A Capehart Scatchard Blog

Clarifying (Maybe) Who Can Participate In Negotiations

By on February 18, 2016 in School Ethics Act with 0 Comments

By: Kelly E. Adler, Esq.
Editor: Sanmathi (Sanu) Dev, Esq.

Negotiations are a hot topic in New Jersey right now; specifically, which Board members can and cannot participate in negotiating with teachers, administrators and staff is a question Board solicitors are constantly fielding.  In an attempt to clarify this issue, the School Ethics Commission (“Commission”) released three separate Advisory Opinions regarding this very issue.

The School Ethics Act, N.J.S.A. 18A:12-24 et seq., governs New Jersey School Board members as well as school officials.  Generally speaking, the School Ethics Act prohibits school officials and Board members from using or attempting to use their official position to secure unwarranted privileges, advantages or employment for him or herself, members of his or her immediate family or others.  N.J.S.A. 18A:12-24(b).  Due to continuing inquiries to the Commission regarding how to handle negotiations when a Board member has a relative that works out-of-district, the Commission published several Advisory Opinions that are detailed below.

In Advisory Opinion A11-15, the School Ethics Commission attempted to clarify how a Board member with a relative working in another district is impacted during the negotiation process.  In this Advisory Opinion, two different Board members had relatives working in different districts.  Board member one had a first cousin working in another district and Board member two had a cousin-in-law working in another district.  The School Ethics Commission focused on N.J.S.A. 18A:12-24(b), which prohibits a school official from using or attempting to use his or her official position to secure unwarranted privileges, advantages or employment for him or herself, members of his or her immediate family or others.  The Commission reviewed different definitions surrounding the terms “relative” and “member of the immediate family,” and determined that Board members may not use their official position to secure unwarranted privileges, advantages or employment for any individual meeting the definition of relative covered by the nepotism policy required in N.J.A.C., 6A:23A-6.2(a)(1).   N.J.A.C., 6A:23A-6.2(a)(1) defines relative as an individual’s or spouses’ parent, child, brother, sister, aunt, uncle, niece, nephew, grandparent, grandchild, son-in-law, daughter-in-law, stepparent, stepchild, stepbrother, stepsister, half brother or half sister, whether the relative is related to the individual or the individual’s spouse by blood, marriage or adoption.  The Commission noted that a Board member cannot participate in negotiations or vote on a proposed contract when a relative, as defined in N.J.A.C., 6A:23A-6.2(a)(1), is a member of the bargaining unit of the same district.  A Board member is also prohibited from participating in negotiations or voting on a proposed contract when an immediate family member is a member of the same or similar Statewide union.  An immediate family member is defined as a spouse or dependent child of a school official residing in the same household.  N.J.S.A. 18A:12-23.  Since a cousin and cousin-in-law did not fall under the definition of a “member of the immediate family,” the Commission determined that “without evidence of additional circumstances,” there would be no violation of N.J.S.A. 18A:12-24(b).  However, Board members were cautioned to evaluate the following three criteria before participating in negotiations or voting on a proposed contract:

  1. Is the out-of-district relative an officer in the NJEA or local education association?
  2. Is the out-of-district relative on the negotiating team for that district?
  3. Does the out-of-district relative have some other leadership role in his or her union or district which may influence the outcome of negotiations in the other district?

The Commission noted that if there were facts at play, such as the out-of-district relative being involved in contract negotiations at the same time as the in-district Board member, then it would be more reasonable for the public to believe it possible for the Board member to discuss negotiation strategies with the relative or to provide other information that would lead to a benefit for the relative.  The take-away from this Advisory Opinion is that there is no automatic recusal from participation by a Board member when a Board member’s relative (as opposed to a member of the immediate family) is a member of the same statewide union.  A more detailed analysis is necessary to make the determination of whether recusal from participating in negotiations or abstention from voting is necessary.

Advisory Opinion A16-15 requested an opinion about seven out of nine Board members and whether these seven Board members could participate in negotiations and/or vote on a proposed contract.  The Advisory Opinion was split into an analysis of Board members with in-district relatives and out-of-district relatives.  Five Board members had relatives that were members of the NJEA and worked in the district.  Those Board members were automatically prohibited from participating in negotiations and/or voting on the proposed contract because the School Ethics Act prohibits the Board members from participating or voting on any issues that touch upon the relative’s employment with the district.  These Board members are also prohibited from participating in the evaluation of the Superintendent and any other staff member or official that oversees the relative.

The evaluation of whether the remaining Board members could participate in negotiations and/or vote on the proposed contract was a bit more complicated with regards to the Board members with relatives working out-of-district.  One Board member had a sister who was a member of the NJEA, but worked out-of-district.  The second Board member had a daughter who was a member of the NJEA, but worked out-of-district.  An analysis of the definitions surrounding “immediate family member” and “relative” ensued.  As a result, the Commission determined that without evidence of additional circumstances, a Board member with a relative who works in another district and is a member of the same or similar statewide union would not violate N.J.S.A. 18A:12-24(b).  The Commission cautioned, however, that the Board members should evaluate the criteria as set forth in Advisory Opinion A11-15 (described above) to determine whether there are any circumstances at play that would create a violation of N.J.S.A. 18A:12-24(b).

Finally, Advisory Opinion A13-15 dealt with the question of whether a Board member could participate in negotiations or vote on the proposed contract.  However, this Advisory Opinion turned on an evaluation of N.J.S.A. 18A:12-24(c).  This particular Board member was employed in another district as a supervisor and represented by the New Jersey Principals and Supervisor’s Association (“NJPSA”), which was in no way affiliated with the NJEA, although the supervisor’s district did have a local NJEA affiliate.  N.J.S.A. 18A:12-24(c), states:

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.

Based on the facts provided, the Commission determined that there did not appear to be violation should the Board member participate in negotiations or vote on the proposed contract.

As can be seen from the analysis of these three Advisory Opinions, whether a Board member can participate in negotiations or vote on a proposed contract is a very fact specific inquiry.  If there is any question as to whether a Board member can participate or vote, the Board should contact their solicitor and/or request an Advisory Opinion.

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