Administrator with a “relative” employed in the school district in the bargaining unit of the contract under negotiations 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 CANNOT PARTICIPATE IN PLANNING OF NEGOTIATIONS OR VOTE ON THE CONTRACT

6. Collective Negotiations Participation Board Member or School Administrator with an “immediate family member” employed in another school district If the Board Member is employed in another district and is a member of a bargaining unit represented by the same state-wide union, or An “immediate family member” is employed in another district and is a member of a bargaining unit represented by same state-wide union CANNOT SERVE ON NEGOTIATIONS TEAM CANNOT PARTICIPATE IN PLANNING OF NEGOTIATIONS, CAN VOTE ON THE CONTRACT

7. Collective Negotiations Participation "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.

8. Collective Negotiations Participation 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

9. Collective Negotiations Participation DOCTRINE OF NECESSITY Voting on the negotiated contract Participation on the negotiations team

10. Personnel Issues Hiring of Staff The CSA may not recommend, nor the board approve, the initial hiring of “relatives” of any board member or of the CSA. Executive County Superintendent exception N.J.A.C. 6A:23A-6.2

11. Personnel Issues Hiring of Staff “Relative” definition – Accountability Regulations Substitute, student employee exception Renewals, promotions, transfers Can a person become a board member if his/her relative is already working in the district?

12. Personnel Issues Hiring of Staff Board members cannot vote on personnel decisions regarding relatives who work in the school district School Ethics Act definition of “relative” – spouse, child, parent, sibling

13. Personnel Issues CSA/Supervisor/Principal Board members may not participate in the hiring of the CSA if they have relatives working in the school district. School Ethics Act definition of “relative” – spouse, child, parent, sibling Martinez v. Abolino, SEC 6/7/12 – internal, external candidates

14. Personnel Issues CSA/Supervisor/Principal Board members may not participate in the hiring a new supervisor or principal if their relative works in the district and would be directly or indirectly supervised by the new hire….and there are internal candidates. School Ethics Act definition of “relative” – spouse, child, parent, sibling

15. Personnel Issues CSA/Supervisor/Principal Board members may not participate in any personnel decisions respecting a CSA, principal, or supervisor who directly or indirectly supervises their relative. School Ethics Act definition of “relative” – spouse, child, parent, sibling

16. Collective Negotiations Participation Emerging Issues Board member employee in special services school district Board member NJEA field representative Board member dating employee Cousin in district, negotiations with principals unit, contains direct supervisor

17. Personnel Issues CSA/Supervisor/Principal Emerging Issues Brother-in law custodian Long-time personal relationship/cohabitation Stepdaughter, stepdaughter-in-law, nephew Cousin Board member dating employee Board member’s sister – per diem substitute

18. 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;

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

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

21. 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)

22. Number of Votes Required Determination of quorum for meetings of public body where one or more vacancies exist Attorney General Formal Opinion No. 3 (1991)

23. Number of Votes Required 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”

24. Number of Votes Required 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)

25. Number of Votes Required 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;

26. Number of Votes Required "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

27. Number of Votes Required Your board of education has nine members when fully constituted. You have two vacancies on the board. What is the necessary voting quorum on: Appointment of staff Approval of a collective bargaining agreement Certifying tenure charges Approving the budget

28. Number of Votes Required Supermajority Votes Established by the Legislature Majority of the full membership of the board Two-thirds of the full membership of the board Two-thirds of the authorized membership of the board NJSBA Board Voting Requirements

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

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

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

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

33. 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)

34. 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.

35. 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

36. 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.

37. 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.

38. 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

39. 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

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

41. 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