Identifying Potential Board Member Conflicts of Interest in Collective Bargaining/Personnel

The School Ethics Commission (SEC) has recently issued some significant advisory opinions that can help identify potential board member conflicts of interests. This Legal Corner will highlight three such advisories.

In Advisory Opinion A03-22,[1] a board member inquired, if he chooses not to be a unit member of the local education association, whether he would be conflicted when the board is engaged in collective bargaining negotiations? More specifically, the board member explained, apart from his membership on the board, he is employed in another school district as a full-time bus driver. The board member advised that he is not a member of that collective bargaining unit by choice. But, in his district of employ, the LEA is the exclusive bargaining agent for his position. The board member district and the employee district are affiliated with the New Jersey Education Association (NJEA).

The SEC concluded that, consistent with previous advice, even though the board member chose not to be a dues-paying member of the LEA, his LEA remains the exclusive bargaining representative. Thus, the board member is still precluded from participating in negotiations. However, once the final package is resolved the board member can vote on it.[2]

In Advisory Opinion A19-21,[3] the SEC was asked whether a board member conflict of interest persists regarding the superintendent, even after the superintendent has resigned. Therein, two board members were conflicted with respect to superintendent personnel issues because they have spouses employed in the district. In August 2021, the board voted to accept the superintendent’s resignation effective August 23, 2021.

Since the superintendent has left the district, the board member inquired as to whether board members, who have spouses employed in the district, could vote on the past superintendent’s contractual payment issue since there could no longer be any benefit to the conflicted board members or their employee spouses. The SEC concluded that regardless of the resignation, the board members whose spouses are employed in the district remain conflicted in all matters related to the superintendent.[4]

Finally, in Advisory Opinion-A20-21,[5] the SEC was asked to consider whether a board member who has an “aunt-in-law” employed as a teacher in the district (Board Member A’s aunt-in-law is the spouse of Board Member A’s spouse’s uncle) was conflicted on negotiations and superintendent personnel matters.  The inquiry further specified that in Advisory Opinion A-24-17,[6] the definition of relative includes broader language that must be incorporated into the district’s nepotism policy. The nepotism language does reference that the aunt of an individual or the individual’s spouse is covered by the policy.  

The inquiry also included Board Member B, who has a “distant” cousin who is a teacher in the district. The SEC was asked to determine whether the district’s employment of the distant cousin as well as the “aunt-in-law” would preclude Board Members A and B from participating in: (a) negotiations with the LEA; and/or (b) personnel matters regarding the superintendent including, but not limited to hiring, employment contract approval, and evaluation.

As to Board member A, the SEC examined, whether by virtue of an aunt-in-law or an “other,” Board member A could be seen as “attempting to use his/her official position to secure unwarranted privileges, advantages or employment for himself or herself.” The SEC concluded, under these circumstances, that there is no “presumption” of a conflict of interest that arises from Board Member A’s aunt-in-law being employed in the district.[7]

As to Board member B, and the impact of this board member’s distant cousin being a teacher in the district, the SEC opined that the distant cousin was also an “other” under the School Ethics Act (the Act).[8]  Thus, Board member B cannot extend an unwarranted privilege, advantage or employment for himself/herself, members if his/ her own immediate family or others such as the board member’s distant cousin.  However, here too, there is no presumed conflict.  Accordingly, both Board member A and B were permitted to participate in negotiations and superintendent personnel issues.[9] 

The SEC concluded all three advisory opinions discussed here, by cautioning that school officials must always be cognizant of their responsibility to: (1) protect the public trust; and (2) serve the broader interests of the board and impacted public. Accordingly, the SEC advised board members that they must continually evaluate whether conflicts exist. The SEC also warned that board members must always refrain from engaging in any conduct which could have the appearance of violating the Act.[10]

Board members and school administrators must remain vigilant in assessing potential conflicts and seek guidance on how such conflicts can impact negotiations and other personnel matters. New Jersey Association of School Administrators (NJASA) provides professional development opportunities to provide guidance on district governance issues through the Power of Legal Information Series and research publications. More information about these opportunities can be found at https://www.njasa.net/.

[1] Advisory Opinion A03-22 (February 4, 2022).

[2] Id. at 2.

[3] Advisory Opinion A19-21 (November 30, 2021).

[4] Id. at 2.

[5] Advisory Opinion A20-21 (December 14, 2021).

[6] Advisory Opinion A24-17 (September 26, 2017).

[7] A20-21 at 2.

[8] N.J.S.A. 18A:12-21 et. seq.,

[9] A20-21 at 2-3.

[10] N.J.S.A. 18A:12-21 et. seq., Advisory Opinion A19-21 at 3.